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https://www.courtlistener.com/api/rest/v3/opinions/1515562/	367 A.2d 1316 (1977) Warren F. JOHNSON, Appellant, v. UNITED STATES, Appellee. No. 10695. District of Columbia Court of Appeals. Submitted November 24, 1976. Decided January 10, 1977. 1317 Dennis M. O'Keefe, Washington, D.C., appointed by the court, was on the brief for appellant. Earl J. Silbert, U. S. Atty., and John A. Terry, William D. Pease, Charles H. Anderton, Jr., and Sallie H. Helm, Asst. U. S. Attys., Washington, D.C., were on the brief for appellee. Before KELLY, GALLAGHER and HARRIS, Associate Judges. HARRIS, Associate Judge: Appellant was convicted of the possession of marijuana in violation of D.C. Code 1973, § 33-402. He challenges the trial court's denial of his motion to suppress the drug as evidence, alleging that it was seized in violation of his Fourth Amendment rights. We disagree and affirm. One night at about 9:00 p.m., two Metropolitan Police officers patrolling in an unmarked car in Georgetown received a report from a convenience store that several men appeared to be "casing" it for a robbery. (The store and an adjacent one had been robbed several times during the prior few months.) The officers located a car two blocks away which was parked illegally, with its lights out and its engine running. They pulled up behind it and began to observe the driver and passengers, 1318 who were looking apprehensively out the windows in several directions. The officers then saw appellant, carrying a brown paper bag, run from a nearby apartment complex and enter the car. When the driver attempted to pull away, the officers (and two plainclothesmen of whose presence they had been unaware) stopped the suspects. One officer shined his flashlight into the car and noticed a dark cylindrical object on the floor. He then ordered everyone out of the car. As appellant was getting out, the officer saw him push the brown paper bag against a box on the rear seat. The officer retrieved the cylindrical object, which proved to be a wooden dowel, apparently part of an artificial Christmas tree. The officer then picked up the paper bag and squeezed it. During his long experience in making drug-related arrests, the officer had learned that such bags frequently are used in the traffic of marijuana. Suspecting that this might again be the case, he asked appellant: "Well, what do we have here?" Appellant gave a brief reply of resignation and disgust. The officer opened the bag, and found therein about a half-pound of marijuana. He then arrested appellant and seized several boxes from the back seat of the car. In them were three scales and two boxes of manila envelopes containing small envelopes of the type commonly used to package marijuana for sale. The initial decision to place the car under surveillance presents no Fourth Amendment problem. There is no invasion of constitutionally protected privacy in observing what is visible for all to see. Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S. Ct. 2114, 40 L. Ed. 2d 607 (1974). See also Cardwell v. Lewis, 417 U.S. 583, 591-92, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974). The decision to make inquiry of the suspects was constitutional. The police had been notified of a potential robbery. Here, as in Jeffreys v. United States, D. C.App., 312 A.2d 308, 310 (1973), "the circumstances suggest[ed] the likelihood of a stealthy rendezvous and a quick getaway." The occupants' nervousness, the reported robbery preparations, the extinguished headlights, the running engine, appellant's rushing to the car with a bagwhich, for all the officers knew at that point, could have contained a gun or the proceeds of a crimewere "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed] that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968) (footnote omitted). See Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). We attach little significance to the fact that appellant did not run directly from the direction of the nearby store, but rather from an apartment complex. The police might have thought appellant was taking a circuitous escape route from the convenience store, or that he might have committed a crime in the apartment building. The officer acted constitutionally in squeezing the bag to determine if it contained a weapon. Absent indicia of a crime, the occupants would have been permitted to return to the car, and the bag again would have been within their reach. This was a limited search undertaken for the officer's protection, which was constitutionally permissible. See Johnson v. United States, D.C.App., 350 A.2d 738 (1976); United States v. Thomas, D.C. App., 314 A.2d 464 (1974); Young v. United States, 140 U.S.App.D.C. 333, 337, 435 F.2d 405, 409 (1970). Cf. Adams v. Williams, supra, 407 U.S. at 146, 92 S. Ct. 1921; Terry v. Ohio, supra, 392 U.S. at 30, 88 S. Ct. 1868. After feeling the bag, the officer had probable cause to open it. It obviously contained a soft, loosely-packed material, *1319 which was likely to have been marijuana. He had seen such bags containing marijuana on many prior occasions. Cf. Munn v. United States, D.C.App., 283 A.2d 28 (1971); United States v. Brown, 150 U.S. App.D.C. 113, 114 n.1, 463 F.2d 949, 950 n. 1 (1972). Appellant's attempt to push the bag away from himself, and his attitude of resignation in response to the officer's earlier question about the bag's contents, indicated that he knew the bag contained contraband. Here, as in United States v. Brown, supra, at 115, 463 F.2d at 951, the combination of factors "raised a reasonable probability, if not a certainty, that appellant had contraband narcotics in his possession. Probable cause requires no more." Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515569/	535 S.W.2d 267 (1976) Barbara N. RAY, Appellant, v. Robert L. RAY, Respondent. No. 9910. Missouri Court of Appeals, Springfield District. February 23, 1976. Motion for Rehearing and for Transfer Denied March 10, 1976. Application to Transfer Denied May 5, 1976. Nicholas R. Fiorella, Smith, Askinosie & Fiorella, Springfield, for appellant. William A. Wear and William A. Wear, Jr., Wear & Wear, Springfield, for respondent. Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ. FLANIGAN, Judge. In this proceeding for dissolution of marriage, appellant Barbara N. Ray attacks that portion of the decree which awarded custody of her son Rocky Lawrence Ray to his father, respondent Robert L. Ray. The parties are the parents of two children, Tammy, who was born March 5, 1961, and Rocky, who was born May 22, 1968. The decree, which was entered on October 29, 1974, awarded custody of Tammy to 268 appellant and ordered respondent to pay appellant the sum of $125 per month for the support of Tammy. Custody of Rocky was awarded to respondent. Each parent was awarded "reasonable visitation rights" with respect to the child in the custody of the other. Appellant and respondent are college graduates, each holding a master's degree. Appellant is a high school teacher and respondent is employed as a project engineer for a major corporation. His income substantially exceeds that of appellant. Section 452.375 V.A.M.S. sets forth certain factors which the court must consider in determining custody "in accordance with the best interests of the child." But the statute states that the court must consider "all relevant factors" which include those specifically stated. See "Child Custody" by Prof. John M. Speca, 29 J. of Mo. Bar, 519 (1973) for an enumeration of other factors which may be considered. "There are no precise rules to follow in matters involving the custody of minor children of divorced parents, and each case must be judged on its own facts with the children's welfare controlling the outcome." Ackfeld v. Ackfeld, 483 S.W.2d 614, 616[1] (Mo.App.1972). The findings of the trial court, though not binding on this court, are not to be lightly disturbed and will be deferred to unless this court finds that the welfare of the children requires some other disposition. Ackfeld at p. 616[2]; Johnson v. Johnson, 526 S.W.2d 33, 36[6] (Mo.App. 1975). The trial court, in awarding each parent custody of one child, found both parties to be fit parents. E.C.S. v. J.D.L., 529 S.W.2d 423, 425 (Mo.App.1975). Absent exceptional circumstances, the children of divorced parents should not be separated, but the trial court has the power to decree such separation if it is in accordance with the best interests of the children. J. v. E., 417 S.W.2d 199, 203[7-8] (Mo.App.1967); E.C.S. v. J.D.L., supra, at p. 426[5]. It would serve no useful purpose to summarize the lengthy transcript. Each parent claimed that the other is not a model parent and each made admissions lending support to the claim of the other. It is clear that each parent loves both children and is genuinely interested in their welfare. This court is not confronted so much with inconsistencies in the evidence as it is with the difficult problem of determining what custody arrangement accords with the best interests of the children. Reluctant as it is to disturb the ruling of the trial court, this court has determined that both children should be with their mother. Some of the factors, of varying importance, which have led to this conclusion, are: The mother does not work in the summer while the father does; the ages of the children; on occasion the father must make business trips; both children are in reasonably good health; though there is some degree of sibling rivalry, it does not appear to reach such an extreme that one child should be substantially deprived of the companionship of the other; the father appears over-protective of Rocky; for over a year prior to the trial the father slept with Rocky in a twin bed for alleged reasons not wholly convincing, and he continues to do so. The record does not support a showing of "exceptional circumstances" which would justify separate custody. Appellant requested child support in the amount of $350 per month if she were awarded custody of both children. Rocky is younger than Tammy but he requires medical attention for an asthmatic condition. This court finds that $125 per month is a reasonable amount for the support of Rocky. The judgment is reversed and the cause remanded with directions to the trial court to amend its decree so as to award custody of Rocky Lawrence Ray to appellant, to require respondent to pay appellant the sum of $125 per month for the support of Rocky Lawrence Ray commencing upon the transfer of his custody to appellant, and to grant respondent the right of reasonable 269 visitation with respect to said child. The decree in all other respects is affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516176/	913 A.2d 519 (2006) Elizabeth SAMMONS, individually and as Administratrix of the Estate of Gail E. Sammons, Deceased, Plaintiffs Below, Appellants, v. DOCTORS FOR EMERGENCY SERVICES, P.A., Edward R. Sobel, M.D., and Family Practice Associates, Defendants Below, Appellees. No. 40, 2006. Supreme Court of Delaware. Submitted: September 13, 2006. Decided: December 4, 2006. Corrected: December 6, 2006. John C. Phillips, Jr., Joseph J. Farnan, III, Brian E. Farnan (argued), Phillips, Goldman & Spence, P.A., Wilmington, DE, for appellants. Mason E. Turner, Jr. (argued), Prickett, Jones & Elliott, P.A., Wilmington, DE; Colleen D. Shields (argued), Elzufon, Austin, Reardon, Tarlov & Mondell, P.A., Wilmington, DE, for appellees. Before STEELE, Chief Justice, BERGER and RIDGELY, Justices. STEELE, Chief Justice: This is a medical malpractice action arising from Gail Sammons's death in which plaintiff-appellant, Elizabeth Sammons,[1] appeals a jury verdict for the defendants-appellees, Doctors for Emergency Services, P.A., Edward R. Sobel, M.D., and Family Practice Associates.[2] DFES, Dr. 523 Sobel, and Family Practice Associates treated Gail from January 2, 2002, until her death on January 5, 2002. Sammons's trial strategy focused on the defendants' alleged failure to diagnose sepsis which allegedly caused Gail's death. A Superior Court jury rejected Sammons's theory and found for the defendants. Sammons argues in this appeal that the trial judges' abuse of their respective discretion on several evidentiary issues caused the adverse result.[3] First, Sammons argues that the trial judge abused his discretion by precluding Sammons's expert, Dr. Bridges, from offering an expert opinion on causation and failure to diagnose sepsis. Sammons identified Dr. Bridges as her expert in pretrial discovery but did not disclose that Dr. Bridges would be offered to opine on causation and failure to diagnose sepsis. Later, Dr. Bridges offered his heretofore undisclosed opinion on causation and sepsis during a pretrial deposition. DFES counsel did not attend that deposition but asserts that he would have done so had he been put on notice that Dr. Bridges would opine on cause of death and failure to diagnose sepsis. Because Sammons did not put opposing counsel on notice that Dr. Bridges would so opine at his deposition, the trial judge did not abuse his discretion when he precluded Dr. Bridges from testifying regarding causation and failure to diagnose sepsis at trial. Second, Sammons contends that the trial judge abused his discretion by permitting DFES to adopt Dr. Roques's designated expert, Dr. Zenilman, as their own, after Sammons dismissed Dr. Roques. Sammons complains that allowing Dr. Zenilman's opinion testimony at trial unfairly prejudiced her. Dr. Roques had disclosed Dr. Zenilman's opinion on July 15, 2005, well before the December 15, 2005 trial began. DFES timely notified Sammons that they would be using Dr. Zenilman as an expert after Dr. Roques was no longer a party to the case. Therefore, Sammons had ample notice of the nature and substance of Dr. Zenilman's opinions, and adequate notice that DFES would be calling him as their expert. Sammons has identified no unfair prejudice resulting from admitting Dr. Zenilman's testimony and, therefore, the trial judge did not abuse his discretion when he allowed DFES to present Dr. Zenilman's expert medical testimony. Third, Sammons contends that the trial judge abused her discretion by permitting DFES's counsel to discuss Sammons's settlement with Christiana Care for the purpose of shifting liability to the settling defendant during his opening and closing statements. We hold that the trial judge did not abuse her discretion because DFES's counsel did not directly discuss any settlement amount, or the reason for settlement, but merely mentioned settlement 524 to help the jury understand the alignment of the parties and to determine pro rata fault, if necessary. Fourth, Sammons argues that the trial judge abused her discretion when she refused to admit Gail's photograph. We hold that the trial judge acted within her discretion because the photograph was neither necessary to identify Gail nor was it relevant to any disputed issue in the case. Fifth, Sammons argues that the trial judge abused her discretion by precluding Sammons from impeaching a DFES expert by cross-examining him on DFES's 2004 sepsis policy. Sammons did not establish at trial that this policy reflected the applicable standard of care at the time that defendants cared for Gail in 2002. Therefore, the trial judge properly concluded that a failure to follow the policy would not be relevant to contradict the expert witness's opinion on the standard of care applicable in 2002. Sixth, Sammons argues that the trial judge abused her discretion by precluding Sammons's expert, Dr. Haines, from explaining his unavailability at trial during his videotaped testimony. We hold that the trial judge was within her discretion to give the jury a general instruction on witness unavailability rather than tell the jury the specific reason why the witness was unavailable. Seventh, Sammons contends that the trial judge erred by permitting the father of an attorney associated with the law firm representing Dr. Roques to sit as a juror in the case. Dr. Roques was not a party at the time of jury selection, and there was no evidence that the juror had any knowledge about the case or his son's firm's former involvement. Therefore, the trial judge properly acted within her discretion when she permitted the attorney's father to sit as a juror. Eighth, Sammons contends that the trial judge abused her discretion by giving the jury a curative instruction regarding Sammons's counsel's statements during closing rebuttal argument. After consideration of the record, we hold that the trial judge did not abuse her discretion because the trial judge's statements did not unfairly deny her a fair trial. Ninth, Sammons contends that the trial judge abused her discretion by refusing to give her proffered instruction on cross claims and by improperly addressing the jury's questions. We hold that the trial judge adequately instructed the jury regarding the cross claims without providing them with confusing and unnecessary information that would have made it more difficult for them to make a reasoned and informed decision in the case. The trial judge's responses to the jury's questions fell within her properly exercised discretion because they were consistent with Sammons's theory of the case and reiterated the pattern jury instructions. We also review the trial judge's decision to dismiss the case sua sponte under Superior Court Civil Rule 60(b) after the jury verdict and the entry of judgment. We hold that the trial judge abused her discretion when she dismissed the case sua sponte in the absence of a showing of fraud in the judicial process. Therefore, we vacate the trial judge's order dismissing the case and remand the case to the trial judge to reinstate the judgment entered after the jury verdict. Accordingly, we AFFIRM in part, VACATE in part, and REMAND in part. FACTS AND PROCEDURAL HISTORY Gail Sammons, 41, suffered from sickle cell disease. On January 3, 2002, at approximately 3:15 p.m., Gail arrived at St. Francis emergency room complaining of 525 pain similar to sickle cell crisis. On January 4, 2002, the staff treated Gail with pain medication and IV fluids, released her at approximately 2:10 a.m. and advised her to follow up with her doctor as soon as possible. Later that day, at approximately 12:55 p.m., an ambulance took Gail to Wilmington Hospital where Dr. Rosenbaum examined Gail at approximately 1:55 p.m. and diagnosed Gail as suffering from a sickle cell crisis. Dr. Perri, a resident, called Family Practice, Gail's primary care physicians, to admit Gail to the hospital. Family Practice residents, Dr. Robinson and Dr. Shokek, examined Gail. Dr. Robinson then called a Family Practice physician to discuss Gail's condition and develop a treatment plan. There is some dispute regarding the phone call and to whom Dr. Robinson spoke. Nevertheless, during that phone call, a Family Practice physician approved Gail's admittance to Wilmington Hospital. Dr. Shokek signed Gail's admitting order at approximately 6:30 p.m. The Family Practice residents' admitting diagnosis was: painful sickle cell crisis. The hospital staff took Gail to a hospital floor at approximately 10:45 p.m. where her condition deteriorated. On January 5, 2002, at approximately 12:00 a.m., Gail was unresponsive. The staff called a code blue, and pronounced her dead at 1:25 a.m. Elizabeth Sammons, individually as the mother of Gail Sammons and as Administratrix of Gail Sammons's estate, filed this action in Superior Court against the physicians who treated Gail and their employers, alleging that their medical negligence caused Gail's death. Shortly after Sammons filed her complaint in Superior Court, counsel for Christiana Health Services, Inc. and various employee doctors filed a motion seeking a ruling on whether Sammons's affidavit of merit and curriculum vitae, filed under seal with the complaint, complied with 18 Del. C. § 6853. A Superior Court judge ruled that "the Court believes that the affidavits are in order and comply with the statutory language as to each named defendant." As a result, the case proceeded, and the Superior Court judge kept the affidavit of merit confidential as required by statute. Before the trial began, the parties filed motions in limine. On September 12, 2005, Family Practice and Dr. Sobel moved to preclude Sammons's expert witness, Dr. Bridges, from opining at trial regarding causation and failure to diagnose sepsis. Although Dr. Bridges offered this opinion in his August 25, 2005 deposition, Sammons had not disclosed this particular opinion regarding sepsis and causation in any of Sammons's pretrial discovery responses. Sammons's actual response to discovery directed to expert testimony identified him solely as an expert on sickle cell life expectancy. On November 9, 2005, Sammons moved to preclude Dr. Zenilman[4] from testifying on behalf of DFES, Family Practice, or Dr. Sobel contending that none of these defendants had identified Dr. Zenilman as an expert. On November 18, 2005, the trial judge entered an Order precluding Dr. Bridges from opining at trial on causation and failure to diagnose sepsis. The trial judge denied Sammons's motion in limine and permitted DFES to call Dr. Zenilman as its medical expert to offer his expert medical opinion disclosed in Dr. Roques's discovery response. 526 The Superior Court held a jury trial from December 12, 2005[5] to December 21, 2005. On December 21, 2005, the jury returned a verdict in favor of the remaining defendants, DFES, Family Practice and Dr. Sobel. After the entry of judgment, DFES moved to have the trial judge review Sammons's affidavit of merit regarding Sammons's expert that the initially assigned judge had approved in 2004.[6] On January 18, 2006, the judge who ultimately presided over the jury trial wrote a letter to Sammons's counsel stating that the affidavit of merit was deficient with respect to DFES, and, therefore, Sammons should not have been allowed to proceed against DFES. The trial judge also stated that she planned to hold a hearing with counsel and Sammons's expert, Dr. Munoz, to determine Sammons's counsel's efforts to comply with 18 Del. C. § 6853.[7] The trial judge noted that she needed to determine an appropriate remedy[8] but did not identify a remedy at that time.[9] Sammons filed a motion for reargument of the post trial letter opinion and appealed. Specifically, the appeal sought our review of (1) the trial judge's decision on the two motions in limine regarding Dr. Bridges and Dr. Zenilman, (2) various trial rulings, and (3) the trial judge's January 18, 2006 letter opinion. DFES filed a motion to stay the appeal pending resolution of the issues relating to the trial judge's January 18, 2006 letter opinion. On February 21, 2006, this Court granted the stay and remanded the case to Superior Court for the proceedings outlined in the trial judge's January 18, 2006 letter and for consideration of Sammons's motion for reargument. We retained jurisdiction under Supreme Court Rule 19(c). On March 31, 2006, the trial judge issued an Opinion and Order denying Sammons's motion for reargument of the Superior Court's January 18, 2006 decision that the Affidavit of Merit failed to comply with the statutory standard in 18 Del. C. § 6853 with respect to DFES. The trial judge also entered an order dismissing Sammons's claim against DFES[10] but did not vacate 527 the jury verdict before entering the order.[11] DFES filed a motion to tax its attorneys' fees and costs against Sammons on April 6, 2006. On April 26, 2006, the trial judge issued a letter to counsel neither granting nor denying DFES's request for attorney fees. In that letter the trial judge did state that Sammons's counsel would be responsible for payment of any fees awarded. The trial judge also stated that she intended to issue a Rule to Show Cause directing Sammons's counsel to show why he had not violated Superior Court Civil Rule 11. The trial judge stated that she would schedule the Rule to Show Cause hearing after this appeal has been decided and she requested guidance from this Court regarding the appropriateness of the sanction to better assess the full extent of the expenses that DFES had incurred at the trial level and in defending the appeal. The trial judge returned the case to this Court on April 26, 2006. On April 28, 2006, Sammons filed her Amended Notice of Appeal also seeking this Court's review of the trial judge's March 31, 2006 Opinion and Order and her rulings in her April 26, 2006 letter to counsel. DISCUSSION 1. The trial judge did not abuse his discretion by limiting the scope of Dr. Bridges's trial testimony and by permitting Dr. Zenilman to offer testimony as DFES's medical expert. Sammons has two arguments relating to experts involved in the trial. First, Sammons argues that the trial judge abused his discretion by granting Dr. Sobel and Family Practice's motion in limine to limit Dr. Bridges's testimony.[12] Sammons contends that the trial judge improperly precluded her expert, Dr. Bridges, from opining at trial that Gail suffered from sepsis during her visit to the emergency room and that the defendants' failure to diagnose sepsis caused Gail's death. Sammons argues that because she disclosed Dr. Bridges's opinion regarding sepsis and causation in his August 25, 2005 deposition before the discovery deadline,[13] and because that opinion critically affected her presentation of her theory of liability, granting the motion to exclude this testimony at trial unfairly prejudiced her. Second, Sammons argues that the trial judge abused his discretion by permitting DFES to use Dr. Zenilman as their expert because DFES never identified him as their expert in discovery before the deadline for doing so. Sammons also argues that she was unfairly prejudiced because DFES expanded the scope of Dr. Zenilman's opinion beyond that proffered when Dr. Roques's identified him as his expert 528 witness. Sammons further contends that she did not have sufficient notice that Dr. Zenilman's testimony would include an opinion on cause of death because cause of death was not relevant to Dr. Roques's alleged liability or that of his employer, St. Francis. Sammons submits that the trial judge made inconsistent rulings on the admissibility of the parties' respective experts which resulted in unfair prejudice to her. We review the Superior Court's evidentiary rulings restricting or allowing expert testimony under an abuse of discretion standard.[14] "When an act of judicial discretion is under review the reviewing court may not substitute its own notions of what is right for those of the trial judge, if his judgment was based upon conscience and reason, as opposed to capriciousness or arbitrariness."[15] "[T]he trial court has discretion to resolve scheduling issues and to control its own docket."[16] Under Superior Court Civil Rule 16, the trial judge enters a trial scheduling order which governs pretrial conferences, scheduling, and trial management.[17] Superior Court Civil Rule 16 mandates that parties follow the trial judge's scheduling order, and these rules assure that the parties conduct discovery in an orderly fashion. "Parties must be mindful that scheduling orders are not merely guidelines but have full force and effect as any other order of the [Superior] Court."[18] Parties must comply with the discovery rules by identifying expert witnesses and disclosing the substance of their expected opinions as a precondition to the admissibility of expert testimony at trial.[19] The Superior Court, in Duncan v. 529 Newton & Sons Co., recently discussed that Court's standard practice regarding scheduling orders and expert witness disclosure.[20] In Duncan, the plaintiff argued that she did not need to do anything more than to identify her expert witnesses and then defendants could take depositions to learn what those opinions might be. The trial judge disagreed: This is contrary to the scheduling order and this Court's practice. Plaintiff was to identify her experts and provide their reports as to their expert opinions. Then, Defendants would be on notice of the bases for the expert opinions, and, pursuant to the scheduling order, respond in kind as to their experts and supply the bases for their opinions by way of a report. It is not reasonable to require Defendants' counsel to go on a wild goose chase with Plaintiff's experts or to depose Plaintiff's experts without the benefit of having the opinions and the medical or scientific reasoning for those opinions.[21] A. Dr. Bridges's expert medical testimony. It is with the above described Superior Court practice in mind that we address the ruling limiting Dr. Bridges's expert testimony. Here, the trial judge's Superior Court Civil Rule 16(b) pretrial scheduling order required Sammons to identify expert witnesses on or before April 15, 2005.[22] On April 15, 2005, Sammons disclosed Dr. Bridges as an expert witness who would offer an opinion regarding sickle cell patients' life expectancies. Sammons's expert witness discovery response did not disclose that Dr. Bridges would be offered for an opinion on causation or a failure to diagnose sepsis.[23] At 530 Dr. Bridges's discovery deposition on August 25, 2005, Sammons's counsel asked him questions relating to causation and failure to diagnose sepsis over objections from counsel for Dr. Sobel and Family Practice. DFES counsel, however, did not attend the deposition. DFES's counsel contends that he saw no reason to attend when Sammons's discovery response purported to offer Dr. Bridges's expert testimony solely to establish Gail's sickle cell life expectancy. Although Sammons argues that the trial judge should have permitted her to supplement expert disclosures under Superior Court Civil Rule 26(e) and that she reserved the right to supplement, amend, or modify her expert disclosures in her expert identification discovery response,[24] Sammons, in fact, did not supplement her expert disclosure or submit Dr. Bridges's proffered expanded opinion to the court or to opposing counsel before participating in Dr. Bridges's pretrial deposition. During oral argument, we specifically asked Sammons's counsel whether he had made any effort to supplement the expert discovery response and counsel stated that he had not. The trial judge granted Family Practice and Dr. Sobel's motion to restrict the scope of Dr. Bridges's testimony reasoning that it would disrupt the orderly process of the court to allow parties to disclose expert opinions for the first time during trial depositions.[25] The trial judge stated: With respect to causation, I will prohibit Dr. Bridges from testifying about causation because no opinion about causation was disclosed at all by Dr. Bridges by the time of plaintiff's expert disclosures, which I believe the deadline was April 15, 2005. And it's just not sufficient that Dr. Bridges did testify about causation at his deposition on August 25 and it is also to me not significant that perhaps defendant's counsel explored some causation issues at deposition testimony. There was a trial scheduling order and it is just contrary to the trial scheduling order in this case as well as the practice in this Court to allow an opinion to be disclosed for the first time at a deposition that occurs after the deadline has passed for disclosure of expert opinions . . . In this case it would just wreak havoc on the orderly development of expert's opinions if an opinion didn't have to be disclosed by the deadline and could be broached for the first time at a discovery deposition following that because, among other things, the parties challenging the expert need to know before they attend the deposition what the opinions are going to be. So for all of those reasons, the Court will bar Dr. Bridges from testifying regarding causation. The purpose of the Rule 16 scheduling order and discovery deadlines are to improve the efficiency of trials. The expert identification deadline assists the parties in conducting useful discovery of expert's opinions. Pursuant to Rule 26, the expert disclosure statements should identify the expert's opinions and the basis for those opinions so that the opposing party can properly prepare for depositions and trial. Here, Sammons did not properly and timely disclose Dr. Bridges's opinion regarding 531 causation and failure to diagnose sepsis before the expert disclosure date mandated by the trial judge's scheduling order. Contrary to Sammons's assertion, she did not cure the discovery deficiency simply by disclosing Dr. Bridges's opinion regarding a failure to diagnose sepsis and causation during a deposition scheduled by another party for discovery purposes. Further, Sammons's counsel neither moved to amend the Rule 16 scheduling order upon a "showing of good cause," supplemented their original expert disclosure to expand Dr. Bridges's opinion nor contacted DFES counsel to notify him of Dr. Bridges's expanded opinion before the scheduled deposition. Without notice of the proposed expanded expert opinion to be proffered, DFES was entitled to rely on Sammons's disclosure. DFES could fairly assume it to be an accurate statement of the expert's anticipated opinion at his deposition as well as later at trial. DFES relied on Sammons's expert disclosure statement, and did not attend the deposition. Therefore, the trial judge did not abuse his discretion when he granted Family Practice and Dr. Sobel's motion to restrict Dr. Bridges's trial testimony. B. Dr. Zenilman's expert medical testimony. We now turn to Dr. Zenilman's expert medical testimony. Dr. Roques identified Dr. Zenilman as his expert medical witness on July 15, 2005.[26] Dr. Roques disclosed that Dr. Zenilman had standard of care opinions related to Dr. Roques's involvement and causation opinions related to Sammons's theory that Gail died from sepsis.[27] On October 27, 2005, Sammons agreed to dismiss Dr. Roques from the case. On October 28, 2005, DFES's counsel informed Sammons's counsel that he planned to call Dr. Zenilman at trial. Sammons cancelled Dr. Zenilman's deposition that was scheduled for November 2, 2005. DFES's counsel called Sammons's counsel to verify that Sammons's counsel did, indeed, wish to cancel the deposition. On November 3, 2005, DFES's counsel sent Sammons's counsel a letter informing him that Dr. Zenilman would testify on December 14, 2005, and further explained Dr. Zenilman's opinion.[28] DFES contends that they elaborated upon Dr. Zenilman's opinion in their letter because Sammons cancelled Dr. Zenilman's deposition and 532 DFES wanted to avoid an argument that Sammons did not have the benefit of understanding the specifics of Dr. Zenilman's causation opinion, which Sammons might have gained had she chosen to go forward with the deposition. Sammons contends, however, that DFES's letter contained "new" opinions and those opinions went beyond the scope of the initial opinions Dr. Roques had disclosed in his expert witness discovery response. On November 9, 2005, Sammons moved to preclude Dr. Zenilman from testifying on behalf of DFES, Family Practice, or Dr. Sobel contending that none of these defendants had identified Dr. Zenilman as an expert and that he, therefore, should not be permitted to testify on their behalf at trial. The trial judge denied the motion stating: The bottom line position that I have is that I believe the defendants should be allowed to call Dr. Zenilman for these reasons: One, the practice in New Castle County Superior Court, as I understand it, is that it is not uncommon for defendants to potentially rely on other experts. And I think plaintiffs were sufficiently on notice of that. I've heard their arguments to the contrary. Secondly, the opportunity for the deposition was right then and there available and Dr. Zenilman, as chief of infectious diseases at Johns Hopkins, obviously has an extremely busy schedule and it will be hard to schedule if the deposition was canceled. I think that although there is a claim that Saint Francisthere was never a claim by plaintiffs against St. Francis that St. Francis caused the death. That's not sufficient for me to bar the testimony of Mr. Zenilman. I do think that the letter that [DFES's counsel] sent summarizing the further opinions of Dr. Zenilman are not beyond the scope of what Dr. Zenilman's conclusion or opinion was with respect to the causation of death, that she died of aspiration of her own vomit rather than sepsis. The trial judge distinguished this case from Russell v. K-Mart[29] noting that the pretrial expert disclosure noted in K-Mart stated that the expert would "testify for Plaintiffs in this case. His CV is attached. The subject matter on which he will testify are [sic] contained in the records that have already been supplied to [defense] counsel." The trial judge denied Sammons's motion to preclude Dr. Zenilman's testimony because DFES's expert disclosure regarding Dr. Zenilman was much more specific than the expert disclosure in K-Mart. We agree that Sammons had fair and sufficient notice that Dr. Roques was going to use Dr. Zenilman as an expert and for what purposes because Dr. Roques filed his expert disclosure on July 15, 2005, and was a party to the case up until October 27, 2005. DFES notified Sammons that they would be using Dr. Zenilman as an expert on October 28, 2005. Dr. Roques, Dr. Sobel, and Family Practice all reserved the right to use the other's experts. 533 DFES asserted the right to call any witness "properly identified by any other party."[30] We can infer from the record, as could Sammons's counsel, that DFES did not disclose Dr. Zenilman as their expert at the outset of the trial because Dr. Roques planned to call him. Then, when Dr. Roques was no longer a party to the case, DFES's counsel timely informed Sammons of his intention to use Dr. Zenilman as an expert before the date Sammons had scheduled Dr. Zenilman's deposition. Further, the information in DFES's November 3, 2005 letter did not improperly expand the scope of Dr. Zenilman's opinion. Rather, DFES's counsel provided Sammons with an expanded explanation of the scope of Dr. Zenilman's opinion in light of the fact that Sammons had chosen not to depose him. Although Sammons asserts that cause of death was not an issue with regard to St. Francis and Dr. Roques, Dr. Roques's expert discovery response did state that Dr. Zenilman would offer an opinion relating to cause of death, which was a significant issue in the case.[31] Therefore, Sammons had sufficient notice that Dr. Zenilman would, if asked, offer an expert opinion on causation. We hold that the trial judge properly exercised his discretion when he denied Sammons's motion. 2. The trial judge did not abuse her discretion by permitting DFES's counsel to refer to Sammons's settlement with Christiana Care during his opening statement and closing argument. Sammons argues that the trial judge abused her discretion when she allowed DFES's counsel to refer to Sammons's settlement with Christiana Care during opening statement and closing argument. Sammons argues that DFES's statements were improper and prejudicial because they were made to persuade the jury that all liability lay with the settling defendants. In her words, Sammons alleges that the comments were an attempt to "shift blame and infer that Christiana Care, not DFES, Dr. Sobel, or Family Practice, was liable." Sammons argues that counsel's interjection of comments on her settlement with Christiana Care denied her right to a fair trial under D.R.E. 408 and violated the standard set forth in Alexander v. Cahill,[32] thereby entitling her to a new trial. Evidentiary rulings are reviewed for abuse of discretion.[33] D.R.E. 408 provides: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.[34] The two principles underlying Rule 408 are: "1) the evidence of compromise is irrelevant since the offer may be motivated by a desire to terminate the litigation rather than from any concession of weakness of position; and 2) public policy favors compromise in settlement of disputes."[35]534 When evidence is offered for another purpose, however, Rule 408 "does not require exclusion of settlement related evidence."[36] In Brown, we found the trial judge's instruction to the jury about why a settling defendant was no longer part of the case was not improper; in fact, the purpose of the instruction was to avoid jury confusion and speculation about the alignment of the parties.[37] In Alexander, we discussed the need for the trial judge or the parties themselves to disclose to the jury the fact that a third party defendant had settled to avoid confusion.[38] When considering whether to discuss settlements in the presence of the jury, the trial judge should "carefully exercise his discretion and balance the probative value of the evidence for a permissible purpose against the prejudicial effect and risk the evidence will be used for an improper purpose."[39] The trial judge, however, must be "more skeptical of the party's purpose" when a party seeks to admit evidence disclosing the facts of a settlement.[40] In Alexander, the plaintiff, a passenger in a school bus, was injured in a multicar accident.[41] The trial judge allowed defendant's counsel to ask plaintiff on crossexamination whether she and her husband had reached a settlement against certain third-party defendants.[42] We found that D.R.E. 408 barred this testimony because "counsel asked the question for the purpose of persuading the jury that the persons to blame for the accident had already admitted liability, raising the question that the plaintiff's claim against [the remaining defendant] might be invalid . . . by suggesting that the [plaintiff] had already been guaranteed some payment toward damages," rather than asking the question to clarify the alignment of the parties.[43] In the present case, the trial judge properly allowed DFES's counsel to make remarks explaining that Christiana Care had settled during his opening statement and closing argument. In fact, statements regarding settlement were specifically discussed in a pre-trial conference. As the trial judge noted: [T]hey are allowed to do that under Alexander versus Cahill. What they are not allowed to do is ask the terms of the settlement or were you paid or anything like that . . . It would be just inconceivable that a jury couldn't be informed of [settling defendants] that, otherwise they are not going to have any understanding as to why they are not here. DFES's counsel, unlike defendant's counsel in Alexander, made statements conforming to the parties' pre-trial understanding. Sammons refers to the following during DFES's opening statement: You're going to hear in this case about the different responsibilities of different people within the Christiana Care system, who has the responsibility to do what. And basically when the orders are written, they are taken off by the 535 nursing staff and the nursing staff has the responsibility to carry them out unless they have some problem, in which case they go back to the doctor. Well, in this case for the most part that simply didn't get done. But the failure of the nursing staff is subsumed within the claim that the plaintiff brought against Christiana Care, which has been settled. Sammons also refers to the following from DFES's closing argument: And there is a third possible mistake and we can't tell from the records, but it doesn't seem like anybody was attending for Ms. Sammons at the time she became sick and threw up. And if you believe that the mechanical asphyxia thing, as ugly as that is to think about, is what happened, maybe something could have been done had they been attending to her. But Christiana Care has settled. They're not here. That's their responsibility. In Alexander, the defendant's statements during cross examination were improperly admitted and were contrary to the parties' pre-trial agreement that the third party settlement would only be mentioned during opening statements and in the judge's final instructions.[44] DFES's counsel did not reveal any amount of settlement and counsel used the statements to help the jury understand the alignment of the parties and to determine pro rata fault, if applicable. DFES's statements did not suggest that Sammons's claim against DFES may be invalid or that the jury should disregard DFES's wrongdoing simply because Sammons's might, inferentially have received some damages from a settlement with Christiana Care. As in Brown, any prejudicial effect the statements may have had was outweighed by the ample testimony presented to the jury during trial and the jury instructions given by the trial judge. The trial judge instructed the jury that Christiana Care had settled but specifically charged the jury to find whether DFES was "medically negligent;" "whether either or any of the defendants remaining in the case were negligent;" and, whether their negligence caused Gail's death. Although Christiana Care had settled, the trial judge instructed the jury that they "must determine whether Doctors for Emergency Services, Edward Sobel D.O., Family Practice Associates, P.A., as well as, Christiana Care Health Services and St. Francis Hospital or all of them were negligent and whether that negligence was the proximate cause" of Gail's death. The trial judge acted within her discretion when she permitted DFES's counsel to refer to the settlement as he did in his opening statement and closing argument. Accordingly, we affirm. 3. The trial judge did not abuse her discretion by precluding Sammons from displaying Gail's photograph to the jury. Sammons argues that the trial judge abused her discretion when she refused to admit Gail's photograph because it was "relevant and probative of identity." At trial, Sammons's counsel argued for admission of the photograph to show the jury that "Gail" "was a person and that she existed." The trial judge refused to admit the photograph because it was not relevant, reasoning that the jury would not need to see a picture of Gail to understand that she was a person "who existed." The standard of review for evidentiary issues on appeal is abuse of discretion.[45]536 In the present case, there was no dispute at trial that Gail was a deceased person who was once alive. The photograph was not unique and did not shed any light on any material issue in the case. Therefore, the photograph had no independent relevance. Accordingly, we conclude that the trial judge properly exercised her discretion by refusing to admit the photograph into evidence, and accordingly we affirm that ruling. 4. The trial judge did not abuse her discretion by precluding Sammons from impeaching a DFES expert by using DFES's 2004 sepsis policy. Sammons argues that the trial judge abused her discretion by not permitting Sammons to impeach DFES's expert and fact witnesses with DFES's 2004 sepsis policy. Sammons contends that she should have been permitted to impeach DFES's witness, Dr. Rosenblaum,[46] with the 2004 DFES policy because his testimony that Gail was not suffering from sepsis on January 4, 2002, contradicted the 2004 policy containing a protocol for diagnosing sepsis in emergency room patients. Initially, the trial judge refused to allow Sammons to impeach Dr. Rosenblaum with the 2004 policy because Sammons had not disclosed that policy in the pretrial stipulation. Later, the trial judge clarified her ruling by stating that it was not a proper basis for impeachment because "impeachment is used to demonstrate dishonesty." Sammons contends that the trial judge abused her discretion and misapplied the law regarding impeachment. The standard of review for evidentiary issues on appeal is abuse of discretion.[47] The trial judge has discretion to determine which modes of impeachment may be used.[48] In general, impeachment can be conducted by "showing the existence of bias, a prior inconsistent statement, untruthful or dishonest character, or defective ability to observe, remember, or recount the matter about which the witness testifies."[49] "A witness may be impeached on cross-examination or by other evidence contradicting the witness as to a material matter or establishing some other ground for impeachment."[50] "When impeachment evidence is offered to show bias, competency, or contradiction, the admissibility of that evidence is controlled by DRE 402 and 403."[51] Under D.R.E. 402 "[a]ll relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State."[52] D.R.E. 403 permits the exclusion of relevant evidence, "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, 537 waste of time or needless presentation of cumulative evidence."[53] The record reflects that DFES's sepsis policy did not exist until two years after Gail's death. Therefore, it could not be used to impeach or contradict Dr. Rosenblaum's testimony because the 2004 protocol neither formalized nor purported to formalize the standard of care at the time that Dr. Rosenblaum examined Gail in 2002. If Sammons had provided a witness that established that the 2004 sepsis policy was consistent with the applicable standard of care for diagnosing sepsis when Dr. Rosenblaum examined Gail in 2002, then it may have qualified as "a material matter" with which Sammons might have contradicted his testimony. But because science and medicine evolve over time and the record discloses no information in that regard, the protocol for diagnosis of sepsis may have been different in 2002 than in 2004. Therefore, the trial judge did not abuse her discretion by refusing to permit Sammons to impeach Dr. Rosenblaum with the 2004 sepsis policy. Accordingly, we affirm that ruling. 5. The trial judge did not abuse her discretion by precluding Sammons's expert, Dr. Haines, from explaining his unavailability at trial during his videotaped trial testimony. Sammons argues that the trial judge abused her discretion by excluding Dr. Haines's testimony explaining why he was not available for trial. We review for abuse of discretion.[54] It is customary practice for the trial judge to tell the jury that a witness is unavailable for trial and that the reason for the witness's unavailability is not relevant. Sammons offered Haines's testimony by videotape at trial because he unexpectedly was called to active military duty two months before trial. The trial judge would not permit Sammons to explain that military duty caused Haines's absence. Instead, the trial judge gave a general explanation regarding witness unavailability. In weighing the relevance of the reason he could not appear against the possible sympathy that reason might draw to Sammons, the trial judge opted for a general explanation. After considering the record, we conclude that the trial judge properly exercised her discretion. Sammons suffered no unfair prejudice from being denied the opportunity to tell the jury that military duty prevented Dr. Haines's from appearing at trial. Accordingly, we affirm. 6. The trial judge properly exercised her discretion when she permitted the father of an attorney associated with the firm representing Dr. Roques's to remain on the jury. Sammons contends that the trial judge erred by failing (1) to dismiss or question a juror after learning that a juror was the father of an associate in the law firm representing Dr. Roques; and, (2) to give Sammons's proposed voir dire. "A decision not to discharge a juror following voir dire into an incident will not be overturned without a showing of prejudicial abuse of discretion by the [trial judge]."[55] The standard preliminary questions for the jury venire for Superior Court civil trials include the following questions: 538 Do you know anything about this case through personal knowledge, discussion with anyone, the news media, or any other source? . . . The plaintiff is represented by ____, of the law firm ____. The defendant is represented by ____, of the law firm ____ . . . Do you know the attorneys in this case or any other attorney or employee in their firms? . . . Do you have any bias or prejudice either for or against the plaintiff or the defendant?[56] Under 10 Del. C. § 4511(c), "[a] person who is not disqualified may be excluded from jury service by the Court only upon a finding that such person would be unable to render impartial jury service or would be likely to disrupt or otherwise adversely affect the proceedings."[57] Sammons dismissed Dr. Roques from the case on October 27, 2005. Therefore, his attorneys were not involved at the time of jury selection. An attorney who worked for the law firm who had represented Dr. Roques[58] wrote a letter to the trial judge two days into the trial advising her that he believed that his father was a member of the jury.[59] The attorney informed the trial judge that he and his father had never discussed the case, that his father did not know anything about the case, and that his father did not know about either his or his firm's involvement in the case. On December 14, 2005, the trial judge met with the parties to discuss the issue, and Sammons requested that the trial judge remove the attorney's father from the jury. The trial judge decided to keep the father on the jury because there was no evidence that he knew anything about the case or about his son's involvement in the case. The trial judge had asked the jury the standard voir dire questions, as well as specialized questions that counsel proposed at jury selection. At the time of jury selection, Dr. Roques was not a defendant in the case, and therefore neither he, the attorneys, nor the firm representing him were mentioned in the preliminary questions to the jury venire. The attorney's father gave no positive response to any of the questions asked of the venire. The trial judge noted that the name of the firm had not been mentioned at all during jury selection, and she stated that she would instruct the parties to avoid mentioning the firm during trial. We hold that the trial judge's finding that the juror's ability to render an impartial verdict had not been compromised does not amount to an abuse of discretion. The trial judge was within her discretion to permit the juror to stay on the jury because there was no evidence of partiality or bias toward any party. Accordingly, we affirm. 7. The trial judge did not abuse her discretion by giving the jury a curative instruction concerning statements made by Sammons's counsel during closing rebuttal argument. Sammons argues that the trial judge abused her discretion by giving the jury a curative instruction concerning statements made by Sammons's counsel during rebuttal closing. Sammons contends that the trial judge's curative instruction was improper because Sammons's rebuttal closing statements were fully supported by the record. Therefore, 539 Sammons argues that she is entitled to a new trial. The standard of review on appeal of a trial judge's decision to give a curative instruction is abuse of discretion.[60] "To establish abuse of discretion the appellants must show that the improper comment was `significantly prejudicial so as to deny them a fair trial.'"[61] In civil trials, "[a]ny effort [by counsel] to mislead the jury or appeal to its bias or prejudice is inappropriate and, where objection is made, the trial court is obliged to act firmly with curative instructions even where no objection is forthcoming until after summations."[62] The timing and nature of curative instructions to the jury is a matter for the trial judge, who, after having presided over the entire trial, is in a better position to determine whether a curative instruction should be given.[63] Here, the alleged improper statement by Sammons's counsel during closing rebuttal closing was as follows: You know what else you didn't hear Doctors for Emergency Services talk about? Did you hear them once talk about the board. Once? Did they mention the board, the board that has the patients' name on it and shows her taken to the floor. If it's not their patient, why would [sic] it come off as soon as family practice residents came? Because it is their patient. The patient is still in the emergency room and they're supposed to care for the patient. After an objection by DFES's counsel, the trial judge instructed the jury to disregard Sammons's counsel's argument on this issue by stating: Ladies and Gentleman of the Jury during [Sammons's counsel's] rebuttal closing argument he made reference to the fact that the name on the board in the emergency department as long as her name, the patient's name remained there that the care remained the responsibility of the emergency physicians, and there was no evidence to suggest that that's how the transfer occurs or that the board itself in any way suggests or in any way is instrumental in making the change from the emergency room doctor's care to the primary care doctors, so [sic] you should disregard that comment. After reviewing the record, we see no testimony or evidence either consistent with counsel's statement or the inference he wished the jury to draw from his statement. The trial judge's curative instruction, based on her recollection of the evidence, was intended to prevent the jury from drawing an inference inconsistent with the record. We are satisfied with the trial judge's curative instruction to the jury. Sammons has not convinced us, through her briefs or otherwise, that the trial judge's curative instruction to the jury so inaccurately represented the record that it unfairly prejudiced her and constituted an abuse of discretion. Accordingly, we affirm. 540 8. The trial judge did not err by refusing Sammons's request for jury instructions on cross claims and did not abuse her discretion when she responded to juror questions. Sammons argues that the trial judge erred when she denied Sammons's request for instructions regarding DFES, Dr. Sobel, and Family Practice's cross claims. Sammons also argues that the trial judge provided incorrect responses to two questions posed by the jury during its deliberations. "The standard of review for a denial of a requested jury instruction is de novo."[64] "While some inaccuracies and inaptness in statements are to be expected in any [jury] charge, this court will reverse if the alleged deficiency in the jury instructions undermined the jury's ability to intelligently perform its duty in returning a verdict."[65] "A trial court's charge to the jury will not serve as grounds for reversible error if it is `reasonably informative and not misleading, judged by common practices and standards of verbal communication.'"[66] We will examine the jury instructions as a whole to make this evaluation.[67] "On request of the jury after submission of the cause, a trial court has power in open court to give additional instructions."[68] "A trial court acts in its discretion when deciding to give the jury a supplemental instruction."[69] We first will determine whether the trial judge erred by denying Sammons' request for jury instructions. Sammons requested that the trial judge instruct the jury about the bases for the cross claims. The trial judge denied her request and reasoned that it would unnecessarily confuse the jury because the jury did not need to know the specific details about the cross claims. The trial judge was satisfied that when the jury completed a verdict sheet allowing for apportionment of negligence they would understand the cross claims in issue.[70] The trial judge's final instructions 541 explained that Christiana Care and St. Francis had settled with Sammons before the trial. The trial judge stated, "the parties who remain in this case, that is, Doctors for Emergency Services, Dr. Sobel, and Family Practice Associates, have asserted a cross claim against the settling defendants asserting that their negligence was the proximate cause of Gail Sammons' [sic] death." Then the trial judge further instructed the jury regarding apportionment of damages and the verdict form. After consideration of the trial judge's ruling and the jury instructions as a whole, we find that the trial judge's refusal to instruct the jury about the bases of the cross claims did not constitute reversible error. The trial judge adequately instructed the jury regarding the cross claims so that they could make a reasoned and informed decision in the case without confusing the jury by overburdening them with unnecessary information. We now determine whether the trial judge abused her discretion by responding to the jury's questions as she did. During deliberation, the jury sent out a note with questions. One of the questions was: "are we to determine if sepsis caused Gail's death or if medical negligence caused her death?" The trial judge met with the parties to discuss counsels' proposed responses to the question and then gave the jury the following answer: "the Plaintiff's theory against these defendants is that the death was caused by sepsis that these defendants failed to diagnose. If you decide that the patient did not die of sepsis, then you must find these defendants not negligent." Sammons contends that the jury could decide whether the defendants' medical negligence on any theory caused Gail's death and that it would have been consistent with Sammons's theory of the case for the jury to find the defendants liable for any negligence proximately causing her death and that they were not limited to the theory that failure to diagnose sepsis proximately caused Gail's death. The jury's question indicated that they may have been confused about whether they were limited to a theory that sepsis caused Gail's death or if they could find for the plaintiff if they found any other medical negligence by the remaining defendants caused her death. Put another way, could DFES, Family Practice, and Dr. Sobel be found liable even if the jury did not find that Gail died as a result of the defendants' failure to diagnose sepsis? The trial judge gave an adequate answer to the jury's question based on Sammons's theory of the case from the beginning. Sammons had to allege and prove a theory establishing a standard of care and a deviation from that standard of care that caused Gail's death.[71] Sammons's theory of the case throughout the entire trial was that DFES, Family Practice, and Dr. Sobel were liable because they failed to diagnose sepsis and that the defendants' failure to diagnose that condition resulted in Gail's death. Therefore, DFES, Family Practice, and Dr. Sobel could only be liable if the jury found that Gail died because of their failure to diagnose sepsis. The trial judge's instruction was consistent with Sammons's theory throughout the entire case and consistent with the mandate of 18 Del. C. § 6853(e).[72] Sammons cannot utilize 542 a catchall category of medical malpractice; Sammons put the defendants on notice of her theory of the case. She offered expert medical testimony to support that theory. It was on that theory alone that the jury could find negligence and causation sufficient to establish liability. The trial judge properly exercised her discretion by focusing the jury on Sammons's theory of the case, and she gave an adequate response to the jury's question. The jury also asked a question regarding whether DFES was responsible for a patient during the patient's entire stay in the emergency room. After hearing arguments from counsel, the trial judge decided to instruct the jury to rely on its own recollection of the evidence. She also reminded the jury that arguments of counsel are not evidence in this case. The trial judge did not abuse her discretion because her response was intuitively accurate and complied with the pattern jury instructions.[73] Accordingly, we affirm. 9. The trial judge abused her discretion by entering an order of dismissal under Superior Court Civil Rule 60(b) sua sponte. We review the trial judge's order dismissing the case under Superior Court Civil Rule 60(b) sua sponte for abuse of discretion.[74] Rule 60(b) contemplates relief only upon a party's motion by permitting a party to seek relief "from a final judgment, order, or proceeding."[75] Rule 60(b) however, "does not limit the power of a Court . . . to set aside a judgment for fraud upon the Court."[76] Thus, although Rule 60(b) contemplates relief only upon a party's motion, a trial judge may provide relief under Rule 60(b) sua sponte when there is "fraud upon the court."[77] For a trial 543 judge to provide relief from a final judgment on the ground that a party committed fraud upon the court, a "heavy burden" must be met.[78] Ultimately, there must be "a showing of `the most egregious conduct involving a corruption of the judicial process itself.'"[79] In the present case, the trial judge dismissed the case against DFES under Rule 60(b) sua sponte. Therefore, the trial judge's order of dismissal was permissible only if there was fraud upon the court. Although the trial judge found that Sammons's affidavit of merit did not comply with 18 Del. C. § 6853, the trial judge made no factual findings that Sammons committed fraud upon the court by presenting the affidavit of merit. The trial judge, in her January 18, 2006 letter opinion, indicated that she wanted to schedule a hearing to hear evidence on Sammons's counsel's efforts to comply with § 6853, and to determine to what extent Dr. Munoz, if any, was responsible for misleading Sammons's counsel or the court. The trial judge, however, did not conduct that hearing. Furthermore, the original trial judge had previously reviewed Sammons's affidavit of merit and concluded that the affidavit complied with § 6853. Under these circumstances, Sammons's presentation of her affidavit of merit cannot be said to be egregious conduct "involving a corruption of the judicial process itself" at this stage of the proceedings. Therefore, we conclude that the trial judge abused her discretion when she dismissed the case under Rule 60(b) sua sponte; at the time she dismissed the case, she had no record evidence of fraud on the court that would permit DFES to seek relief following the jury's final judgment without a motion, a hearing, and the admission of evidence that established fraud. Accordingly, we vacate the trial judge's order dismissing the case and remand with instructions to reinstate the judgment. For the foregoing reasons, the judgment of the Superior Court is AFFIRMED in part, VACATED in part, and REMANDED in part. NOTES [1] The plaintiff-appellant is the mother of the deceased, Gail E. Sammons. When we use the name "Sammons," we refer to the plaintiff appellant. When we use "Gail," we refer to the deceased. [2] The original defendants were Christiana Care Health Services, Inc. (a/k/a Christiana Healthcare Systems, Inc. a/k/a Wilmington Hospital and Medical Center of Delaware), St. Francis Hospital, Inc., Doctors for Emergency Services, P.A., Jamie E. Roques, M.D., Edward R. Sobel, D.O., Michael Baram, M.D., Ori Shokek, M.D., Amy Robinson, M.D., and Robert Rosenbaum, M.D. On March 12, 2004, Sammons filed a motion to amend her complaint to add Family Practice Associates, P.A. as a defendant, and the trial judge granted the motion. Sammons later settled with Christiana Care and St. Francis and dismissed her claims against Drs. Baram, Robinson, Roques, and Shokek. The remaining defendants are Doctors for Emergency Services, P.A., Edward R. Sobel, and Family Practice Associates. [3] Because the original assigned trial judge who handled pretrial issues became involved in a lengthy bench trial, a different judge presided for trial. The previous judge ruled on the motion regarding the affidavit of merit and motions in limine but did not preside over the jury trial. We use "his" to identify the initially assigned judge and "her" to identify the judge who presided over the trial. [4] Dr. Roques, while a party, retained Dr. Zenilman as his expert, but Sammons dismissed her claim against Dr. Roques before trial. [5] Because the assigned trial judge was involved in a lengthy Bench trial, the case was assigned to a different judge for trial. The previous judge ruled on the motion regarding the affidavit of merit and motions in limine but did not preside at trial. [6] The trial judge re-reviewing the affidavit of merit was a different judge than the one who originally approved the affidavit of merit in 2004. [7] Sammons v. Doctors for Emergency Services, P.A., 2006 WL 1522479 (Del.Super.Ct.) [8] The trial judge suggested that an appropriate remedy might be "that the case should be dismissed against DFES under Rule 60(b), nunc pro tunc." Id. [9] Although the letter opinion did not dismiss the case against DFES, the trial judge, in her March 31, 2006 Opinion and Order, indicated that her letter opinion of January 18, 2006 and dismissed the case. Sammons v. St. Francis Hosp., Inc., 2006 WL 1134890, at 8 (Del.Super.Ct.) ("For all of the foregoing reasons, the Motion for Reargument of this Court's January 18, 2006 decisions dismissing this case for failure to comply with 18 Del. C. § 6853 is hereby denied.") (emphasis added). [10] The trial judge stated: I am once again constrained to conclude that Plaintiff should never have been permitted to proceed against DFES in the first instance. In short, the Affidavit of Dr. Eric Munoz to support Plaintiff's claim of medical negligence against DFES did not then, and does not now, in light of the evidence produced at trial, pass statutory muster. Therefore, in accordance with the applicable statute, Plaintiff's claims against DFES are hereby dismissed. The Court will, upon application of DFES, consider whether additional remedies are appropriate, but will not offer such remedies sua sponte. Sammons, 2006 WL 1134890, at 2 (emphasis added). [11] The trial judge did not state under which rule she dismissed the case. Therefore, we assume that the trial judge followed through on her suggestion in the January 18, 2006 letter opinion and dismissed the case against DFES under Super. Ct. Civ. R. 60(b), nunc pro tunc. [12] The trial judge granted the motion in part and denied it in part. The part he denied is not an issue on appeal. [13] Sammons notes the discovery deadline as August 31, 2005. The parties stipulated to extending the discovery deadline to October 31, 2005, but the trial judge never entered an order formally acknowledging the parties' agreement to extend the discovery deadline. [14] Bush v. HMO of Del., 702 A.2d 921, 923 (Del.1997) (citing Pinkett v. Brittingham, 567 A.2d 858, 860 (Del.1989)). [15] Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1106 (Del.2006) (citing Chavin v. Cope, 243 A.2d 694, 695 (Del.1968)). [16] Coleman, 902 A.2d at 1107 (citing Valentine v. Mark, 873 A.2d 1099 (Del.2005)). [17] Super. Ct. Civ. R. 16(b) provides, in pertinent part: Scheduling and planning. Except in categories of actions exempted by the Court as inappropriate, the judge shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time: (1) To join other parties and amend the pleadings; (2) To file and hear motions; and (3) To complete discovery. The scheduling order may also include: (4) The date, or dates for conferences before trial, a final pretrial conference, and trial; and (5) Any other matters appropriate in the circumstances of the case. The order shall issue as soon as practicable but in no event more than 120 days after filing of the complaint. A schedule shall not be modified except by leave of the Court upon a showing of good cause. [18] Fletcher v. Doe, 2005 WL 1370188 (Del.Super.Ct.2005) (Order) (The Superior Court judge allowed the plaintiff's expert to testify even though he did not disclose his expert until one day after the date mandated by the scheduling order because the defendant could not have been unfairly prejudiced as a result of the delay. This case illustrates why parties must comply with court mandated scheduling orders; however, upon application in order to avoid manifest injustice, a judge may relieve the parties of dates mandated by the scheduling order.). [19] Bush, 702 A.2d at 923 (citing Stafford v. Sears, Roebuck & Co., 413 A.2d 1238 (Del. 1980)). See Superior Court Civil Rule 26(b)(4), which mandates the rules regarding experts, provided in pertinent part: (4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this Rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows: (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. See also Superior Court Civil Rule 26(e)(1)(B) which sets forth the requirements for supplementation regarding expert witnesses: (1) A party is under a duty seasonably to supplement the response with respect to any question directly addressed to . . . (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person's testimony. Super. Ct. Civ. R. 26(e)(1)(B). [20] Duncan v. Newton & Sons Co., 2006 WL 2329378 (Del.Super.Ct.2006). [21] Id. at 6. [22] The original plaintiff expert disclosure deadline was February 15, 2005. The trial judge extended the plaintiff expert disclosure deadline first to March 15, 2005, and then later to April 15, 2005. [23] Sammons's expert discovery response, in pertinent part, as it related to Dr. Bridges provided: Kenneth Bridges, M.D. will offer at trial an expert opinion as to Gail Sammons' life expectancy. Dr. Bridges has reviewed Gail Sammons' medical records as well as the postmortem report. After reviewing the information, it is Dr. Bridges' opinion, to a reasonable degree of medical certainty that, that Gail Sammons' life expectancy would have been 65 to 70 years of age. This opinion is based on Gail Sammons' infrequent Acute Pain Crisis (the records indicate previous ER treatments in 1999, 1996, and 1992) and the relative good condition of her organs. It is also based on the fact that Gail Sammons had a relative benign course of Sickle Cell disease during childhood, which is when most organ damage occurs. This is verified by the fact that Gail Sammons only decided to get tested for the genetic traits of a Sickle Cell patient after her brother died from complications of sickle cell disease. Dr. Bridges is available for deposition at the convenience of the parties. [24] Sammons's expert disclosure, in pertinent part: "Plaintiffs reserve the right to supplement, amend, and/or modify these disclosures based on the discovery of any additional facts and/or the development of any additional opinions." [25] The trial judge granted the motion in part and denied it in part. The part of the motion that was denied is not at issue in the present appeal. [26] According to the trial scheduling order, Defendant expert disclosures were due on July 15, 2005. [27] Dr. Roques expert disclosure, in pertinent part, as it relates to Dr. Zenilman, provides: Dr. Zenilman is being offered as an expert in the field of infectious diseases with opinions on the standard of care for Dr. Roques, causation, and damages . . . Zenilman [has] reviewed the Complaint, medical records, Plaintiff's expert reports and deposition transcripts taken to date . . . Zenilman will opine that Dr. Roques met the standard of care in his treatment of [sic] Sammons. Dr. Zenilman will opinion that [sic] Sammons did not die from septic shock . . . Zenilman will opine that all the treatment that was received by Ms. Sammons by Dr. Roques was within the standard of care. The standard of care for this patient did not require admission to the hospital when she was seen at St. Francis and it was within the standard of care to discharge her that day. In addition, Dr. Zenilman will opine that Ms. Sammons did not die from septic shock and that the most likely cause of death was her aspirating on her own vomit . . . All of . . . Zenilman's opinions are based on reasonable medical probability. [28] The letter states, in pertinent part: As previously indicated, it is Dr. Zenilman's opinion, within terms of reasonable medical probability, based on his review of these records and his training and experience in his subspecialty of infectious disease medicine, that Ms. Sammons did not die of septic shock. The most probable cause of death is aspiration of vomit and that her death was an acute event, not the result of gradual deterioration in her condition. No source of infection was identified on autopsy, including the microscopic evaluation. Furthermore, had the patient been in septic shock, as contended by plaintiff, there would have been evidence of inflammation, particularly in the end organs that serve as filters (kidney, liver, lung), which was absent. The blood work was not diagnostic of sepsis in a sickle cell patient such as Ms. Sammons. Leukocytosis in these patients is often due to the physiological stress of a sickle crisis. Nevertheless, the possibility of occult infection was properly considered at Wilmington Hospital and she was covered with broad-spectrum antibiotics. Likewise, the blood pressure was not diagnostic of sepsis, as the primary care notes clearly indicate that her normal blood pressure was 90-100/60-70. [29] Russell v. K-Mart Corp., 761 A.2d 1, 3 (Del.2000) (holding that the trial judge did not abuse his discretion by limiting an expert's testimony to information disclosed in his reports and letters). [30] DFES reserved this right in the pretrial stipulation. [31] Sammons alleged in her pleading that as a result of St. Francis's negligence, the risk of harm to Gail increased, which resulted in her death. [32] Alexander v. Cahill, 829 A.2d 117 (Del. 2003). [33] Whittaker v. Houston, 888 A.2d 219, 222 (Del.2005); Wilmington Country Club v. Cowee, 747 A.2d 1087, 1092 (Del.2000). [34] D.R.E. 408. [35] Capital Mgmt. Co. v. Brown, 813 A.2d 1094, 1100 (Del.2002). [36] Id. at 1100-01. [37] Id. at 1101. [38] Alexander, 829 A.2d at 125. [39] Id. (quoting Schlossman & Gunkelman, Inc. v. Tallman, 593 N.W.2d 374 (N.D.1999)). [40] Id. [41] Id. at 119. [42] Id. at 127. [43] Id. [44] Alexander, 829 A.2d at 127. [45] See Green v. St. Francis Hosp., Inc., 791 A.2d 731, 737 (Del.2002) (where we found that the trial judge did not abuse his discretion by permitting a photograph and videotape to be introduced into evidence because the arrangement of the room was an integral part of each party's case at trial). [46] Dr. Rosenblaum is a DFES employee. [47] Davis v. Maute, 770 A.2d 36, 41 (Del.2001). [48] 81 Am.Jur.2d Witnesses § 830 (2006). [49] Id. (footnotes omitted). [50] Id. (footnotes omitted). [51] Baumann v. State, 891 A.2d 146, 148 (Del. 2005). See also United States v. Winchenbach, 197 F.3d 548 (1st Cir.1999) (impeachment with proof of prior inconsistent statement is governed by Rule 403 not 608(b)); United States v. Tarantino, 846 F.2d 1384, 1409 (D.C.Cir.1988) (Admissibility of extrinsic evidence offered to contradict witness is governed by Rules 402 and 403, not 608(b)); United States v. Lopez, 979 F.2d 1024 (5th Cir.1992) (Rule 403 controls the admission of contradiction evidence). [52] D.R.E. 402. [53] D.R.E. 403. [54] Davis, 770 A.2d at 41. [55] Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990) (citing Williams v. State, 494 A.2d 1237, 1243 (Del.1985)); see also Styler v. State, 417 A.2d 948, 953 (Del.1980). [56] Del. P.J.I. Civ. § 1.1 (2000). [57] 10 Del. C. § 4511(c). [58] The attorney had been involved in the case by attending several depositions. [59] The attorney informed the judge that he had spoken with his mother who told him that his father was sitting on an eight-day trial. The attorney was not certain that his father was sitting on this particular case. [60] Davis, 770 A.2d at 41 (Del.2001) (finding that the trial court's decision not to provide a cautionary instruction after defense counsel referred to the accident in a personal injury action as a "fender-bender" constituted an abuse of discretion). [61] DeAngelis v. Harrison, 628 A.2d 77, 80 (Del.1993) (quoting Shively v. Klein, 551 A.2d 41, 44 (Del.1988)). [62] Id. [63] See Jardel Co. v. Hughes, 523 A.2d 518, 533 (Del.1987) (finding no abuse of discretion when the trial judge gave a curative instruction during general jury instruction rather than an immediate cautionary instruction). [64] Manlove v. State, 867 A.2d 902 (Table) (Del.2005) (citing Ayers v. State, 844 A.2d 304, 309 (Del.2004)). [65] Riggins v. Mauriello, 603 A.2d 827, 830 (Del.1992) (citing Probst v. State, 547 A.2d 114, 119 (Del.1988)). [66] Probst v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Flamer v. State, 490 A.2d 104, 128 (Del.1983)). [67] See Flamer v. State, 490 A.2d 104, 128 (Del.1983). [68] Zimmerman v. State, 565 A.2d 887, 890-91 (Del.1989) (citing 76 Am.Jur.2d Trial § 1046 (1975) (holding that giving a supplemental jury instruction on the theory of accomplice liability in response to jury questions was not reversible error)). [69] Id. at 891 (citing Sheeran v. State, 526 A.2d 886, 893 (Del.1987)). [70] Trial judge: I don't think it matters that they understand what these cross claims are. You [counsel] have to understand that they [jury] don't understand . . . most jurors have not taken courses in civil procedure and don't understand this terminology. As it is I think the instructions are difficult enough for them [jury]. If you start using those terms freely you are going to lose them [jury]. If you look at the verdict sheet and the way we describe the responsibility of the jury to apportion negligence I don't think they [jury] needs to know that that's because of cross claims. The cross claim is the way it gets legally into Court but it's not the way the jury's frame of reference is. The jury's frame of reference is they have six different people they have to consider here, entities, and which ones of them, if any, have X percentage of negligence. And if you start saying cross claims and all of this other stuff I think it's highly confusing to them [jury] and . . . it's not necessary based on the way the settling co-defendants instruction was given . . . it's not normally used. It's subsumed in the way we do our verdict sheet. [71] See 18 Del. C. § 6853(e): "No liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death . . ." [72] Sammons's counsel made several statements during his opening statement that indicated that their theory of the case was that the defendants failed to diagnose Gail with sepsis and she died from sepsis, for example: This is a case about doctors who failed to diagnose a condition that caused the death of Gail Sammons, Elizabeth Sammons's daughter . . . There are two medical conditions that Gail was suffering from on January 4, 2002. The first is sickle cell anemia. The second was sepsis . . . Sepsis is what cause her death on that day the evidence will show . . . The evidence will show that Gail did not get that needed medical attention on January 4, 2002 and ultimately died because of the doctors' failure to diagnose her sepsis . . . You will hear from the experts that these results from these labs, the CBC and urinanalysis, were alarming and along with her vital signs were shouting that Gail had sepsis to anyone who would listen . . . They failed to recognize, however, that Gail was also suffering from sepsis despite the overwhelming evidence of it . . . The evidence will show that some time between 6:30 and 8:40 p.m. Gail's untreated sepsis went into what is known as septic shock . . . Her undetected sepsis was about to cause her death . . . On behalf of Mrs. Sammons we submit that the evidence in this case will . . . show . . . that the defendants simply failed to recognize the critical nature of Gail's condition and her sepsis on January 4th, 2002; thus causing her untimely death. Sammons's counsel reiterated his theory of the case in his closing argument: . . . And what is bad about this case is that doctors failed to diagnose Gail with sepsis even though she had all the factors. And what is bad about this case is that because no doctor diagnosed Gail with sepsis her sepsis went untreated and caused her death. [73] Del. P.J.I. Civ. § 3.3 (2000). [74] See Wife B. v. Husband B., 395 A.2d 358, 359 (Del.1978); Battaglia v. Wilmington Sav. Fund Soc'y, 379 A.2d 1132, 1135 (Del.1977). [75] Super. Ct. Civ. R. 60(b); see 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2865. [76] Super. Ct. Civ. R. 60(b); see Wright & Miller, § 2870. [77] Super. Ct. Civ. R. 60(b); see Epstein v. Matsushita Elec. Indus. Co. (In re MCA, Inc. S'holder Litig.), 785 A.2d 625, 634 (Del.2001) ("[A] trial court [under Court of Chancery Rule 60(b)] has the power `to set aside a judgment for fraud upon the Court.' A court does not have to wait for a party to make a motion for relief under this section; rather a court may take independent action to relieve a party from a judgment pursuant to this rule.") (quoting Del. Ch. Ct. R. 60(b)); see also Wright & Miller, §§ 2865, 2870. [78] Epstein, 785 A.2d at 639. [79] Id. (quoting Wright & Miller, § 2870).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/460789/	776 F.2d 1060 Harrisv.Department of Transp., F.A.A. 85-1881 United States Court of Appeals,Federal Circuit. 7/19/85 MSPB Affirmed	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1515575/	152 F. Supp. 123 (1957) Giuseppe GIUFFRE, Libelant, v. The MAGDALENE VINNEN, F. A. Vinnen & Co. and North German Lloyd, Respondents, and North German Lloyd and Anchor Stevedoring Co., Inc., Impleaded-Respondents. No. 20347. United States District Court E. D. New York. June 20, 1957. 124 Philip F. Di Costanzo, Brooklyn, N. Y., for libelant. Alexander, Ash & Schwartz, New York City, for North German Lloyd. Frederick H. Cunningham, New York City, for F. A. Vinnen & Co. BYERS, District Judge. This is a motion by North German Lloyd, one of the two impleaded respondents in the above cause, to dismiss the petition under the 56 Rule, as to it, for alleged lack of jurisdiction in view of a certain arbitration clause later to be referred to; or in the alternative, for a stay of proceedings under the said petition, pending arbitration. For reasons briefly to be explained, the alternative relief will be granted. The libelant's cause is set forth in his libel filed January 10, 1955, in which it is alleged that on January 21, 1952 he was in the employ of Anchor Stevedoring Company as longshoreman, and was lawfully on board the S.S. Magdalene Vinnen, which was then alongside a pier on the Brooklyn waterfront. That while he was performing his duties at the No. 1 hatch, he was caused to be struck in both lower legs by a draft of steel, and thereupon suffered injury, said to have rendered him permanently and totally disabled. That this result was brought about by the unseaworthy condition of the vessel and negligence on the part of Vinnen and North German Lloyd, to maintain the hatches in a safe and seaworthy condition in numerous respects "and in failing to employ experienced and skilled employees;" also, in failing and neglecting to provide him with a reasonably safe place in which to work. That the injuries so suffered were without fault on the part of the libelant. It appears that Vinnen & Co. is the owner of the ship and the North German Lloyd the charterer, which explains why the vessel was sued and both said companies named as respondents. It should be said that both corporations are foreign, but are said to have offices in the City of New York. By stipulation of November 18, 1955 signed by the proctor for libelant, the cause was discontinued as against North German Lloyd. On November 14, 1956, separate impleading petitions were filed on behalf of Vinnen against North German Lloyd and Anchor Stevedoring Co., Inc., but as stated, this motion is made only by the former. Vinnen's answer to the libel was filed simultaneously with the filing of these petitions, wherein ownership of the vessel on the day in question was admitted. The answer also admits that Vinnen "through its officers and crew, managed, operated and controlled only those parts of the S.S. Magdalene Vinnen which were not managed, operated and controlled by the libelant, his co-workers, his superiors and Anchor Stevedoring Co., Inc., and other independent contractors." The answer admits that Vinnen manned the vessel and equipped and provisioned her "with only such equipment and provisions as were not furnished by the charterer, the stevedore and other independent contractors." Further, that there was a contract made with Anchor for the purpose of discharging and loading cargo from the vessel, which is said to have been entered into between Anchor and North German Lloyd. This means that the latter was the charterer of the vessel at the time in question. The impleading petition refers to the charter and states that "under the terms and provisions of said agreement, North German Lloyd agreed to assume certain obligations and responsibilities." Among the latter, that it would furnish necessary 125 stevedoring services through the engagement of a stevedore for its own account and its own expense. Further, as to North German Lloyd that "since the stevedores were to be engaged by it, it assumed the responsibility for stowage of the S.S. `Magdalene Vinnen'," which agreement (charter) was in effect from February 6, 1951 to and including January 21, 1952. The petition goes on to assert that it was part of the engagement of the charterer to select an experienced stevedore and to supervise the loading and discharge of the cargo, and to take reasonable steps to avoid the creation of dangerous conditions aboard the ship, and to properly stow the cargo, and to furnish necessary gear and equipment for those purposes. Thus it will be seen that the basis of the impleading petition is the theory on the part of the vessel owner, that the charterer did not fully perform its contractual duties. The charterer's proctor makes this motion based upon a provision contained in the charter touching arbitration, which reads: "Arbitration Court. 27) Any disputes arising from the present agreement should be brought before a Court of Arbitration officiating at Bremen, to the exclusion of all regular Courts." (Italics supplied.) The moving affidavit recites that the stevedoring work was in the charge of Anchor, the libelant's employer, as an independent contractor; that there was no defect in the equipment of the vessel and that no part of the vessel's equipment caused the accident; that no employee or agent of the charterer was in charge of the operation, "or that it had any party aboard the vessel and accordingly a dispute exists under said agreement between F. A. Vinnen & Co. and the North German Lloyd. * * * there is a dispute between the said two parties (namely the shipowner and the charterer), which is the subject of arbitration under the terms of said agreement and is not one to be determined by this Court." To meet this contention it is argued for the shipowner that there was no agreement to arbitrate any matter which might arise on account of the existence of the charter agreement or "because of any legal obligation which might arise as a result of the existence of such an agreement." Stated differently, the argument is, "The issue here, however, does not come within the terms of the charter agreement in any sense but relates to a legal responsibility which our law imposes on those occupying the relationship set forth in the agreement." I find it difficult to grasp the asserted distinction. The relationship of the parties is that of shipowner and charterer, and the allegations which have been quoted from the impleading petition, are clearly to the effect that the charterer has violated or failed to perform certain of its engagements which exist only by reason of the charter party; in other words, the owner alleged default in performance, not to be distinguished in principle, for instance, from non-payment of the charter hire or other breach of the contract. The following cases are relied upon in granting a portion of the relief North German Lloyd seeks under Title 9 U.S.C. § 3, having to do with arbitration: In re Canadian Gulf Line, 2 Cir., 98 F.2d 711; Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 2 Cir., 126 F.2d 978; Fox v. The Guiseppe Mazzini, D.C., 110 F. Supp. 212. Since the possible liability to be visited upon the shipowner will depend upon the result of the trial of the libelant's cause, because he may not succeed, it seems clear that the rights, if any, on the part of the shipowner against the charterer cannot be presently assumed to exist; thus it is appropriate to stay proceedings under the impleading petition against the charterer until a final decree has been entered. It is true that to this extent the effort to resolve all aspects of a given controversy in one litigation is somewhat *126 thwarted. That result cannot be avoided, unless the teachings of the cited cases are to be ignored. There is no suggestion, for instance, in the Kulukundis case that the principle of adjusting controversies through the medium of arbitration, should be held subordinate to the intent and purpose of the 56 Admiralty Rule, 28 U.S.C.; while that which is here directed may be thought to extend beyond any decision which has been cited, it is none the less believed to be required in view of the general attitude of the courts concerning contracts which provide for resort to arbitration. Accordingly, the charterer's motion is granted, to the extent that an order may be entered staying proceedings under this impleading petition until thirty days after the libelant's cause shall have been finally determined; application for a further stay would be appropriate upon a showing that arbitration proceedings as contemplated by the quoted terms of the charter, have been promptly initiated. The motion to dismiss the said petition is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515525/	152 F. Supp. 953 (1957) The UINTAH AND WHITE RIVER BANDS OF UTE INDIANS v. The UNITED STATES. No. 47569. United States Court of Claims June 5, 1957. As Amended October 9, 1957. 954 Carl S. Hawkins, Washington, D. C., for plaintiffs. Ernest L. Wilkinson, F. M. Goodwin, Wilkinson, Cragun, Barker & Hawkins, Washington, D. C., were on the briefs. Floyd L. France, Washington, D. C., with whom was Asst. Atty. Gen. Perry W. Morton, for defendant. Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges. MADDEN, Judge. This is a suit against the United States by the Uintah and White River Bands of Ute Indians. They assert, and the Government denies, that this court has jurisdiction of the case under the special Ute Jurisdictional Act of June 28, 1938, as amended.[1] By section 1 of that Act this court is authorized to "hear, determine, and render final judgment on all legal and equitable claims of whatsoever nature which the Ute Indians or any tribe or band or any constituent band thereof, may have against the United States, including, * * claims arising under or growing out of any treaty or agreement of the United States, law of Congress, executive order, or by reason of any lands taken from them, without compensation." The plaintiffs claim just compensation for 973,777 acres of the former Uintah Indian Reservation in Utah, taken by the United States on July 14, 1905, by incorporation into the Uintah National Forest. The questions now ready for decision are whether the plaintiffs were the owners of the land at the time in question; if they were, what was the value of the land at the time it was taken; and are they entitled to interest on that value. The Plaintiffs' Title By an Executive Order of October 3, 1861, 1 Kappler p. 900, President Lincoln approved a recommendation of the Secretary of the Interior that "the Uintah Valley, in the Territory of Utah, be set apart and reserved for the use and occupancy of Indian Tribes". The lands involved in this case lie within the area described in the Executive Order. The Act of May 5, 1864, 13 Stat. 63, authorized and required the Superintendent of Indian Affairs to bring together and settle in the Uintah Valley as many of the Indians of Utah Territory as might be found practicable. It said that the Uintah Valley "is hereby set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same." Pursuant to an Act of February 23, 1865, 13 Stat. 432, a treaty was negotiated with numerous Indian tribes in Utah providing for their surrender of all their rights in land in that territory which was suitable for agricultural and mineral purposes, but reserving to the Indians for their exclusive use and occupation "the entire valley of the Uintah River within Utah Territory". Although the treaty just described was never ratified, various individual Indians and groups of Utah Indians, from time to time after 1865, moved into the Uintah Valley. An Indian Agency was established 955 there, the area became known as the Uintah Indian Reservation, and the Indians so migrating into the reservation, as well as those already there before the reservation was established, and their descendants, became and have since been known as the Uintah Indians or Uintah Ute Indians, one of the plaintiffs herein. In 1868, 15 Stat. 619, a treaty was made with seven bands of Ute Indians, sometimes thereafter known as "The Confederated Bands of Ute Indians". This treaty was later duly ratified. It set apart a large reservation, wholly within the Territory of Colorado, for the Indians named in the treaty and for such other friendly Indians as they might be willing to admit among them. The Indians relinquished all claims and rights to land not included within the reservation. In an agreement embodied in the Act of June 15, 1880, 21 Stat. 199, with the Confederated Bands of Ute Indians in Colorado, the Indians ceded the then remaining portions of their Colorado reservation and the various bands agreed to settle in other places designated in the agreement. Of interest in this case were the provisions that the White River Utes agreed to remove to the Uintah Reservation in Utah and the Uncompahgre Utes agreed to remove to an area on the Grand River, in Colorado, or to other lands in that vicinity and in Utah. The White River Utes then moved to the Uintah Reservation in Utah, and their descendants have continued to live on that reservation. This band and the Uintah band are the plaintiffs in this case. The Uncompahgre Utes were settled upon a reservation in Utah which was not within the area of the Uintah Reservation. Thus far, on the question of title, we have the 1864 Act setting apart the Uintah Reservation "for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory (Utah) as may be induced to inhabit the same." We have Indians who were already in the area and others of different Utah bands moving into the area and settling there, apparently losing their identity and becoming known as "Uintah Ute" Indians. It could well be urged that these Indians, having fulfilled the conditions of the statute, became the grantees, or at least "recognizees" under the statute. It is as if one made a deed "to the first of my grandsons who shall reach the age of 25". The Indian Claims Commission, on February 21, 1957, in the case of The Uintah Ute Indians of Utah v. United States, Docket No. 45, held that the United States is liable to the Uintah Ute Indians for the undivided share of the reservation which the United States turned over to the White River Utes pursuant to the 1880 statute. The Act of May 24, 1888, 25 Stat. 157, provided that a designated portion of the Uintah Valley Reservation should be restored to the public domain and sold if three-fourths of the adult male Indians residing on the reservation consented. The statute provided: "That all moneys arising from the sales of this land shall belong to said Indians and be paid into the Treasury of the United States and held or added to any trust funds of said tribes now there." In the administration of this Act, the consent of the Uintah and the White River Indians was obtained, the lands were sold, and the receipts were credited to these two bands of Indians. In 1902, Congress appropriated $10,000 more to these Indians for other lands detached from the reservation pursuant to the 1888 statute. Bills were introduced in Congress in 1893 proposing that the Uncompahgre Indians be allotted lands in the Uintah Reservation. The Secretary of the Interior and the Commissioner of Indian Affairs, being asked to comment on the bills, opposed the bills on the ground that the Indians residing on the Uintah Reservation owned the land, and that it should not be taken from them except by negotiation and purchase. The bills were not passed. 956 In finding 14 we recite administrative actions taken in 1892, 1897, and 1898 on the express assumption that the Uintah and White River Utes owned the land in the Uintah Reservation. Pursuant to statutes cited in our findings 15, 16, and 17, some Uncompahgre Indians were given allotments in severalty in the Uintah Reservation, and the Uintah and White River Utes were paid $60,064.48 for the lands so allotted. By the Act of May 27, 1902, 32 Stat. 245, 263, the Secretary of the Interior was directed, if a majority of the adult male Indians of the Uintah and White River Bands consented, to make individual allotments to the Indians and then restore all of the unallotted lands of the Uintah Reservation to the public domain, to be sold under the homestead law for $1.25 an acre, the proceeds to be used for the benefit of said Indians. The allotments were made, and sales of the lands restored to the public domain ultimately produced proceeds of $1,184,996.33 which were placed in an account headed "Proceeds of Uintah and White River Ute Lands". Our finding 19 shows that later in 1902, and before the allotments had been made and the unallotted lands restored to the public domain, Congress directed the Secretary of the Interior to set apart for the Indians a common grazing area in the reservation. The statute seems to have reduced the allotments of the Uncompahgre Indians, but gave them rights in the common grazing area. By the Act of March 3, 1905, 33 Stat. 1048, 1069-1070, Congress, among other things, authorized the President to set apart and reserve, as an addition to the Uintah Forest Reserve, such portions of the lands within the Uintah Indian Reservation as he considered necessary. The President, on July 14, 1905, 34 Stat. Pt. III, 3116, set aside 1,010,000 acres of land under this authority. This land was, of course, a part of the land which, under the Act of May 27, 1902, was to have been restored to the public domain, sold, and the proceeds used for the benefit of the Uintah and White River Indians. No provision was made for paying the Indians for the 1,010,000 acres of land, and they are now suing for its value. In this opinion we have abbreviated the history of the dealings of Congress and the Executive with these Indians in relation to this land. A much fuller history appears in our findings. It plainly appears from it, we think, that Congress in its statutes, and the Executive in interpreting those statutes, repeatedly recognized the plaintiff bands as the owners of the Uintah Reservation. They were the ones whose consent had to be obtained, when transactions relating to the land were contemplated. They were the ones to whom the money was to be paid and was paid, when reservation land was disposed of to third persons. Between 1924 and 1929 several unsuccessful attempts were made to obtain passage of special jurisdictional acts to permit the plaintiff bands to sue in this court for the taking of the 1,010,000 acres of land. In 1930 a bill was introduced providing for a direct payment for the lands, at the rate of $1.25 per acre. In this bill, for the first time, the Uncompahgre Band of Utes was included with the Uintah and White River Bands. The committee report and material inserted in the Congressional Record discussed only the title of the Uintah and White River Bands. There is no explanation or mention of a reason for including the Uncompahgre in the bill. The bill was enacted on February 13, 1931, 46 Stat. 1092, and provided for the direct payment of $1,217,221.25 for 973,777 acres of land, which was at the rate of $1.25 per acre. The bill said that the payment was to be in full satisfaction of all claims of the Indians in relation to the 973,777 acres of land. The remainder of the land, 36,223 acres, was said to be coal land, and action on it was reserved. The appropriated money was distributed per capita to the three bands of Indians, the Uncompahgre receiving $439,466.88 of it. The coal lands 957 are the subject of another suit now pending in this court. The Jurisdictional Act The jurisdictional act, cited supra, gives the court jurisdiction to decide the plaintiffs' claims arising "by reason of any lands taken from them without compensation." Section 1. The Government points to the payment made under the 1931 Act and says that these lands were not taken without compensation. We have no doubt that the Jurisdictional Act was intended to include these claims. The pertinent committee reports say so in express words. House Rept.No.1028, 75th Cong., 1st sess., on HR 3162, pp. 2-3; Senate Rept.No.1219, 75th Cong., 1st sess., pp. 2-3. And section 5 of the Jurisdictional Act itself provides that payments made by the United States upon or in satisfaction of any claim sued on under the Act should not operate as an estoppel, but only as a setoff against the claim. Our conclusion is that the court has jurisdiction of the claim. The Value of the Land The land was taken in 1905, and must be valued as of that date. The valuation of an area of land such as the one here involved, as of today, would be a task of great difficulty, and the figure arrived at would be, at best, an approximation, reached by weighing a large number of elements of greater or lesser significance, and giving each the weight which it was thought to merit. In the instant case, the relevant events and elements are those of fifty years ago. Highly competent experts were presented by the parties. But they disagreed as to whether 1905 was an unusually dry season, or on the other extreme, was a year of record-breaking rainfall; whether the edible plant growth was more abundant in 1905 than now, because it had been overgrazed during World War I, or the management of the Forest Service had so improved it that it is better now than it ever was; whether in 1905, small tracts of this kind of land brought higher prices per acre than large ones, or vice versa. Thus there was disagreement, even as to relevant historical facts. There was disagreement as to conclusions to be drawn even from undisputed historical facts, such as the prices at which the railroads in the area sold their alternate sections of land. Did they sell them cheap in order to settle the country and get in cash to retire their bonds, or did they hold out for about the market price? There was disagreement as to how far from the area in question land transactions might take place, and still be helpful in arriving at the market value of these lands. Many lay witnesses were presented by the plaintiffs, old residents who recollected, more or less accurately, events and transactions of the time in question. Commissioner Hogenson of this court presided over the lengthy trial and has made an able and obviously careful report. He had a better opportunity than we have to acquire a realistic understanding of the problem of the value of these lands as of 1905, and we think his conclusion is substantially right. We therefore find, as he did, that the value was $1.25 per acre. The Payment to the Uncompahgres As we have seen, the 1931 Act required the payment of a share of the money granted by that act to the Uncompahgre Indians, and $439,466.88 of the money was paid to them. They had no title or interest in the Uintah Reservation except in the allotments which were bought for them from the plaintiffs, and in the common grazing area. They had, therefore, no interest in the 973,777 acres of the land placed in the Forest Reserve, for which the 1931 payment was made. The United States is entitled to no credit for the $439,466.88 which was paid to the Uncompahgre Indians. It is entitled to credit for the $777,754.37 which was paid to the plaintiffs. Interest The parties disagree as to whether our judgment should include interest upon the sum which we find to be the 1905 value of the land in question. As 958 we have said, the plaintiffs were the owners of the land in question, with a title repeatedly recognized by Acts of Congress, and by Executive actions taken pursuant to statutes. The United States, pursuant to an Act of Congress, took possession and ownership of the land for itself for its Forest Reserve. No plainer case of an expropriation could be stated. In that respect the case is like United States v. Creek Nation, 295 U.S. 103, 55 S. Ct. 681, 79 L. Ed. 1331 and Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States, 299 U.S. 476, 57 S. Ct. 244, 81 L. Ed. 360. It was held in those cases that in the case of an expropriation of lands owned by Indian Tribes, interest from the time of the taking must be included as a part of just compensation, in order to satisfy the Fifth Amendment. The decision in United States v. Alcea Band of Tillamooks, 341 U.S. 48, 71 S. Ct. 552, 95 L. Ed. 738, was based on the Court's conclusion that no taking such as is contemplated by the Fifth Amendment occurred in that case. If the plaintiffs were not, as we think they are, entitled to interest as a constitutional right, we think they would be entitled to interest under the provisions of the Jurisdictional Act. If Congress did not intend that the measure of recovery constitutionally required in expropriation cases should be applied, there was no reason for its express statement in section 6 that, if it found that the plaintiffs' lands had been taken without compensation, "the court shall render judgment in favor of said Indians, and shall award to them, as for a taking under the power of eminent domain, compensation for all such lands * * ." An interesting question arises as to the effect of the payment of the $777,754.37 by the United States to the plaintiffs in 1931 on the computation of interest. If it is applied to reduce the principal, it would follow that no interest on that part of the principal would accrue after 1931. If it is applied on the interest accrued up to 1931, it is not enough to pay that interest, and would leave all of the principal continuing to draw interest since 1931. The plaintiffs say that a payment not large enough to pay both interest and principal is to be applied first to interest, citing Story v. Livingston, 13 Pet. 359, 371, 38 U.S. 359, 371, 10 L. Ed. 200. The Government says that this is the rule unless the debtor, when he makes his payment, stipulates that it is to be applied to principal. The authorities cited by the Government seem to relate not to the question of principal and interest, but to situations where the debtor owes the creditor more than one debt, and stipulates that his payment should, for example, be applied to a secured debt, when the creditor would prefer to apply it to an unsecured debt. However, although there seems to be no precedent, we think that the general rule should be that the debtor may effectively direct the application of his payment. If he makes a payment stipulating that it shall be applied to principal, it would seem that the creditor would have no right to retain the payment and apply it to interest. If the interest is overdue, he may collect it by suit, but he can't do it by self-help, by using for a purpose which he prefers, money which is put into his hands for another purpose. If the intention of the debtor were controlling in the instant case, we have no doubt about the intention of Congress in 1931. It said that its payment was to be in full satisfaction of all claims relating to the land, and it fixed a price of $1.25 per acre for the land. It was thinking of principal, not interest. The plaintiffs urge that the Jurisdictional Act has directed us how to apply the 1931 payment by saying, in section 5 "No payment or payments which have been made by the United States upon or in satisfaction of any claim or claims asserted in any suit brought hereunder * * shall apply as an estoppel against any suit brought hereunder, but there 959 shall be set off against any recovery * * any payment made * * *." The plaintiffs say that this language directs us to compute their recovery as if no payment had been made in 1931, and then set off the 1931 payment against the result of that computation. This is a fair argument, and we are by no means certain that it is not correct. We conclude, however, that it was not meant by Congress as a specific direction as to how the computation should be made, but only as an assurance that the claims were not to be barred completely by a prior payment purportedly made in full satisfaction. We think Congress left to the Court the details of the computation, and expected us to make it in the same way that such a computation would be made in private litigation. We do not adopt the proposal of either litigant. As to the Government's contention as to the application of the 1931 payment, we think that in the instant situation the intention of the debtor is not controlling. The "debt" is not an obligation incurred by agreement, but one imposed by the law of the Constitution. Our duty, we think, is to apply the 1931 payment in such a way as to most nearly approach the Constitutional objective of compensation for the value at the time of taking, plus compensation, in the form of interest, for delay in paying for the value at the time of taking. When the $777,754.37 was paid to the plaintiffs in 1931, 26 years of interest at 5% had accrued upon the 1905 value of the land. The $777,754.37 was, therefore, sufficient to pay principal (100%) plus accrued interest (130%) upon only $338,154.08 of the principal ($777,754.37 ÷ 2.30 = $338,154.08). We think it should be so applied. That means that as to that much of the principal, the payment was in full, and no further interest accrued. As to the balance of the principal, $879,067.17, no payment has ever been made, and that sum draws interest from 1905 to the date of payment. We realize, of course, that such a formula, attempted to be patterned to fit a situation as unusual as the instant one where the Constitutional obligation has remained unfulfilled for more than fifty years, has rather rough edges. But it seems fairer to us than those proposed by the parties. The plaintiffs are entitled to recover $879,067.17, with interest thereon, as a part of just compensation at 5% from July 14, 1905 to July 14, 1934, and at 4% from the latter date to the date of payment.[2] The question of the remaining offsets, if any, has not been determined, and the case will be remanded to the commissioner for further proceedings on that matter under Rule 38(c), 28 U.S.C.A. It is so ordered. JONES, Chief Judge, and LARAMORE, WHITAKER and LITTLETON, Judges, concur. NOTES [1] The Ute Jurisdictional Act of June 28, 1938, c. 776 (52 Stat. 1209), as amended by the Act of July 15, 1941, c. 299 (55 Stat. 593); June 22, 1943 (57 Stat. 160); June 11, 1946, c. 378 (60 Stat. 255); and Sections 1, 2, 11 and 25 of the Act of August 13, 1946, c. 959 (60 Stat. 1049), 25 U.S.C.A. §§ 70, 70a, 70j, 70 note. [2] See Alcea Band of Tillamooks v. United States, 87 F. Supp. 938, 115 Ct. Cl. 463; Rogue River Tribe of Indians v. United States, 89 F. Supp. 798, 116 Ct. Cl. 454, certiorari denied 341 U.S. 902, 71 S. Ct. 610, 95 L. Ed. 1342.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515568/	170 Conn. 556 (1976) WATERBURY FIRST CHURCH HOUSING, INC. v. F. GEORGE BROWN, TAX COMMISSIONER Supreme Court of Connecticut. Argued January 13, 1976. Decision released April 13, 1976. HOUSE, C. J., LOISELLE, BOGDANSKI, LONGO and MACDONALD, JS. 557 Ralph G. Murphy, assistant attorney general, with whom were Richard K. Greenberg, assistant attorney general, and, on the brief, Carl R. Ajello, attorney general, for the appellant (defendant). J. Warren Upson, with whom were W. Fielding Secor, and, on the brief, Harry C. Blake and Raymond F. Voelker, for the appellee (plaintiff). MACDONALD, J. The issue raised by this appeal is whether a nonprofit housing corporation, which, with financial assistance from the federal government, rents apartments to the elderly at below market rates, constitutes a "charitable organization" so as to be entitled to exemption from the sales and use tax upon the sales to it of tangible personal property, as provided in § 12-412 (h) of the General Statutes.[1] The facts have been stipulated and, insofar as relevant, may be briefly summarized. The plaintiff is a nonstock corporation, organized under the laws of the state of Connecticut by certificate of incorporation 558 dated June 20, 1969, for the purpose of acquiring a site upon which to construct and operate housing for senior citizens, and whose only activity is the operation and management of Robin Ridge Apartments in Waterbury, the housing units for the elderly subsequently constructed by it. The expenses of the corporation consist principally of the operating expenses of the apartment units and the debt service on the mortgage note of $2,841,000 which the corporation issued to secure building funds, and, to meet those expenses, the plaintiff relies primarily on rental income from its tenants and federal assistance. The federal housing administration (FHA) guaranteed the corporation's mortgage note and, in addition, provides a program of rent supplements to tenants whose income does not enable them to meet the rent set by the corporation. The tenants' rent, combined with the low-interest, long-term mortgage made possible by the federal guarantee and with the federally provided direct rent supplements, allows the corporation to meet all of its expenses while providing apartments at rates below market. The corporation's only other source of funds has been a $17,000 loan from the First Congregational Church of Waterbury, which the plaintiff is obligated to begin repaying after the mortgage is fully paid. It does not appear from the record that the plaintiff relies to any extent on the receipt of gratuitous transfers of real or personal property to help defray its costs. The management of the corporation is conducted by a board of directors composed entirely of members of the First Congregational Church of Waterbury who are not compensated for their services. The plaintiff corporation is exempt from federal taxation as a charitable organization within the 559 standards of the Internal Revenue Code, 26 U.S.C. §501 (c) (3).[2] Also, the plaintiff has been designated a community housing development corporation so as to qualify for property tax abatement, pursuant to §§ 8-217 and 8-218 of the General Statutes.[3] The defendant tax commissioner, after a hearing, denied the plaintiff's application for exemption from the sales tax upon sales to it of tangible personal property, and from that decision the plaintiff, pursuant to the provisions of § 12-422, appealed to the Court of Common Pleas. The court, in sustaining the appeal, ordered that the defendant issue a tax exemption certificate to the plaintiff, and it is from the judgment rendered thereon that the defendant tax commissioner has appealed to this court. The determining factor in the decision of the trial court appears to be the standard it employed to determine the plaintiff's charitable status as stated in its conclusion: "The use to which plaintiff's 560 real property is dedicated is the sole determinative factor with respect to plaintiff's entitlement to the statutory exemption from sales and use taxes." We agree that this is one of the standards to be employed and that this standard has been met by the plaintiff. The meaning of "charitable" is not confined to its use in § 12-412 (h). Our General Statutes for many years have exempted from taxation the real property of Connecticut corporations "organized exclusively for ... charitable purposes," §12-81(7), and there is no reason to believe that the legislature intended a special meaning when it exempted "charitable organizations" from the sales and use tax.[4] "The definition of charitable uses and purposes has expanded with the advancement of civilization and the daily increasing needs of men. Mitchell v. Reeves, 123 Conn. 549, 554, 196 A. 785. It no longer is restricted to mere relief of the destitute or the giving of alms but comprehends activities, not in themselves self-supporting, which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and more likely that they will become useful citizens. Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 752, 217 S.W.2d 489. Charity embraces anything that tends to promote the well-doing and the well-being of social man. Ibid. An institution is charitable when its property and funds are devoted to such purposes as would support the creation of a valid charitable trust. Davie v. Rochester Cemetery 561 Assn., 91 N.H. 494, 495, 23 A.2d 377." Camp Isabella Freedman of Connecticut, Inc. v. Canaan, 147 Conn. 510, 514, 162 A.2d 700. The purposes for which a corporation is organized are to be found in its charter; St. Bridget Convent Corporation v. Milford, 87 Conn. 474, 482, 88 A. 881; and the plaintiff's certificate of incorporation lists as a purpose: "For elderly families and elderly persons on a non-profit basis, to provide rental housing and related facilities and services specially designed to meet the physical, social, and psychological needs of the aged, and contribute to their health, security, happiness and usefulness."[5] Moreover, the plaintiff's charter specifically prohibits it and any officer, member or employee from ever receiving any pecuniary profit from the corporation's operation. We can take judicial notice of the fact that in recent years large sums of public funds have been expended to provide low-income housing, and the plaintiff's dedication to making private low-rental housing for elderly persons on fixed incomes a reality clearly is an effort to "make it less likely that they will become burdens on society" and is, therefore, charitable. Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra, 515. "Whether the property for which exemption is claimed is actually and exclusively used for ... [charitable] purposes must be determined from the facts of the case." Id., 514. On the factual record of this case, it seems clear that the plaintiff has satisfied the requirement that it be "organized exclusively for charitable purposes." Id., 515. 562 The existence of a purpose that can be characterized as charitable, however, does not in itself render a corporation charitable and tax-exempt. An institution must be exclusively charitable, not only in the purposes for which it is formed and to which its property is dedicated, but also in the manner and means it adopts for the accomplishment of those purposes. Connecticut law for over 150 years has recognized that an essential characteristic of a charitable organization, besides a charitable purpose, is that it achieve its purpose "through the means of funds, derived from the gratuities of the benevolent." American Asylum v. Phoenix Bank, 4 Conn. 172, 177. In the American Asylum case, decided in 1822, this court was called upon to decide whether an incorporated school, whose sole object was the education and instruction of the deaf and dumb and whose only means of doing so were derived from the charity of individuals who either contributed gifts to the school or subscribed to membership shares of the nonprofit corporation, was "an incorporated school for charitable purposes." Referring to an early landmark decision of the United States Supreme Court, then only recently decided, Chief Justice Hosmer stated (p. 177): "The interesting and luminous decision of the supreme court of the United States, in the case of the trustees of Dartmouth College v. Woodward, 4 Wheaton, [17 U.S.] 518, with which I entirely accord, and to which I shall have a silent reference in my opinion, only renders it necessary to state the grounds of it very briefly. Eleemosynary corporations, or those created for charitable purposes, are such as are constituted for the perpetual distribution of the free alms of the founders of them, to such purposes as they have directed. Of this description 563 are hospitals for the maintenance of the poor, sick, or impotent, and colleges or schools for the promotion of piety and learning. The establishment of an institution for the dissemination of learning, has always been considered a charity. The true test of an institution is its origin and objects. If it is founded on donations, and has for its purpose the accomplishment of a charity, by the distribution of alms, it most unquestionably is eleemosynary." (Emphasis added.) Obviously, the scope of charitable purposes has moved considerably beyond the "mere relief of the destitute or the giving of alms." Camp Isabella Freedman of Connecticut, Inc. v. Canaan, supra, 514. But the requirement that the exempt organization's income be based to some measureable extent on "sums coming from private sources which are spent for the public weal" remains. See Connecticut Junior Republic Assn., Inc. v. Litchfield, 119 Conn. 106, 111-12, 174 A. 304, where this court stated, quoting Corbin v. Baldwin, 92 Conn. 99, 107, 101 A. 834: "Exemptions are made, and can be made lawfully, only in recognition of a public service performed by the beneficiary of the exemption; ... they are granted in aid of the accomplishment of a public benefit and for the advancement of the public interest. It is in recognition of their position as an agency in the doing of things which the public, in the performance of its governmental duties, would otherwise be called upon to do at its own expense, or which ought to be done in the public interest and without private intervention would remain undone. Yale University v. New Haven, 71 Conn. 316, 332, 42 A. 87. In the fullest sense of the word, the exemptions are given for the assistance and help of the private endeavor in its effort to advance the 564 public interest or to perform some share of the public governmental duty.... The amount of taxes which are lost to the State and its political subdivisions by reason of exemptions are of trifling consequence as compared with the sums coming from private sources which are spent for the public weal." (Emphasis added.) In the Camp Isabella Freedman case, for example, the corporation which was held to be tax exempt conducted a social welfare camp for maladjusted children. Since none of the campers paid the full cost, it was not self-supporting and the deficit from camp operations was made up by a grant from the Federation of Jewish Philanthropies. We cannot find, on the record before us, that the plaintiff has shown sufficient private intervention and private effort to earn charitable status. It does not appear from the record that the plaintiff is the beneficiary of any gifts from private sources, and the only funds which it has to distribute consist of rental income from its tenants and the federal subsidies which it receives. Under the terms of the FHA guarantee on its mortgage, the net income of the corporation is obligated for forty-two years to pay off the mortgage note. Any funds accruing to the corporation must then be used to repay the loan from the First Congregational Church of Waterbury. In the Camp Isabella Freedman case, we noted that charitable activities had expanded over the years in purposes, but we adhered to and specifically mentioned (p. 514) the conception that charitable uses and purposes comprehend activities "not in themselves self-supporting." The plaintiff's enterprise to provide needed low-cost housing to a certain segment of our population with the assistance 565 of the federal government was intended to be self-supporting, without any indication that gifts or charity were involved. Courts in other jurisdictions with charitable taxexemption provisions similar to those of Connecticut have arrived at the conclusion that a nonprofit corporation organized to construct FHA-financed housing for the elderly is not entitled to a charitable tax exemption and many of the opinions in those cases employ language applicable to the factual situation presented here. "We agree ... that the activity of providing facilities to meet the special residential requirements of the aged may qualify an institution for tax exemption as one of purely public charity under circumstances where ... aid is dispensed to those in sickness or distress `without regard to poverty or riches of the recipient' and `the funds, property and assets of such institution are placed and bound by its laws to relieve, aid and administer' to the relief of those in want, sickness and distress. But it is apparent that ... [the plaintiff] is not accepting residents without regard to their financial circumstances nor is it bound to assume charitable obligations or to engage in dispensing relief to those in need. The requisite elements of dedication and use in fact of its properties are not present. There is no assurance that society is being or will be relieved of the care and expense of those in need. This is not to say that all residents must be indigent or that the acceptance of payment from some will defeat tax exemption. It is to say that the institution must be one whose properties and assets are pledged in perpetuity to the relief of persons in financial need and to their assistance in obtaining the care they must have to prevent their becoming a burden on society. Laudable as 566 it is in origin and operation, ... [the plaintiff] does not meet the requirements ... for exemption from taxation as an institution of purely public charity." Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943, 949 (Tex.); see Dow City Senior Citizens Housing, Inc. v. Board of Review, 230 N.W.2d 497, 499 (Iowa); County of Douglas v. OEA Senior Citizens, Inc., 172 Neb. 696, 707, 111 N.W.2d 719; Mountain View Homes, Inc. v. State Tax Commission, 77 N.M. 649, 655, 427 P.2d 13.[6] On the other hand, courts which have held homes for senior citizens to constitute charitable organizations have stressed that the homes under consideration were funded by substantial gifts rather than by purchase and amortization of indebtedness. See Defenders' Townhouse, Inc. v. Kansas City, 441 S.W.2d 365, 373 (Mo.); State Board of Tax Commissioners v. Methodist Home for the Aged, 143 Ind. App. 419, 241 N.E.2d 84; In re United Presbyterian Homes, 428 Pa. 145, 236 A.2d 776. We find error in the trial court's application of a standard for defining charitability that looked *567 only to the purpose of an organization's activities without considering whether it achieves its charitable purposes through the use of charitable funds. There is error, the judgment is set aside and the case is remanded with direction to dismiss the appeal. In this opinion the other judges concurred. NOTES [1] Section 12-412 of the General Statutes provides in relevant part: "Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items: ... (h) Sales of tangible personal property to charitable and religious organizations." [2] 26 U.S.C. §501 (c) (3) exempts from federal income taxation: "Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office." [3] The parties in their briefs discuss the significance of the plaintiff's eligibility for abatement of real property taxes. Section 8-215 of the General Statutes provides in part for "the abatement in part or in whole of real property taxes on any housing solely for low or moderate-income persons or families." There is no requirement that the property be owned, managed, operated by or in any way related to a charitable organization and we agree with the plaintiff that the corporation's property tax abatement status is in no way dependent upon the plaintiff's status as a charitable organization. [4] Section 12-407 of the General Statutes, entitled "Definitions," contains no definition of "charitable," nor did the original "Education, Welfare and Public Health Tax Act" adopted in 1947 contain such a definition. See Public Acts 1947, No. 228, § 2. [5] It does not appear from the record that the plaintiff has ever actually offered any facilities or services specially designed to meet the needs of the elderly tenants. But we are here concerned only with the purposes for which the plaintiff corporation was formed. [6] The language of the Supreme Court of New Mexico in Mountain View Homes, Inc. v. State Tax Commission, 77 N.M. 649, 655, 427 P.2d 13, characterizes a factual situation similar to ours as follows: "True, no one makes a pecuniary profit, and certain persons and families who may be described as `low-income,'workers,"aged,' or `underprivileged' are provided better housing at lower prices than would otherwise be available to them. A benefit is thus bestowed. However, the recipients are certainly in no sense sick or indigent, and we would venture that most would be surprised to learn that they are considered as being proper objects for, or as recipients of charity. There is nothing in the record which indicates that any are welfare clients, or are permitted to occupy apartments without payment of the established rental. Neither is there any element of fraternity, brotherhood or good fellowship intended to improve the spirits or impel to renewed effort."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516651/	726 S.W.2d 250 (1987) Sammy Joe ADKINS, Appellant, v. The STATE of Texas, Appellee. No. 08-83-00092-CR. Court of Appeals of Texas, El Paso. March 4, 1987. Rehearing Denied April 1, 1987. Jimmy Edwards, Odessa, for appellant. 251 Phil J. Pollan, Dist. Atty., Fort Stockton, Douglas M. Becker, Gray, Allison & Becker, Austin, for appellee. Before OSBORN, C.J., and SCHULTE and WOODARD, JJ. OPINION OSBORN, Chief Justice. This is an appeal from a conviction for possession of tetrahydrocannabinol. The jury assessed punishment at fifteen years' imprisonment. On August 1, 1984, this Court reversed and remanded the cause finding that the trial court erred in failing to suppress the evidence seized under a warrant not supported by probable cause stated in the underlying affidavit. Adkins v. State, 675 S.W.2d 604 (Tex.App.El Paso 1984). On October 1, 1986, the Court of Criminal Appeals vacated this Court's judgment and remanded the cause to this Court for a determination of whether the invalidity of the warrant was not fatal to admission of the evidence due to the proven existence of an exception to the general warrant requirement imposed by both state and federal authority. Adkins v. State, 717 S.W.2d 363 (Tex.Crim.App.1986). In his dissent, presiding Judge Onion bemoaned the remand as a wasteful maintenance of this case in "appellate orbit." We concur in Judge Onion's sentiment. The precise facts were set out in our original opinion which we adopt here for the sake of brevity. The following summary should suffice for present purposes. McCamey police officers obtained confidential information concerning drug deliveries by Appellant to a McCamey resident. A second tip advised them that a meeting was taking place. While one officer took up surveillance, a second prepared an affidavit and secured a search warrant. The affidavit failed to set out probable cause in several respects. The Court of Criminal Appeals concurred in that appraisal by this Court. We further found that the ongoing surveillance did provide sufficient corroboration of the tip to amount to probable cause, when coupled with all of the prior information including that presented to the magistrate and that not presented. The seizure proceeded, however, upon the basis of the warrant which in turn was founded upon a deficient affidavit of probable cause. The officers stopped Appellant's vehicle and seized a quantity of drugs. The State argued that even if the warrant were invalid the search of the automobile was justified by the combination of actual on-the-scene probable cause and exigent circumstances. We rejected the argument finding that the entire body of exigent circumstances law was based upon a premise of permitting a reasonable seizure upon probable cause where under the circumstances the time to secure a warrant was not available without jeopardizing the legitimate ends of law enforcement. We further found that a fortiori such circumstances could not exist where the officers did in fact secure a warrant, albeit improperly. The majority opinion of the Court of Criminal Appeals found our "per se" assertion objectionable. We are then posed the question by the Court of Criminal Appeals of whether or not the facts of this case, in which the officers were able to secure and execute a warrant, present "exigent circumstances" defined by the United States Supreme Court as a situation in which "it is not practicable to secure a warrant." Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S. Ct. 2022, 2036, 29 L. Ed. 2d 564, 580, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); Chambers v. Maroney, 399 U.S. 42, 48, 90 S. Ct. 1975, 1979, 26 L. Ed. 2d 419, 427, reh. denied, 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970). We turn first to the authority cited by the Court as a basis for our assigned task. At the head of the list is Coolidge, in which the Court asserts "the Supreme Court" considered alternative justifications for the search after invalidating the warrant. More accurately, a majority of the Court invalidated the warrant, but only four members went on to consider exigent circumstances, ultimately finding none. Continuing with the federal authority, we find United States v. Poole, 718 F.2d 671 (4th Cir.1983), which is of course not binding on the Court of Criminal Appeals. 252 Flores v. State, 487 S.W.2d 122 (Tex.Crim. App.1972). We may of course voluntarily bind ourselves to such decisions, particularly when they are well reasoned and supported by authority. Unfortunately, Poole provides neither reason nor support. It gratuitously finds the defects in the warrant irrelevant given the "automobile exception" subspecies of exigent circumstances. Next is United States v. Clark, 559 F.2d 420 (5th Cir.1977), in which the exigent circumstances exception wins out over a defective warrant. The Fifth Circuit felt that the overriding exigent circumstances rendered the defect irrelevantas clearly established by Coolidge. As previously stated, the only thing clear in Coolidge was the 5-4 invalidation of the search warrant and the ultimate reversal. The agreement of four Supreme Court judges does not clearly establish the law of the land. We will not dwell on United States v. Chuke, 554 F.2d 260 (6th Cir.1977), cited in a footnote. The facts in Chuke depict exactly the opposite sequence of development in terms of garnering probable cause, foregoing a warrantless opportunity and proceeding with an ultimate warrant. We next turn to the Texas authorities. We are then directed to Lowery v. State, 499 S.W.2d 160 (Tex.Crim.App.1973), in which, like the Supreme Court in Coolidge, the Court of Criminal Appeals invalidated the warrant but went on, unsuccessfully, to seek some other seizure exception to justify the police conduct. Interestingly enough, when analyzing the possible application of Tex.Code Crim.Pro.Ann. art. 14.04 (officer has probable cause to believe felony committed and a fugitive is about to escape), the Court was in fact dealing with one Texas statutory form of the exigent circumstances doctrine. In concluding that such a cure would not work, the Court stated: In the instant case, there is no evidence that the officers believed the appellant was about to escape. Indeed, their commendable efforts in obtaining a warrant make evident that they had no such belief and could not have justified a warrantless arrest under Article 14.04, V.A.C.C.P. [Emphasis added.] Lowery, at 165. Stoddard v. State, 475 S.W.2d 744 (Tex.Crim.App.1972), makes the same fruitless effort to uphold the search under exigent circumstances, having found a warrant actually secured to be defective. Apparently the continued effort, albeit without success, is authority that it should and can be done. But, the wording of Stoddard is: The test is whether "exigent circumstances" make the obtaining of a warrant impracticable. Stoddard, at 752. Since a "per se" rule of exclusion is not valid, we are required to determine if there is some basis upon which to uphold the search can be sustained. But, first we again quote from Coolidge: The word "automobile" is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States.... In short, by no possible stretch of the legal imagination can this be made into a case where "it is not practicable to secure a warrant" ... and the "automobile exception," despite its label, is simply irrelevant. Coolidge, 403 U.S. at 461-462, 91 S.Ct. at 2035-2036, 29 L.Ed.2d at 580. Please note that the opinion used the word "irrelevant," not "relevant, but factually non-meritorious." Having made these observations, we now find, not as a per se rule but on the facts of this given case, that the record does not disclose exigent circumstances that made the securing of a warrant impracticable. Nonetheless, we will uphold the seizure and admissibility of the evidence on other grounds. Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969). It has occurred to this Court that a truly curative theory, not raised by either side or by the Court of Criminal Appeals, is more logically applicable and would avoid straining our already overburdened legal fictions. In *253 Lowery, one of the alternatives considered by the Court of Criminal Appeals was embodied in Tex.Code Crim.Pro.Ann. art. 14.01. This permits seizure "upon probable cause" for an offense committed in the officer's presence. It was inapplicable in Lowery because the murder offense had already been concluded. In our case, however, the offense was committed in Officer Bailey's presence. We have concluded that Bailey's corroborative evidence and the total information available to Renfro (although not all included in the affidavit) provided probable cause at the time of seizure. Thus, the warrantless stop and arrest of the Appellant was justified without strained resort to the exigent circumstances doctrine. The seizure of the money, drugs and weapons from the passenger compartment was therefore within the permissible scope of a search incident to the initial seizure. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). Point of Error No. One is overruled. Points of Error Nos. Two and Three are overruled for the reasons stated in our original opinion. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515567/	152 F. Supp. 540 (1957) Lemuel Lester WEITZEL, Plaintiff, v. BROWN-NEIL CORPORATION, Defendant. Civ. A. 463-F. United States District Court N. D. West Virginia, Clarksburg Division. June 19, 1957. 541 W. G. Stathers and Mary Frances Brown (Stathers & Cantrall), Clarksburg, W. Va., for plaintiff. Oscar J. Andre, George W. McQuain, and Willis O. Shay (Steptoe & Johnson), Clarksburg, W. Va., for defendant. HARRY E. WATKINS, Chief Judge. Plaintiff is engaged in the business of a manufacturers' representative, i. e., a salesman of specially manufactured machinery and equipment, and is a citizen of the Commonwealth of Pennsylvania. Defendant is a West Virginia corporation, organized in 1951 for the purpose of acting as a prime contractor in the performance of defense contracts. In this action, plaintiff seeks to recover commissions on two large contracts for the fabrication and installation of two decontamination booths for the Atomic Energy Commission, which contracts were entered into by defendant in 1953 and the work concluded in 1955. Defendant was paid a total of $1,834,820.66 for its work on these two contracts, and plaintiff here seeks, on the basis of an implied contract, a commission of three per cent of that figure, or $55,044.62. Defendant first denies the existence of any such implied contract, and secondly states that if such a contract did exist, it is unenforceable due to the covenant against contingent commissions which is included in all Government contracts, including the two contracts involved here. The issue, then, is simply whether there was a valid, enforceable implied contract between these parties. Upon the evidence presented to this Court, sitting without a jury, I find that there was not, and defendant must prevail. Findings of Fact The defendant was formed, as indicated by a "History and Facility Record" introduced in evidence, to act as a prime contractor for defense contracts. The corporation was organized to pool the facilities and manpower of four small corporations in Clarksburg, West Virginia, with each participating company owning one-fourth of the capital stock. The operating heads of the four corporations served as officers and directors of the defendant. Since 1949, plaintiff has been exclusively engaged as a manufacturers' representative for two firms, Forney's, Inc., of New Castle, Pennsylvania, and Hinkle Brothers, Inc., of Clarksburg, West Virginia. Hinkle Brothers was one of the four owners of defendant, but Forney's was not one of the four owners. In 1953, on behalf of Forney's, plaintiff contacted a firm of design engineers in Detroit, Michigan, who were at that time designing two decontamination booths for the Atomic Energy Commission. This firm furnished Forney's some drawings of certain component parts for the booths, called templates, dollies, and tracks, and asked Forney's to submit a bid on the fabrication of those parts. Plaintiff, for Forney's, quoted some prices on these parts but due to a change in plans, it developed that the Detroit firm was not going to do the purchasing for the projects, but rather these component parts would be included in overall Government prime contracts. Plaintiff was then instrumental in having Forney's considered as a bidder on the prime contracts. Forney's obtained a set of drawings and specifications for the booths, but upon scrutiny of these papers the management of Forney's decided that they did not care to bid on the entire project as Forney's did not possess the capital or physical plant to undertake the prime contracts. Plaintiff then obtained permission from Forney's to contact the other firm he represented, Hinkle Brothers, Inc., to see if either Hinkle Brothers or defendant corporation were interested in bidding on these AEC contracts. Through a telephone call to Leslie A. Hinkle, president and managing officer of Hinkle Brothers and a director of defendant, plaintiff ascertained that defendant was interested in bidding on the contracts. 542 That was plaintiff's first contact with defendant. On October 6, 1953, Hinkle and Moffatt B. Tolley, the production manager of defendant, drove from Clarksburg to New Castle to look at the drawings and specifications. Plaintiff was not in New Castle on that day, but other personnel of Forney's showed Hinkle and Tolley the papers. Tolley decided that defendant was capable of undertaking the entire project and was interested in submitting a bid. During that visit to New Castle by Hinkle and Tolley, Forney's indicated that if defendant were the successful bidder on the overall project, then Forney's would like to produce, through a subcontract, the templates and dollies on which they had previously been negotiating with the Detroit design firm. In determining defendant's capacity to handle the entire job, Tolley states that he took into consideration the facilities of the four participating companies which owned defendant, and realized that while some work could be subcontracted to outsiders, a large part of the work would be done by Hinkle Brothers. Ultimately, some 60% of the labor was performed by Hinkle Brothers. The interest of Forney's and Hinkle Brothers in subcontracts at the time of this trip to New Castle is consistent with Tolley's testimony that he felt that work later performed by plaintiff was being performed for these two firms and not for defendant. On October 13, 1953, plaintiff, Hinkle and Tolley went to Oak Ridge, Tennessee, and obtained a set of drawings and specifications for the overall project. On that occasion, plaintiff met Tolley for the first time and was introduced by Hinkle as "sales manager for Forney's"a position which plaintiff held in addition to being Forney's manufacturer's representative. Letters dated October 23, 1953, and January 18, 1954, addressed to defendant, signed by plaintiff as "Sales Manager" on Forney's stationery, with one of the letters marked to the attention of "Mr. Moffitt Tollie," indicate that Forney's was interested as a subcontractor on this project. These letters substantiate Tolley's testimony that he dealt with plaintiff as a representative of Forney's and Hinkle Brothers on this trip to Oak Ridge and in subsequent dealings. Returning to Clarksburg with the drawings and specifications, Tolley and other engineers studied the papers and obtained bids upon portions of the work, including bids from the four owner companies of defendant, and bids from Forney's. Then on October 20, 1953, plaintiff, Hinkle and Tolley again went to Oak Ridge, to attend a conference of all parties interested in bidding on this project. A list of persons attending this conference prepared by representatives of the AEC was admitted into evidence and plaintiff's counsel stress the fact that plaintiff is listed, along with Hinkle and Tolley, as a representative of defendant. However, that is not a controlling factor in determining plaintiff's position at this meeting, as there are other persons listed who were representing prospective subcontractors. Furthermore, Hinkle testified that although listed at this meeting as a representative of the defendant, Hinkle was in fact acting for Hinkle Brothers throughout the obtaining of these contracts because the bulk of the work would go to his firm, Hinkle Brothers, if defendant were the successful bidder. On November 29, 1953, plaintiff, Hinkle and Tolley went to Oak Ridge a third time. During the evening and night, in one of their hotel rooms in Knoxville, Tennessee, the three men reviewed the figures used in arriving at a final bid, and prepared the bid form to be taken to a stenographer the next morning. The various expenses of the job were discussed and compiled, such as insurance, counsel fees, etc., but nothing was said by any of the three men about including a sum to cover plaintiff's compensation, and no allowance was made for such an expense. Plaintiff did not see the breakdown of expenses, inasmuch as that was a matter with which Hinkle and Tolley were more concerned, but the 543 omission from the bid of any sum to cover payment to plaintiff is significant to indicate that Tolley and Hinkle must have considered plaintiff to be working for the two interested subcontractors. At the time of submitting the bid, no profit was planned for defendant. It was anticipated that any profits on the contracts would be made by the various subcontractors, and defendant would only supervise the administration of the contracts. It was planned at the time of the bidding that Forney's and Hinkle Brothers would do most of the purchasing of materials, with Hinkle Brothers given a 20% mark-up on materials for handling their part of the purchasing. It later developed that defendant had to do the purchasing, so defendant did make a profit of $87,957.52 (before Federal Income taxes), largely from the 20% mark-up originally planned for Hinkle Brothers. In the computation of the bid figure, then, not only was there no specific expense figure included to pay plaintiff, but there was no profit figure or any other sum from which plaintiff could be paid. The final bid was to be submitted on a form provided by the AEC, which contained the following paragraph: "The undersigned represents (check appropriate boxes): (1) that the aggregate number of employees of the bidder and its affiliates is _____ 500 or more, x less than 500; (2) (a) that he _____ has, x has not, employed or retained any company or person (other than a full-time bona fide employee working solely for the bidder) to solicit or secure this contract; and (b) that he _____ has, x has not, paid or agreed to pay to any company or person (other than a full-time bona fide employee working solely for the bidder) any fee, commission, percentage or brokerage fee, contingent upon or resulting from the award of this contract for the construction of Spray Booth Equipment in Decontamination Building No. K-1420, and/or this subcontract for the construction of Spray Booth Equipment in Decontamination Building No. X-705, and agrees to furnish information relating thereto as requested by the Contracting Officer. (Note: For interpretation of the representation, including the term `bona fide employee,' see General Services Administration Regulations, Title 44, secs. 150.7 and 150.5(d) Fed.Reg., Dec. 31, 1952, Vol. 17, No. 253." Tolley testified that about 2:00 a. m., November 30, 1953, he read this warranty to the other two men. Plaintiff denies hearing that paragraph read; Hinkle does not remember. At any rate, Tolley was working with the bid form and was responsible for entering the "x" in the three blanks. This is another indication that on the day of the submission of the bid, Tolley did not consider plaintiff to be working on behalf of the defendant. Plaintiff testified that Tolley promised to put him on defendant's payroll as a means of compensating plaintiff for obtaining these contracts. Tolley, on the other hand, testified that his understanding about putting plaintiff on the payroll was that because of the size of these contracts, both of plaintiff's employers, Hinkle Brothers and Forney's, would be so busy during the time that they worked on the decontamination plant parts that they would need no manufacturer's representative in the field to solicit additional business for them. Therefore, it was Tolley's understanding that plaintiff wanted to be associated with defendant to assist in purchasing materials for these contracts. However, Tolley found that because of the close figuring he and his associates had made on the bid, the defendant could not afford any outside help so plaintiff was never employed. Plaintiff has continued to represent Forney's and Hinkle Brothers, obtaining other work for them, but has had no further connections with the defendant corporation. 544 Defendant was the low bidder on the two decontamination booths, and was awarded contracts for the construction and installation of them. Defendant divided up the work among its four owners, with Hinkle Brothers receiving $547,430.68 for its subcontract, as compared with $138,434.79 for the next highest sum paid any of the owners, and the latter figure included the price of some materials, whereas the sum paid Hinkle Brothers was entirely for labor. The bid of Forney's on the templates and dollies was not the lowest bid for that work, but Forney's was allowed to resubmit a low bid and was given a subcontract totalling $116,863.11. One of the owner companies of defendant, Barnes & Brass Electric Company, had been the original low bidder on the work given Forney's, but at Leslie Hinkle's insistence the subcontract was given Forney's, since it had been through Forney's that defendant learned of the AEC projects. The major part of the work on the two contracts was performed by Hinkle Brothers, with a substantial contribution by Forney's, which substantiates Tolley's testimony that he felt that plaintiff had at all times been working for his two regular employers, Forney's and Hinkle Brothers. Tolley further testified that prior to 1953 defendant had done work on three other Government contracts; and that Tolley Engineering Company, another of the four owners of defendant, had had four or five Government contracts while Tolley was president of that company prior to 1953. As a result of these contracts, Tolley had become familiar with the covenant against contingent commissions before he even learned of these two contracts for the decontamination booths. This knowledge added to Tolley's belief that plaintiff would not look to defendant for compensation, since plaintiff had not theretofore done any work for defendant. Plaintiff testified that he had not known specifically of the covenant being in Government contracts until after defendant had been awarded these two contracts and he had been denied payment for his services. Taking all the evidence into consideration, it is clear that Tolley at all times treated plaintiff as a representative of Forney's and Hinkle Brothers. While he was the operating head of defendant corporation during the period of obtaining and carrying out the work on those two contracts, on February 22, 1956, Hinkle Brothers bought all the capital stock of the other three owners of defendant, and Tolley no longer has any connection with defendant. The testimony of Hinkle is not too clear as to whom he thought plaintiff was looking to for compensation. However, he recognized an obligation of Hinkle Brothers toward plaintiff and offered plaintiff a check in partial payment for services rendered Hinkle Brothers in obtaining the subcontract. Plaintiff returned the check, stating that he felt defendant should pay him for his services. This attempted payment by Hinkle occurred after defendant had been awarded the contracts for the decontamination booths. Plaintiff has not shown by any credible evidence that defendant, through Tolley or Hinkle or any other person, ever accepted plaintiff's services with the understanding that plaintiff expected compensation from defendant. Nor has plaintiff established that the plaintiff's services were rendered under such circumstances that ordinary men should have realized that plaintiff was looking to defendant for compensation. All plaintiff's acts are consistent with the actions of a man representing two prospective subcontractors which were actively interested in seeing that defendant got these two Government contracts so that the subcontractors could do the major portion of the work. Taking into consideration all the evidence, I find that defendant did not accept plaintiff's services under such circumstances as to give rise to an implied obligation to pay therefor. As will be later discussed under Conclusions of Law, plaintiff attempts to place himself within an exception of the covenant against contingent fees required 545 in all Government contracts. General Regulation 12, of the General Services Administration, 44 C.F.R. § 150.5 (e) (2) (ii) states, concerning this exception: "The selling agency should have adequate knowledge of the products and the business of the concern represented, as well as other qualifications necessary to sell the products or services on their merits." Plaintiff did not have any current knowledge of the overall capabilities of the defendant when he called Hinkle, a few days prior to October 6, 1953, to see if either Hinkle Brothers or defendant were interested in these two AEC projects. Some six to twelve months prior to that, Hinkle had given plaintiff a History and Facility Record of the defendant, listing the capital, engineering experience, tools and machinery of the four owner companies, but from that Record alone plaintiff could not have determined whether defendant's organization could handle these two large contracts in the time specified. Plaintiff testified that while he was familiar with Hinkle Brothers' facilities in October, 1953, he did not know anything about Fuel City Metal Works, Inc., another of the four ownersand in fact has never been to Fuel City's plant. Further, plaintiff testified that he could not recall having been told anything about Tolley Engineering Company, another owner, when Hinkle gave him the History and Facility Record of the defendant. Under this evidence, I find that plaintiff did not have, as required by the above-quoted Regulation, "adequate knowledge of the products and the business" of the defendant "to sell the products or services on their merits." Plaintiff seeks a commission of three per cent of the gross amount of the two contracts, basing this figure upon his experience with Hinkle Brothers. Expert witnesses introduced by plaintiff testified, and were not controverted by any evidence adduced by the defendant, that three or four to six per cent would be a reasonable commission in payment for plaintiff's efforts with respect to these Government contracts. I find that three per cent would be a reasonable commission if plaintiff were able to establish an enforceable contract existing between these parties. Conclusions of Law Another factor negativing any implied contract in this case is the covenant against contingent fees or commissions, which was a part of both contracts for these decontamination booths. It would be an anomaly for the Court with one hand to give effect to an implied contract of the type alleged here, making a contract which was not actually entered into by the parties, only to strike that implied contract down with the other hand for violating public policy. As stated by the Supreme Court as early as 1870: "Where the case shows that it is the duty of the defendant to pay, the law imputes to him a promise to fulfil that obligation. Such a promise to pay, however, will never be implied unless some duty creates such an obligation, nor will the law ever imply a promise to do an act contrary to law or in violation of a public duty." Collector of Internal Revenue v. Hubbard, 12 Wall. 1, 12, 79 U.S. 1, 12, 20 L. Ed. 272. (Emphasis added.) Under the facts of this case, to imply a promise to pay plaintiff what he seeks in this action would impose an obligation upon defendant which would be contrary to the covenant against contingent fees, and a contract should not be implied where the parties cannot legally make an express contract covering the same matters. Title 41, U.S.C.A. § 254, states that certain Government contracts shall contain a warranty by the contractor " * * that no person or selling agency has been employed or retained to solicit or secure such contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or 546 bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business, for the breach or violation of which warranty the Government shall have the right to annul such contract without liability or in its discretion to deduct from the contract price or consideration the full amount of such commission, percentage, brokerage, or contingent fee." The same requirements are found in Executive Order No. 9001, as amended by No. 9296, and in Executive Order No. 10210, made applicable to the Atomic Energy Commission by No. 10216; see Title 50 U.S.C.A.Appendix, § 611 note. The two contracts entered into by the defendant, as well as the bid form submitted by defendant, contained covenants in language similar to that of the statute. Plaintiff cites some decisions from state courts that a violation of this warranty does not relieve the contractor from liability to its agent, as the covenant is only a matter between the Government and the contractor. Gendron v. Jacoby, 1953, 337 Mich. 150, 59 N.W.2d 128; Buckley v. Coyne Electrical School, Inc., 1951, 343 Ill.App. 420, 99 N.E.2d 370, certiorari denied 1952, 342 U.S. 927, 72 S. Ct. 366, 96 L. Ed. 691; A. H. Haeseler Bldg. & Contracting Co. v. John J. Dupps Co., Ohio App.1954, 129 N.E.2d 383, syl. 4, 387; Ebeling v. Fred J. Swaine Mfg. Co., 1948, 357 Mo. 549, 209 S.W.2d 892. This same argument was raised in the case of Mitchell v. Flintkote Co., 2 Cir., 185 F.2d 1008, certiorari denied 341 U.S. 931, 71 S. Ct. 804, 95 L. Ed. 1361, but the court held a contingent commission contract illegal in these words: "The Flintkote agreement with Mitchell was made in New York City, and in his brief plaintiff cites two New York cases which would indicate that the New York courts would hold Order No. 9001 not decisive of the issues in this case. But this does not alter our conclusion. Order No. 9001 states a federal rule of public policy and federal, not state, law governs its applicability. The `checker-board' pattern imposed by Erie R. Co. v. Tompkins [304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188] is necessarily unsuited to matters subject to federal regulation, and hence state law does not control the disposition of suits which, although they are between non-governmental parties and are brought in a federal court on the basis of diversity of citizenship, involve interpretation or application of federal law. If, as must be conceded, the national government has power to protect itself against contracts of the kind here in question, the protection afforded must be uniform in all its ramifications, including a uniform rule governing the enforceability of contingent fee contracts behind principal and agent." (Citations omitted.) 185 F.2d at page 1011. The case of Le John Manufacturing Company v. Webb, 95 U.S.App.D.C. 358, 222 F.2d 48, 50, involved one of these contingent fee contracts, and the court stated: "`Contingent fee contracts to secure Government business for the employer of the recipient (of the fee) have been held invalid because of their tendency to induce improper solicitation of public officers and the exercise of political pressure.' Muschany v. United States, 1945, 324 U.S. 49, 64, 65 S. Ct. 442, 450, 89 L. Ed. 744. This traditional policy of the courts was reinforced by Executive Order No. 9001 * ." After quoting the warranty required by Executive Order 9001, the court continued: "The purpose of this requirement of the Executive Order is plain: it reflects the public policy long enunciated by the courts, and adds to it a thrust comparable to that of statutory law. See Mitchell v. Flintkote Co., 2 Cir., 1951, 185 F.2d 1008. A compensation contract in violation of the required warranty will not be enforced by the courts." 547 Another case holding the contractor-agent contract unenforceable as violative of public policy is Bradley v. American Radiator & Standard San. Corp., 2 Cir., 159 F.2d 39. Under these decisions of two Circuit Courts interpreting federal public policy, I conclude as did the District Judge in a similar case, Ballard v. Tingue Mills, D.C.Conn.1954, 128 F. Supp. 683, 691: "But even if the plaintiff had proved that he had furnished services for which under the agency contract he was entitled to the stipulated commissions, I hold that he would not be entitled to recover. This is because such a contract would be in contravention of the public policy declared by Executive Order * * ." Plaintiff further states that if the warranty applies as a declaration of public policy, affecting the alleged implied contract here (and I hold that it does), then he comes within the exception set forth within the warranty, "bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business." As shown by his representation of Forney's and Hinkle Brothers, plaintiff undoubtedly is a bona fide established commercial or selling agency within the meaning of the exception. It is urged that because he had been "maintained" over the years by Hinkle Brothers, plaintiff was "maintained" by the defendant, so far as these Government contracts were concerned, so that plaintiff claims he meets all the requirements of the exception. This, plaintiff argues, is due to the peculiar relationship existing between Hinkle Brothers and defendant, where defendant had no facilities of its own but depended upon the four owners' facilities, and in fact primarily upon the facilities of Hinkle Brothers. This is a specious argument, however, when we look to the meaning of the word "maintained" as interpreted by the courts. A most thorough study of this word of art is found in the case of United States v. Paddock, 5 Cir., 178 F.2d 394, 395-396: "The primary decision on this item turns upon the meaning of the word maintained; for present purposes, it is the key word in the exception. If the word is given its usual and ordinary acceptation, and interpreted in the spirit of the order, the exceptive class of procurement agencies is limited to those maintained by the contractor in good faith for the purpose of securing business. To maintain here (according to the dictionary) means to keep in a particular state or condition; to sustain; to keep possession of; to hold and defend; not to surrender or relinquish; to bear the expense of; to support; to keep up; to supply with what is needed. Consequently, a procurement agency, employed merely on contingent fees to secure war contracts, did not meet the test prescribed by the exceptive clause in what was known in army circles as the standard warranty against contingent fees." On petition for rehearing, 5 Cir., 180 F.2d 121, 122, certiorari denied 340 U.S. 813, 71 S. Ct. 41, 95 L. Ed. 597, the court stated: "After further careful consideration, we think that the interpretation of the exceptive clause in the warranty contended for by the appellee would nullify the warranty, which certainly was not the intention of the parties. The purpose of this exception, as indicated by the use of the word `maintained,' was to allow contractors to continue the existence of something already in use, not to introduce a special method of securing government contracts. The idea ordinarily conveyed by the phrase `to maintain' is not to provide or construct something new, but to preserve free from change a method of doing business to which the party has been accustomed. Cf. Smallwood v. Gallardo, 548 275 U.S. 56, 61, 48 S. Ct. 23, 72 L. Ed. 152; Moore Ice Cream Co. v. Rose, 289 U.S. 373, 377, 53 S. Ct. 620, 77 L. Ed. 1265; Walker v. Alexander, Tex.Civ.App., 212 S.W. 713, 717; O'Connell v. Kansas City, 208 Mo.App. 174, 231 S.W. 1040; Raulston v. Mutual Ben. Health & Accident Ass'n, 22 Tenn.App. 101, 118 S.W.2d 881, 885." The interpretation of this word "maintained" as given in the Paddock case was followed in Le John Manufacturing Company v. Webb, supra, with the following additional comment: "In our view, a restrictive approach of this sort is necessary in order to prevent the excepting clause from utterly defeating the purpose and effect of the warranty itself." 222 F.2d at page 51. In Reynolds v. Goodwin-Hill Corporation, 2 Cir., 154 F.2d 553, 555, Judge Learned Hand has this to say concerning the exception: "The purpose of the section is reasonably plain: the payment of contingent fees was permitted when made to an agent employed generally to drum up business for the contractor, presumably because it was thought wise to allow contractors to do business in their accustomed way, in spite of the possibility that the inducement of a commission might on occasion result in abuses. But it was also thought that to employ persons to procure specific contracts upon a contingent fee, was likely to result in selecting those who had, or were supposed to have, some especial access to officials; and that this could not be tolerated." That statement was challenged in a later case as unsound and unnecessary to the decision, but the court reaffirmed its position in these words: "It is true that the pronouncement as to the employment of an agent to procure specific contracts upon a contingent fee was a dictum but we still think it was a correct interpretation of the Executive Order. The exception creates a privileged class who may receive contingent fees for securing government contracts, while others may not. Not only should grants of special privileges be jealously restricted, but such a restriction is also in the interest of maintaining the integrity of governmental contracting procedure. Moreover, the use of the words `Maintained by the contractor' suggests an intention to restrict the exception to continuing relationships between the contractor and his agent. The contract alleged in the complaint violates the public policy declared in the Executive Order." Bradley v. American Radiator & Standard San. Corp., supra, 159 F.2d at pages 40-41. The most recent case found on this subject comes from the Court of Appeals for Kentucky, in Vogt Brothers Manufacturing Co. v. Stansbury, 304 S.W.2d 787. Under the facts of that case, the court held the manufacturer's agent met the requirements of the exception to contingent fee contracts. The court based its decision upon the requirements of certain Regulations in 44 C.F.R. §§ 150-150.13, the same Regulations to which the quoted portion of the bid form in the present case made reference. The facts of that case, however, are quite unlike those in the present controversy. The Kentucky court found that the agent "maintained a thorough and current knowledge of Vogt Brothers' plant and its operations. He kept informed as to products in which they were interested, and endeavored to obtain for them subcontracts from other contractors, as well as prime contracts directly with the Air Force. He had maintained a relationship with Vogt Brothers over a considerable period of years." The plaintiff in this action, however, did not keep himself informed of the products and business of the defendant, *549 as discussed earlier in my Findings of Fact, and there was no continuity of relationship between plaintiff and defendant. Applying the law as enunciated by the foregoing authorities to the facts of the case at bar, I hold that plaintiff does not qualify as a bona fide established commercial or selling agency maintained by the defendant for the purpose of securing business. Plaintiff may have been "maintained" by Hinkle Brothers, but most certainly he was not "maintained" by this defendant when the only time he had any contact with the defendant was to assist in obtaining these two Government contracts through a single bid. Plaintiff's only efforts in assisting defendant were with respect to one isolated instance, without any past or contemplated future employment, and a contingent fee in this type case is precisely the thing the statute and Executive Orders were intended to stop. Plaintiff has testified that he exerted his efforts in obtaining these contracts for defendant assuming that he would be paid by defendant just as previously and subsequently he had been paid for similar work by Hinkle Brothers. However, merely rendering services for a party does not give rise to an implied contract. See an annotation in 54 A.L.R. 548, giving numerous cases where work was performed at the request of, or with the acquiescence of, the recipient, yet the circumstances surrounding the rendering of the service repelled any inference of an agreement to pay for the work. Plaintiff has not here shown by a preponderance of the evidence that his services were accepted by the defendant under such circumstances as to constitute an implied contract, for plaintiff has not shown any acts of the parties or any circumstances which, "according to the ordinary course of dealing, and the common understanding of man, show a natural intent to contract." Woodruff v. New State Ice Co., 10 Cir., 197 F.2d 36, 38. One further contention of plaintiff should be mentioned. It is true that there is no evidence here of any use of "influence" on the part of plaintiff to obtain these contracts. However, the courts have been explicit in their decisions that nothing sinister need be shown in order to invalidate a contract for contingent fees as a violation of public policy. See Le John Manufacturing Company v. Webb, supra, 222 F.2d at page 51: "But in any event it is clear that actual evidence of improper conduct is not necessary to render such agreements unenforceable: `The law looks to the general tendency of such agreements; and it closes the door to temptation, by refusing them recognition in any of the courts of the country.' Tool Co. v. Norris, 1864, 2 Wall. 45, 56, 69 U.S. 45, 56 [17 L. Ed. 868]." The Court finds that no valid, enforceable implied contract existed between these parties upon which plaintiff can recover, and that the action must be dismissed. Counsel may prepare an order in accordance with the views expressed in this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515578/	152 F. Supp. 21 (1957) William S. GIRARD, United States Army Specialist 3/C, Petitioner, v. Charles E. WILSON, Secretary of Defense, John Foster Dulles, Secretary of State, Wilbur M. Brucker, Secretary of the Army, General Maxwell D. Taylor, Head Joint Chiefs of Staff Department of Defense, Major General W. H. Maglin, Provost Marshal General United States Army, General Lyman Lemnitzer, Commanding General, Far East Command, Respondents. H. C. No. 47-57. United States District Court District of Columbia. June 18, 1957. 22 Earl J. Carroll, and Joseph S. Robinson, New York City, Dayton M. Harrington, Washington, D. C., for petitioner. Oliver Gasch, U. S. Atty., E. Riley Casey, Asst. U. S. Atty., Harold H. Greene, Asst. U. S. Atty., Washington, D. C., for defendants. McGARRAGHY, District Judge. This is a Petition for a Writ of Habeas Corpus and for other relief, filed by William S. Girard, United States Army Specialist Third Class, against the Secretary of Defense and others, in which he alleges that on or about January 30, 1957, he was arrested and thereafter held in confinement by the military authorities of the United States and is presently held in such confinement for the purpose of being delivered to the Government of Japan for trial for an alleged offense over which that Government has no jurisdiction, nor does it have jurisdiction over the person of the petitioner. He further alleges that his detention is illegal and in violation of the Constitution and laws of the United States, as well as the treaty rights and obligations of the Government of the United States, and that the reasons for his detention and proposed delivery to the Japanese Government are invalid in law and in violation of fundamental constitutional and legal rights of petitioner. The petitioner is a Specialist Third Class in the Regular Army of the United States, assigned to Company F, 8th Cavalry Regiment, at Camp Whittington, Honshu, Japan, having reenlisted while in Japan on October 28, 1954, for a period of three years. On January 30, 1957, an incident occurred while the petitioner was on a firing range known as Camp Weir Range in Japan, resulting in the death of a Japanese woman for which the American military authorities propose to deliver petitioner to the Japanese Government for trial. The incident is succinctly described in the certificate of the petitioner's commanding officer dated February 7, 1957, from which the following is quoted: " * , I certify that Girard, William S. RA 16 452 809, Specialist Third Class, Company F, 8th Cavalry Regiment, APO 201, was in the performance of his official duty at 1350 hours, 30 January 1957, Camp Weir Range Area, when he was involved in the following incident: On 30 January 1957, 2nd Battalion, 8th Cavalry Regiment, was engaged in routine training at Camp Weir Range Area. Company F was conducting blank firing exercises. Specialist Third Class William S. Girard was instructed by his platoon leader to move near a position near an unguarded machine gun to guard the machine gun and items of field equipment that were in the immediate area. Girard, following instructions, moved to the designated position near the machine gun. While performing his duties as guard, he fired an expended cartridge case, as a warning, which struck and killed Sakai, Naka, Kami-Shinden, Somamura, Gumma Prefecture, who had entered the range area for the purpose of gathering expended cartridge cases." This certificate has never been withdrawn or modified in any respect. The Security Treaty between the United States of America and Japan which entered into force on April 28, 1952, provided by Article III thereof that: "The conditions which shall govern the disposition of armed forces of the United States of America in and about Japan shall be determined by administrative agreements between the two Governments." Article XVII of the Administrative Agreement subsequently entered into between the Governments of the United States of America and Japan defines the offenses of which the countries have concurrent jurisdiction and exclusive jurisdiction, respectively. 23 Paragraph 3 of Article XVII provides that with respect to cases where the right to exercise jurisdiction is concurrent, the military authorities of the United States shall have the primary right to exercise jurisdiction over the members of the United States armed forces or the civilian component in relation to offenses arising out of any act or omission done in the performance of official duty. (Italics supplied.) The Agreed Official Minutes regarding this provision in Paragraph 3 provide that where a member of the United States armed forces or the civilian component is charged with an offense, a certificate issued by or on behalf of his commanding officer stating that the alleged offense, if committed by him, arose out of an act or omission done in the performance of official duty, shall, in any judicial proceedings, be sufficient evidence of the fact unless the contrary is proved. It was pursuant to these Official Minutes that the certificate of the petitioner's commanding officer was issued dated February 7, 1957. The certificate by the commanding officer which was directed to the Chief Procurator, Maebashi District, Maebashi City, Honshu, Japan, continued by stating: "The United States will exercise jurisdiction in this case unless notification is given immediately that proof to the contrary exists." Thereafter, on February 9, 1957, the Chief Procurator notified the petitioner's commanding officer with reference to his certificate as to official duty that "This office considers the proof contrary thereto exists, basing upon our examinations." Following this exchange, there were discussions commencing in early March, 1957, by the representatives of the United States and representatives of Japan constituting a Joint U. S.-Japan Committee. On May 16, 1957, the United States representative on the Committee agreed that the United States would not exercise its asserted right of primary jurisdiction in this case. This action is said to have been taken in accordance with Paragraph 3(c) of Article XVII of the Administrative Agreement, which reads as follows: "If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance." Thereafter, on June 4, 1957, the Secretary of State of the United States and the Secretary of Defense of the United States who are named as two of the defendants in this action, issued a joint statement that they had carefully reviewed all of the available facts in this case, and have now concluded that the agreement that the petitioner be tried in the courts of Japan was reached in full accord with procedures established by the Treaty and Agreement, and that in order to preserve the integrity of the pledges of the United States, this determination by the Joint Committee must be carried out. This joint statement related the circumstances substantially the same as, but in more detail than, those contained in the certificate by the petitioner's commanding officer. The following is quoted from the joint statement: "* * * The incident occurred in a maneuver area provided by the Japanese Government for part-time use of United States forces. The Japanese Defense Force uses the same area about 40% of the time. When the area is not in use by either the United States or Japanese armed forces, Japanese civilians are permitted to farm or otherwise use the area. "Efforts to keep civilians away from the area during such military exercises have not proved effective. In this particular case, red boundary flags were, as customary, erected 24 as a warning to civilians to keep off, and local authorities were notified of the proposed exercises. But, as was frequently the case, a number of Japanese civilians were in the area gathering empty brass cartridge cases at the time of the incident. These civilians had created such a risk of injury to themselves in the morning exercises when live ammunition was used that the American officer in charge withdrew live ammunition from the troops prior to the afternoon exercises. In the interval between two simulated attacks during the afternoon, Girard and another soldier, Specialist 3rd Class Victor M. Nickel, were ordered by their platoon leader, a lieutenant, to guard a machine gun and several field jackets at the top of a hill. Girard and Nickel were not issued live ammunition for this duty. "It was while these soldiers were performing this duty that the incident occurred. Mrs. Naka Sakai, a Japanese civilian, died a few moments after being hit in the back by an empty brass rifle shell case fired by Girard from his rifle grenade launcher. She was not over 30 yards from Girard and was going away from him when he fired the rifle. Girard had previously fired similarly in the vicinity of a Japanese man, who was not hit. "Girard's action in firing empty shell cases from the rifle grenade launcher was not authorized. He asserted that he fired from the waist, intending only to frighten the Japanese civilians. Others stated, but Girard denied, that empty shell cases were thrown out to entice the Japanese to approach. * " The joint statement relates that "The Commanding General of Girard's Division certified that Girard's action was done in performance of official duty". The joint statement further relates that during the course of the meetings between the United States and Japanese representatives, while consideration was given to referring the matter in dispute to the two Governments for settlement, this procedure was rejected as inadvisable under the circumstances, and instructions were issued that the United States representative on the Joint Committee should continue to press the claim for jurisdiction, but that, in case of continued deadlock, the United States representative was authorized to waive jurisdiction to Japan. After three weeks of additional negotiations "The U. S. representative waived jurisdiction in the name of the United States." Thereafter, Girard was indicted by the Japanese judicial authorities for causing a death by wounding and at the present time he is administratively restricted to the limits of Camp Whittington. The joint statement of the Secretaries was released on June 4, 1957 and the petition for Writ of Habeas Corpus was filed in this Court on June 6, 1957; an Order to Show Cause was issued the same day returnable on June 11, 1957, to which the respondents made return with accompanying exhibits, and the cause submitted for decision after full argument. The decision of this case does not determine the guilt or innocence of the petitioner. The issue here is what tribunal should determine that question, and does the petitioner have a constitutional right which would be violated if he should be delivered to the Japanese Government for trial. Nor is the question whether or not the petitioner would receive a fair trial if delivered to the Japanese Government for trial. An affidavit of the General Counsel, Department of Defense, details the experience of the three United States Armed Services in Japan since the effective date of the Administrative Agreement in Japan and states that in a few instances suggestions of possible infringement of the rights of the accused have been made by an observer; that subsequent 25 investigation by the Field Commander of the accused's has, in each instance, refuted or dispelled the suggestion and to date there has been no instance of the exercise by Japan of criminal jurisdiction over United States personnel in which the conduct of the proceedings has disclosed a basis for diplomatic intervention. On the basis of this experience, it is assumed that the petitioner would receive a fair trial if the defendants should deliver the petitioner to the Japanese Government for trial under the Japanese Constitution and laws. The question which this Court must decide is whether the petitioner has a right under the Constitution of the United States to be tried for the alleged offense in an appropriate American tribunal and would that constitutional right be violated if he is delivered to the Japanese Government for trial. It is uncontroverted that the petitioner at the time of the alleged occurrence was acting as a member of the American armed forces in the performance of his official duties as guard. The certificate of the petitioner's commanding officer relates that petitioner "was instructed by his platoon leader to move near a position near an unguarded machine gun to guard the machine gun and items of field equipment that were in the immediate area"; that petitioner "following instructions, moved to the designated position near the machine gun" and "while performing his duties as guard" he fired the expended cartridge case. (Italics supplied.) The joint statement issued by the Secretary of State and the Secretary of Defense, after relating the guard duty assigned to the petitioner and another soldier, states "It was while these soldiers were performing this duty that the incident occurred." The joint statement further says that "the Commanding General of Girard's division certified that Girard's action was done in performance of official duty". (Italics supplied.) At the hearing on the Petition and the defendants' return to the Order to Show Cause, and on defendants' Motion to Quash Subpoenas issued by the petitioner, the United States Attorney stated it could be assumed "that the offense arose out of an incident, an act or omission in the performance of an official duty". Subsequently, the following colloquy ensued: "The Court: Mr. Gasch, you say let's assume certain facts. Is the government conceding those facts. I am assuming that your argument is addressed primarily at this stage to the motions to quash. "Mr. Gasch(United States Attorney): Yes, Your Honor. "The Court: The Court, in passing on the motions to quash, has to know what the issues of fact are. Now, when you say let's assume he was acting in an official capacity or, in the language of the agreement, `offenses arising out of any act or omission done in the performance of official duty', is the government conceding that at the time he came within the purview of this language? "Mr. Gasch: Your Honor, I don't think this is a question in which I dispute or a case in which I dispute that interpretation of the facts. "The Court: What I am trying to make clear is this: It seems to me that in passing on the motions to quash, I have got to know what are the issues of fact in this case and what is agreed to and what isn't agreed to. "Mr. Gasch: Very well, Your Honor, let's say as far as the government is concerned, those are the facts. "Mr. Carroll(Counsel for Petitioner): What are the facts, Your Honor? I don't understand. "The Court: The Court understands the concession by the government to be that at the time of the alleged offense by the petitioner, it 26 arose out of an act or omission done in the performance of official duty. Is that correct? "Mr. Gasch: That is correct." (Italics supplied.) If there had been any disagreement as to this material and basic fact, the Court would have been required to issue the Writ in order that a full hearing could be held to determine the fact. In resisting the argument of petitioner's counsel that the Writ should issue, counsel for the defendants insisted that there is no material issue of fact. Accordingly, the determination of the legal question here to be decided will be based upon the conceded fact that the incident for which it is proposed to deliver the petitioner to the Japanese courts for trial arose out of an act or omission done by the petitioner as a member of the American armed forces in the performance of official duty. Section 8 of Article I of the Constitution of the United States provides that the Congress shall have power "to make Rules for the Government and Regulation of the land and naval Forces". Acting under this authority, the Congress has adopted a Uniform Code of Military Justice, 50 U.S.C.A. § 551 et seq., which makes subject to its provisions "all persons belonging to a regular component of the armed forces". § 552. This Code, as its name implies, is a comprehensive Criminal Code applying to the persons subject to its provisions and spells out in detail the procedures for the Courts-Martial jurisdiction, appointment and composition of Courts-Martial, pre-trial and trial procedure, sentences, review of Courts-Martial, and definition of offenses punishable under the Code. In other words, if the petitioner is subject to prosecution for an act or omission done by him as a member of the American Armed Forces in the performance of official duty, the Uniform Code of Military Justice establishes every procedure to be followed. Since the petitioner's act was committed in the performance of official duty, under the principles announced by the Supreme Court in the case of In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55, the petitioner is accountable only to United States Federal jurisdiction for any act or omission. Additional authorities in support of this proposition are Johnson v. State of Maryland, 254 U.S. 51, 41 S. Ct. 16, 65 L. Ed. 126; Brown v. Cain, D.C., 56 F. Supp. 56; Lima v. Lawler, D.C., 63 F. Supp. 446; People of State of Colorado v. Maxwell, D.C., 125 F. Supp. 18; In re Fair, C.C., 100 F. 149; In re Wulzen, D.C., 235 F. 362. In some of these cases, the factual situation was in dispute and required lengthy hearings to determine if the petitioner was acting in performance of official duty. Not so in the instant case, since the status of the petitioner is conceded. The defendants place reliance upon the decisions of this Court in the cases of May v. Wilson, D.C.D.C., 153 F. Supp. 688, and Cozart v. Wilson, 98 U.S.App. D.C. 437, 236 F.2d 732. Both of these cases arose out of offenses committed when the petitioners were off duty and, therefore, factually are distinguishable from the case now under consideration. May was not appealed, and in Cozart the Supreme Court granted a Petition for Writ of Certiorari and vacated the judgment of the Court of Appeals, remanding the case to the District Court with directions to dismiss the petition for Writ of Habeas Corpus upon the ground that the cause is moot. 352 U.S. 884, 77 S. Ct. 126, 1 L. Ed. 2d 82. In pursuing this procedure, the Supreme Court cited United States v. Munsingwear, Inc., 340 U.S. 36, 71 S. Ct. 104, 107, 95 L. Ed. 36, which states "that procedure clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." Counsel for the defendants also cite cases in support of the proposition that "the jurisdiction of a Court-Martial is 27 not exclusive and does not preempt the jurisdiction of state courts to deal with acts which violate state law as well as military law." In none of the cases cited in support of this proposition were the accused charged with an offense performed in line of duty. In Caldwell v. Parker, 252 U.S. 376, 40 S. Ct. 388, 64 L. Ed. 621, the petitioner was charged with murder of a civilian at a place within the jurisdiction of the State of Alabama and not within the confines of any camp or place subject to the control of the civil or military authorities of the United States. Kennedy v. Sanford, 5 Cir., 166 F.2d 568, related to a charge of conspiracy; United States v. Matthews, D.C., 49 F. Supp. 203, was a charge of rape; and United States v. Canella, D.C., 63 F. Supp. 377, related to a charge of bribery. Clearly these cases are distinguishable from the facts in the instant case. Counsel for defendants further cite a series of cases in support of the proposition that "if there is any question as to whether a particular act was strictly within the scope of the authority of the soldier or whether such act constituted the only means available to perform the assigned duty, then the state court rather than a court-martial must be allowed to proceed with the case." These decisions are not in point in view of the stipulation that there is no issue of material fact with respect to the status of the petitioner at the time of the incident. Applying the same constitutional protection to the petitioner against his delivery to a foreign State that would be applied to his delivery for prosecution in a state court, it follows that the threatened action by the defendants is illegal and in violation of the Constitution and laws of the United States. The petition is for a Writ of Habeas Corpus which appears to be authorized by Cozart v. Wilson, supra, and Eisentrager v. Forrestal, 84 U.S.App.D. C. 396, 174 F.2d 961, since the petitioner is administratively restricted to the limits of Camp Whittington and, therefore, he is sufficiently restrained for the purposes of habeas corpus. However, since the petitioner remains a member of the United States Armed Forces in Japan and may be prosecuted in Court-Martial proceedings for the offense with which he is charged, the petition for the Writ will be denied and the Court will treat the complaint as a Petition for Declaratory Judgment and Injunction under the prayer of the complaint for other relief and, as such, will decree that the proposed delivery of the petitioner to the Japanese Government would violate rights of the petitioner guaranteed by the Constitution of the United States and will be enjoined. This opinion may be treated as the Court's Findings of Fact and Conclusions of Law, and counsel for petitioner will submit an appropriate order in conformity herewith.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515579/	535 S.W.2d 797 (1976) BRAZOS VALLEY HARVESTORE SYSTEMS, INC., Appellant, v. Louise BEAVERS et vir., Appellees. No. 899. Court of Civil Appeals of Texas, Tyler. April 8, 1976. Rehearing Denied April 29, 1976. 799 Billy M. Payne, Lawrence, Thornton, Payne & Watson, Bryan, for appellant. Blake Bailey, Gordon Wellborn & Rex Houston, Henderson, William D. Guidry, Benchoff & Guidry, Nacogdoches, for appellees. DUNAGAN, Justice. This appeal is from a judgment overruling appellant's plea of privilege to be sued in Brazos County. After a hearing before the court, the suit was retained in Rusk County. Louise and R. R. Beavers, appellees, entered into a written contract with Brazos Valley Harvestore Systems, Inc., appellant, for the installation of an automatic feed system on appellees' dairy farm in Rusk County. After the system was installed, appellees instituted this suit against appellant. They alleged that appellant's breach 800 of express and implied warranties of proper installation resulted in a loss of milk production. They further alleged that appellant's negligence caused the fall of Louise Beavers from the feed system. Appellees sought $20,000 for the loss of milk production and $250,000 for medical expenses, incapacity and pain caused by the fall. Appellant, a Texas corporation with its principal place of business in Brazos County, contends that appellees failed to establish any exception to its right to be sued in Brazos County. Appellees rely upon subdivision 5 (suits on contracts), subdivision 9a (suits for negligence) of Article 1995 and upon the Middlebrook doctrine if one subdivision should be inapplicable. The venue facts which must be alleged and proved under subdivision 5 are as follows: (1) that the defendant is a party reached by the statute; (2) that the claim is based upon a written contract; (3) that the contract was entered into by the defendant or one authorized to bind him; and (4) that the contract by its terms provides for performance of the obligation sued upon in the county of suit. General Motors Corp. v. Brady, 477 S.W.2d 385, 388-389 (Tex.Civ. App.Tyler 1972, n. w. h.); 1 McDonald, Texas Civil Practice, section 4.11.1. Subdivision 5 is not invoked unless the written contract expressly names the county of performance or a definite place therein. Harkness v. Employers National Insurance Co., 502 S.W.2d 670 (Tex.1973). We find that the above venue facts are present. In fact, appellant does not dispute the existence of any of these venue facts. Rather, it contends that subdivision 5 is inapplicable because appellees' contractual claim was not the principal right asserted in their petition. Appellant points out that the contract claim amounted to less than 7.5% of the recovery sought and concludes that simple mathematics establish the dominance of the negligence cause of action. We disagree. Appellant relies on the rule that when venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted. Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706 (1957). This well-established rule is used to determine which, if any, venue exception applies to the circumstances of the case. See Shelton v. Poynor, 326 S.W.2d 583 (Tex.Civ.App.El Paso 1959, writ dism'd); Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App.El Paso 1955, n. w. h.); Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.Fort Worth 1950, n. w. h.). We have found no case in which this rule has been used to establish the dominance of one cause of action over another. A ratio of approximately 75 to 1 existed between the recoveries sought on two causes of action in Wester v. Smith, 213 S.W.2d 550 (Tex.Civ.App.Fort Worth 1948, n. w. h.). The lesser cause came within an exception to the venue privilege and the court did not permit that cause to be controlled by the greater. We do not believe that the magnitude of the relief sought on one cause of action can prevent the application to another cause of action of a venue exception which has been otherwise established. See Burke v. Scott, 400 S.W.2d 385, 389 (Tex. Civ.App.Austin 1966, writ dism'd). We hold that appellees' contractual claim was properly retained in Rusk County. Appellant also attacks the retention of the negligence cause of action in Rusk County. To sustain venue in Rusk County under subdivision 9a, appellees were required to prove: (1) that a negligent act or omission occurred in Rusk County; (2) that such act or omission was that of appellant or its servant, agent or representative acting within the scope of employment; and (3) that such negligence was the proximate cause of the injury. H. E. Butt Grocery Stores, Inc. v. Norwood, 504 S.W.2d 920 (Tex.Civ.App.San Antonio 1974, n. w. h.); 1 McDonald, Texas Civil Practice, section 4.07.2, at 476-480. The record is before us without findings of fact or conclusions of law. Therefore, we must presume that the trial court found each of the above facts in support of the judgment. Boyd v. Thompson-Hayward Chemical Co., 450 S.W.2d 937, 941 801 (Tex.Civ.App.Tyler 1970, writ dism'd). Appellant argues that there was no evidence, or no more than a scintilla of evidence, to support the implied finding that the act or omission causing the injury was that of appellant or its servant. In passing upon this "no evidence" point, we must consider only the evidence and reasonable inferences therefrom in favor of the judgment. Boyd v. Thompson-Hayward Chemical Co., supra; Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 364 (1960). When viewed in the light most favorable to the judgment, the evidence shows that appellant's employees installed an automatic feeding system upon appellees' dairy farm. This system basically consisted of a grain storage silo, a "flight" conveyor, a "hopper" and a feed conveyor. The flight conveyor took grain from the silo upwards about 5 feet to the hopper. The hopper funneled the grain down to the feed conveyor which ran the length of a concrete slab and from which the cattle were fed. This hopper often became obstructed with grain and Mrs. Beavers fell while attempting to clean out the hopper. The fall occurred when she grasped a horizontal 2 × 4-inch board which "pulled loose" from two vertical posts. The board had been attached to each post with one medium-sized nail. Mrs. Beavers testified that she did not install this 2 × 4-inch board and did not direct any of the farm employees to install it. She testified that she did not know who installed it. Mrs. Beavers further testified that appellant's employees were working at or near that spot when the board first appeared. While there is no direct evidence that appellant's employees installed the 2 × 4-inch board, the venue facts of subdivision 9a may be established by circumstantial evidence. Bearden v. Lyntegar Electric Cooperative, Inc., 454 S.W.2d 885 (Tex.Civ. App.Amarillo 1970, n. w. h.); Boyd v. Thompson-Hayward Chemical Co., supra. To establish a fact by circumstantial evidence, however, the circumstances relied on must have sufficient probative force to constitute a basis of legal inference; it is not enough that they raise a mere surmise or suspicion of the fact. Mobile, Inc. v. Cone, 457 S.W.2d 175 (Tex.Civ.App.Tyler 1970, writ ref'd n. r. e.). If the circumstances relied on are equally consistent with the existence and nonexistence of an ultimate fact sought to be established, such circumstances constitute no evidence of that fact. Imperial Casualty and Indemnity Co. of Omaha, Nebraska v. Terry, 451 S.W.2d 303, 308 (Tex.Civ.App.Tyler 1970, n. w. h.); South Texas Water Co. v. Bieri, 247 S.W.2d 268, 274 (Tex.Civ.App.Galveston 1952, writ ref'd n. r. e.). We conclude that the evidence and reasonable inferences therefrom, when viewed in the light most favorable to the judgment, establish only that appellant could have installed the 2 × 4-inch board. We are of the opinion that there is no more than a scintilla of evidence that appellant did install the board. The evidence is equally consistent with the installation of the board by appellees' employees as with its installation by appellant's employees. Such evidence will not invoke subdivision 9a. The Southland Corporation of Texas v. Doss, 408 S.W.2d 557 (Tex.Civ.App.San Antonio 1966, n. w. h.). Appellees also pleaded that appellant was negligent in the following omissions: (1) failure to provide safe access to the hopper; (2) failure to instruct appellees on how to safely climb to the hopper; and (3) failure to warn appellees of the danger in climbing to the hopper.[1] Appellees argue that even if they did not prove that appellant's employees installed the 2 × 4-inch board, subdivision 9a was invoked by these negligent omissions. Appellant's service representative, Mr. Holliman, testified that he knew of the hopper's tendency to become clogged with grain and did not instruct appellees on how to climb to the hopper or provide any means to do so. Although it is undisputed that 802 such conduct was that of appellant through its employee, there is no evidence that such conduct was negligent or that it proximately caused the injury. In the absence of such evidence, the omissions are insufficient to maintain venue in Rusk County under subdivision 9a. Appellees argue that despite the inapplicability of subdivision 9a they are entitled to maintain the negligence cause of action in Rusk County under the Middlebrook doctrine. This rule is that a plaintiff who in good faith asserts joinable claims against the same defendant can maintain venue upon all those claims in a county where venue is proper as to one claim. 59 Tex.Jur.2d, sec. 116, p. 542; 1 McDonald, Texas Civil Practice, section 4.38; Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935 (1894). This doctrine has been recently affirmed. Baxter v. Wetzel, 511 S.W.2d 540 (Tex.Civ.App.El Paso 1974, n. w. h.); Pecos Valley Southern Ry. Co. v. Parkhill Produce Co., 163 Tex. 88, 352 S.W.2d 723 (1961). This doctrine is not based on any exception in Article 1995 but rather on the public policy of avoiding a multiplicity of suits. Boyd v. San Antonio Nat. Bank, 171 S.W.2d 375 (Tex.Civ.App. San Antonio 1943, n. w. h.); Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088 (Tex. 1931); 59 Tex.Jur.2d sec. 116, p. 544. There are exceptions to the Middlebrook doctrine. 1 McDonald, Texas Civil Practice, section 4.38 at 559-561. However, none of these exceptions appears applicable here. Appellant contends that the Middlebrook doctrine does not apply to causes of action belonging to more than one plaintiff. It relies upon the rule that when two plaintiffs, asserting distinct and unrelated actions against the same defendant, join these actions, the Middlebrook doctrine is inapplicable; if the defendant's plea of privilege was good as to one plaintiff but not good as to the other, the plea should be sustained as to the one and overruled as to the other. Finder v. Jenka Corp., 348 S.W.2d 236 (Tex. Civ.App.San Antonio 1961, n. w. h.). Appellant contends that the contractual cause of action belongs to the community estate of Mr. and Mrs. Beavers while the negligence cause of action belongs to the separate estate of Mrs. Beavers. The Middlebrook doctrine has been applied in suits brought by multiple plaintiffs. See Sheffield v. Kirschmer, 269 S.W.2d 942 (Tex.Civ.App.Dallas 1954, n. w. h.); Squyres v. Christian, 242 S.W.2d 786 (Tex.Civ.App.Texarkana 1951, writ dism'd); Hawkins v. Schroeter, 212 S.W.2d 843 (Tex.Civ.App.San Antonio 1948, n. w. h.); Eppenauer v. Hoffman, 115 S.W.2d 478 (Tex.Civ.App.Eastland 1938, n. w. h.). Nevertheless, the application of the Middlebrook doctrine to causes of action arising out of different transactions depends on the nature of these causes of action. See Wester v. Smith, 213 S.W.2d 550 (Tex.Civ.App. Fort Worth 1948, n. w. h.) and Wester v. Smith, 213 S.W.2d 552 (Tex.Civ.App.Fort Worth 1948, n. w. h.). In the Wester cases, causes of action shared by multiple plaintiffs were joined under the Middlebrook doctrine while a cause of action belonging to one of those plaintiffs alone was severed and transferred to the county of the defendant's residence. We look, therefore, to the nature of the claims asserted in the original petition of the Beavers. It is undisputed that the claim for lost milk production belongs to the community estate. The negligence claim sought recovery for mental and physical pain and suffering, for incapacity,[2] and for medical expenses. The claim for Mrs. Beavers's pain and suffering belongs to her separate estate while the claims for incapacity and medical expense belong to the community. Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972). That portion of the negligence cause of action which belongs to the community estate is joinable under the Middlebrook doctrine with the community's contractual *803 claim. The entire negligence cause of action, however, is shared by the community estate and the separate estate of Mrs. Beavers. The Middlebrook doctrine has been applied to prohibit the severance of an indivisible cause of action owned jointly by multiple plaintiffs. Roberts v. Dunn, 426 S.W.2d 273, 275 (Tex.Civ.App.Dallas 1968, n. w. h.). We believe that the public policy of avoiding a multiplicity of suits should be applied in this case to hold the entire negligence cause of action in Rusk County. The judgment of the trial court is affirmed. NOTES [1] A products liability theory was not asserted. [2] The evidence shows that the incapacity was the inability of Mrs. Beavers to perform her work around the dairy farm.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515612/	535 S.W.2d 46 (1976) Violet M. FOWLER, Appellant, v. Douglas C. BROWN et ux., Appellees. No. 5499. Court of Civil Appeals of Texas, Waco. March 18, 1976. Rehearing Denied April 8, 1976. 47 E. H. O'Dowd, Robinson, for appellant. Walter D. Kettler, Waco, for appellees. HALL, Justice. This appeal was brought to question an order temporarily enjoining the appellant from violating a deed restriction which limits her use of her homeplace to "residential purposes exclusively." We affirm. The appellees pleaded, and the evidence shows without contradiction, that they own and reside on Lot 4, Block 3, of the Wiebusch Addition, Part No. one, to the City of Robinson in McLennan County; that the appellant owns and resides on Lot 3, Block 3, of said addition; that duly recorded deed restrictions are in effect in said addition and were in effect when these parties purchased their respective lots; and that restriction number one provides, "All of such lots shall be used for residential purposes exclusively." Additionally, the appellees alleged that the appellant is preparing to open a business on her lot in violation of the deed restriction and to the appellants' irreparable damage. The appellant responded with a lengthy answer which we need not detail. The appellant asserts that there is no evidence of a violation or threatened violation by her of the deed restriction. There is evidence that the appellant wants to operate a retail florist shop at her residence; that she canvassed the neighborhood seeking permission to do so from the other owners in the addition; that after the appellees, through their attorneys, informed the appellant that they disapproved and assured her they would bring legal action to prevent a violation of the deed restriction by her, she took a course in floral designing at a cost to her of approximately $500, and closed in a garage and made other changes in her residence toward accommodating a florist shop at an expense of over $6,000; that her plans call for a retail business which will be 90% delivery and 10% walk-in trade; that the business hours will be from 9:00 A.M. to 5:00 P.M.; and that she expects to profit from the business so that she can supplement her other income. While there is other proof of similar import, this evidence is legally sufficient to show an intended violation of the deed restriction by the appellee. The appellant pleaded waiver of the restriction, and now asserts that this defense is conclusively established by the proof of other business ventures within and without the subdivision in question. We disagree. "A waiver takes place where one dispenses with the performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to reply upon it." Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958). Violations of restrictions outside the area in question cannot be relied upon as a waiver by the appellees of violations within the area. Davis v. Hinton, 374 S.W.2d 723, 726 (Tex.Civ.App.Tyler, 1964, writ ref., n. r. e.). The trial court was justified in finding that two asserted violations within the addition relied upon by the appellant to support her contention of waiver are trivial in character in comparison to one she intends. These will not support waiver. Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 509 (1944). 48 The seventh restriction in the deeds provides, "No noxious or offensive activity shall be carried on upon any lot, nor anything be done thereon which may be or become an annoyance or nuisance to the neighborhood." Because there is no evidence that the appellant's intended use of her residence as a florist shop would be a "noxious or offensive activity" or a "nuisance to the neighborhood" she says the temporary writ of injunction must fall, asserting in effect that restriction number seven is a limitation on the "residential use only" restriction. We overrule this contention. The appellant's use of her house as a florist shop would be a business use in violation of the first restriction. The activities condemned in the seventh restriction would not necessarily arise by reason of, or only from, a commercial use of the property. The first and seventh restrictions are each independent. Neither is a limitation on the other. Vaccaro v. Rougeou, 397 S.W.2d 501, 503 (Tex.Civ.App.Hou., 1966, writ ref., n. r. e.). Trial courts are endowed with broad discretion to grant or deny an application for temporary injunction, and the narrow question on appeal from such action is whether the order of the trial court constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). There is no abuse of discretion in the issuance of the writ where the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961). We find no abuse of discretion, here. The appellant's points and contentions are overruled. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515616/	152 F. Supp. 3 (1957) Bronislawa HEITNER, Libelant, v. ZIM ISRAEL NAVIGATION CO., Ltd., and American-Israeli Shipping Co., Inc., Respondents. United States District Court S. D. New York. June 24, 1957. Peter J. Unger, New York City, proctor for libelant. Kirlin, Campbell & Keating, New York City, Proctors for respondents, William J. O'Brien, New York City, of counsel. LEVET, District Judge. This is a motion by the respondents for an order dismissing the libel herein on the ground that this court should refuse to accept jurisdiction of the subject matter. Libelant, a citizen of Israel, now residing in Argentina, seeks to recover damages in this district for personal injuries allegedly sustained at sea while she was a passenger aboard the SS Israel, a vessel owned by respondent, Zim Israel Navigation Co. Ltd. Said respondent is a foreign corporation, organized and existing under the laws of Israel. The co-respondent, American-Israeli Shipping Co., Inc., represents the vessel's owner in this country and is a New York corporation which neither owns, operates nor manages the SS Israel. The libelant purchased her ticket in Israel for a passage from Israel to the United States. Clause (v) of paragraph 6 of the Passage Contract, which is printed in English and Hebrew, provides as follows: "This contract shall be construed, and all rights and liabilities and all disputes between the passenger or his executors, administrators and assigns and the Company or the Vessel, or any of their agents or servants, thereunder or in connection therewith or incidental thereto shall be determined, solely, in accordance with the Law of Israel. "It is agreed that all disputes and matters whatsoever under, in connection with or incidental to these presents shall be litigated upon in and before the Courts of Israel to the exclusion of the Courts of any other country. "Nothing in these presents contained shall in any manner whatsoever affect, alter, qualify or minimize the provisions of this Clause or any of them." It has been held in Wm. H. Muller & Co., Inc., v. Swedish American Line Ltd., 2 Cir., 1955, 224 F.2d 806, certiorari denied 350 U.S. 903, 76 S. Ct. 182, 100 L. Ed. 793, that it was not unreasonable to enforce a clause in a bill of lading which provided that all controversies arising thereunder would be decided according to Swedish law. Accordingly, in that case the court's refusal to entertain jurisdiction was held to be within the lawful limits of judicial discretion. Notwithstanding the provisions of the Passage Contract, the suit is one which involves a claim by an alien non-resident *4 against a foreign corporation and its New York representative for a cause of action arising outside the United States. Under such circumstances, a federal court has inherent power to refuse to entertain the suit on the ground of forum non conveniens. DeSairgne v. Gould, D. C.S.D.N.Y.1949, 83 F. Supp. 270, affirmed 2 Cir., 1949, 177 F.2d 515. See Canada Malting Co., Ltd., v. Paterson Steamships, Ltd., 285 U.S. 413, 52 S. Ct. 413, 76 L. Ed. 837. The motion to dismiss the libel herein is granted. So ordered.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515623/	367 A.2d 651 (1976) Harry TOY, Plaintiff, v. Robert CHERICO, Defendant. Superior Court of Delaware, New Castle. Submitted December 10, 1976. Decided December 17, 1976. Stephen B. Potter, Wilmington, for plaintiff. Francis J. Trzuskowski, of Trzuskowski & Kipp, Wilmington, for defendant. TAYLOR, Judge. The issue here is whether a person other than a parent who has paid support for a minor child may bring an action in this Court against the father for support that has been expended. Defendant contends that the action should be brought in Family Court, and in support of that contention cites Wilderman v. Wilderman, Del. Super., 330 A.2d 149 (1974) and Quarles v. Brewer, Del.Super., Civil Action No. 390, 1975 (Sussex County), Opinion January 7, 1976, Bush, J. In Wilderman, this Court held that the liability of a defendant in a suit for reimbursement for monies paid for support of a minor child must be founded upon the duty of the defendant to support the minor child. After reviewing the applicable statutory provisions and decisions relating thereto, the Court concluded that such an action must be considered to be one for the support of a child within the meaning of 10 Del.C. § 921(3). Jurisdiction to try cases involving support is vested exclusively in the Family Court. 10 Del.C. §§ 921 and 925. Wife, P. v. Husband, P., Del. Ch., 287 A.2d 409 (1972). Plaintiff relies heavily on Stat v. Porter, Del.Supr., 314 A.2d 172 (1973) in which the Supreme Court held that compliance with 13 Del.C. § 502 and § 702 was not a prerequisite or bar to an action by a stepfather for reimbursement for child 652 support from the father of a minor child. Nothing in the Per Curiam Opinion in Stat indicates that the Supreme Court was addressing itself to the question of whether, considered in the light of the applicable Family Court statutory provisions, the Superior Court had jurisdiction to entertain that suit. It should be noted that the provisions of the Family Court Act which are under consideration here and were under consideration in Wilderman were adopted in June 1971, 58 Delaware Laws, Chapter 114, effective 90 days after adoption. It was decided by the Court of Chancery in August 1972 that by virtue of the 1971 Act the Court of Chancery no longer has jurisdiction over matters involving support of minor children. Wife, S. v. Husband, S., Del.Ch., 295 A.2d 768 (1972). It appears that the initial suit in Stat was brought in the Court of Chancery and that action was dismissed by the Court of Chancery on the ground that there was an adequate remedy at law. Suit was filed in this Court and it was dismissed on the ground that the proper remedy was to pursue 13 Del.C. § 502, which provided a remedy under the criminal process. Upon appeal, the Supreme Court held that resort to the criminal remedy under 13 Del.C. § 502 is neither a prerequisite nor a bar to civil action for reimbursement for support paid for a minor. Nothing in its Per Curiam Opinion indicates that the Supreme Court gave any consideration to the question of whether the matter should properly have been in the Family Court or in this Court. Finally, the date of filing of the Stat complaint in this Court precludes the possibility that Stat could have involved consideration of the exclusivity of the present 10 Del.C. § 921(3). The Stat complaint was filed in this Court June 17, 1971. Chapter 114, 58 Del.Laws, which adopted the present 10 Del.C. § 921(3) giving Family Court exclusive jurisdiction over support matters, became effective September 7, 1971. Hence, Stat was governed by prior law under which the totality of jurisdiction over support matters, including exercise of remedies which could have been exercised in other Courts, was vested in the Family Court. Wife, P. v. Husband, P., supra. This Court held in Wilderman and Quarles that jurisdiction for reimbursement for support payments lies in the Family Court. The exclusive jurisdiction relating to support of minors is vested in the Family Court. 10 Del.C. § 921(3). Since the asserted right of reimbursement must be founded upon payments by plaintiff which performed a duty of defendant to support the child, this proceeding must involve matters which are traditionally considerations in support proceedings in the Family Court, namely, the existence of defendant's duty to support, his ability to support and the amount of support for which he should be held liable. 69 A.L.R. 2d 203, 229. In view of the volume of support proceedings in the Family Court and the decisional standards which develop from that volume of cases, practical considerations support the wisdom of disposition in the Family Court of all cases in which support is an issue. This consideration undoubtedly entered into the adoption of the present law which provided that support matters be heard exclusively in the Family Court. No statutory basis nor valid reason has been presented in support of the proposition that Family Court jurisdiction over child support should be confined to parental liability for future support payments while jurisdiction over a claim involving parental liability for past child support expenditures must exist elsewhere. Plaintiff argues that Wilderman is not applicable because it involved a claim by a mother while this case involves a claim by a stranger. On the other hand, both Wilderman and this case seek to found a claim upon the duty of the father to support his minor child. It is that duty which is common to all claims of this sort if recovery is to be justified. No case has been cited for the proposition that the right of a stranger to 653 be reimbursed by the father for support of his minor child assuming it exists differs from the right of a mother to such reimbursement. Stat states that intention is the determinant which a plaintiff must meet in a claim for reimbursement (assuming legal responsibility of defendant for support of the minor). Whatever difference in qualification may exist between a mother and a stranger claiming reimbursement, it does not rise to such significance as to affect jurisdiction. I conclude that the family relationship (or absence thereof) of the claimant to the minor child does not control jurisdiction to hear a suit for reimbursement for support payments in the face of legislative investiture of exclusive jurisdiction in Family Court. I conclude that this proceeding should properly be tried in Family Court. IT IS ORDERED that the motion to dismiss is granted, subject to plaintiff's right to transfer the claim to the Family Court under 10 Del.C. § 1901.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515626/	28 Pa. Commw. 13 (1976) Edward J. Kirk and Eva A. Kirk, husband and wife, individuals, and PBS, Inc., Appellants v. Robert Smay, Borough Manager, Borough of Hellertown, Appellee. No. 891 C.D. 1976. Commonwealth Court of Pennsylvania. Argued October 4, 1976. December 22, 1976. Argued October 4, 1976, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three. 14 Cregg E. Mayrosh, with him Cohn & Mayrosh, for appellants. Donald B. Corriere, with him Haber and Corriere, for appellees. OPINION BY JUDGE BLATT, December 22, 1976: The appellants[1] here filed an action in mandamus with the Court of Common Pleas of Northampton County requesting that the court order Robert Smay, zoning officer of the Borough of Hellertown (Borough), to issue a building permit to them. The court sustained the appellee's preliminary objections, dismissed the complaint and this appeal followed. The appellants wanted to build a medical office building on the premises of an existing shopping center, a permitted use under the Borough's zoning ordinance in the general commercial district here involved.[2] Section 64.6(1) of the ordinance provided, 15 however, that site plan approval was required for this permitted use, and Section 63 of the ordinance provided further as follows: Site Plan Approval for Permitted Uses. Where site plan approval is required for a permitted use in nonresidential districts said site plan shall be submitted to the Planning Commission for approval prior to issuing a building permit. (Emphasis added.) It is clear, therefore, that the appellants were required to obtain site plan approval as a prerequisite to a building permit. The lower court believed that the zoning officer's discretion and duty in regard to the issuance of a building permit was the same whether or not the site plan had been approved, and presumed, for the purpose of making its decision here, that the site plan had been approved by the planning commission. It then found that the building permit had been denied by the zoning officer because the proposed facility did not conform with the parking requirements of the zoning ordinance[3] and ruled that an action in mandamus to compel the issuance of a permit would not lie. It is clear from the evidence in the record that the court below was mistaken, and that the zoning officer here denied the building permit because the appellants had not acquired site plan approval.[4] It is also clear, 16 however, that the planning commission disapproved the appellant's site plan because of its failure to provide adequate parking as required by the zoning ordinance, so the mistaken assumption by the lower court is of no consequence here. Mandamus, of course, is an extraordinary writ which can only issue when the plaintiffs have a clear legal right to the performance of a ministerial act by the defendant, and it will not issue to compel the exercise of discretion. Commercial Properties, Inc. v. Peternal, 418 Pa. 304, 211 A.2d 514 (1965). When the legal right to the issuance of a building permit is clear, then mandamus may be used to compel its issuance. Commercial Properties, Inc. v. Peternal, supra. The right to a building permit is not clear, however, where the applicant has not met all of the necessary requirements of a zoning ordinance, Borough of Monroeville v. Effie's Ups and Downs, 12 Pa. Commw. 279, 315 A.2d 342 (1974), and a zoning officer may not issue a permit where there is such noncompliance. Section 614 of the Pennsylvania 17 Municipalities Planning Code[5] (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10614. In this case, because the zoning officer refused to issue the building permit on the basis that the requirements of the zoning ordinance had not been met, i.e., site plan approval was not obtained, the appellants did not have a clear legal right to the permit. Mandamus, therefore, was not a proper action.[6] The lower court, therefore, properly refused to exercise its discretion to issue a writ of mandamus. Lhormer v. Bowen, 410 Pa. 508, 188 A.2d 747 (1963). The appellant argued below that its proposed construction constituted land development and that its site plan should be deemed to have been approved by the Borough's planning commission pursuant to Section 508 of the Code, 53 P.S. § 10508, which provides that all applications for approval of a plat shall be acted upon by the planning commission not later than ninety days after such application is filed. "Failure. . . to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . ." Section 508(3) of the Code, 53 P.S. § 10508(3). The appellant then argued further that the parking area requirements of the zoning ordinance were among the criteria to be considered by the planning commission and that, because the site plan was "approved," the question of *18 compliance with the ordinance's parking requirements was thereby foreclosed. There being no other zoning nonconformities in the proposed construction, appellant concluded that its right to a building permit was clear. We believe that the proposed construction of a single medical office building on the grounds of a completed shopping center clearly does not constitute land development or subdivision under Section 508 of the Code[7] and that the zoning officer's denial of the building permit was based properly upon noncompliance with the zoning ordinance. We, therefore, affirm the lower court's refusal to issue a writ of mandamus. ORDER AND NOW, this 22nd day of December, 1976, the order of the Court of Common Pleas of Northampton County, dated April 21, 1976, is affirmed. NOTES [1] Edward J. Kirk, Eva A. Kirk, and PBS, Inc. [2] Section 64.1(3) of the Borough's zoning ordinance provides that professional offices, medical and dental clinics are permitted uses in a general commercial district. [3] It is apparently not contested that the proposed construction would violate Section 83.1(2) of the ordinance, which provided the minimum parking requirements for a medical office building. [4] The zoning officer, on May 28, 1975, sent the appellants the following letter: Your application for a Zoning & Building Permit for the construction of doctor's offices at the Springhill Shopping Center has been denied. My basis for denial is due to the fact that your original application was processed in accordance with the Hellertown Zoning Ordinance under Section 63, that site plan approval must be secured from the Planning Commission. The Planning Commission did review your application, and although various requests for reconsideration of the Planning Commission were made by this office and Boro Council, the Planning Commission did see fit to reject our request which is covered by a letter dated May 16, 1975, a copy of which I am enclosing for your information. The main basis for the Planning Commission denying approval is based on Sec. 83 Parking Requirements for Business Center Development. I am enclosing for your consideration, an Appeal to the Zoning Hearing Board. If it is your desire to follow this route, I would suggest that you return the application with the necessary fee to this office as quickly as possible. Then I will set up a meeting with the Zoning Hearing Board. If you have any questions please feel free to call at this office. (Emphasis added.) [5] Section 614 of the Code provides, inter alia, as follows: The zoning officer shall administer the zoning ordinance in accordance with its literal terms, and shall not have the power to permit any construction or any use or change of use which does not conform to the zoning ordinance. [6] The lower court properly noted that in ordinary cases, i.e., where mandamus would not be appropriate, jurisdiction of appeals from the actions of zoning officers is vested exclusively in the zoning hearing board. Suburban Group, Inc. v. Gittings, 22 Pa. Commw. 295, 348 A.2d 490 (1975). [7] Section 107(16) of the Code, 53 P.S. § 10107(16) defines "Plat" as "the map or plan of a subdivision or land development, whether preliminary or final." Section 107(11) of the Code, 53 P.S. § 10107 (11), defines "Land development" as follows: (i) the improvement of one lot or two or more contiguous lots, tracts or parcels of land for any purpose involving (a) a group of two or more buildings, or (b) the division or allocation of land or space between or among two or more existing or prospective occupants by means of, or for the purpose of streets, common areas, leaseholds, condominiums, building groups or other features; (ii) a subdivision of land. Section 107(21) of the Code, 53 P.S. § 10107(21), defines "Subdivision," inter alia, as the division or redivision of a lot, tract or parcel of land by any means into two or more lots, tracts, parcels or other divisions of land including changes in existing lot lines for the purpose, whether immediate or future, of lease, transfer of ownership or building or lot development. . . .	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515642/	152 F. Supp. 410 (1957) PETER PAUL, Inc., et al., Libellants, and Western Hardwood Lumber Co. et al., Libellants and Cross-Respondents, v. THE M.S. CHRISTER SALEN, her engines, etc., Rederi A/B Pulp, Claimant-Respondent and Cross-Libellant and Rederi A/B Jamaica, D/S A/S Eikland and Salamis A/S, Respondents. United States District Court S. D. New York. June 19, 1957. 411 Bigham, Englar, Jones & Houston, New York City, for libellants. Henry N. Longley, John W. R. Zisgen, New York City, of counsel. Haight, Gardner, Poor & Havens, New York City, for claimant-respondent, respondents and cross-libellant. Wharton Poor, Charles S. Haight, James McKown, Jr., R. Glenn Bauer, New York City, of counsel. McGOHEY, District Judge. The libellants in twenty-three consolidated causes seek damages for the loss of, or injury to, cargo which resulted when the M/S Christer Salen broke in two while on a voyage from Japan to Pacific coast ports in Canada and the United States. Their claims are against the ship and the owner. The latter filed a cross-libel against saved cargo and its owners for general average contributions. The respondents are three shipowners alleged to have been in partnership with the owner. The parties stipulated to try here only the claim of Peter Paul, Inc. for lost cargo and the owner's claims for general average. All other issues raised by the pleadings are deferred. The owner seeks exemption from liability on the ground that the loss resulted from an excepted cause under the Carriage of Goods by Sea Act.[1] Facts 1. At all material times the libellant Peter Paul, Inc. was a Delaware corporation. 2. At all material times this libellant was the owner of a shipment of 4,104 bags of desiccated coconut (macaroon) shipped by Peter Paul Philippine Corporation on board the Christer Salen at Manila, Philippine Islands, under bill of lading No. M-1-SFO, dated January 30, 1951, consigned to order, notify Peter Paul, Inc., at San Francisco by rail to overland to common point. 3. This entire shipment was lost at sea on February 15, 1951, with the Christer Salen's forward part which broke off and sank. 4. Freight on the shipment was paid. 5. Those libellants who have been sued as cross-respondents for contribution in general average had at all material times the status, corporate or otherwise, alleged in the libels and are 412 the parties entitled to sue for such damages as may have been sustained with respect to their respective shipments, as alleged in the libels, and the parties liable to pay such amounts, if any, as may be due with respect to their respective shipments by way of general average contribution and/or special charges, as alleged in the cross libels. 6. By stipulation, proof of the status corporate or otherwise of all libellants not mentioned in the foregoing findings, and their ownership of the respective shipments, as alleged in the libels, has been postponed until after the trial. 7. By stipulation, proof by all of the libellants other than Peter Paul, Inc., of the fact of damage with respect to their respective shipments, as alleged in the libels, has been postponed until after the trial. 8. By stipulation, determination of the extent of the damage, if any, sustained by the libellants with respect to their respective shipments, as alleged in the libels, and the amount of general average contribution and/or special charges, if any, to be paid by the cross-respondents with respect to their respective shipments, as alleged in the cross-libels, has been postponed until after the trial. 9. At all material times Rederi A/B Pulp, the claimant-respondent and cross-libellant, was a corporation duly organized under the laws of the Kingdom of Sweden, and was the owner of the Christer Salen. 10. On May 24, 1947, the claimant-respondent and respondents entered into a joint cargo service agreement known as the "Salen-Skaugen Line Far East Service Agreement," which they amended on December 2, 1949. Among other things, the agreement as amended provides (1) that Rederi A/B Pulp shall act as manager of the service with full power of appointment of agents to handle the vessels of all parties; (2) that profits and losses shall be divided in accordance with a table set out therein; and (3) that each party agrees to defend, indemnify, and hold each other party harmless against and from any and all claims asserted against each such other party by persons not party to the agreement and arising out of or in any manner connected with the use of such indemnifying party's vessels in such service. This agreement was in full force and effect at the time of and with respect to the voyages of the Christer Salen described in the libels. 11. All of the bills of lading, which constituted the contracts of carriage of the shipments described in the libels and cross-libels, were signed for and on behalf of Rederi A/B Pulp and the Christer Salen by their respective duly authorized agents. All bills of lading contained a Jason clause. 12. The Christer Salen was built at the Eriksberg Shipyard at Gothenberg, Sweden. Her keel was laid on February 2, 1944. She was launched in September, 1944 and completed in February, 1945, but was not put into service until June, 1945. All of her hull and deck plates were welded one to the other, but the plates were attached to the frames by rivets. 13. The vessel was classed 100 A-1 by Lloyd's Register of Shipping (hereafter called Lloyd's) and remained so until February 15, 1951 when she broke in two at sea. 14. In January, 1950 the vessel ran ashore on Silino Island in the Philippines, seriously damaging her fore foot. Her repairs were put in charge of a Mr. Gunnar Hjernquist, an engineer and ship surveyor of Gothenberg, Sweden, who went to Manila and made arrangements for temporary repairs after which the vessel proceeded to Gothenberg for permanent repairs. 15. The repairs were made at the Eriksberg Shipyard in Gothenberg. They were supervised by Mr. Hjernquist and Mr. Bertrand Grauers, a Lloyd's surveyor. After completion of the repairs, the usual certificates were issued confirming that all damage had been repaired and stating that the Christer Salen was considered seaworthy. 413 16. In May, 1950 the vessel left Gothenberg, under command of Captain Gunnar Batelsson, and proceeded to the Far East via Suez. In the Philippines and nearby ports she loaded cargo for the West Coast of North America. She sailed from Yokohama on September 29, 1950, on the Great Circle route for Vancouver, British Columbia, where she arrived on October 12, 1950. 17. After loading a cargo for Japanese and other Far Eastern ports, the vessel sailed from Vancouver for Kobe on November 21, 1950. 18. During January 6 to 8, 1951 the vessel was drydocked in Hong Kong and inspected by a Lloyd's surveyor, who issued a certificate recommending that her 100 A-1 class be continued. 19. She then sailed for Philippine ports where cargo was loaded for ports on the West Coast of Canada and the United States towards which she then proceeded via Japan. 20. The bills of lading all incorporated the United States Carriage of Goods by Sea Act (46 U.S.C.A. § 1300 et seq.). However, the Hong Kong Carriage of Goods by Sea Ordinance, 1928, was applicable to seven shipments made from the Crown Colony of Hong Kong to Vancouver, B. C. The Hong Kong Carriage of Goods by Sea Ordinance, 1928, contained substantially the same provisions and exemptions from liability as are contained in the United States Carriage of Goods by Sea Act. 21. On February 14, 1951, at 5:12 P.M., the vessel sailed from Yokohama, her last Japanese port, for Vancouver, B. C. and United States ports. Her draft was then 21'06" forward and 25'02" aft. Shortly after sailing, she took on board 250 tons of water ballast to put her propeller deeper in the water. 22. During the afternoon and night of the 14th and up until about 4:15 P.M. on the 15th, the vessel encountered heavy weather. There was a snowstorm and freezing temperature. There was a heavy sea from the north-north-east (changing to north on the morning of the 15th), and the vessel was pitching, rolling and shipping some water. The wind was undoubtedly strong but how strong it is impossible to say. The log entries are not reliable. The rough log gives the force as 12 on the Beaufort scale. The smooth log written up after the accident gives it as 10. Neither entry was signed. I do not accept either entry. The storm had started before the vessel which carried a few passengers as well as cargo, left port. At about 9:00 P.M. on the 14th, she was hove to and her speed reduced. On the morning of the 15th the lashings of deck cargo aft of the bridge loosened. However, the crew were able safely to correct this and secure the cargo when the ship's course was changed to accommodate her to the sea. Except for this, there was no damage to gear or cargo and no injury to passengers or crew during the heavy weather. The owner certainly did not prove that the weather was any worse than a well found and properly manned ship should be able to withstand; or indeed that it was any worse than her experienced master expected when he left port. 23. At about 4:15 P.M. on February 15, the weather moderated and the master ordered full speed ahead, it being understood, however, by both the master and the chief engineer that this meant only 80% of actual full speed because of the risk of engine damage if she proceeded at actual full speed in the existing seas. During dinner at 6:00 P.M. the guardrails which are put up during bad weather to keep the dinnerware on the table were not used. 24. The evidence does not indicate that, under the circumstances, the master's speed order was improper. He was a man of long experience and, as the events at and following the accident show, resourceful and competent in an emergency. 25. At about 6:45 the master and chief mate having finished dinner, which was taken with the passengers, went to the bridge. The master remarked that the vessel was riding well. Suddenly they heard "a scraping sound" and "felt 414 a bump" and saw the derricks on the fore part of the deck move forward. In less than thirty seconds the vessel had broken in two at a point about the middle of the number 3 hatch. The master immediately sounded the signal for passengers and crew to take lifeboat stations. He also ordered radio distress signals sent out. 26. The forward part of the vessel and the cargo therein were carried off and sank. The after part remained afloat. Although neither gear nor deck cargo on that part was damaged, the vessel or what was left of her was in imminent peril. 27. On the morning of the 16th, the master decided to abandon the voyage to Vancouver and the United States and to seek refuge in Yokohama. He navigated the after part of the vessel under her own power at low speed to that port which was reached on the 18th. As soon as was possible after arrival, the remaining cargo was discharged and the ship dry-docked. She was thereafter fitted with a temporary bow, and in June 1951 sailed for a German repair yard, at which permanent repairs were made. 28. The master testified that just before the vessel broke he and the chief mate noticed off the port bow one wave, much larger than the rest, approaching the ship. Neither log records this. As already noted, the smooth log was written up on the voyage back to Yokohama during which the events which had occurred at the time of and preceding the accident were recalled and discussed by the master and his officers. It seems altogether incredible that if this wave were of such size and violence as to constitute a peril of the sea as the owner now contends, it would have gone unrecorded. I find it was not of such size or violence. 29. The fracture started in one of the plates of the starboard sheer strake at a point somewhere between the top of the strake and the deck weld, a distance of about 7½ inches. It was what is called a "brittle fracture." 30. In order for ship's steel to fracture in this manner, three conditions must exist: (a) there must be a "notch" in the steel at which a fracture may originate; (b) the temperature must be sufficiently low to make the steel notch brittle; (c) the steel must be subjected to stress. 31. A notch may consist of a cut, a crack, however minute, or similar damage to a plate; a discontinuity in design or in a weld; an internal lack of homogeneity in the steel. 32. The starboard sheer strake of the Christer Salen was notch brittle at 30°F., and her starboard stringer plate was notch brittle at 70°F. The notch brittleness found in these plates was not unusual for plates rolled in Germany at the time these were. 33. The temperature encountered by the Christer Salen on February 15, 1951 was such as was to be expected and it was low enough to make her steel brittle. 34. The seas and wind encountered by the Christer Salen on February 15, 1951 were such as were to be expected and they exerted a stress on the starboard sheer strake. 35. The fracture started at a notch in the sheer strake plate. The notch was present when the plate was put into the vessel and made her unseaworthy when she sailed from Yokohama. 36. At and prior to July 1943, when the plates subsequently incorporated in the Christer Salen were rolled, the then known tests for ship's plates were not designed to, and in fact did not, disclose the existence or non-existence of notch brittleness in such steel. 37. The steel used in building the Christer Salen complied with all of Lloyd's then existing requirements. At the time of the accident the vessel was classed 100-A-1. 38. The notch constituted a latent defect which the owner could not discover by means of any known or customary test. 39. In 1950 and for some years prior it was generally known to persons engaged in the building and classification of ships that (a) existing tests did not disclose 415 the existence or non-existence of notch brittleness in ship's steel; (b) steel in existing ships might be notch brittle; and (c) a fracture initiated in a plate of a welded ship presented the danger that the ship might break in two. 40. The large-scale construction of all-welded ships was begun in the United States during World War II. Most of the ships so produced were dry-cargo freighters of the so-called "Liberty" type. A serious problem arose out of numerous instances in which ships of this type suffered fractures. A Board of Investigation appointed by the Secretary of the Navy stated in a report dated July 15, 1946, that the factors responsible for failures in welded ships built in the United States were weaknesses in (a) design, (b) workmanship, and (c) material. This report further stated that, "until experience can be had with vessels constructed under normal conditions, of improved design, with carefully checked, high quality workmanship, and employing steel of low notch sensitivity, some form of crack arresters, i. e. two or more slots cut in the deck or sides of the ship covered with plating that is riveted in place should be incorporated in all large welded vessels." 41. Crack arresters do not prevent the occurrence of cracks in ships, nor do cracks always stop at an arrester. 42. By 1950 the United States had installed crack arresters in less than half of its completely welded vessels built during World War II. 43. The American Bureau of Shipping did not then and does not now require the installation of crack arresters in welded vessels which were built without them. Neither does it require crack arresters in new buildings. 44. The information as to welded ships which was gathered in the United States was communicated to those in Great Britain interested in the subject, including the Admiralty Ship Welding Committee and Lloyd's. 45. Lloyd's rules, up to the time of this disaster, did not require the owner of the Christer Salen to fit her with crack arresters, nor did Lloyd's suggest that crack arresters be installed during the repair of the stranding damage in 1950. 46. The installation of crack arresters on the Christer Salen in the usual manner while she was being repaired at Gothenberg in 1950 would have cost about $10,000. 47. The Christer Salen was the first completely welded dry cargo ship classed with Lloyd's that cracked in two. 48. Lloyd's considered installation of crack arresters inadvisable for welded ships built in Britian and in Sweden because (1) such ships had been built without the difficulties encountered in building Liberties in the United States, i. e. poor design, inexperienced workmen, and use of notch sensitive steel which resulted from a shortage of manganese in the United States and in turn resulted in ship steel with an excess of carbon; (2) Lloyd's believed that the work of installing crack arresters might create notches in the ship's plates which could be the starting points of fractures. 49. The nature of the damage sustained by the Christer Salen in the Silino stranding, in the opinion of Lloyd's experts, proved that her steel was not brittle but ductile. The plates of the Christer Salen were only one-half as thick as those in Liberty ships and thus were less likely to crack. 50. The master of the Christer Salen had not been informed by the ship-owner, nor did he have any independent knowledge, that the danger of fracture was greater in a welded ship than in a riveted ship. This circumstance had no causal relation to the accident. 51. The fracture of the Christer Salen did not result from any damage to her plates during loading or from improper stowage of her cargo. The libellants do not contend that the owner's failure to discover the defect in the starboard sheer strake plate constituted lack of due diligence. They contend rather that in light of the "mass of data known to all those interested in 416 shipping, long before 1950, establishing the dangers presented by a welded ship; * * * in the exercise of ordinary prudence, Lloyd's, as the vessel owner's agency which it employed to make the vessel seaworthy, should have required the installation of crack arresters when the vessel was being repaired at Gothenberg in 1950"; that Lloyd's was negligent in failing so to require and its negligence "was lack of due diligence by the vessel owner." These contentions are rejected. There was, it is true, considerable data concerning the failures of welded ships built in the United States. However, as the findings show, that data revealed conditions as to design, workmanship and quality of steel in the American ships which Lloyd's, for adequate reasons, concluded did not obtain in welded ships such as the Christer Salen. The studies of welded ship failures in the United States showed that the steel in those ships was brittle because it contained an excess of carbon over manganese; and being one inch in thickness was more likely to crack than thinner steel. Lloyd's found in 1950 upon examining the Christer Salen's steel damaged in the stranding, that it was not brittle but ductile. And it was only one-half inch thick. Moreover, at that time no dry cargo ship such as the Christer Salen classified by Lloyd's, had ever suffered a fatal fracture. Lloyd's experts studied all the data on ship fractures compiled by both the United States and Britain. They came to the conclusion that the defects in material and design which were the chief causes of failure in the United States Liberties, were absent in ships built in Sweden at the time of the Christer Salen's construction. Furthermore, they then believed that the work of installing crack arresters in existing ships could and might produce notch effects in their plates which in turn could and might initiate fractures. These conclusions were not arrived at arbitrarily or carelessly but after serious extended study. Indeed their views found considerable support in the fact that the Americans had not installed crack arresters in at least half of all existing Liberty ships and in the further fact that the American Bureau of Shipping did not require their installation in existing welded ships. In these circumstances there is no reasonable basis for holding Lloyd's negligent in following the views of their own experts rather than others.[2] The libellants further contend that since the shipowner may not delegate its duty to exercise due diligence, its reliance on Lloyd's is not enough to exempt it from liability. The argument is that since the owner itself knew or is charged with knowing all of the data gathered in the United States, in light of that data, Lloyd's views to the contrary notwithstanding, the owner in the exercise of due diligence should have ordered the installation of crack arresters when the vessel was being repaired in 1950. This argument seems to me to read "due diligence" out of the statute. In view of the sharp difference of opinion between Lloyd's experts and some, though not all, American experts, I think common prudence dictated that the owner rely on the judgment of those experts under whose supervision its vessel had been built and repaired and who regularly surveyed and passed it for classification as a seaworthy vessel.[3] Mr. Murray testified that if the owner had proposed installing crack arresters in 1950, Lloyd's, in his opinion, would have disapproved. This the libellants urge should be disregarded as "speculation * * * advanced in defense of Lloyd's without any reasonable basis." I think, on the contrary, that this opinion has a very reasonable basis. Indeed, disapproval of such a proposal by the owner, appears to be the only position Lloyd's could have taken consistent with the views of its experts. Mr. Murray impressed me as highly competent and *417 equally trustworthy. He was, to be sure, defending Lloyd's and his own position. But on both direct and cross-examination he obviously tried to be objective, frank and entirely fair. The reasons he gave for this and other opinions seemed to me altogether plausible and reasonable. I accept his opinion. In 1954, it is true, Lloyd's amended its rules so as to require that all-welded vessels be fitted with some crack arresting device. This, however, as libellants concede, does not show negligence in not requiring such devices in 1950. I am satisfied that, under all the circumstances existing in 1950, Lloyd's was not negligent in taking the position it did at that time and that the owner exercised due diligence to make the Christer Salen seaworthy. It follows from the foregoing that the owner is entitled to general average contributions from the saved cargo. Determination of the amount of such contributions will be referred to a Commissioner if the parties are unable to agree on it. Submit on notice a proposed decree in accordance herewith. NOTES [1] 46 U.S.C.A. § 1300 et seq. [2] See Louis-Dreyfus v. Paterson Steamships, Ltd., 2 Cir., 67 F.2d 331, at page 333. [3] See Balfour, Guthrie & Co., Ltd. v. American-West African Line, 2 Cir., 136 F.2d 320, at page 321; The Troubador, D.C., 98 F. Supp. 207, at page 210.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515640/	470 Pa. 142 (1976) 367 A.2d 1082 COMMONWEALTH of Pennsylvania v. Jacob KEEFER, Appellant. Supreme Court of Pennsylvania. Argued March 11, 1976. Decided November 24, 1976. Rehearing Denied January 26, 1977. 143 144 Dante G. Bertini, Public Defender, Greensburg, for appellant. Louis H. Ceraso, Asst. Dist. Atty., Greensburg, Albert M. Nichols, Dist. Atty., for appellee. Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION OF THE COURT POMEROY, Justice. Appellant, Jacob Keefer, was found guilty by a jury of criminal conspiracy, robbery and voluntary manslaughter. Post-trial motions were denied, and appellant was sentenced to a term of not less than five nor more than twenty years at a state correctional institution on the robbery conviction. Terms of not less than five nor more than ten years each for the manslaughter and conspiracy convictions were imposed, both to run concurrently with the robbery sentence. This appeal followed.[1] 145 Evidence presented at trial by the Commonwealth demonstrated that on January 22, 1974 appellant, a seventeen year old juvenile, and three other individuals agreed to rob a hotel in Westmoreland County. Testimony of three codefendants established that Keefer actively participated in the planning of the robbery, suggested the premises to be robbed and drove the getaway car. During the course of the robbery, a patron, Walter Long, was shot and killed. Keefer was arrested and charged with criminal homicide arising out of the conspiracy and robbery and later indicted for murder in the criminal division of the court of common pleas.[2] He was separately charged with conspiracy and robbery in the juvenile division of the same court.[3] A transfer hearing was held at which it was determined that the conspiracy and robbery charges should be transferred to the criminal division to be tried with the homicide charge, and the jury trial which followed embraced all three of the charges. I The first issue raised by appellant is whether the robbery and conspiracy charges were properly transferred for trial from the juvenile division to the criminal division.[4] Appellant argues that because the juvenile petition 146 charged only robbery and conspiracy, both of which are delinquent acts under the Juvenile Act,[5] jurisdiction of these charges was in the juvenile division. He claims that the transfer of these charges to the criminal division is governed by Sec. 28(a)(4) of the Juvenile Act,[6] which section requires as a condition of transfer that the Commonwealth make out a "prima facie case that the child committed the delinquent act alleged" and demonstrate "that there are reasonable grounds to believe that the child is not amenable to treatment, supervision 147 or rehabilitation as a juvenile through available facilities." Appellant then asserts that at the transfer hearing the Commonwealth failed to make out such a prima facie showing, with the result that the transfer of the robbery and conspiracy charges was improper. We cannot agree with this reasoning or conclusion. Keefer's argument hinges on the erroneous assumption that the juvenile division in this case had jurisdiction over the robbery and conspiracy charges. The argument ignores the fact that he was charged not merely with robbery and conspiracy, but with murder as well. The Juvenile Act makes a clear distinction between juveniles charged with murder and those charged with delinquencies of a lesser nature.[7] The robbery and conspiracy charges here involved, although initially brought in the juvenile division, were the underlying felonies of the felony murder charge simultaneously initiated in the criminal division. We have held that in cases charging a juvenile with murder, the criminal division has original and exclusive jurisdiction over the offense, and the burden is on the juvenile "to show that he does not belong in the criminal court." Commonwealth v. Pyle, 462 Pa. 613, 622, 342 A.2d 101, 106 (1975). In the case at bar, the charges brought against Keefer in the juvenile division were part and parcel of a felony murder charge properly within the original and exclusive jurisdiction of the criminal division. Indeed, the record and briefs of the parties clearly demonstrate that the judge at the 148 transfer hearing knew that a murder was alleged to have arisen out of the offenses before him. Thus, this is not a case where the juvenile petition merely alleges conduct which if proved, would constitute acts of delinquency over which the juvenile division has original jurisdiction. It is, rather, a case where the delinquencies charged in the juvenile petition constitute an integral part of the one offense over which the juvenile court, in the first instance, had no jurisdiction whatsoever. In this situation the hearing judge was correct in transferring the underlying felonies to the criminal side of the court of common pleas. Beyond this, it would make no sense to try a juvenile as an adult on a felony murder charge in the criminal division and as a juvenile on the underlying felony in the juvenile court division. To do so would not only subject the defendant to the ordeal of two trials but also to the hazard of inconsistent verdicts and separate sentences imposed by separate judges neither of whom possesses an over-all perspective. At a time when both this Court[8] and the legislature in the recent Crimes Code,[9] have signalled that all offenses arising out of a single criminal episode or course of conduct should, in the interest of fairness to a defendant, not to speak of economy of judicial resources,[10] be tried together, it would be 149 anomalous for us to mandate a different result with respect to this juvenile charged with felony murder. II The second issue raised by appellant is whether his Fifth Amendment rights were violated when the prosecutor cross-examined him concerning a statement made to the police at the time of arrest because the statement did not include the alibi upon which appellant relied at trial. Appellant did not raise this issue in his written post-trial motions but in a petition filed at the sentencing hearing, over a year after completion of the trial.[11] The general rule in regard to the filing of post-trial motions is set forth in Rule 1123 of the Pennsylvania Rules of Criminal Procedure. In this case the Court declined to hear and rule upon appellant's additional post-trial argument. While defense counsel claims[12] that he believed the court would hear oral argument on his post-trial motions, he does not state upon what basis he formed this belief. Furthermore, even assuming that defense counsel's belief was justified, this does not excuse his failure to submit any kind of motion, written or oral, to the court until the date of sentencing, some three and one-half months after the denial of post-trial motions. Under these circumstances we cannot fault the 150 sentencing judge for rejecting appellant's request to submit an additional argument. We therefore conclude that appellant waived the Fifth Amendment issue sought to be raised therein.[13] Judgments of sentence affirmed. NIX, J., concurs in the result. NOTES [1] Appellant's judgment of sentence on the manslaughter conviction was appealed directly to this Court. Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(1), 17 P.S. § 211.202(1). He appealed the judgments of sentence on the robbery and conspiracy convictions to the Superior Court which certified the appeals to this Court on April 1, 1976. Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 503(c), 17 P.S. § 211.503(c). The appeals were consolidated for argument with the appeal from the judgment of sentence for manslaughter. [2] The arrest of appellant on the charge of criminal homicide was made on January 24, 1974, and the preliminary hearing thereon took place on January 31, 1974. The indictment which followed charged that the homicide of Walter Long occurred during the commission of a robbery. [3] A petition charging conspiracy and robbery was filed with the juvenile division on January 23, 1974. On January 28, 1974 a detention hearing was held before President Judge Weiss, who on January 31, 1974 also conducted a transfer hearing. [4] Appellant raised this issue at trial in the form of an oral motion to quash the indictments. The trial court denied the motion because appellant did not challenge the transfer in a written pretrial motion in compliance with Rules 304 and 305 of the Pennsylvania Rules of Criminal Procedure. In disposing of appellant's post-trial motions, the court en banc held that "The failure to raise this issue in writing prior to trial acted as an effective waiver of the right to challenge the certification at the time of trial. It is for these reasons that the oral motion was dismissed at that time and is found to be without merit in this subsequent written motion." While we agree that the challenge to the transfer should have been made by means of a written pre-trial motion, we believe that in light of appellant's objection to the propriety of the transfer made at the transfer hearing itself, made again at the preliminary hearing, renewed at the commencement of trial and again in post-trial motions, he has adequately preserved the issue for appellate review. [5] Act of December 6, 1972, P.L. 1464, No. 333, § 2(2), 11 P.S. § 50-102(2) (Supp. 1976-1977). [6] Section 28(a)(4) of the Juvenile Act provides as follows: "(a) After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this State, the court before hearing the petition on its merits may rule that this act is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the trial or criminal division or to a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if:. . . "(4) The court finds that there is a prima facie case that the child committed the delinquent act alleged, and the court finds that there are reasonable grounds to believe that: (i) the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, in determining this the court may consider age, mental capacity, maturity, previous record and probation or institutional reports; and (ii) the child is not committable to an institution for the mentally retarded or mentally ill, and (iii) the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult." Act of December 6, 1972, P.L. 1464, No. 333, § 28(a)(4), 11 P.S. § 50-325(a)(4) (Supp. 1976-1977). [7] For example § 2(2) of the Act, 11 P.S. § 50-102(2) (Supp. 1976-1977), declares that a "`delinquent act' shall not include the crime of murder" and § 28(e), 11 P.S. § 50-325(e) (Supp. 1976-1977), provides that where a petition asserting delinquency of a child "alleges conduct which if proven would constitute murder, the court shall require the offense to be prosecuted under the criminal law and procedures except where the case has been transferred from the criminal court pursuant to section 7 of this act." It should be noted that at no time did appellant seek to have the trial of the murder charge transferred to the juvenile side of the court of common pleas as permitted by § 7 of the Act. 11 P.S. § 50-303 (Supp. 1976-1977). [8] See Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S. Ct. 73, 38 L. Ed. 2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S. Ct. 3172, 41 L. Ed. 2d 1139 (1974). Cf. Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1975). [9] 18 Pa.C.S.A. § 110 (1973). [10] 18 Pa.C.S.A. § 2502(b) classifies felony murder as murder of the second degree and defines it as follows: "(b) Murder of the second degree. A criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or an accomplice in the perpetration of a felony." Obviously, proof of this offense would require proof of defendant's role in the underlying felonies. Were the juvenile to be tried separately for these other offenses in juvenile court, the same evidence would have to be presented in both cases. [11] Post-trial motions were timely filed on July 22, 1974, but at the same time leave was granted Keefer to file additional specific grounds in support of his written motions once the transcript was completed. The trial transcript became available on September 9, 1974, and from that date until May 16, 1975, when appellant's original post-trial motions were denied by the court en banc, appellant submitted no supplemental grounds. In fact, the record indicates that appellant took no action until October 3, 1975, the date of sentencing, at which time he presented the sentencing judge with a petition entitled "Petition for Allowance to Submit an Additional Argument to the Court En Banc" raising the Fifth Amendment issue. This petition stated that defense counsel believed the trial court would hear oral argument on the post-trial motions and that he intended to raise this issue at that time. The sentencing judge denied appellant's petition. [12] See n. 11 supra. [13] Appellant also seeks review of two issues concerning the propriety of the preliminary hearing on the criminal homicide charge. Appellant did not raise these issues in his original written post-trial motions nor did he attempt to have them considered following the denial of post-trial motions. We have held repeatedly that issues raised for the first time on appeal will not be considered. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515651/	367 A.2d 711 (1977) Thomas J. BORROMEO v. PERSONNEL BOARD OF the TOWN OF BRISTOL. No. 75-38-M. P. Supreme Court of Rhode Island. January 7, 1977. Reargument Denied February 3, 1977. 712 Pasquale T. Annarummo, Warren, for petitioner. Emilio D. Iannuccillo, Bristol, for respondent. OPINION BEVILACQUA, Chief Justice. This case is before the court on a writ of certiorari to review the action of the Personnel Board of the Town of Bristol in refusing to grant the petitioner, Thomas J. Borromeo, a hearing pursuant to art. 12, secs. 1204 and 1205 of the Bristol Home Rule Charter on the ground that said board did not have jurisdiction. We agree. The facts in the instant case are not in dispute. Thomas J. Borromeo was appointed Building Inspector of the Town of Bristol on July 2, 1973. On December 2, 1974, Augustine J. Nunes, the new Town Administrator took office and on December 3, 1974, he orally informed the petitioner that his services were terminated. On December 6, 1974, the petitioner appealed in writing his firing by the Town Administrator and requested a hearing before the board pursuant to sec. 1205A of the Bristol Home Rule Charter and art. 10, sec. 4 of the Personnel Ordinance of the Town of Bristol. On January 21, 1975, the board held a hearing to determine whether petitioner came within the provisions of sec. 1205A of the charter and sec. 4 of the personnel ordinance. The next day the board issued a written statement denying petitioner a hearing on the ground that it did not have jurisdiction with regard to the position of building inspector. At issue in this case is the interpretation and effect of two sections of the charter, secs. 910 and 1204, and art. 2, sec. 1 of the personnel ordinance. The Bristol Home Rule Charter became effective July 1, 1971 (art. 14, sec. 1401). Article 9, sec. 910 of the charter provides: "There shall be inspectors appointed by the Town Administrator to perform the following functions: building inspection * . All such inspectors will serve during his pleasure." Article 12 of the charter creates a personnel system which is administered by the personnel board. Section 1204 of this article provides that all "paid, full time officials and employees of the Town" are covered by the personnel system, except several specifically enumerated categories of employees. The section makes no reference whatsoever to building inspectors appointed pursuant to sec. 910. Section 1205A provides that upon demotion, dismissal or suspension, employees covered by the personnel system are entitled to written notice and a hearing before the Personnel Board. The personnel ordinance, adopted June 2, 1968, and readopted November 1, 1972, pursuant to sec. 1204A of the charter, in art. 2, sec. 1 states that the provisions of the personnel system shall apply to "all positions in the Town", except certain enumerated categories of employees. Again, no reference is made to building inspectors. The petitioner contends that in view of the conflict between the charter provisions and art. 2, sec. 1 of the personnel ordinance, since the ordinance was readopted after the effective date of the charter, it was the last in time and should prevail. The petitioner also argues that the ordinance should be considered a special provision modifying the general provisions of the charter. 713 Finally, petitioner contends that since he is not specifically excluded from the provisions of secs. 1204 and 1205, he is a member of the personnel system of the town, notwithstanding the contrary language of sec. 910. I The petitioner's first contention that the ordinance being last in time should prevail over the charter provisions is without foundation. We have stated previously that ordinances are inferior in status and subordinate to the laws of the state; an ordinance that is inconsistent with a state law of general character and state-wide application is invalid. Wood v. Peckham, 80 R.I. 479, 482, 98 A.2d 669, 670 (1953). Similarly, town ordinances are subordinate to the provisions of the respective town charters. The provisions of a town charter are the organic law of the town with respect to municipal affairs. 56 Am.Jur.2d Municipal Corporations § 127 (1971). Since the state statutes and the state constitution constitute the organic law of the state and ordinances inconsistent therewith are invalid, it follows that ordinances that are inconsistent with provisions of the charter are illegal and inferior to the provisions of the charter. As a result the provisions of the personnel ordinance neither prevail over nor can they be considered a modification of the provisions of the charter. II With respect to petitioner's contention that since he is not specifically excluded under sec. 1204A of the charter, he is covered by the personnel system of the town and has a right to a hearing under sec. 1205, we must answer in the negative. Our rationale in supporting this conclusion turns upon the resolution of the inconsistent provisions of secs. 910 and 1204 of the charter. When a court is called upon to construe the provisions of a town charter, the rules of statutory construction apply. Angel v. Murray, 113 R.I. 482, 486, 322 A.2d 630, 633 (1974). The applicable law in this instance is the rule of statutory construction enunciated in G. L.1956 (1970 Reenactment) § 43-3-26 which states: "Wherever a general provision shall be in conflict with a special provision relating to the same or to a similar subject, the two (2) provisions shall be construed, if possible, so that effect may be given to both; and in such cases, if effect cannot be given to both, the special provision shall prevail and shall be construed as an exception to the general provision." Here, effect cannot be given to both provisions because the provision in sec. 910 that the building inspector shall serve at the pleasure of the town administrator is inconsistent with the provisions of secs. 1204 and 1205 which protect town employees from dismissal without cause. While both sections refer to employees, they are inconsistent as to the manner of dismissal. Therefore, § 43-3-26 mandates that the special provision prevail over the general provision. Section 910 specifically provides that building inspectors are to be appointed by the town administrator and to serve at his pleasure. This provision relates to a specific classification and therefore must be considered a special provision. Section 1204 in turn states that all paid, full-time officials and employees are covered by the personnel system unless specifically excluded by sec. 1204. This section applies in general to officials and employees of the town. Thus, applying the rule, we find that since secs. 1204 and 1205 are general provisions, they are subordinate to sec. 910 of the charter. As a result, the position of building inspector is excluded from the personnel system of the town of Bristol. The personnel board was correct in deciding *714 it did not have jurisdiction to grant the petitioner a hearing pursuant to secs. 1204 and 1205. The petition for certiorari is denied and dismissed, the writ heretofore issued is quashed, and the records certified to this court are ordered returned to the respondent board with our decision endorsed thereon.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515629/	367 A.2d 1311 (1977) FORD MOTOR CREDIT COMPANY, a corporation, Appellant, v. Reginald L. HOLLAND and Jyl C. Holland, Appellees. No. 10023. District of Columbia Court of Appeals. Argued July 20, 1976. Decided January 10, 1977. 1312 Laidler B. Mackall, Washington, D.C., with whom William H. Briggs, Jr., Washington, D.C., was on the brief, for appellant. Solomon L. Margolis, Washington, D.C., with whom Mark J. Wishner, Washington, D.C., was on the brief, for appellees. Before KELLY and HARRIS, Associate Judges, and HOOD, Chief Judge, Retired. KELLY, Associate Judge: In this libel action against appellant Ford Motor Credit Company (Ford Credit), a jury awarded to appellees Reginald L. and Jyl C. Holland the sums of $50,000 in compensatory and $100,000 in punitive damages. At trial, Ford Credit's motions for a directed verdict, made at the close of the Hollands' case and again at the conclusion of its own, were denied. Its post-trial motions for judgment notwithstanding the verdict and for a new trial were also denied. Ford Credit appeals these rulings on a number of grounds, only one of which we address as dispositive of this appeal. I. The undisputed facts are that on April 6, 1970, the Hollands bought a 1970 Ford Maverick from Academy Ford Sales, Inc., an authorized Ford Motor Company dealer in Laurel, Maryland. To finance the car the Hollands arranged through the dealer for a retail installment sales contract, with the car as collateral, calling for payment in 1313 36 monthly installments. The first payment under the contract was due May 16, 1970. On April 14, 1970, the installment sales contract was assigned to appellant Ford Credit. Early in May of 1970 the Hollands were driving the car on the New Jersey Turnpike when the engine "blew up". The car was towed to Reliable Garage, Inc., a Ford Motor Company dealer in Swedesboro, New Jersey, where the Hollands left it. For some months thereafter the Hollands unsuccessfully attempted to have Academy Ford or Ford Motor Company repair or replace the car. Meanwhile, Ford Credit requested payments under the contract, but because of what they considered an unjustified lack of cooperation by Academy Ford and Ford Motor Company the Hollands refused to make any such payments, stating that they no longer had any interest in keeping the car. The Hollands were informed by a notice of repossession dated August 5, 1970 that Ford Credit had repossessed the car through its Camden, New Jersey branch office. The vehicle was sold to a third party and the Hollands received a statement of sale dated September 10, 1970, showing that the car had been sold for $1,600. The Hollands' account was credited with that amount plus appropriate insurance refunds, and the balance remaining under the contract was $1,063.75. Shortly after the repossession, Ford Credit sent the following routine credit report to Credit Bureau, Inc., in Washington, D.C.: Account No. BJ A128 K037; Account opened 04-13-70; High credit$2,820.00; 36 payments at $78.60; Collateral 1970 Ford Maverick, Vehicle repossessed08-05-70. The words "Vehicle repossessed" in this report constitute the alleged libel in this action. Ford Credit continued its attempt to collect the balance of the Holland account and subsequently accepted a settlement offer of $600, payable in six equal monthly installments. The Hollands completed these payments in August 1971. In the interim, on April 30, 1971, the Hollands applied to Commercial Credit Corporation for a $5,500 loan, showing Mr. Victor Kraft, the Commercial Credit representative with whom they dealt, all of their correspondence with Ford Credit. Kraft testified at trial that he made a credit check on the Hollands and refused their application for the loan on the basis of the Credit Bureau report. He also testified under cross-examination that even had he known of the subsequent settlement he would have refused the loan because of the reported repossession. By letter dated June 30, 1971 the Hollands wrote to Ford Credit requesting that their credit record be corrected to show that they had settled their account with Ford. Ford replied in a letter dated August 18, 1971 that it was having its branch office notify the Credit Bureau of the settlement. Ford also gave the Hollands permission to use the August 18 letter in making any further loan applications. Acknowledging the undisputed facts and the favorable inferences to be drawn therefrom for the Hollands, Ford Credit argues, inter alia, that there was insufficient evidence to reach the jury on two separate and crucial elements of the plaintiff's case: (1) a showing that the allegedly libelous words were false, and (2) a showing of the actual malice necessary to overcome the defense of qualified privilege. We hold that there was insufficient evidence of malice to submit the question to the jury.[1] Absent malice, qualified privilege was a complete defense to the libel action and Ford Credit was entitled to the judgment as a matter of law. 1314 II. The parties concede that the credit communication in question is qualifiedly privileged,[2] a complete defense to a charge of libel "unless it is made in bad faith or for an improper purpose." Watwood v. Stone's Mercantile Agency, Inc., 90 U.S.App.D.C. 156, 157, 194 F.2d 160, 161, cert. denied, 344 U.S. 821, 73 S. Ct. 18, 97 L. Ed. 639 (1952). They also recognize that the burden is upon the plaintiff to prove malice whenever it is a necessary element in a defamation action.[3] Moreover, when a communication is privileged, a "defendant will be presumed to have been actuated by pure motives in its publication." Ashford v. Evening Star Newspaper Company, 41 App.D.C. 395, 405 (1914). The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication. In order to rebut this presumption, express malice or malice in fact must be shown. This may appear from the face of the publication or from extrinsic proof. . . . Before the inference of express malice can be indulged, the publication must, in comment, be so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion than that defendant was actuated by express malice. . . . [Ibid.] Accordingly, the question here is whether the Hollands produced sufficient evidence of malice to justify submission of the issue to the jury. With respect to malice as it relates to qualified privilege in the area of libel, "all definitions in substance come down to the equivalent of bad faith." H. E. Crawford Co. v. Dun & Bradstreet, Inc., 241 F.2d 387, 395 (4th Cir. 1957). It is the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will. [Dun & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34, 38 (1961).] A concept of reasonableness is applied, meaning that the existence of the privilege is said to depend on the facts as they reasonably appear to the person whose liability is in question. Watwood v. Stone's Mercantile Agency, Inc., supra. A qualified privilege will exist only if the publisher of the alleged defamation believes his statements to be true and has reasonable grounds for this belief. Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 77, 366 F.2d 649, 656 (1966). It is nevertheless evident that for an act to be unreasonable within this context it must be more than negligent. E. g., H. E. Crawford Co. v. Dun & Bradstreet, Inc., supra. See also Johns v. Associated Aviation Underwriters, 203 F.2d 208 (5th Cir. 1953). The standard to be applied in measuring sufficiency, as stated in May Department Stores Company, Inc. v. Devercelli, D.C.App., 314 A.2d 767 (1973), is that . . . on an occasion of qualified privilege ". . . if the language of the communication, and the circumstances attending its publication by the defendant are as consistent with the non-existence of malice as with its existence, there is no issue for the jury, and it is 1315 the duty of the trial court to direct a verdict for the defendant." . . . [Id. at 774, quoting National Disabled Soldiers' League, Inc. v. Haan, 55 App. D.C. 243, 248-249, 4 F.2d 436, 441-442 (1925).] The alleged slander in May occurred while defendant's agents questioned a suspected shoplifter. The agents were performing in good faith what they reasonably perceived to be their assigned duty, an activity protected by qualified privilege. No evidence of malice was present and this court held that a directed verdict for the defendant on the libel claim was in order. The qualified privilege of fair comment was invoked in Fisher v. Washington Post Company, D.C.App., 212 A.2d 335 (1965), as a defense to a libel charge where the paper had published an article criticizing the plaintiff's art work. While there was some factual basis for the criticism, we held that where the only evidence of malice on the record was innuendo and speculation, a trial court must direct a verdict for the defendant. Appellees rely upon Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F. Supp. 421 (D.D.C.1972), a case in sharp contrast to the one before us. There, the defendant published articles on two consecutive days alleging that the plaintiff's operations were financed by government agencies such as the Pentagon, the CIA, and the State Department. After the first article appeared, but before publication of the second, the editor of the defendant newspaper called the director of the CIA, who emphatically denied the story. Although admittedly shaken in his belief that the story was true, the editor published the second story. These facts led the court to say that a jury could find such reckless disregard of the truth as to imply malice. III. The Hollands' basic argument here is that Ford Credit failed to comply with the proper procedures to insure fair and accurate credit reporting in that the words "Vehicle repossessed" were misleading, particularly in light of Ford Credit's knowledge that the Hollands disputed their obligation on the contract and the reason why they disputed it. They urge that from the failure to include an explanation of the dispute in the credit report the jury could properly find that Ford Credit acted with malice, or so recklessly and with such lack of regard for their rights as to imply malice. Applying the test of reasonableness, the Hollands are saying that a jury could plausibly find that the appellant did not believe the allegedly libelous statement to be true, and did not have reasonable grounds for such belief. Even assuming that the phrase "Vehicle repossessed" when literally true could ever convey libelous connotations, however, there is no evidence in the record to support the Hollands' contention that the report was motivated by malice; thus, there is no issue of fact for resolution by the jury. There is no dispute about what information was before Ford Credit's clerk at the time she made the credit report. The Hollands testified at trial that Ford Credit was aware at all times of their reasons for refusing to make any payments on the car and Ford Credit does not disclaim this knowledge. In addition, the Hollands' evidence proved that the clerk had before her information they had not made and did not intend to make any payments under their contract with Ford Credit; they were in default on their contract; the Camden Office of Ford Credit had been instructed to take possession of the vehicle; a notice of repossession dated August 5, 1970, informing them that the car had been repossessed and of their right to redeem it within fifteen days by making up the delinquent payments; a statement of sale showing that the car had been sold to a third party for $1,600, and that the proceeds of the sale had been applied to the balance due Ford *1316 Credit; and a letter dated August 6, 1970 from Ford Credit advising Academy Ford that the car had been repossessed. There was no evidence that the clerk was in possession of any other information which would lead her to believe or even suspect that all of the foregoing was not true. We fail to see, therefore, how it can be said that the credit report was sent with malice. At trial a Ford Credit employee, Mr. Luis Alonso, testified that it is standard procedure to notify the local credit bureau of a repossession; that it is, in fact, required by Ford Credit's manual. Nothing of record indicates that where the obligor disputes the obligation the clerk has a duty to investigate beyond the information in his or her possession before sending out the report. Furthermore, failure to investigate, by itself, does not establish bad faith. Nor is there anything indicating that when there is a dispute the clerk usually notes it in the report. In short, there is nothing even to show the clerk was inadvertently careless, much less reckless, in sending out the report without including an explanation of the Hollands' refusal to make payments. It is not contended that the installment contract was invalid or unenforceable, or that the assignment to Ford Credit was not a good faith assignment. It is clear from the face of the contract that any claims the Hollands had concerning the property were to be settled with the original seller under appropriate warranties and that any such claims would not excuse their obligation to make the payments under the contract. See Block v. Ford Motor Credit Co., D.C. App., 286 A.2d 228 (1972). Ford Credit notified them of their obligation and despite this the Hollands refused to pay and expressly disclaimed any further interest in the car. It is clear, too, from the face of the contract that if the Hollands did not make their payments, Ford Credit would have the right to repossess the car. In light of all of this, the Hollands could not have reasonably expected that any credit information Ford Credit might provide to interested parties would say anything other than that the car was repossessed. The words do imply that the Hollands did not pay their debt, but they did not, in fact, pay their debt. The consequences were foreseeable. Even had the clerk examined these facts in detail, the credit report would still have been made in the belief that it was true, and with reasonable grounds to believe it was true. We repeat: there is simply no evidence of record in this case to support a finding of malice. Accordingly, it was error for the trial judge to submit the question to the jury. Qualified privilege is a complete defense to this action in libel and the motion for judgment notwithstanding the verdict should have been granted. Reversed with instructions that judgment be entered for the defendant. NOTES [1] It is well settled that truth is a complete defense to libel. Olinger v. American Savings & Loan Association, 133 U.S.App.D.C. 107, 409 F.2d 142 (1969); Clark v. Pearson, 248 F. Supp. 188 (D.D.C.1965). Because we find error on the malice issue, we do not decide whether the words "Vehicle repossessed", when literally true, can reasonably be said to bear such connotations of uncreditworthiness that factual truth would not serve as a defense. [2] Watwood v. Credit Bureau, Inc., D.C.Mun. App., 97 A.2d 460 (1953); Watwood v. Stone's Mercantile Agency, Inc., 90 U.S.App. D.C. 156, 194 F.2d 160, cert. denied, 344 U.S. 821, 73 S. Ct. 18, 97 L. Ed. 639 (1952); Blake v. Trainer, 79 U.S.App.D.C. 360, 148 F.2d 10 (1945). [3] Potts v. Dies, 77 U.S.App.D.C. 92, 132 F.2d 734 (1942), cert. denied, 319 U.S. 762, 63 S. Ct. 1316, 87 L. Ed. 1713 (1943).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515641/	535 S.W.2d 504 (1976) Mary Helen LUCE, Respondent, v. Lawrence A. ANGLIN, Appellant. No. KCD 27144. Missouri Court of Appeals, Kansas City District. March 29, 1976. 505 Don B. Roberson, Richard W. Noble, Kansas City (Shughart, Thomson & Kilroy, Kansas City, of counsel), for appellant. Edmund R. Lipowicz, II, Independence, for respondent. 506 Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ. SWOFFORD, Judge. This is an appeal from a default judgment awarding damages for personal injuries, entered upon evidence adduced, in favor of the respondent (plaintiff) and a subsequent order by the trial court overruling appellant's (defendant's) alternate motion to set aside such judgment or for a new trial. This case arose from an automobile accident which occurred on March 22, 1968. Defendant was insured by Allstate Insurance Company (Allstate) and duly reported the accident to it, and Allstate undertook his defense under its policy. No issue of coverage is involved. The plaintiff retained counsel, Mr. Edmund R. Lipowicz II, who under date of May 17, 1968 advised Allstate and the defendant of his retention as plaintiff's attorney. Thereafter, Lipowicz and Allstate's claims representatives had conversations looking toward possible compromise of the claim. In April of 1971, one John Vanderlippe, a staff claims representative of Allstate, undertook these settlement negotiations, which eventually reached a stalemate with plaintiff's demand at $3500.00 and Allstate refusing to pay more than $750.00. According to the testimony of Lipowicz, there was no further contact between him and Allstate or any of its representatives after April of 1971. He filed suit on March 16, 1973, less than a week before the bar of plaintiff's claim by the statute of limitations. The following day, the defendant was personally served with process, the suit papers were forwarded to Allstate by the defendant, and it undertook the handling of the claim on his behalf. No answer was filed in the suit and on May 7, 1973, plaintiff appeared personally and by counsel for trial. The defendant made no appearance, evidence was adduced and a judgment was entered in the court below for $10,000. On June 1, 1973, the defendant, through counsel, filed his answer without obtaining leave of court, and on June 7, 1973, he served written interrogatories on plaintiff. On July 24, 1973, defendant served notice requesting that plaintiff's husband be joined in the suit. On August 22, 1973, the defendant filed a motion to compel answers to his interrogatories, which motion was sustained on September 21, 1973. Receiving no response, the defendant filed a motion to dismiss the action on October 12, 1973. Thereupon, plaintiff's attorney advised the court and counsel by letter of the default judgment (entered some five months before), and on October 29, 1973, the defendant's motion to dismiss was overruled, as moot. The defendant thereupon filed his motion to set aside the judgment or for a new trial, which the court below overruled after an evidentiary hearing. This appeal followed. The defendant raises two assignments of error, which may be summarized as follows: First, he asserts that the court erred in overruling his motion to set aside the judgment or for a new trial because (A) his default should be excused because the judgment was procured by "misrepresentation amounting to legal justification or excuse"; (B) he had a meritorious defense to plaintiff's case; (C) no prejudice "will accrue to plaintiff" by setting aside the judgment; and (D) the court below "did not exercise its discretion in conformity with the spirit of the law" favoring trials on the merits. Second, he asserts that the court erred in excluding a memorandum of claims agent Vanderlippe dated March 26, 1973 (10 days after suit was filed) which was part of Allstate's claim file on the case, which memorandum purported to reflect an oral agreement between Vanderlippe and Lipowicz, plaintiff's counsel, for an indefinite extension of time for defendant to answer the petition. Such a motion to set aside a judgment is one that invokes the sound discretion of the trial court, and this court will not interfere with the trial court's action unless the record clearly and convincingly demonstrates an abuse of such discretion. 507 Cooper v. Armour and Co., 222 Mo.App. 1176, 15 S.W.2d 946, 951[3] (1929); Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Askew v. Brown, 450 S.W.2d 446, 450[6] (Mo.App. 1970). There are a number of broad elements and considerations which should be critically viewed to test the trial court's ruling on a motion to set aside a default judgment so as to measure its action against the exercise of acceptable discretion on the one hand, and abuse of discretion, on the other hand, the former dictating non-interference at this appellate level, and the latter commanding it. It is the generally accepted rule that the burden is upon the movant in a proceeding of this nature to establish two basic and vital facts, namely, that he has a good reason and excuse for the default and that he has a meritorious defense to the claim. Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116[3] (Mo.1955); Edwards v. Rovin, 322 S.W.2d 139, 142-143[4, 6] (Mo.App.1959); Ward v. Cook United, Inc., 521 S.W.2d 461, 470[11] (Mo.App.1975). These elements of proof are recognized by appellant and covered in his Points Relied On IA and IB. However, unless these two points are clearly established by the record, his Points IC (that no prejudice would accrue to plaintiff by setting aside the judgment) and ID (that the ruling of the court violated the spirit of the law favoring trial on the merits), standing alone, would be insufficient to sustain the burden placed upon defendant. In passing, it should be noted that it is too obvious for comment, that plaintiff would be prejudiced if the judgment were set aside. She pursued her substantive right to assert her claim; she obtained a hearing of her cause upon default; she presented evidence in support of her claim that the defendant's automobile struck a light pole, glanced off and struck the side of the automobile in which plaintiff was riding while it was stopped in obedience to a traffic light; and, that he had been drinking. She further offered proof of her injuries and damage. She is now the creditor under a substantial and final judgment. Further, there is no dispute that the law favors the trial of litigation on the merits, but such generalization must be carefully applied to the facts of each case in the interest of justice and has no significance in the case at bar. The law defends with equal vigor the integrity of legal process and procedural rules and does not sanction disregard thereof. There remains, therefore, as pertinent to this case, the points raised by defendant in his brief, IA and IB. Defendant asserts that his default was justified or excused because the judgment was procured by "misrepresentation"; that his insurance carrier was "lured" into the default by an agreement with plaintiff's counsel for an indefinite extension of time to file an answer; and, that if his insurer was negligent in handling the suit and thus permitted the default, that such negligence cannot be imputed to him. This record shows a direct and irreconcilable conflict in the testimony of the Allstate's claims representative, Vanderlippe, and plaintiff's counsel with reference to the purported agreement. Vanderlippe stated, in substance, that after he received the suit papers from the defendant in March, 1973, in a telephone conversation with Lipowicz an agreement was reached that a further attempt would be made to settle the case, and that Lipowicz would contact his people (plaintiff and her husband) and call back, and that Lipowicz agreed that the time to answer would be extended indefinitely. In response to the questions propounded to him by the trial court and counsel at the hearing, he stated, however, that no specific time extension was mentioned; that nothing was said as to whether or not a judgment would be taken; that he did not advise Lipowicz that an answer would not be filed until he, Vanderlippe, heard from Lipowicz; and, that the extension was just "general" until it was ascertained if the case could be settled. He stated that in this conversation he "reiterated our position", referring to the settlement offer of $750.00 made in 1971, and previously rejected. On the other hand, Lipowicz testified that he had no contact with Vanderlippe (or 508 anyone else connected with Allstate) after April of 1971, and categorically and flatly denied any agreement was made for an extension of time to file answer. Thus, the credibility of witnesses Vanderlippe and Lipowicz was directly in issue and for decision by the trial court. Obviously, the court chose to believe Lipowitz and it cannot be said that this was not based upon substantial evidence or demonstrated any abuse of discretion, and such determination of credibility will not be disturbed here. The point that Allstate's negligence, if any, cannot be imputed to defendant is likewise without merit. Distefano v. Kansas City Southern Railway Company, 501 S.W.2d 551, 553[3] (Mo.App.1973); Ward v. Cook United, Inc., 521 S.W.2d 461, 472-474[15, 16, 17] (Mo.App.1975), and cases cited therein. Defendant's Point IA is ruled against him. As to defendant's Point IB, the record is absolutely void of any showing that he had a meritorious defense to plaintiff's claim. The original pleadings have been examined and reveal that the tardy answer filed by defendant was in the nature of a general denial coupled with a charge of contributory negligence against the plaintiff as a guest in the automobile struck by defendant. Pleadings do not prove themselves. No evidence of any kind to support a defense was proffered at the evidentiary hearing on the motion to set aside the default. While defendant should not be required at that stage to present extensive evidence or a full-blown defense, he should be required to make some showing to the court of the existence of at least an arguable theory of defense. This was not done, and the only evidence before the court in this area was plaintiff's account of how the collision occurred, as stated in the default hearing. The defendant, therefore, failed to meet his burden of proof as to the existence of a meritorious defense. His Point IB is ruled against him. The defendant's Point II relates to the court's refusal to admit into evidence a memorandum dated March 26, 1973, purportedly written by claims agent Vanderlippe to himself reflecting the alleged telephone conversation with Lipowicz, following receipt of the suit papers from the defendant. This was identified as a part of the claim file on plaintiff's claim for damages which resulted in the judgment here involved. When offered, the plaintiff objected on the basis that it was a self-serving statement and not shown to be a part of the business records of Allstate. The objection was sustained. This action of the trial court is now urged by defendant as reversible error. Regardless of whether or not the memorandum was shown to be a business record under the Uniform Business Records as Evidence Act (or assuming arguendo that it was so qualified) it was nevertheless inadmissible as being self-serving. The appellant argues that since the memorandum was shown to be part of the business records of Allstate, it was automatically admissible as evidence, regardless of its contents, and also, that since Allstate was not a party to the suit, the document should not have been excluded upon the basis of its being self-serving. There is no validity to this position. The applicable statute, Section 490.680 RSMo 1969, after enumerating the necessary steps to identify the records as qualified under the Act and providing that such are admissible evidence, concludes: "* * * if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission." The trial court is given broad discretion in the applicability of and compliance with the statute. Rossomanno v. Laclede Cab Co., 328 S.W.2d 677, 683[13, 14] (Mo. banc 1959). When business records are qualified under the Act, two things are accomplished: One, possible hearsay objections to such records are eliminated; and second, the records become generally admissible. Recognizing this rule, the court in Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666[4, 5] (1956), following 509 a number of earlier cases cited therein, said: "We do not hold, however, that the proper qualification of hospital records under the Act necessarily makes all parts of the record automatically admissible. If specific and legally proper objections are made to parts of the record on grounds other than hearsay generally, such parts may be properly excluded. * * And it has been said that the Act does not make relevant that which would not otherwise be relevant. * * * In other words, all that the Act does, essentially, is to eliminate the hearsay objection." (Emphasis supplied) While counsel have cited no Missouri case (and independent research has discovered none) which specifically applies this rule to the claim files of liability insurer carriers, there is no logical reason why such should not apply to that kind of business record. Although the defendant here did not attempt to offer the whole claim file, he attempted to qualify the whole file under the Act and then had marked as an exhibit and offered only the March 26, 1973 memorandum of Claims Agent Vanderlippe. The defendant has not filed the rejected exhibit with the court and has thus violated Rule 81.15 and the court, therefore, has had no opportunity to see its exact wording. But enough appears from the record to conclude that it contained a terse notation of the alleged agreement with Lipowicz for an indefinite extension of time to answer in substantially the same (but abbreviated) form as Vanderlippe's oral testimony. The facts as put forward by Vanderlippe were all before the court, so it is difficult to see how the admission of the memorandum would have strengthened the position of defendant, which the court did not ultimately accept in arriving at a decision. The position of the defendant on the corollary argument is somewhat obscure, but the conclusion is reached that his stand is taken, not upon the premise that the memorandum did not contain self-serving statements, but rather the objection is not tenable because Allstate was not a named party to the litigation. Prior to the 1975 decision in Ward v. Cook United, Inc., supra, the appellate courts had not undertaken to define the exact relationship of claims representatives of the insurer to insureds with reference to the events and commitments of the litigation. Indeed, as pointed out in Ward, the courts of the various jurisdictions are not in accord in this area. The weight of authority heretofore has been that the relationship was that of independent contractor. The "modern" rule is that it is one of principal and agent. Some textbook authors describe the relationship as so complex that it does not fit precisely into one of the niches of the law, and that it partakes in part of an agency relationship, that of an independent contractor, and in many cases that of a fiduciary. Appleman, Insurance Law and Practice, Vol. 7A, Section 4681, pp. 423-424, and Footnote 5 at page 424. In Ward v. Cook United, Inc., supra, 521 S.W.2d 461, 472-474[15-16] (Mo. App.1975), this court held that the relationship that existed between a defendant-insured and the claims manager of its liability insurer carrier was that of principal and agent, and that the negligence of the agent was therefore imputable to the principal. No reason has been advanced, nor does one appear, why the reasoning in Ward does not apply with equal force in the case at bar. It follows that Vanderlippe occupied the position of agent to defendant, Anglin, in the handling of the plaintiff's claim against him; that Vanderlippe's conduct of the negotiations leading to the default were the acts of and chargeable to the defendant; that Allstate though not a named defendant, was in fact a real party in interest; and, that the objection to the memorandum by Vanderlippe of March 26, 1973 (that it was self-serving) was properly sustained. To rule otherwise and permit the introduction of self-serving statements in the nature of office memoranda written by a liability insurer's claims representative to himself or any intra-office memoranda of such a nature upon the basis that the insurance *510 carrier was not a named party to the suit, could open a vista of possible abuse of appalling magnitude. Defendant's Point II is ruled against him. The judgment is affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515669/	535 S.W.2d 432 (1976) EDINBURG MEAT PRODUCTS COMPANY, Appellant, v. The VERNON COMPANY, Appellee. No. 1030. Court of Civil Appeals of Texas, Corpus Christi. March 31, 1976. 433 Alfonso Ibanez, Pena, McDonald, Prestia & Zipp, Edinburg, for appellant. Kelley, Looney, Alexander & Hiester, Edinburg, for appellee. OPINION BISSETT, Justice. This is an appeal from a judgment for plaintiff on the pleadings in a suit on sworn account. In the trial court, the Vernon Company was plaintiff and Edinburg Meat Company was defendant. The original petition and the account statements thereto attached, duly verified in accordance with the requirements of Rule 185, T.R.C.P., was filed on December 3, 1974. The petition sets out a cause of action based on an account with defendant for the sale of some calendars to defendant by plaintiff. Defendant filed an unsworn original answer on December 5, 1974, which consisted 434 of a general denial. On January 25, 1975, defendant filed a pleading entitled "Denial of Sworn Account", which reads, as follows: "DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT: Again comes Defendant, EDINBURG MEAT PRODUCTS CO., and shows the Court that the claim alleged in Plaintiff's Original Petition which is the foundation of its action herein, including the exhibits therein, are not just or true in the following particulars: (a) In that the invoices designated as Exhibit `A' are duplication orders, erroneously shipped by Plaintiff to Defendant herein and the merchandise therein is priced at an excessive price not agreed upon by Defendant herein. (b) In that similar merchandise required one year prior was missent to another company in California, and credited therefore was to be given Defendant herein on any new purchases. Therefore, legal offsets and credits are not shown or given on said account. WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take nother by its suit and that Defendant go hence with his costs without day. EDINBURG MEATS PRODUCTS CO. BY /s/ A. J. Vale A. J. Vale, President" The jurat attached thereto is in the language: "SUBSCRIBED AND SWORN to before me by the said Arturo J. Vale, on this the 23rd day of January, 1975. Pattilee Beutnagal Notary Public, Hidalgo County, Texas" Plaintiff, on May 13, 1975, filed its first supplemental petition, which alleged an alternative cause of action against defendant based on breach of contract. It was asserted therein that defendant entered into written contracts with plaintiff, whereby plaintiff was to furnish calendars to defendant as set out in the contracts, and defendant was to pay plaintiff the agreed price for same, which promise to pay was breached by defendant. On May 19, 1975, defendant filed a pleading which was also entitled "Denial of Sworn Account". It reads, as follows: "DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT: Now Comes Edinburg Meat Products Company, Defendant in the above numbered and styled cause, and shows the Court that each and every item in Plaintiff's Petition which is the foundation of Plaintiff's action, including the attached exhibits, is not just and true. And of this he prays judgment that Plaintiff take nothing by his suit and that Defendant go hence with his costs without day. THE STATE OF TEXAS \| } COUNTY OF HIDALGO \| BEFORE ME, the undersigned authority, A Notary Public in and for said County and State, on this day personally appeared Alfonso Ibanez, to me well known to be a credible person and qualified in all respects to make this affidavit, who being by me duly sworn, upon oath states that he has read the foregoing Denial of Sworn Account designed to be used in the cause of The Vernon Co. vs. Edinburg Meat Products Co. in the County Court at Law in Hidalgo County, Texas, and knows the contents thereof, that he is the attorney of record of the Defendant in such cause and that such Denial of Sworn Account is in every respect true and correct. /s/ Alfonso Ibanez Alfonso Ibanez SUBSCRIBED AND SWORN TO before me by the said Alfonso Ibanez on this the 19th day of May, A.D., 1975, to certify which witness my hand and seal of office. /s/ Yolanda D. Garcia Notary Public in and for Hidalgo County, Texas" The case was set for trial before the court without a jury. Plaintiff, when the case was called for trial on May 22, 1975, announced "ready", and then moved for judgment 435 on the pleadings on the ground that its cause of action based on sworn account had not been controverted by a legally sufficient sworn denial. At the conclusion of argument on the motion, judgment was rendered for plaintiff. No evidence was introduced by plaintiff. The judgment, in part, recites: ". . . The Court, after having heard the evidence and argument of counsel on Plaintiff's Motion, is of the opinion that Defendant's operative answer is insufficient as a matter of law and therefore Plaintiff should have Judgment as plead for in its Original Petition herein, to-wit: for $757.53, plus interest on its Judgment at the rate of 6% per annum, plus $200.00 in reasonable attorney's fees, and its costs of suit. THEREFORE, it is ORDERED, ADJUDGED AND DECREED that Plaintiff recover of Defendant and Defendant pay to Plaintiff its damages in the amount of $757.53, plus interest on that amount at the rate of 6% per annum from the date of Judgment, attorney's fees in the amount of $200.00, and costs of suit, for which let execution issue." Defendant has duly perfected an appeal from that judgment. Defendant, in points of error 1 and 2, contends that the trial court erred in rendering judgment for plaintiff on the pleadings because its defensive pleadings were sufficient to controvert the action brought against it by plaintiff. It argues that the first "Denial of Sworn Account" was sufficient to put the matters raised in plaintiff's original petition in issue, and that the second "Denial of Sworn Account" was, in fact, a supplemental answer to plaintiff's unverified supplemental petition, which put in issue the allegations made in the supplemental petition. Rule 185, T.R.C.P., insofar as the same is applicable to this appeal, states that a proper pleading based on a sworn account: ". . . shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . . ." Rule 93(k), T.R.C.P., provides, in part, that the following matters, unless the truth of such matters appears of record, shall be verified by affidavit: * * * * * "(k) That an account which is the foundation of the plaintiff's action, and supported by the affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true. (Emphasis supplied)." Plaintiff claims that defendant's "Second Denial of Sworn Account" is, in fact, an amended pleading which completely replaced the first "Denial of Sworn Account". It further claims that even though it be held that the "Second Denial" is merely a supplemental answer in response to plaintiff's first supplemental petition, or even if the two denials are considered together, that the requirements of Rules 185 and 93(k), T.R.C.P., have not been met in connection with its cause of action based on sworn account, as alleged in its original petition. The cases which have interpreted Rules 185 and 93(k) have uniformly required strict adherence to the requirements of the rules. Goodman v. Art. Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ. App.Dallas 1973, writ ref'd n. r. e.); Oliver Bass Lumber Co., Inc. v. Kay & Herring Butane Gas Co., Inc., 524 S.W.2d 600 (Tex. Civ.App.Tyler 1975, no writ). A denial of a sworn account must be in compliance with those rules, and if it is not, the defendant will not be permitted to deny the plaintiff's claim or any item included therein. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App.Houston [14th Dist.] 1973, writ ref'd). Rule 185 is a rule of evidence. In the absence of a sworn denial in compliance with the requirements of the Rule, the sworn account is received as prima facie 436 evidence as against the defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges. 2 McDonald, Texas Civil Practice, § 7.31 (1970). It is not necessary for this Court to decide whether the "Second Denial of Sworn Account" is an amended pleading that replaced the first "Denial of Sworn Account". Neither the first nor the second denial is in substantial compliance with Rules 185 and 93(k), T.R.C.P. Whether the second denial is, in effect, an answer in response to plaintiff's first supplemental petition is immaterial to the disposition of this appeal. Judgment was not rendered on the basis of a breach of contract. Plaintiff's motion for judgment on the pleadings was directed to its action on sworn account. It was stated in the judgment: "Plaintiff should have judgment as plead for in its Original Petition"; judgment was rendered on that basis. Even if we were to consider the first denial as a live pleading, it does not meet all of the mandatory requirements of the Rules. It is a partial denial only and does not constitute a denial which states that "each and every item is not just or true, or that some specified item or items are not just and true (emphasis supplied)", as required by the Rules. Moreover, there is no showing that A. J. Vale, who signed the pleading and made the jurat affixed thereto, had any personal knowledge of the facts stated in the body of the pleading. Without such assertion of personal knowledge by the affiant, the requirements of a verified denial are not met. The second denial purports to deny the entire claim. It is also fatally defective. It is couched in terms of "each and every item" in plaintiff's claim, but goes on to state that the claim "is not just and true (emphasis supplied)", while the Rules require that a denial of the whole claim state that each and every item of the claim is not just or true. Furthermore, there is no showing in the affidavit to the second denial that Mr. Ibanez, the attorney for defendant, who made the affidavit attached to the pleading, had any personal knowledge of the facts set out in the body of the pleading. In the state of the record here presented, plaintiff was not required to put on any proof of the facts alleged by it in its petition on sworn account beyond the facts alleged in its sworn petition. Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59 (Tex.Civ.App.Eastland 1964, writ ref'd); Wilson v. Browning Arms Company, supra; Glasco v. Frazer, 225 S.W.2d 633 (Tex.Civ.App.Dallas 1949, writ dism'd). Plaintiff was entitled to judgment on his sworn account pleadings in the amount of $757.53, plus interest thereon as provided in the judgment. Defendant's points 1 and 2 are overruled. Defendant, in point 3, asserts that the trial court erred in awarding $200.00 to plaintiff as attorney's fees because there is no evidence to support such an award. We agree. Plaintiff argues that the judgment with respect to attorney's fees was proper because Tex.Rev.Civ.Stat.Ann. Art. 2226 (1971),[1] provides that the trial court may take judicial knowledge of the current State Bar Minimum Fee Schedule and the contents of the case file in determining a reasonable attorney's fee without the necessity of hearing further evidence. No evidence 437 was offered on the issue of reasonable attorney's fees. The original answer filed by defendant, although legally insufficient to put in issue the matters relating to the action on sworn account, was legally sufficient to controvert plaintiff's action to recover reasonable attorney's fees. The filing of the first and second denials had no effect upon the general denial insofar as the issue on attorney's fees is concerned. Plaintiff's motion for judgment on the pleadings invoked the judgment of the trial court on questions of law as applied to the pleaded facts. Plaintiff, in its original petition, with respect to the issue of attorney's fees, alleged: "That though demand has been made upon the Defendant to pay said account, more than 30 days prior heretofore, said account remains unpaid and the Plaintiff has, therefore, found it necessary to employ the undersigned attorneys to represent it herein and has promised to pay said attorneys a reasonable attorney's fee in the amount of $200.00, plus costs." The allegation that plaintiff was entitled to recover attorney's fees was contested by defendant's general denial, a proper pleading. Therefore, the burden was on plaintiff not only to allege presentment of its claim but to also prove presentment of such claim to defendant more than 30 days prior to the date judgment was rendered. Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952); El Paso Mld. & Mfg. Co., Inc. v. Southwest For. Ind., Inc., 492 S.W.2d 331 (Tex.Civ.App.El Paso 1973, writ ref'd n. r. e.); Stafford v. Brennan, 498 S.W.2d 703 (Tex.Civ.App.Corpus Christi 1973, no writ); G & W Marine, Inc. v. Morris, 471 S.W.2d 644 (Tex.Civ.App.Beaumont 1971, no writ). There is no evidence of any presentment by plaintiff of its claim. The "no evidence" point must be sustained. The issue of reasonableness of attorney's fees is a question of fact, not of law. Article 2226 contemplates that in a trial before a court without a jury, the State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney's fees. Thus, in a non-jury case, where there is a trial, the court may take judicial knowledge of the minimum fee schedule as to the reasonableness of the attorney's fees for the legal services rendered. In this case, however, the judgment was not rendered following a non-jury trial. There was no trial on any contested issue of fact. The reasonableness of attorney's fees, as well as the issue of sworn account, was decided as a matter of law. Under the record here presented, the trial court had no evidence before it that could furnish a basis for awarding reasonable attorney's fees, a controverted issue of fact. Since the judgment which was rendered, a judgment on the pleadings, could only resolve questions of law, the portion of the statute which provides that the minimum fee schedule in an action on sworn account shall be prima facie evidence of reasonable attorney's fees has no application to this appeal. The Supreme Court, in Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857 (Tex.Sup.1975), said that in a summary judgment proceeding, the minimum fee schedule, without more, was not conclusive on the issue of reasonableness of attorney's fees. There is no reason why that rule should not be applied to a case where there is no trial before the court, but judgment on the pleadings is rendered in advance of a trial. Plaintiff's right to an attorney's fee of $200.00 was not established as a matter of law. Defendant's point 3 is sustained. That portion of the judgment which awarded plaintiff a recovery of $757.53, plus interest on that amount at 6% per annum from date of judgment, is affirmed. That portion of the judgment which assessed all of the court costs against defendant is reformed, and judgment is here rendered that ½ of such costs be and the same is hereby assessed against defendant and the remaining ½ be and the same is hereby assessed against plaintiff. That portion of *438 the judgment which awarded plaintiff a recovery of $200.00, as attorney's fees, is reversed, and judgment is here rendered that plaintiff take nothing in its action to recover attorney's fees. Costs incurred in this Court are taxed ½ to defendant and ½ to plaintiff. AFFIRMED IN PART, REFORMED IN PART, AND REVERSED AND RENDERED IN PART. NOTES [1] The statute, as now amended, in part, provides: "Any person, ... having a valid claim against a person or corporation for services rendered, labor done, material furnished,... or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if ... he should finally obtain judgment for any amount thereof ... he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney's fees. The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney's fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney's fees without the necessity of hearing further evidence."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515676/	535 S.W.2d 917 (1976) ACADEMY WELDING, Appellant, v. Roy W. CARNES, Appellee. No. 1041. Court of Civil Appeals of Texas, Corpus Christi. April 8, 1976. 918 Zollie Carl Steakley, Bowmer, Courtney, Burleson & Pemberton, Temple, for appellant. Daniel M. Francis, F. Ben Selman, Jr., Jones, Francis & Youts, Inc., Waco, for appellee. OPINION YOUNG, Justice. This is a venue case. Roy W. Carnes sued City Utilities Company and the City of Gonzales, Texas, for damages from personal injuries sustained on July 27, 1973. He alleged that while he was working on electrical cables in place on utility poles, he contacted power lines left on the poles in a negligent manner by the defendants; that the defendants' negligence caused his injuries. Thereafter, in his first amended original petition, the plaintiff named Halline Utility Equipment Company and Academy Welding as additional defendants. Then Academy Welding filed a plea of privilege seeking transfer of the case to Bell County, its county of residence. The plaintiff, in his controverting affidavit, invoked the exceptions of Subdivisions 4 and 29a of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The only evidence at the hearing, August 21, 1975, came from a deposition of the plaintiff and a deposition of a hospital records custodian. The trial court overruled the defendant Academy's plea and that defendant appeals. The appellant attacks the trial court's order overruling the plea of privilege in ten 919 points of error. The first and second points deal with the trial court's overruling of the appellant's objection to the introduction of the appellant's deposition into evidence at the plea of privilege hearing. The remaining points relate to the sufficiency of the evidence there produced. We will discuss the deposition problem first. In that regard, the essential facts are these: 1. Appellee filed this suit July 29, 1974, naming only the City of Gonzales and the City Utilities Company as defendants. 2. The deposition of appellee Carnes was taken January 9, 1975; certified March 5, 1975; and filed of record March 14, 1975. 3. The appellant, in an amended petition, was first named as a defendant June 3, 1975; was served June 6, 1975; and answered by plea of privilege June 25, 1975. 4. The plea of privilege hearing was begun and completed August 21, 1975, and the order overruling the plea was signed and entered August 28, 1975. From the foregoing it is clear that the deposition evidence which was admitted was taken before appellant was made a party to this suit and without notice to the appellant. This was pointed out to the trial court in the appellant's objection which was overruled. The general rule is that depositions are inadmissible in evidence against one not a party to the suit at the time the deposition was taken. Dalsheimer v. Morris, 8 Tex. Civ. App. 268, 28 S.W. 240 (1894, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex. Civ.App.Texarkana 1960, writ ref'd n. r. e.). This rule also applies in venue cases. Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.Corpus Christi 1971, no writ). Appellee recognizes this general rule, but he contends the appellant has waived the right to complain of the trial court's action in admitting into evidence appellee's deposition. This contention is based upon the tender by appellee's attorney of the deponent for cross-examination and his offer not to resist a continuance, if requested, by the appellant. The tender was obviously for sometime later because the record does not reflect that Mr. Carnes, the deponent, was even present at the plea of privilege hearing. After that tender and offer, the trial judge indicated that he would grant a continuance to the appellant if the appellant were going to take the deposition of Carnes in the "immediate future". The appellant's attorney neither specifically declined nor accepted the tender and offers, but apparently elected to stand on his objection. Even so, the appellee proceeded with the introduction of the questioned deposition evidence. This brings us back to other appropriate general rules. The courts in Texas have consistently held that a person's right to be sued in the county of his residence is a valuable right and should never be denied except upon clear and convincing proof that the alleged cause of action comes within an exception to the venue statute. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Stanley v. Savage, 489 S.W.2d 461 (Tex.Civ.App. Corpus Christi 1972, no writ). The plaintiff has the burden to allege and prove the facts he relies upon to bring his case within an exception to the general rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Stanley v. Savage, supra; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App. Corpus Christi 1974, no writ). Because the burden was on appellee to prove the necessary facts to sustain a venue exception, the burden was upon him to attempt to do so by admissible evidence. His attorney could have obviated the objection to the deposition by putting the appellee on the witness stand at the plea of privilege hearing and there could have elicited his testimony about the venue facts of this case. In that instance opportunity for cross-examination would have been afforded the appellant without the necessity of a continuance. And if plaintiff Carnes was 920 not available to take the stand, the burden was on the appellee to request a continuance, not the appellant, for the purpose of later tendering Carnes for examination by the appellant. Appellee further argues that the deposition was on file several months after the appellant was made a party to this suit and before the plea of privilege hearing; that appellant, therefore, had ample time to take the deposition of Carnes. The answer to that contention is that if the appellee desired to introduce at a hearing or trial admissible evidence by deposition against the appellant, then the burden was on the appellee, after the appellant was joined as a defendant, to retake the deposition in compliance with Rules 186 through 215c, T.R. C.P. We are not here holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken. We are holding that under the facts of this case the right has not been waived. Appellant's first and second points are sustained. Because we have held that the deposition of appellee Carnes was inadmissible as evidence at the plea of privilege hearing and because that was the only evidence tendered on the issue of liability, there is no evidence for us to review regarding appellant's remaining points. Therefore appellant's points three through ten are all sustained. The judgment of the trial court is reversed and judgment here rendered that this case, as to Academy Welding only, be transferred to one of the district courts of Bell County, Texas. NYE, Chief Justice (dissenting). I respectfully dissent. This case presents the very narrow question as to whether the appellant waived his right to cross-examine a deposition witness. This Court, in Heldt Bros. Trucks v. Silva, 464 S.W.2d 931 (Tex.Civ.App.Corpus Christi 1971, no writ), held that as a general rule, deposition evidence is inadmissible in evidence against one not a party to the suit at the time the deposition was taken. While I still agree with such general rule, I believe that such a rule is not absolute and not without exceptions. The Heldt Bros. case is not in point. The rationale behind the general rule is based on the supposition that the adverse party (here Academy Welding) must be afforded an opportunity to cross-examine the deposed witness and absence such an opportunity such evidence does not constitute legally admissible evidence or proof of any fact against such party. See Heldt Bros. Trucks v. Silva, supra; 20 Tex.Jur.2d, Depositions, § 72, p. 27. See also Dalsheimer v. Morris, 28 S.W. 240 (Tex.Civ.App.1894, no writ); St. Louis Southwestern Ry. Co. of Texas v. Woldert Grocery Co., 144 S.W. 1194 (Tex. Civ.App.Texarkana 1912, no writ); Allen v. Payne, 334 S.W.2d 607 (Tex.Civ.App. Texarkana 1960, writ ref'd n. r. e.). In each of the above cases cited by the majority, the offending characteristic of the questioned evidence was the absence of an opportunity to cross-examine the witness. As we stated in the Heldt case: "The right to cross-examination of witnesses by a party in a lawsuit is a valuable and substantial right, and it cannot be denied in the instant case but that the circumstances have, in effect, denied that right to appellants in respect to a material matter that has vitally affected them. They, through no fault of their own, have not been accorded an opportunity to exercise such right, in accordance with the rules governing cross-examination generally." (Emphasis supplied.) It is, therefore, the absence of the opportunity to cross-examine which causes such evidence to take on the characteristics of hearsay evidence, which absent some exception, is legally inadmissible. It follows that once such opportunity to exercise such right of cross-examination is afforded the complaining party, irregardless of whether the opportunity is exercised, the reasons for excluding such evidence are no longer present. The right to cross-examine any witness may be waived. The principle, which is usually recognized by modern jurisdictions, does not necessarily 921 require that there be an actual cross-examination, but only that the adverse party have an opportunity to exercise such right. This, of course, must be in accordance with the rules governing the right of cross-examination generally. 4 A.L.R.3d Depositions Admission in Evidence p. 1079. The record before us shows that Carnes' deposition was taken on January 9, 1975, and filed of record on March 14, 1975. Academy Welding was named as a defendant on June 3, 1975. Academy was served with process on June 6, 1975, and made its first appearance (by answer) on June 25, 1975. Carnes' deposition was taken prior to the appellant being made a party to this lawsuit.[1] From the time Academy Welding became a party (June 6, 1975) to the time of the plea of privilege hearing (August 21, 1975), a period of approximately 76 days had elapsed within which said deposition had been on file. Academy, therefore, had full opportunity to examine Carnes' deposition in the file and to decide whether they would again depose him upon oral examination as they may have considered necessary or desirable in order to fully protect their interest in the case. There is no evidence that Academy decided that it would be necessary to depose Mr. Carnes. The plea of privilege hearing began on August 21, 1975, at which time both parties were present, appeared and announced ready to proceed. At the plea of privilege hearing, Carnes' attorney offered into evidence the testimony of plaintiff, Roy W. Carnes, as contained in his deposition. Academy's attorney objected and for his grounds stated the following: "MR. STEAKLEY: Your Honor, I will object to the introduction of this testimony from the deposition because that deposition was taken at a time before we were made a party to this lawsuit; and, therefore, it is hear say as to us. We did not have the right of cross examination at that deposition. The record will reflect we were not brought into this lawsuit until sometime in the latter part of June of this year, and that deposition was taken before that time. Therefore, it is clearly hearsay, and is not binding on us and not adissible as to us." Opposing counsel then stated: "If Mr. Steakley would like an opportunity to take the deposition of Mr. Carnes, we will be happy to submit him for his examination. If he would like a continuance of this hearing until he has had time to take a deposition, we have no objections to that." (Emphasis supplied.) There could be no more asked of opposing counsel than that which was here offered. The opportunity to take Carnes' deposition and a continuance for that purpose. The following conversation then took place between the Court and appellant's attorney: (Questions to appellant's attorney) "THE COURT: Now, do you want to depose Mr. Carnes? MR. STEAKLEY: Yes, Your Honor. I will object to them using his testimony at this time. If it becomes necessary for us to later, or if the Court grants a continuance, I am sure we will want to depose Mr. Carnes, or enter some agreement later on. THE COURT: I will grant a continuance if you are going to take his deposition in the immediate future. MR. STEAKLEY: As far as I know, there are no plans right now to take his deposition. THE COURT: Tell the Court whether you are going to or not. If you are not going to take it, I don't think you have much objection. If you are really going to take it, tell the Court and we will proceed on that. *922 MR. STEAKLEY: Your Honor, I frankly don't know. I haven't had a chance to THE COURT: You have got to jump one way or the other, see. If your objection is really that you haven't had a chance to depose the man; fine, I will grant you a continuance. But, I don't want to grant a continuance if you are not going to do it. You are not going to tell the Court that you object to it, then not going to take the deposition? MR. STEAKLEY: No, I am not. But, my objection, Your Honor, is that we have not had a chance THE COURT: Tell me what you are going to do. MR. STEAKLEY: The problem is maybe, and I don't know, because I just started, looked over the file starting yesterday. It may be that we can later enter some agreement after studying the deposition that we will allowThat we will not raise this objection. But, at this time, we have not entered into that agreement, and it may not be necessary to take a deposition. So, I don't represent to the Court something I don't know at this particular time. I just frankly don't know. THE COURT: Well, if you have no plans and are not even planning on it, and don't think you will take Mr. Carnes' deposition, of course, we will go on and proceed here this morning; but, we are not going to cut you out; if you are going to do it, fine, we will give you time. MR. STEAKLEY: Then, for the time being, I would request that we have the time to do it. THE COURT: You are telling the Court that you are going to take Mr. Carnes' deposition? MR. STEAKLEY: No, sir; Your Honor. THE COURT: Then, your objection is overruled." The majority states that they are not holding that the right of cross-examination of a deponent can never be waived by a party joined in a suit after the deposition has been taken, but that under the facts of this case the right has not been waived. I disagree as to the latter. The above dialogue between the Court and Academy's attorney clearly demonstrates that the opportunity to cross-examine was offered and refused. The opportunity given to the appellant to cross-examine the witness by both the opposing attorney and the Court, together with the failure of Academy to exercise such opportunity, plus Academy's inaction for over two months while the Carnes' deposition was on file, clearly shows a basis for waiver by the appellant. The trial court must make that determination when making its ruling at the time the evidence was offered. On appeal, the question then before the appellate court, is whether the trial court abused its discretion in refusing to permit the appellant to cross-examine the witness. This necessarily becomes a law question. In determining whether the trial court abused its discretion, we must view the facts and circumstances surrounding its ruling. The basis for excluding the evidence (deposition) is the lack of an opportunity to cross-examine the adverse party. Here, the opportunity to cross-examine Carnes was offered by both opposing counsel and by the court. The opportunity was not accepted. Since the opportunity was present, the basis for exclusion was no longer present, therefore, there was no bar to the admissibility of the evidence. The test for determining the propriety of the trial court's decision (as to whether to admit into evidence the deposition testimony) is whether the trial court abused its discretion in doing so. Considering all the circumstances, I would hold that the trial court did not abuse its discretion in overruling appellant's objection to the introduction of the deposition testimony. I would hold that as a matter of law that the appellant waived the right to cross-examine the witness. NOTES [1] In the Heldt case, this was not so. "The depositions were not on file when appellants made their appearance in the suit and there is nothing in the record that indicates that appellants knew about them until May 7, 1970, when they were filed in the trial court; therefore, appellants cannot be charged with notice of the outstanding depositions at the time of making their appearance in the case." Heldt Bros. Trucks v. Silva, 464 S.W.2d 931, at pp. 936-937.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515710/	535 S.W.2d 858 (1976) WOOTEN TRANSPORTS, INC., et al., Appellants, v. Sarah Marie HUNTER et al., Appellees. Supreme Court of Tennessee. April 5, 1976. 859 John P. Branham, Howell & Fisher, Nashville, for appellants. Michael R. Jones, Sprouse, Long & Walton, J. Travis Price, Springfield, for appellees. OPINION HENRY, Justice. This is a suit for death benefits under the Tennessee Workmen's Compensation Law. The employer defended upon the grounds (1) that the deceased workman was an independent contractor and (2) that his death was brought about by his own voluntary intoxication. The trial judge found the issues in favor of the employee and awarded the statutory benefits. The employer has perfected its appeal. I. The employer, Wooten Transports, Inc. is based in Nashville and is engaged in the delivery of gasoline and petroleum products in Tennessee and Kentucky. On 13 August 1973, the deceased, Jimmy W. Hunter, entered into a written agreement with Wooten for the lease of a tractor for use in pulling a tanker trailer owned by Wooten and used in connection with its deliveries. On 23 October 1973, he was fatally injured under circumstances more fully discussed hereinafter. Under the terms of the written agreement it was Hunter's responsibility to equip and maintain the tractor and pay all expenses in connection therewith to include operating expenses, taxes and fees. As compensation he received a stated percentage of the gross revenue earned by the use of the tractor. He had the option of driving the leased equipment himself or of employing a driver with appropriate adjustments in payments. Paragraph 4a provides in part as follows: Notwithstanding any other provision contained herein, it is agreed that the leased equipment shall at all times during the term of this lease be operated by Lessee's exclusive direction and control... . Paragraph 4g provides as follows: The Lessee shall at all times have the sole right to select the driver who is to operate the leased equipment described herein, including the right to discharge said driver when and if such action is believed to be advisable, in the discretion of the Lessee. The driver of the leased equipment shall be the employee of Lessee, and subject to its exclusive direction and control at all times during the term of this lease. In the event the Lessee determines that a driver is unsatisfactory for any reason, it shall have the right immediately to terminate the services of such employee, whether he be the owner of the leased equipment, or not. (Emphasis supplied). Thus it will be seen that the parties contracted that the leased equipment would be operated under Wooten's exclusive direction and control; that Wooten had the sole right to select the driver; that Wooten had the right to discharge the driver and that the driver would be Wooten's employee. This alone tends to establish a master-servant relationship; however, there are other circumstances which further support the trial judge in determining that Hunter was an employee as opposed to an independent contractor. Among these is the fact that a decal was placed on the tractor reading "Wooten Transports, Inc." along with the appropriate ICC numbers. Similar identification appeared upon the tanker trailer. The proof fairly shows that Hunter was employed on a full-time basis. Prior to his employment he was required to undergo a training period and to take a physical examination. Wooten had other employees who did not own their equipment but it is apparent from the record that they had substantially the same working hours, worked under the same conditions and were governed by the same policies. 860 It is true that there was no deduction from Hunter's wages for Social Security, income taxes, and that Workmen's Compensation was not paid upon him, and that he did not appear as an employee upon their payroll; however, we do not consider these matters to be of controlling significance. Our review of the record leads us to the conclusion that there is ample material evidence to support the trial judge's conclusion that there was an employer-employee status. Moreover, in making this determination, it is our duty to give the act a liberal construction in favor of the fact that one is an employee rather than a strict construction holding him to be an independent contractor. Barker v. Curtis, 199 Tenn. 413, 287 S.W.2d 43 (1956). We recognize, of course, that there is no fixed and rigid formula by which these matters are to be determined and that each case must be decided on the basis of its own peculiar facts and circumstances; however, running through all of the cases is the notion that the right of control is the vital test, the controlling consideration or the decisive fact, and the question is not whether the right was exercised but whether it existed. Brademeyer v. Chickasaw Bldg. Co., 190 Tenn. 239, 229 S.W.2d 323 (1950). After reciting this general proposition the Court in Seals v. Zollo, 205 Tenn. 463, 327 S.W.2d 41 (1959), points out that "[t]he fact that neither social security tax nor withholding tax was deducted is not a controlling factor." 205 Tenn. at 471, 327 S.W.2d at 44. Additionally, the clear rule has evolved that one of the controlling considerations is the right of termination. This rule of law is recognized in Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220 (1971), a case where the factual situation is somewhat analogous to the case under consideration. Based on the record before us and these controlling principles of law, we hold that the deceased workman was an employee of Wooten Transports, Inc. II. The second insistence of the appellee is that Hunter's death occurred as a result of his intoxication at the time of his fatal accident. On 23 October 1973, Hunter was dispatched to deliver a load of gasoline to a filling station in Auburn, Kentucky. Upon the completion of his delivery and at about 6:00 p.m., he left Auburn enroute to his home in Springfield, Tennessee where he lived, and, with the knowledge and acquiescence of Wooten, kept his rig. The fatal accident occurred on U.S. Highway 41 inside the city limits of Springfield. It is not necessary that we detail all of the facts. Suffice it to say that as he was proceeding southwardly, an automobile pulled out into his pathway and either because of his speed, or his inattention, or his intoxication, or some other act of negligence, or because of the sudden emergency precipitated by the driver of another automobile pulling onto the highway in front of him, he crossed the highway and struck another tractor-trailer rig, after having skidded some 266 feet. The record shows that there was no traffic proceeding in either direction which would have kept him from pulling around the vehicle in his pathway. This vehicle remained in the extreme right southbound lane of a five-lane highway and unquestionably, he could have pulled around. Why he did not do so is not shown in the record. We may not speculate or conjecture as to the cause of the accident. It will be borne in mind that this is not a conventional tort action or damage suit based upon a collision of vehicles, and the fact that Hunter may have been guilty of negligence does not operate to bar the payment of death benefits under the Workmen's Compensation Law. Poe v. E.I. DuPont DeNemours & Co., 224 Tenn. 683, 462 S.W.2d 480 (1970). The record reflects without contradiction that a pint whiskey bottle with one third to one half missing was found in the cab of his truck after the accident and that a blood test was taken, showing that the blood contained ethyl alcohol *861 in the amount of 0.10 per cent, or 100 miligrams per cent. The deposition of Dr. Jerry T. Francisco, Chief Medical Examiner for the State of Tennessee was taken and filed in this cause. Dr. Francisco testified, among other things, that this percentage of alcohol in the bloodstream would operate to affect a person's response in a given situation; that that response would be prolonged and that the ability to judge a given situation and respond to it would be altered and affected and the individual would lose the capacity to make appropriate judgments in any given situation. We accept this testimony at face value. The difficulty is that there is no direct proof that intoxication was the proximate cause of this accident. There is proof from which it might be inferred, but there is also proof from which it might be inferred that the proximate cause was the entry of the automobile onto the highway in the pathway of Hunter's vehicle. There is material evidence from which the trial judge might have made either finding. Section 50-910 T.C.A. reads as follows: Injuries not covered. No compensation shall be allowed for an injury or death due to the employee's willful misconduct or intentional self-inflicted injury, or due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above stated ways, the burden of proof shall be on the employer to establish such defense. (Emphasis supplied). Under the facts and circumstances of this case, we cannot hold that the employer has carried its requisite burden of proof. This Court does not re-weigh the evidence, and if the findings of the trial judge are supported by inferences which may reasonably be drawn from the evidence, this Court will not disturb those findings, although the evidence may be reasonably susceptible of other or different inferences. Sudduth v. Williams, 517 S.W.2d 520 (Tenn. 1974). This Court has consistently held that it will sustain the trial judge even where the preponderance is against his findings if they are supported by material evidence. Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966). Additionally, the Workmen's Compensation Act contemplates liberality, not only in the admission of evidence but also in the inferences to be drawn therefrom, and in borderline cases, the Court will endeavor to carry out the benevolent objects of the act and resolve doubt in favor of the claimant. Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966). The judgment of the trial court is Affirmed. FONES, C.J., BROCK and HARBISON, JJ., and LEECH, Special Justice, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515713/	535 S.W.2d 807 (1976) Jay C. WILSON et al., Appellants, v. Floydena M. TALBERT et al., Appellees. No. 75-327. Supreme Court of Arkansas. April 5, 1976. Rehearing Denied May 17, 1976. Keith, Clegg & Eckert, Magnolia, for appellants. McKay, Chandler & Choate, Magnolia, for appellees. JONES, Justice. This is an appeal from a chancery court decree canceling an oil and gas lease. The appellee Talbert[1] owned an undivided three-fourths mineral interest and Mrs. Haltom owned the other one-fourth interest in a tract of land in Ouachita County and they executed separate leases to the appellants covering their respective interests. The primary term of the Talbert lease was two years and that of the Haltom lease was three years. The leases were executed in 1964 and 1965 and an oil producing well was drilled by the appellants. The well continued to produce and royalties were paid under the lease contracts until in March, 1974, when a leak developed in the bottom of one of the appellants' 500 barrel storage tanks and production from the well was discontinued. The Haltom lease simply provided that it would remain in force for a term of three years from its date and as long thereafter as oil and gas, or either of them, was produced from the land by the lessee. The 808 pertinent provisions of the Talbert lease provided as follows: "Subject to the other provisions herein contained, this lease shall remain in force for a term of two (2) years from this date (herein called `primary term') and as long thereafter as oil and gas, or either of them, is produced from said leased premises or drilling operations are continuously prosecuted as hereinafter provided. `Drilling operations' includes operations for the drilling of a new well, the reworking, deepening or plugging back of a well or hole or other operations conducted in an effort to obtain or re-establish production of oil or gas; and drilling operations shall be considered to be `continuously prosecuted' if not more than 60 days shall elapse between the completion or abandonment of one well or hole and the commencement of drilling operations on another well or hole. If, after the expiration of the primary term of this lease, oil or gas is not being produced from the leased premises but lessee is then engaged in drilling operations, this lease shall continue in force so long as drilling operations are continuously prosecuted; and if production of oil or gas results from any such drilling operations, this lease shall continue in force so long as oil or gas shall be produced from the leased premises. If, after the expiration of the primary term of this lease, production on the leased premises should cease, this lease shall not terminate if lessee is then prosecuting drilling operations, or within 60 days after each such cessation of production commences drilling operations, and this lease shall remain in force so long as such operations are continuously prosecuted, and if production results therefrom, then as long thereafter as oil or gas is produced from the leased premises." The so-called force majeure clause in the Talbert lease reads as follows: "All express and implied covenants of this lease shall be subject to all applicable laws, government orders, rules and regulations. This lease shall not be terminated in whole or in part, nor lessee held liable in damages because of a temporary cessation of production or of drilling operations due to breakdown of equipment or due to the repairing of a well or wells, or because of failure to comply with any of the express or implied covenants of this lease if such failure is the result of the exercise of governmental authority, war, lack of market, act of God, strike, fire, explosion, flood or any other cause reasonably beyond the control of lessee." On September 23, 1974, Talbert filed petition for cancellation of the lease as a cloud on his title. He alleged that there had been no production from the lease since March, 1974, and no royalty paid since February, 1974; that the lease had expired and had not been renewed. He alleged that he had made demand for release under Ark.Stat. Ann. § 53-313 (Repl.1971); that his demand had been ignored; that the lease constituted a cloud on his title and he prayed that his title be quieted. By amendment to Talbert's petition, Haltom prayed the same relief as to her undivided one-fourth interest. The appellants filed answer and counterclaim denying that the lease had expired. They alleged the rupture in a storage tank and the difficulties encountered in repairing it as the reason for cessation of production. They alleged that when they sought entry to the premises in July, 1974, in an attempt to repair the tank, that Talbert refused them permission to enter; that his conduct estopped him from enforcing a forfeiture and that they were damaged in the amount of more than $1,000 per month because of such refusal. They prayed for a restraining order and for damages. On October 30, 1974, the chancellor entered a temporary restraining order permitting the appellants to enter the premises for repair of the tank and to restore production and, following a hearing on the merits, the chancellor rendered a letter-form memorandum opinion reciting in part as follows: "It is clearly stated in the Talbert lease that after the expiration of the primary term if the lease is not producing and within sixty days after cessation of production the lessee does not `commence 809 drilling operations' the lease terminates by its own terms. The attorneys cited no Arkansas cases construing this provision in a lease and I have found none, however, I have have found several cases from other jurisdictions construing similar provisions. These cases hold that the leases terminated by their own terms at the end of the stated period of time. McQueen v. Sun Oil Company, et al, 213 F.2d 889 (Ky.1954); Haby v. Stanolind Oil and Gas Company, 228 F.2d 298 (Tex. 1955); Loeffler v. King, [149 Tex. 626,] 228 S.W.2d 201 (Tex.1950); Francis et al v. Pritchett et al, 278 S.W.2d 288 (Tex. 1955). Also see House et al v. Tidewater Oil Company, et al, 219 So. 2d 616 (La. 1969). The Haltom lease does not have a sixty days provision but is for a term of three years and as long thereafter as oil and gas is produced. The Supreme Court of Arkansas considered a similar question in the case of Reynolds v. McNeill, 218 Ark. 453, 236 S.W.2d 723 (1951). * * * The Supreme Court stated that when a lessee's estate has vested it does not automatically terminate upon the the temporary cessation of production, and that most authorities allow the lessee a reasonable time within which to reinstate paying production. The Court has not stated the number of days that constitutes a reasonable time, but has stated that it depends on the facts and circumstances in each case. In my opinion the lessees in this case did attempt within a reasonable time to reinstate paying production, and the Haltom lease should not be terminated." The chancellor entered a decree in accordance with his findings and ordered an accounting for oil produced under the Talbert lease after its termination. There is no appeal from the chancellor's decree as to the Haltom lease but as to the Talbert lease, the appellants contend that the chancellor "erred in declaring a forfeiture of the Talbert lease under the 60-day clause." The appellants argue that since the chancellor found the cessation of production was of such temporary nature and reasonable effort to reinstate production sufficient to prolong or keep in force the Haltom lease, the question on this appeal is narrowed to, "(1) whether the language of the force majeure clause prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment; if not, (2) whether the 60-day clause contained in the Talbert lease should be construed as dealing with a production cessation of a temporary nature as here involved; and, in any event, (3) whether the efforts to restore production complied with the provisions of the 60-day clause." As we interpret the first above provision of the lease which twice contains the so-called "60-day clause," it refers to cessation of production because of depletion or threatened depletion of the well or wells rather than a temporary cessation because of such things as temporary lack of storage facilities. The wording of this provision is somewhat ambiguous but it evidently refers to a threatened permanent cessation which can be averted only by extensive measures such as the drilling of a new well or the reworking or deepening or plugging back of an existing well. As we interpret the "force majeure clause," it applies to temporary cessation of production as a result of causes beyond the control of lessee such as the ones therein set out. In this provision the parties fixed no minimum time, such as 60 days, in which to reinstate production because, obviously, the nature and extent of the breakdown, or cause of cessation of production, would govern the time required for making the necessary repairs or eliminating the cause of cessation of production. The length of such necessary time, in the absence of agreement to the contrary, could only be measured by such time as would be reasonable under the facts and circumstances of the particular case. The appellants argue that "the question on this appeal is narrowed to whether the language of the force majeure clause *810 prevented the lease from terminating because of the temporary cessation of production due to the breakdown of equipment." It is our view, however, that the question, under the force majeure clause, is narrowed to whether the time involved in making the necessary repairs and restoring production was reasonable under the facts and circumstances of this case and, upon review of the evidence de novo, we conclude that it was not. The rupture in the tank bottom occurred in March and apparently there was no effort made to repair it until July. Furthermore, there was evidence to the effect that another storage tank stood adjacent to the damaged one and that it could have been utilized by simply opening or closing valves, following minor repairs. The rule is well established that on trial de novo in chancery cases, the chancellor's decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion. Morgan v. Downs, 245 Ark. 328, 432 S.W.2d 454 (1968); James v. Medford, 256 Ark. 1002, 512 S.W.2d 545 (1974). The decree is affirmed. NOTES [1] Both Mr. and Mrs. Talbert were parties but will be referred to in the singular.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515708/	535 S.W.2d 786 (1976) JIM DANDY FAST FOODS, INC., d/b/a Church's Fried Chicken, Appellant, v. Miriam CARPENTER, Appellee, No. 16663. Court of Civil Appeals of Texas, Houston (1st Dist.). April 1, 1976. 787 Chilton Bryan, Ronald J. Sommers, Houston, for appellant. Simpson, Motgan & Burwell, Susan W. Burris, Texas City, for appellee. COLEMAN, Chief Justice. Miriam Carpenter, plaintiff, sued Jim Dandy Fast Foods, Inc., to recover damages by reason of personal injuries suffered by her as a result of eating a piece of chicken sold to her by defendant. Judgment was rendered for the plaintiff based on the jury verdict. Jim Dandy Fast Foods, Inc., owns and operates a retail fried chicken restaurant known as Church's Fried Chicken located in Texas City, Texas. On September 16, 1970, plaintiff entered this restaurant and ordered a fried breast of chicken. After receiving her order, she sat down at a table. She then took her fingers and pulled a piece from the meaty portion of the chicken breast and put it in her mouth. This was a piece of white meat covered with a heavy crust. She chewed it up and swallowed it. She then felt something in her throat and took a bite of bread thinking that a piece of the crust had struck in her throat and the bread would cause it to go on into her stomach. After she realized it was a bone, she attempted to remove it with her finger. Her attempt was unsuccessful and she was bleeding. She asked an employee to direct her to a doctor and was eventually admitted to a hospital where a piece of bone was removed from her throat. There is testimony that the doctor and his nurse accompanied the plaintiff as she left the operating room and that the doctor gave to plaintiff's husband a piece of chicken bone at that time. The trial court admitted this piece of bone into evidence. This is a small curved bone one inch in length. One end is smoothly cut at an angle creating a sharp point. The other end is not a smooth cut. The plaintiff testified that she knew that there were bones in chicken and that she knew certain areas where those bones were located. She did not expect a bone to be in the part of the chicken breast which she placed in her mouth. She had never encountered a bone in that particular part of the chicken. When she received the chicken she couldn't see anything wrong with it such as bones sticking out. She did not feel the bone as she chewed the chicken. Dr. Stiernberg, an ear, nose and throat specialist, testified that he removed a piece of chicken bone from the plaintiff's esophagus. He did not remember whether or not he gave the piece of bone to the plaintiff. Mr. Pete Ober testified that for many years he had been engaged in the meat business and was experienced in cutting up chicken for the retail trade. He had examined the piece of bone introduced as an 788 exhibit in this case. He testified that he had never seen a chicken bone cut like that before. He testified that the piece of bone was a part of the wishbone. He always disjointed the chicken and left the wishbone whole. He stated that it was not proper to cut up a chicken in such a manner as to leave part of the breast meat on the wing piece. He stated that while the wishbone was part of the breast it was not joined to the breastbone. He testified that the wishbone was ordinarily cut as a separate piece of chicken, but that at times the breast was split. In such a case half of the wishbone would be found which would be a lot longer than the piece in question. He testified that if a person is eating a piece of breast and pulls off one piece of the breast he should not encounter a bone like the one in question. Mr. Lawrence Smith, president of City Poultry Processing Company, a division of Jim Dandy Fast Foods, testified. He was familiar with the manner in which chickens were cut up for Church's Fried Chicken. It is an 8-piece cut. There are nine government inspectors and one government grader in the plant at all times that it is in operation. The inspectors check to see that the poultry is fit for human consumption and the grader checks to see whether the chicken is properly cut. Mrs. Lois Hale who is a supervisor with the defendant testified that the U.S.D.A. inspectors make a random check probably two times a day to determine whether the chicken is cut up in the fashion established by the defendant. They do not examine individual pieces other than to see that they are cut in a uniform manner. She testified that the wishbone is not taken off but that it is a part of the piece of breast. Mr. Smith testified that 50,000 to 60,000 chickens per day were processed in the plant; that the management specifies that chickens be cut into eight pieces and that they advertise larger, bigger and better pieces. The cutters are instructed to cut the breast into two pieces except that part of the breast is also left attached to each wing in order to give the wing portion a little more of a meaty characteristic. The upper shoulder of the breast is left attached to the wing and the remainder is cut into two pieces. The inspections are visual and are made by means of random spot checks. Mr. Smith testified that if the chicken is improperly cut internally so that a bone is "cut internally incorrectly" there would be no way to find this from a visual inspection. He was asked, "If something in wrong on the inside, say chipping has occurred where bone got imbedded in the meat, there would be no way for the inspector to notice this?" In answer he stated: "I don't know. I assume if it was deep in the meat, they don't x-ray or anything of that nature. It's possible." Mrs. Hale was shown the bone which was introduced into evidence and was asked if she would expect to encounter a bone like that in the breast and she answered that she would. When she was asked if she would expect it to be off the front of the breast she answered, "No, no. No, not on the meaty part, no." She stated that if you pull of a piece of the meat from the front of the breast the piece of bone would not be in there. She had never seen a bone in the meaty top part of the breast. She testified that it was their practice to split the breast down the center and that the pulley bone would be cut into two pieces, but that the pieces would not look like the exhibit in this case. She further stated that she did not know whether she had ever cut anything like the exhibit because "it's in the meat." In answer to Special Issue No. 1 the jury found that the chicken served by the defendant to the plaintiff on September 16, 1970, "was in a defective and unreasonable dangerous condition making it unfit for human consumption." By answer to Special Issue No. 2 the jury found that the "defective and unreasonable dangerous condition" of the chicken was a proximate cause of the plaintiff's injuries. Special Issue No. 4 reads: "Do you find from a preponderance of the evidence that Miriam Carpenter, in buying and receiving the chicken breast in question, at the time and on the occasion 789 in question, had reasonable expectation of finding bones in, about, and around the chicken breast, as she bit into, chewed, and swallowed the chicken breast and knew that she would have to use the care and prudence for her own safety in the exercise of such precaution for her own well being, as a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?" The jury answered, "She did have reasonable expectation." but in answer to the next special issue failed to find that the failure of Miriam Carpenter with respect to the reasonable expectation of finding bones was a proximate cause of any injury or damage she received. The jury failed to find that Miriam Carpenter assumed the risk of chicken bones in eating the chicken and failed to find her guilty of any acts of contributory negligence. The jury found damages in the sum of $1500.00. The appellant objected to Special Issue No. 1 on the basis that there was no evidence, or insufficient evidence, to warrant the submission of the issue to the jury. The appellant also urged a motion for judgment notwithstanding the verdict of the jury for the reason that the plaintiff "totally failed to prove that the piece of chicken was defective, inedible, and unreasonably dangerous at the time it left the hands of the defendant." In connection with these points the appellant calls attention to the testimony on the part of the plaintiff that she knew that the piece of breast of chicken that she got from appellant had some bones attached and that she knew there were bones in chicken. In response the plaintiff argues two propositions: first, that the piece of chicken was improperly cut and that the wishbone was not in its normal and expected size and shape, and second, that the piece of chicken breast was so cut by the defendant as to place a segment of the wishbone in the fleshy part of the chicken where its presence would not be anticipated. They contend that the piece of chicken cut in this manner was defective and that by reason of the defect the jury was entitled to find that it was not reasonably fit for human consumption. It has long been established in this state that where food products sold for human consumption are unfit for that purpose, the law imposes a warranty of purity in favor of the ultimate consumer as a matter of public policy. Jacob E. Decker & Sons, Inc. v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942). Texas is firmly committed to the rule stated in the Restatement of Torts, 2d ed., Sec. 402A. The rule of strict liability there stated is applicable to vendors of food. In order to prevail under the rule of strict liability, the plaintiff must prove that the injury which he sustained was caused by the unwholesome and unfit condition of the food served to him. The fact that the food served was unfit for human consumption can be shown by circumstantial evidence. Hebert v. Loveless, 474 S.W.2d 732 (Tex. Civ.App.Beaumont, 1971, ref. n. r. e.); F. W. Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ.App.San Antonio, 1965, writ ref'd n. r. e.). A recovery was denied the plaintiff in a case where he broke a tooth by biting on a cherry pit concealed in a cherry pie. Hunt v. Ferguson-Paulus Enterprises, 243 Or. 546, 415 P.2d 13 (1966). It was contended in that case that there was a breach of a warranty imposed by law that the pie was reasonably fit for human consumption. The court noted that in the consideration of similar cases some of the courts have drawn a distinction between injury caused by spoiled, impure, or contaminated food or food containing a foreign substance, and injury caused by a substance natural to the product sold, and in the latter class of cases these courts hold that there is no liability on the part of the dispenser of food. As an example, the court cited Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144, where the court said: "... despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in 790 the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones." The Oregon court then noted that other courts have rejected the so-called "foreign-natural" test in favor of what is known as the "reasonable expectation" test. As an example, the court cited Betehia v. Cape Cod Corp., 10 Wis. 2d 323, 103 N.W.2d 64, which held that a person who was injured by a chicken bone in a chicken sandwich served to him in a restaurant could recover for his injury. The Wisconsin court stated: "`There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation. What is to be reasonably expected by the consumer is a jury question in most cases; at least, we cannot say as a matter of law that a patron of a restaurant must expect a bone in a chicken sandwich either because chicken bones are occasionally found there or are natural to chicken.' 10 Wis.2d at 331-332, 103 N.W.2d at 68." An action against the packer of boned chicken in a sealed can for personal injury sustained by a small girl eating Chow Mein containing chicken taken from the can, when a small bone lodged in her esophagus, was considered by the Maryland Court of Appeals in Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442, 77 A.L.R. 2d 1 (1959). There the Court of Appeals reversed the judgment of the trial court which was based on a directed verdict for the defendant. The court found a division of authority on the question of whether bones which are natural to the type of food eaten, but which generally are not found in the style of food as prepared, are to be deemed the equivalent of a foreign substance in determining whether the food in which they are found is reasonably fit and safe for human consumption. The court reviewed a number of authorities and determined that the question of fitness and safeness for human consumption is measurable by the same tests in both warranty cases and negligence cases and found that an issue of fact was raised. Some courts hold that the fact that the substance in a food product causing harm to a consumer is natural to the food eaten, such as a piece of oyster shell in a can of oysters, or a splinter from a bone in a t-bone steak, is merely persuasive and relevant evidence bearing on the question as to whether the product was in fact reasonably fit for human consumption as food. Other courts hold that where a potentially harmful substance in a food is natural to the product and it can be said as a matter of common knowledge that such product occasionally contains such a substance, the product is as a matter of law reasonably fit for human consumption. Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 28 A.2d 913 (1942). The question is whether the piece of chicken was in a defective condition unreasonably dangerous to the plaintiff. The Restatement of Torts, 2d, Sec. 402A; Rourke v. Garza, 530 S.W.2d 794 (Tex.1975). Comment g. to Sec. 402A, supra, states that the rule applies "only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." The defective condition may be the result of the way in which the product is prepared. Comment h., supra. An article is unreasonably dangerous when the article sold is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Comment i., supra. There is evidence that the piece of chicken was not cut in the usual and customary manner. The wishbone was smaller *791 than might be expected; the bone was relatively sharp at both ends. The consumer would expect to find bones in and about such a piece of chicken. We think reasonable minds could differ as to whether this bone was in a condition not contemplated by the ultimate consumer. Reasonable persons might also differ as to whether the piece of chicken in which this particular bone was found was dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics. A jury question was presented which was resolved by the jury in favor of the plaintiff. The court did not err in rendering judgment for the plaintiff. Nor did the court err in overruling defendant's exception and objections to Special Issue No. 1 of the court's charge. Each finding made by the jury was supported by evidence of probative force. We find no points of error which properly present a question concerning the great weight and preponderance of the evidence. In no point does the appellant contend that the trial court erred in overruling its motion for new trial because a finding was contrary to the great weight and preponderance of the evidence. It does complain that the court erred in rendering judgment for the plaintiff because certain issues were contrary to the great weight and preponderance of the evidence, and further presents points contending that the court erred in overruling the defendant's exceptions and objections to certain special issues for the reason that an answer to such issue would be against the great weight and preponderance of the probative evidence. McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.1964); Woolworth Co. v. Garza, 390 S.W.2d 90 (Tex.Civ. App.San Antonio, 1965, writ ref'd n. r. e.). The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515724/	774 A.2d 807 (2001) Dalanda CRAWFORD v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA) and Elisheba Moore. Selena Moon and Linda Williams, v. Elisheba Moore and John Doe and Southeastern Pennsylvania Transportation Authority (SEPTA). Appeal of Selena Moon and Linda Williams. Commonwealth Court of Pennsylvania. Argued October 4, 2000. Decided May 3, 2001. Jeffrey Campolongo, Philadelphia, for appellants. Kevin R. McNulty, Philadelphia, for appellee, E. Moore. Joan A. Zubras, Philadelphia, for appellee, SEPTA. 808 Before PELLEGRINI, Judge, FLAHERTY, Judge, and RODGERS, Senior Judge. FLAHERTY, Judge. This matter arises from an Order of the Court of Common Pleas of Philadelphia County (trial court), which dismissed the appeal of Selena Moon and Linda Williams (Appellants) from an arbitration award based upon the failure of Appellants' Counsel to appear at a pre-trial settlement conference. The trial court denied Appellants' subsequent petitions for relief and reconsideration. This appeal ensued and for the reasons contained herein, we reverse the trial court. Appellants commenced a personal injury action after a motor vehicle collision involving a SEPTA bus and another vehicle. Following arbitration, the arbitrators' award was appealed to the trial court. A pre-trial settlement conference was scheduled for October 21, 1999 during which Counsel for Appellants did not appear. Consequently, the appeal was "dismissed for failure of Plaintiff to attend a court ordered settlement conference ..." Trial Court Order dated October 28, 1999, R.R. at 58a. Appellants then filed a timely Petition for Relief from Judgment of Non Pros, in which they averred that Counsel's lack of attendance at the conference "should be excused or tolerated by the Court" because "counsel was attached and detained in Federal Bankruptcy Court" on behalf of another client. Brief in Support of Petition, R.R. at 37a. This Petition, as well as Counsel's subsequent Petition for Reconsideration, was denied because the trial court, relying on Anderson v. Pennsylvania Fin. Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659 (1994), found that Counsel "knowingly failed to attend..." and "failed to notify the court or opposing counsel as to his inability to attend the settlement conference." Trial Court Opinion at 4, R.R. at 70a. Appellants contend that the trial court's refusal to rescind the entry of non pros was an abuse of discretion because "[t]he Court wholly failed to balance the equities or consider to what extent Appellants' Counsel acted in bad faith, or inflicted prejudice on any other parties."[1] Appellants' Brief at 14. As a result of Counsel's absence, the harshest of sanctions, dismissal, has been imposed upon the litigants.[2] A party is under the same duty to appear at a scheduled pre-trial conference as to appear at trial. City of Philadelphia, Water Revenue Bureau v. Frempong, 744 A.2d 822, 824 (Pa.Cmwlth.2000) (citing Anderson v. Financial Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659 (1994)). Rule 218 of the Pennsylvania Rules of Civil Procedure provides the following consequences for failing to appear: Rule 218. Party Not Ready When Case is Called for Trial (a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant 809 or a non pros on the court's own motion. (b) If without satisfactory excuse a defendant is not ready, the plaintiff may (1) proceed to trial, or, (2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award. (c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse. Note The mere failure to appear for trial is a ground for the entry of a nonsuit or a judgment of non pros or the reinstatement of a compulsory arbitration award. Pa. R.C.P. No. 218. The trial court, therefore, has the authority to dismiss Appellants' appeal from arbitration for their Counsel's failure to appear at the pre-trial conference. The parties in this matter have devoted a substantial portion of their arguments on whether Appellants' Counsel provided a reasonable explanation or excuse for failing to appear at the pre-trial conference. The trial court and Appellee Moore examined Counsel's explanation under Rule 218, while Appellant and Appellee SEPTA implicate the "reasonable explanation" requirement under Rule 3051.[3] These arguments do not adequately address Appellant's underlying contention that dismissal of their appeal as a sanction by the trial court under Rule 218 was an abuse of discretion. Recently, the Pennsylvania Superior Court has published two opinions with fact patterns that are strikingly similar to that before us. Bennett v. Home Depot U.S.A., Inc., 764 A.2d 605 (Pa.Super.2000); Shin v. Brenan, 764 A.2d 609 (Pa.Super.2000). In both decisions, the inadvertent absence of counsel during a pre-trial settlement conference resulted in dismissal of an appeal of an arbitration award, which the Superior Court found was an abuse of discretion.[4]Id. As with Shin and Bennett, the record reveals no attempt on the part of the trial court to contact Counsel before dismissing the appeal. There is no suggestion by the trial court that Counsel's behavior was part of a pattern of misconduct or abuse. There is no allegation that the opposing party would be prejudiced by a delay. The trial court did not conduct a hearing, either before dismissing the appeal or on Appellants' petition to reinstate the appeal, in which it could have fully reviewed the appropriateness of the dismissal. Most importantly, there is no indication that the trial court considered lesser sanctions. See id. To determine whether dismissal of the appeal was an appropriate means of punishing Counsel's behavior or an abuse of discretion under these circumstances, we find Judge Todd's analysis in Shin and Bennett to be persuasive: In its decision, the trial court relied on Anderson v. Pennsylvania Fin. Responsibility 810 Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659 (1994), for its conclusion that its action was not an abuse of discretion. [Trial Court Opinion dated March 27, 2000 at 3-4, R.R. at 69a-70a]. However, we find Anderson distinguishable from the present case. In Anderson, the trial court dismissed plaintiff's appeal from an adverse arbitration award after his counsel failed to appear at a second, rescheduled, settlement conference. However, unlike here, in Anderson, the trial court attempted to contact counsel and only after his whereabouts could not be determined did the court dismiss the appeal. Id. at 661. Further, in Anderson this Court admonished appellant for failing to pursue a formal motion to vacate the appeal, thus limiting this Court's ability to review counsel's excuses for his failure to appear. Id. at 661-62. It was in this context that this Court found the trial court's dismissal not to be an abuse of discretion. In addition, in other recent cases of this Commonwealth which affirm the dismissal of a suit or arbitration appeal for the failure of counsel to attend a pretrial conference, either no excuse was given, or counsel's failure to appear was compounded by other conduct. See City of Philadelphia Water Revenue Bureau v. Frempong, 744 A.2d 822 (Pa.Cmwlth.2000) (no excuse given by litigant); First Union Mortg. Corp. v. Frempong, 744 A.2d 327 (Pa.Super.1999) (counsel failed to appear at conference and at trial); Green v. Harmony House Housing Ass'n, 684 A.2d 1112 (Pa.Cmwlth.1996) (no excuse given by pro se litigant except that the rules were "too complicated"). Finally, we reiterate [the Superior Court's] expression in Stock v. Arnott, 415 Pa.Super. 113, 608 A.2d 552, 556 (1992): While we share the trial court's interest in the expeditious administration of justice, we are mindful of our supreme court's admonition that it must always be borne in mind that lawsuits are more than numbers or punches in computer cards. Individual cases are, of course, of great importance to the litigants involved, and courts must not overreach in their zeal to move cases to such an extent as to allow for no deviations from strict and literal adherence to policies justifiably laid down to improve the condition of the courts. Budget Laundry Co. v. Munter, 450 Pa. 13, 21-22, 298 A.2d 55, 58 (1972). Moreover, "the quality of justice must not be subordinated to arbitrary insistence upon compliance with procedural rules." Dublin Sportswear v. Charlett, 485 Pa. 633, 639, 403 A.2d 568, 571 (1979). Id. at 608. Bennett, 764 A.2d at 608; Shin, 764 A.2d at 612. The Superior Court concluded that although dismissal and reinstatement of the arbitration award was technically permissible pursuant to Rule 218, under the circumstances, the only sanctions available to punish the defendant were fines, attorney's fees to the inconvenienced party, and contempt. Bennett, 764 A.2d at 608; Shin, 764 A.2d at 612 (citing Kalantary v. Mention, 756 A.2d 671, 674-75 (Pa.Super.2000)). In the matter sub judice, the trial court stated in its 1925(a) statement that "on appeal and for the first time, counsel argues that he communicated his scheduling conflict with [the] settlement master ... the same day as the settlement conference."[5] Trial Court Opinion at 4, R.R. at 811 70a (emphasis added). The court further averred that Counsel's failure to argue this point in his "motion to strike" should be waived and, therefore, not considered by this Court. Id. We agree. "A petition for reconsideration asks the court to reconsider its order in light of the record it previously considered." Conaway v. 20th Century Corporation, 491 Pa. 189, 197, 420 A.2d 405, 409 (1980). The conclusion of the trial court, however, does not address Counsel's assertion in his Brief in Support of Petition for Relief from Judgement of Non Pros that he was detained in Federal Bankruptcy Court, thereby causing his absence at the conference. R.R. 37a. An unanticipated delay by the Bankruptcy Court strongly suggests that Counsel's absence was non-intentional or inadvertent. Given the circumstances surrounding Counsel's absence and the sanction applied, we conclude that it was an abuse of discretion for the trial court to dismiss Appellants' arbitration appeal for their Counsel's failure to attend a pretrial conference where the failure was inadvertent, was caused by his unanticipated delay while engaged in another court of record, where it was not part of a pattern of abuse, where the court made no attempt to contact Counsel, where there was no prejudice, and where other less severe sanctions were available to promote the trial court's interest in controlling its docket. For the same reasons, we conclude that the trial court abused its discretion in denying Appellants' Petition to Vacate the Dismissal. The Order of the trial court denying Appellants' Petition to Reinstate the Appeal is reversed with instructions to grant the Petition, reinstate the appeal, and impose appropriate sanctions short of dismissal, if deemed advisable for Counsel's failure to appear at the pre-trial conference. ORDER AND NOW, this 3rd day of May, 2001, the Order of the Court of Common Pleas of Philadelphia, at June Term, 1998 No. 1892, dated December 15, 1999, denying the Petition of Selena Moon and Linda Williams for Relief from Judgement of Non Pros is hereby reversed and this matter is remanded with instructions to grant the Petition, reinstate the Appeal from Arbitrator's Award, and to impose appropriate sanctions not including dismissal, if deemed advisable for Counsel's failure to appear at the pre-trial conference. Jurisdiction relinquished. NOTES [1] We find this issue subsumed in Appellants' Statement of the Question Involved: "Whether the trial court's refusal to rescind the entry of a non pros dismissal and failure to reconsider Plaintiffs' Motion to Strike the Non Pros was an abuse of discretion." Appellants' Brief at 7. [2] The trial court's refusal to vacate the dismissal of an appeal for failure to attend a pretrial conference will be sustained unless the court committed a manifest abuse of discretion. City of Philadelphia, Water Revenue Bureau v. Frempong, 744 A.2d 822, 824 n. 4 (Pa.Cmwlth.2000). [3] A petition for relief from judgement of non pros must allege the following: 1) The petition if timely filed; 2) There is a reasonable explanation or legitimate excuse for the inactivity or delay; and 3) There is a meritorious cause of action. Pa. R.C.P. No. 3051(b). [4] In Bennett, the inadvertent absence was caused by the failure of counsel's paralegal to record the pre-trial conference on counsel's calendar. Bennett v. Home Depot U.S.A., Inc., 764 A.2d 605, 607 (Pa.Super.2000). In Shin, the inadvertent absence was caused by the failure of counsel to note the date of the conference on his calendar. Shin v. Brenan, 764 A.2d 609, 611 (Pa.Super.2000). [5] Appellants' Counsel first raises this point in the Petition for Reconsideration. While Counsel purports to have contacted the settlement master on the day of the conference, it is inconclusive whether such contact was before or after the scheduled conference. See Appellants' Petition for Reconsideration, Exhibit E (Affidavit of Holland, dated January 7, 2000), R.R. at 62a-63a.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515914/	335 S.W.2d 904 (1960) Mont CONLEY, Appellant, v. Velton FOSTER, Appellee. Court of Appeals of Kentucky. May 20, 1960. 905 Joe Hobson, Prestonsburg, for appellant. Burnis Martin, C. P. Stephens, Prestonsburg, for appellee. CULLEN, Commissioner. The appellee, Velton Foster, was injured in a collision of his automobile with the truck of the appellant, Mont Conley. Upon trial of his action for damages Foster recovered judgment in accordance with a verdict for $3,000. Conley has appealed, asserting a multitude of alleged errors. Foster's testimony was that as he was driving up a hill on a public highway, Conley backed his two-ton truck onto the highway from a parked position on the right shoulder and proceeded to back or roll down the hill in Foster's traffic lane. This occurred when Foster was only some 30 feet away. Foster was unable to turn off the road to his right, because there were other cars parked there, and he could not turn into the left traffic lane because there was a car approaching in that lane. He brought his car to a stop and Conley's truck backed or rolled into him. Conley testified that at no time was he parked off the road, nor did he ever roll or back down the hill; that he simply was driving slowly up the hill and the Foster car, traveling at a high rate of speed slammed into the back of his truck. Conley maintains that he was entitled to a directed verdict (and to judgment notwithstanding the verdict) on the theory that the "physical facts" established that the accident was caused solely by Foster's negligence. The only physical facts he points to are that the vehicles came to rest in the right lane, and that the front of the Foster car was wedged under the back of the truck. These facts are in no way inconsistent with Foster's version of how the accident happened. We think the case clearly presented a jury question. Conley next contends that he should have been granted a new trial because of error in Instruction No. 1. We find this contention to be meritorious. Instruction No. 1, which was the only one covering Conley's duties, is as follows: "It was the duty of the defendant, Mont Conley, in the operation of his two-ton truck, before backing his truck onto the blacktop portion of the highway, to look out down the highway in the direction from which plaintiff, Velton Foster, was approaching, if he was then approaching in sight of the defendant, and not to back out onto said blacktop portion of the highway until he could do so with reasonable safety to vehicles then approaching from the rear of his truck and to give a signal by extending his arm out the left window before stopping on the highway. If you believe from the evidence in this case that defendant, Mont Conley, failed to perform any one or more of the duties above described and further believe from the evidence that as a direct and proximate result of such failure, if any there was, the plaintiff was caused to run into the rear of the defendant's truck and sustain injuries to his person and his automobile, the 906 law is for the plaintiff and you will so find. Unless you so believe you will find for the defendant, Mont Conley." The error complained of is that the instruction assumes Conley was backing his truck onto the highway. We think the objection is well taken. While the latter part of the instruction conditions a finding of liability upon belief by the jury that Conley failed to perform any of the duties set out, and upon belief that such failure, "if any there was," was a proximate cause of the accident, the duties are predicated upon an assumption that Conley was backing out, and the instruction does not leave to the jury the question of whether he was backing out, but only the question of whether he violated the stated duties as he backed out. The defendant made a specific objection to the instruction, pointing out the error, and the court could easily have made the necessary correction. There is ample authority for the proposition that an instruction is erroneous if it assumes or has the appearance of assuming an essential fact concerning which there is disputed evidence. See Silver Fleet Motor Express v. Gilbert, 291 Ky. 696, 165 S.W.2d 541; Louisville & N.R. Co. v. Slusher's Adm'r, 217 Ky. 738, 290 S. W. 677; Payne v. Wallace's Adm'r, 197 Ky. 551, 247 S.W. 705; Stanley's Kentucky Instructions to Juries, Vol. 1, sec. 25, pp. 47 to 51. The error must be considered prejudicial because the main question in issue was whether Conley was backing out, as claimed by Foster, or was merely proceeding along the road in a normal manner. The instruction had the appearance of deciding this question in favor of the plaintiff. We are reversing the judgment, with directions for a new trial, because of the error in Instruction No. 1. The appellant asserts numerous other errors, some of which do not have sufficient merit to warrant discussion, and others of which relate to matters that may not arise upon another trial. However, three of the claimed errors do require some mention. In his original complaint the plaintiff sought recovery only for property damage, medical and hospital expenses, and impairment of earning power. By an amended complaint, filed more than one year after the day of the accident, he asked damages also for pain and suffering. The appellant maintains that this latter claim was barred by limitations. However, CR 15.03 clearly provides that an amendment of this nature relates back to the date of the original pleading, for limitation purposes. See Clay, CR 15.03. The trial court refused to permit the defendant to show that the Welfare Fund of the United Mine Workers had reimbursed the plaintiff for the medical expenses for which he sought recovery. It is claimed that this was error, and that the plaintiff should not be entitled to recover for these expenses. This raises a troublesome question. In Sedlock v. Trosper, 307 Ky. 369, 211 S.W.2d 147, 13 A.L.R.2d 349, it was held that a mine worker could not recover medical and hospital expenses for his injured daughter, from a person who had negligently caused the injuries, where the medical and hospital services were furnished by a hospital maintained by the worker's employer under a plan by which each worker contributed a monthly sum from his wages. The court said that "recovery may be had only if the plaintiff has paid for such services or has incurred liability therefor." Seven years later, in McGregor v. Mills, Ky., 280 S.W.2d 161, 163, 53 A.L.R.2d 753, it was held that a negligently injured woman could recover for medical and hospital expenses, notwithstanding that her husband's labor union would assume the expenses. The court made no mention of the Sedlock case and simply said, "The evidence 907 showed, however, that the medical bills were still unpaid at the time of the trial." Apparently the court considered that the woman had "incurred liability" so as to make the expenses recoverable under the test stated in the Sedlock case. In Taylor v. Jennison, Ky., 335 S.W.2d 902 we are holding that an injured person who carries hospitalization or medical expense insurance may recover hospital and medical expenses from the tortfeasor who injured him, although he has been or will be reimbursed for those expenses by the insurance carrier. The Taylor opinion questions the soundness of the Sedlock case, but distinguishes it on the ground that in the Taylor case the plaintiff had incurred liability for the expenses. We are constrained now to face squarely the question of whether the Sedlock case is sound. There appear to be only two possible arguments against permitting a negligently injured person to recover, from the tortfeasor, medical or hospital expenses which the injured person has not or will not be compelled to pay out of his own pocket. One would be that since he has not been subjected to any expense, he has not been damaged. However, in the medical and hospital insurance cases, and in the welfare fund cases where the employe has paid a monthly contribution out of his wages, the injured person has been subjected to expense in the nature of premium payments. Furthermore, if someone has been compelled to pay medical or hospital expenses on behalf of the injured person, it would seem that the tortfeasor should be liable to someone for those expenses. His only concern is that he not be required to pay twice. The second argument would be that the injured person is not the real party in interest. However, we think that where the expenses have been incurred on his behalf, and particularly where he has paid premiums or wage contributions to secure the payment of the expenses, his interest is sufficient to make him the real party in interest. It is true that in cases where there has been an assignment of the claim to the insurer, the assignee is held to be the real party in interest. See Louisville & N.R. Co. v. Mack Mfg. Corp., Ky., 269 S.W.2d 707; Works v. Winkle, 314 Ky. 91, 234 S.W.2d 312. It is possible that this rule also may extend to contractual subrogation cases. But it has not been extended in this jurisdiction to cases of equitable subrogation. The Sedlock case is contrary to the weight of authority. See Annotation, 13 A.L.R.2d 355. It is our opinion that it is not sound, and we hereby expressly overrule it, to the extent that it holds that recovery may be had only if the plaintiff has paid for the services or incurred liability therefor. We now hold that in the absence of an assignment or express contractual subrogation the injured person may recover medical and hospital expenses incurred on his behalf, at least where the expenses are paid pursuant to an agreement based upon the payment of premiums or contributions by or on behalf of the injured person. The final contention we must consider is that the trial court erred in admitting evidence as to the condition of the brakes on the defendant's truck, particularly testimony that when the motor was not running the vacuum booster would not work, and without the booster the brakes were inadequate. The appellant argues that there was no evidence that the motor was not running, and that in any event the condition of the brakes had nothing to do with the accident. The evidence as to the brakes had some possible relevancy in that it might tend to corroborate the plaintiff's testimony that the truck was rolling or backing down the hill. Accordingly, we think it was admissible. However, we suggest that upon 908 another trial a specific admonition be given as to its limited purpose. The judgment is reversed, for proceedings in conformity with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515933/	955 F.Supp. 485 (1996) Burton Michael RABINOWITZ and Barbara Rabinowitz v. Michael OATES, Anthony Morris and Digital Equipment Corporation. Civil Action No. CCB-94-2898. United States District Court, D. Maryland. September 30, 1996. 486 487 Edward J. Birrane, Jr., Cynthia L. Dietz, Towson, MD, for Plaintiffs. Frank C. Morris, Jr., Andrea R. Calem, Epstein, Becker & Green, PC, Washington, DC, for Defendants. MEMORANDUM OPINION BLAKE, District Judge. Plaintiff Burton Michael Rabinowitz has sued his employer, Digital Equipment Corporation ("Digital"), for defamation, and two of his supervisors, Michael Cates and Anthony Morris, for defamation and conspiracy. Plaintiff Barbara Rabinowitz has sued defendants for loss of consortium as a result of the defamation of her husband, Mr. Rabinowitz. Defendants dispute the claims and have filed a motion for summary judgment, which has been fully briefed. For the reasons that follow, the motion will be granted. BACKGROUND Mr. Rabinowitz, Mr. Oates, and Mr. Morris were employed by Digital. At all times relevant to this case, Digital was preparing a proposal for the United States Navy ("TAC-4"). The TAC-4 proposal was one of the largest projects ever undertaken by Digital and was worth in excess of 700 million dollars. Work on the proposal involved meeting and coordinating with representatives from other companies involved on the project. Mr. Rabinowitz began work on TAC-4 immediately following his successful completion of in-house management training in the Pipeline Program. Some time around the spring or summer of 1993 Digital underwent a company-wide reorganization. Mr. Rabinowitz claims that at that time Mr. Oates began an effort to unseat Mr. Rabinowitz as the program manager of TAC-4 in order to secure his own job working on the proposal. According to Mr. Rabinowitz, Mr. Oates' efforts included conspiring with his immediate supervisor, Mr. Morris, and making defamatory statements and gestures to various people at different times. Plaintiff points to several allegedly defamatory statements made by Mr. Oates as part of his effort. First, during a meeting on November 4, 1993, Mr. Oates claimed that plaintiff's work represented a "price deal" not a "best value" proposal. Second, at a meeting with persons working on TAC-4, Mr. Oates said that the current plan produced by Mr. Rabinowitz was poor and would need to be rewritten. Mr. Oates then allegedly made a gesture as if to throw out the plan. Third, in response to a question posed by David Ellis, a Digital employee, regarding the leadership of the TAC-4 project Mr. Oates explained that he was asserting more control over the project because plaintiff was a rookie and not seasoned enough to handle a program of that magnitude. Fourth, Mr. Oates later reiterated the rookie comment to Mr. Ellis in response to a follow-up question regarding who was going to be the program manager of TAC-4. In the conversation that followed the second "rookie" comment, Mr. Ellis inquired why Mr. Oates felt he needed to be more involved. In response, Mr. Oates explained that Mr. Rabinowitz's work was 488 not "up to snuff" and that it was "junk." Fifth, Mr. Oates made so unspecified comments to Jay Benson regarding plaintiff's lack of experience and inability to meet requirements of the proposal. ANALYSIS In this diversity jurisdiction case, Maryland law applies. Macy v. Trans World Airlines, 381 F.Supp. 142, 145-46 (D.Md. 1974). The elements of defamation in Maryland include: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. De Leon v. St. Joseph Hospital, Inc., 871 F.2d 1229, 1236 (4th Cir.), cert denied, 493 U.S. 825, 110 S.Ct. 87, 107 L.Ed.2d 52 (1989). Maryland courts recognize a common law qualified privilege where an individual "publishes a statement in good faith in furtherance of... interests shared with others...." Mareck v. Johns Hopkins University, 60 Md. App. 217, 224, 482 A.2d 17, 21 (1984), cert. denied, 302 Md. 288, 487 A.2d 292 (1985) (citing case examples). The qualified privilege is available in the context of an employer-employee relationship, Happy 40, Inc. v. Miller, 63 Md.App. 24, 31, 491 A.2d 1210, 1214 (1985) (listing cases), but may be used only where the defamatory statement was made in a "reasonable manner and for a proper purpose." Mareck, 60 Md.App. at 224, 482 A.2d at 21. Unlike absolute privileges, qualified privileges can be lost in circumstances where: (1) the publication is made with malice, that is, with `knowledge of falsity or reckless disregard for truth ...'; (2) the statement was not made in furtherance of the interest for which the privilege exists; (3) the statement is made to a third person other than one `whose hearing is reasonably believed to be necessary or useful to the protection of the interest ...'; and (4) the statement includes defamatory matter not reasonably believed to be in line with the purpose for which the privilege was granted. Mareck, 60 Md.App. at 224-25, 482 A.2d at 21 (citations omitted).[1] In Marchesi the Court of Appeals explained that a showing of malice "involves proof of a high degree of awareness of ... probable falsity, such that the defendant entertained serious doubts as to the truth of his publication." Marchesi v. Franchino, 283 Md. 131, 137, 387 A.2d 1129, 1132 (1978) (citations and quotations omitted). The existence of a qualified privilege is a matter of law and the question of abuse of the privilege is usually reserved for the jury. Jacron Sales Co. v. Sindorf, 276 Md. 580, 600, 350 A.2d 688, 700 (1976). However, courts can determine whether the plaintiff has produced sufficient evidence of malice. Macy, 381 F.Supp. at 148; see also De Leon, 871 F.2d at 1234-36 (granting summary judgment where plaintiff failed to support a claim of malice in a private defamation suit). Assuming arguendo that the above allegations satisfy the elements necessary to make a prima facie case of defamation,[2] defendants are nevertheless entitled to summary judgment as a matter of law. The qualified privilege applies in this employeeemployer 489 setting and plaintiffs have failed to produce sufficient evidence of abuse. All of the comments related to Mr. Rabinowitz' work product and performance. This case is distinguishable from McDermott v. Hughley where the court found the statements exceeded the scope of the privilege. In McDermott defendant was asked to provide a psychological evaluation of the plaintiff regarding his fitness for duty as a mounted park police officer and proceeded to comment on plaintiff's moral worth, capacity to work as an officer outside of the mounted police unit, and the likeness of his character to "criminal elements." 317 Md. 12, 31, 561 A.2d 1038, 1048 (1989). In addition, the comments were made to persons working with the TAC-4 project. Plaintiffs argue that the privilege is lost because some of the employees involved did not have an interest in plaintiff's section of the project and all of the partners were outside of the company. The evidence shows that all of the persons who heard the comments were working on TAC-4 in some capacity and therefore had a valid interest in the quality of work done on the project. See Happy 40, Inc., 63 Md.App. 24, 491 A.2d 1210, (finding that employer did not abuse his qualified privilege where he answered employees' questions regarding the termination of another employee). Hollander v. Pan American World Airways, Inc., 382 F.Supp. 96, 103-04 (D.Md.1974) (finding that the receipt of the statement by multiple parties was within the scope of the qualified privilege). Furthermore, some of these statements were in response to questions of employees, as opposed to volunteered. In these situations Maryland courts allow "greater latitude" in determining what statements will be actionable. Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482, 487, 243 A.2d 533, 536 (1968), overruled on other grounds; Fresh v. Cutter, 73 Md. 87, 92 20 A. 774 (1890); Happy 40, Inc., 63 Md.App. at 35, 491 A.2d at 1216. Having found the existence of the qualified privilege, there is no evidence of malice to warrant finding an abuse. Plaintiffs present circumstantial evidence of Mr. Oates' motive to defame and ultimately unseat Mr. Rabinowitz. While evidence of this sort may have been sufficient to show malice at common law,[3] the new standard for malice articulated in Marchesi requires proof of "a high degree of awareness of ... probable falsity." Marchesi, 283 Md. at 137, 387 A.2d at 1132, quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964). See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964) (establishing the "knowledge that it was false or with reckless disregard of whether it was false or not" test). Under the New York Times standard, malice "cannot be established merely by showing that: the publication was erroneous, derogatory or untrue; the publisher acted out of ill will, hatred or a desire to injure ...." Capital-Gazette Newspapers, Inc. v. Stack, 293 Md. 528, 539-40, 445 A.2d 1038, 1044, cert. denied, 459 U.S. 989, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982) (citations omitted); see also De Leon, 871 F.2d at 1234-36 (1989). The burden is on the plaintiff to prove malice by clear and convincing evidence. De Leon, 871 F.2d at 1233 n. 7. Absent a showing of malice, any alleged defamation is shielded from liability by the qualified privilege. Without a viable claim for the underlying tort of defamation, plaintiffs allegation of conspiracy is not actionable, Alexander & Alexander, Inc. v. B. Dixon Evander & Assoc., Inc., 336 Md. 635, 645 n. 8, 650 A.2d 260, 265 n. 8 (1994) and Mrs. Rabinowitz may not recover for loss of consortium.[4] A separate Order follows. *490 ORDER For the reasons stated in the accompanying Memorandum Opinion, it is hereby Ordered that: 1. the defendants' motion for summary judgment is GRANTED; 2. judgment shall be entered in favor of the defendants; 3. the defendants' motion to strike evidence submitted in support of plaintiff's opposition to defendants' motion for summary judgment is DENIED as moot; 4. copies of this Order and the accompanying Memorandum shall be mailed to counsel of record; and 5. the Clerk shall CLOSE this case. NOTES [1] The Maryland Court of Appeals noted one commentator's observation that the constitutional test of malice is "the exclusive standard for defeating the qualified privilege" in Maryland. Marchesi v. Franchino, 283 Md. 131, 135 n. 5, 387 A.2d 1129, 1131 n. 5 (1978) (referring to Comment, The Maryland Court of Appeals: State Defamation Law in the Wake of Gertz v. Robert Welch, Inc. 36 Md. L.Rev. 622, 647 n. 161 (1977)). [2] At least some of the alleged defamatory statements are in the form of opinions, protected speech under the First Amendment, De Leon, 871 F.2d at 1234 n. 8, 1238, and still others are true statements of fact and therefore not defamatory by definition. [3] At common law malice could be shown with evidence of a defendant's "ill-tempered manner or motives of ill will." Happy 40, Inc., 63 Md. App. at 37, 491 A.2d at 1217. However, in Marchesi the Maryland Court of Appeals held that the standard of malice to be used in private defamation cases is the standard offered in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). [4] In considering this motion, all of the evidence submitted was considered. Defendants' pending motion to strike evidence offered in support of plaintiffs' opposition to summary judgment will be denied as moot as a result of granting defendants' motion for summary judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515950/	913 A.2d 742 (2006) Rebecca MILLER v. Brian BLACKDEN. No. 2006-033. Supreme Court of New Hampshire. Submitted: October 18, 2006. Opinion Issued: November 30, 2006. Rehearing Denied January 12, 2007. 744 Rebecca Miller, pro se, filed no brief. Penny S. Dean, of Concord, by brief, for the defendant. DALIANIS, J. The defendant, Brian Blackden, appeals the entry of a final protective order by the Concord District Court (Sullivan, J.) based upon the court's finding that the defendant stalked the plaintiff, Rebecca 745 Miller. See RSA 633:3-a (Supp.2006). We affirm. The plaintiff filed a stalking petition against the defendant. See RSA 633:3-a, III-a. At the final hearing, the plaintiff testified to the following. The defendant was a friend of, and had been hired by, her former boyfriend, Eric Raymond. Raymond had ended their relationship approximately six months earlier, and the defendant began stalking her after she had had Raymond arrested for breaking into her home. On November 1, 2005, she received a phone call from the police telling her that the defendant was in his vehicle, parked near her home, "with his lights off." The officer told her "to be precautious [sic] and make sure all my doors and my windows were locked[] because [the defendant] was watching me." The plaintiff felt "nervous" after receiving this call and went with her children to spend the night with her mother. The following day, when she pulled into the parking lot of her son's school, she saw the defendant drive by her. She testified that "he . . . stared me down." After she had retrieved her son from school, she saw the defendant drive up the street and stare at her again. When she then drove to the courthouse to file the stalking petition, she saw the defendant traveling in the opposite direction. He made a U-turn and followed her to a traffic light. When she returned to her home after filing the petition, she saw the defendant waiting for her near her home. The plaintiff testified that before the stalking began, the defendant removed some belongings of her former boyfriend from her parked car without her knowledge or consent. She informed a nearby police officer, who confronted the defendant and told him to leave the plaintiff alone. The defendant admitted that he followed the plaintiff on six occasions on November 1, 2005. He testified that Raymond had hired him to conduct surveillance of the plaintiff in his capacity as a licensed private detective. When asked, he asserted that he could not disclose what Raymond wanted him to learn about the plaintiff because of "client privilege." Following the hearing, the trial court entered a final protective order. The court found that the defendant engaged in stalking within the meaning of RSA 633:3-a, and that he was not immune from the stalking statute because he is a licensed private detective. The defendant moved for reconsideration, which the trial court denied. The defendant's business partner, Robert Miller, attempted to intervene in the action, but his request to do so was denied. Miller has not appealed the denial of his motion to intervene. On appeal, the defendant first argues that the stalking statute, RSA 633:3-a, is vague on its face and as applied, in violation of his state and federal constitutional rights to due process. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. Second, he asserts that the trial court erred when it failed to find that, as a licensed private detective, he was exempt from the provisions of the stalking statute. Third, he contends that the evidence was insufficient to support the trial court's order. Finally, he argues that the trial judge erred by not recusing himself. We address each argument in turn. I. Constitutionality of Stalking Statute RSA 633:3-a provides, in pertinent part, that a person commits the offense of stalking if he or she "[p]urposely, knowingly, or recklessly engages in a course of conduct targeted at a specific person which would cause a reasonable person to fear for his or her personal safety or the safety 746 of a member of that person's immediate family, and the person is actually placed in such fear." RSA 633:3-a, I(a). RSA 633:3-a, II(a) defines "course of conduct" as "2 or more acts over a period of time, however short, which evidences a continuity of purpose." Pursuant to RSA 633:3-a, II(a), "[a] course of conduct shall not include constitutionally protected activity, nor shall it include conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person." A "course of conduct" may include following, approaching or confronting the targeted person or a member of that person's immediate family. RSA 633:3-a, II(a)(2). The defendant argues that the term "legitimate purpose" is unconstitutionally vague under the State and Federal Constitutions because it is undefined and does not sufficiently limit the trial court's discretion. We first analyze the defendant's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), citing federal authority for guidance only, id. at 233, 471 A.2d 347. The constitutionality of a statute is a question of law, which we review de novo. State v. Burke, 153 N.H. 361, 364, 897 A.2d 996 (2006). "A statute may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests." Id. (quotation omitted); Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Vagueness may invalidate a criminal law for either of two independent reasons. Burke, 153 N.H. at 364, 897 A.2d 996. "First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits," and "[s]econd, if it authorizes or even encourages arbitrary and discriminatory enforcement." Burke, 153 N.H. at 364, 897 A.2d 996 (quotations omitted); Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). We addressed a similar challenge in State v. Porelle, 149 N.H. 420, 822 A.2d 562 (2003), where we construed an earlier version of the stalking statute, RSA 633:3-a (1996 & Supp.1999). The earlier version of the statute defined stalking, in part, as appearing "on more than one occasion for no legitimate purpose in proximity to the residence, place of employment, or other place where another person is found under circumstances that would cause a reasonable person to fear for his personal safety." RSA 633:3-a, I(d)(4) (Supp.1999); Porelle, 149 N.H. at 422, 822 A.2d 562. The defendant argued, among other things, that the phrase "for no legitimate purpose" was unconstitutionally vague on its face and as applied. Porelle, 149 N.H. at 422, 425, 822 A.2d 562. In rejecting this contention, we defined a "legitimate purpose" as one that "is genuine or accordant with law." Id. at 425, 822 A.2d 562 (quotations omitted). We ruled that the phrase "no legitimate purpose," read in the context of the entire statute, which measures the offending conduct by an objective standard, did not give too much discretion to police officers. Id. As the presence or absence of a genuine or lawful purpose for appearing in proximity to another can readily be determined, we concluded that the phrase "no legitimate purpose" did not render the statute unconstitutionally vague, either on its face or as applied to the defendant. Id. For similar reasons, we hold that the phrase "legitimate purpose" as used in RSA 633:3-a, II(a), does not render the current version of the statute unconstitutionally vague, either on its face or as applied to the defendant. Like the defendant in Porelle, the defendant here takes the phrase out of context. As we explained 747 in Porelle, "By taking this phrase out of context, the defendant ignores the fact that the statute measures a defendant's actions by an objective standard, in that the offending conduct is only prohibited under circumstances that would cause a reasonable person to fear for his or her safety." Id. The phrase "legitimate purpose" read in the context of the entire statute, coupled with an objective standard, does not give too much discretion to the trial court. See id. This phrase, read in conjunction with the rest of the statute, does not require a person of common intelligence to guess at its meaning. See id. at 425-26, 822 A.2d 562. Like the defendant in Porelle, the defendant in this case argues that "RSA 633:3-a is similar to loitering statutes that the United States Supreme Court has found unconstitutionally vague." Id. at 425, 822 A.2d 562; see Morales, 527 U.S. at 47, 64, 119 S.Ct. 1849. We disagree for the same reasons that we set forth in Porelle. See Porelle, 149 N.H. at 425-26, 822 A.2d 562. As the Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances, see id. at 423, 822 A.2d 562, we reach the same result under the Federal Constitution as we do under the State Constitution. II. Exemption for Private Detectives The defendant next asserts that, as a licensed private detective, his "clandestine surveillance" of the plaintiff was exempt from the stalking statute. See RSA 106-F:4, I-b(c) (2001). He argues that, as a matter of law, his conduct was for a "legitimate purpose" because it was within the scope of his employment as a licensed private detective. RSA 633:3-a, II(a). Unlike the stalking statutes in some other states, New Hampshire's stalking statute does not specifically exempt licensed private detectives. Compare RSA 633:3-a, II(a) (stalking does not include constitutionally protected activity or "conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person"), with La.Rev. Stat. Ann. § 14.40.2(F) (LexisNexis Supp. 2005) (provisions of stalking statute do not apply to licensed private investigators "acting during the course and scope of . . . employment and performing . . . duties relative to the conducting of an investigation"), S.C.Code Ann. § 16-3-1700(G) (West 2005) (stalking statute does not apply to "licensed private investigator performing services or an investigation as described in detail in a contract signed by the client and the private investigator") and Utah Code Ann. § 77-3a-101(1) (2003) (stalking injunctions may not be obtained against licensed private investigators acting in their official capacity). Nor is it specifically an affirmative defense to a stalking petition or prosecution brought under New Hampshire law that the defendant is a licensed private detective as it is under stalking statutes in some other states. See Ark.Code Ann. § 5-71-229(c) (2005) (it is affirmative defense to stalking prosecution that actor is a licensed private investigator "acting within the reasonable scope of his or her duty while conducting surveillance on an official work assignment"); N.D. Cent.Code § 12.1-17.07.1(4) (1997) (defense that private investigator was acting within scope of employment); Wash. Rev.Code § 9A46.110(3) (2006) (defense to crime of stalking that defendant is licensed private investigator "acting within the capacity of his or her license" as provided by statute governing such investigators). Rather, New Hampshire's stalking statute exempts only constitutionally protected conduct and conduct "that was necessary to accomplish a legitimate purpose independent of making contact with the targeted 748 person." RSA 633:3-a, II(a). Pursuant to RSA 633:3-a, IV, the defendant has the burden to show that his conduct was necessary to accomplish a legitimate purpose. RSA 633:3-a, IV provides: In any complaint, information, or indictment brought for the enforcement of any provision of this statute, it shall not be necessary to negate any exception, excuse, proviso, or exemption contained herein and the burden of proof of any exception, excuse, proviso, or exemption shall be upon the defendant. That the defendant's conduct was necessary to accomplish a legitimate purpose is an "exception, excuse, proviso, or exemption" upon which the defendant has the burden of proof. Cf. State v. Small, 150 N.H. 457, 461-62, 843 A.2d 932 (2004) (assuming without deciding that "legitimate purpose" is defense to offense of stalking upon which defendant has burden of proof). The defendant contends that he met this burden of proof by testifying that he secretly followed the plaintiff in his capacity as a licensed private detective. We disagree. As we held in Porelle, 149 N.H. at 425, 822 A.2d 562, conduct that is necessary to accomplish a "legitimate purpose" refers to conduct that is "accordant with law." To prove that the conduct in which he was engaged was necessary to accomplish a legitimate purpose, the defendant was required to show that the conduct was lawful, irrespective of the stalking statute. See Nastal v. Henderson & Associates Invest., 471 Mich. 712, 691 N.W.2d 1, 7 (2005). To meet this burden, the defendant had to do more than merely testify that he was a licensed private detective who was hired to follow the plaintiff. He also had to show that the purpose for which he was hired was itself lawful. See id. at 7-8. For instance, had he been hired to follow the plaintiff so that a third party could kill her, the purpose for which he was hired was not lawful. See RSA 106-F:9 (Supp. 2005) (investigators must file surety bond that is "so conditioned that the person bonded shall conduct his or her business in a lawful and honest manner without committing, compounding, aiding or abetting the commission of any criminal offense"); see also Remsburg v. Docusearch, 149 N.H. 148, 154-55, 816 A.2d 1001 (2003) (ruling that private investigators have duty to exercise reasonable care in disclosing third party's personal information to client, in part, because of foreseeable risk that such information could be used by stalkers to harm victim). Similarly, had he been hired to follow the plaintiff for the purpose of causing her to fear for her own personal safety, that purpose also would be unlawful. We do not construe RSA 633:3-a, II(a) as authorizing stalking by proxy. In this case, the defendant refused to testify as to why he was hired. Accordingly, by his own election, he failed to demonstrate that the purpose for which he was hired was lawful. Thus, the trial court did not err when it ruled that the defendant's conduct was not for a "legitimate purpose" merely because he engaged in it in his capacity as a licensed private detective. III. Sufficiency of the Evidence The defendant next contends that the evidence was insufficient to support the trial court's entry of a final order. He implies that the evidence did not support a finding that he engaged in conduct that constituted stalking. He also asserts that the evidence did not support a finding that his conduct would have caused a reasonable person to fear for his or her personal safety. We review sufficiency of the evidence claims as a matter of law and uphold the findings and rulings of the trial court unless they are lacking in evidential support 749 or tainted by error of law. Fichtner v. Pittsley, 146 N.H. 512, 515, 774 A.2d 1239 (2001). The evidence included testimony that the defendant was hired by the plaintiff's former boyfriend, after the couple ended their relationship and that the stalking began after a complaint by the plaintiff caused the boyfriend to be arrested. The plaintiff testified that the police told her to take precautions and lock all of her doors and windows because the defendant was watching her. There was also evidence that: the defendant was in a parked vehicle near the plaintiff's home with the vehicle's lights turned off; the next day, he followed her to her son's school and "stared [her] down"; he followed her when she came to the courthouse to file the petition; and, when she returned home from filing it, the defendant was waiting for her near her home. Thus, there was evidence that the defendant followed, approached or confronted the plaintiff two or more times over a period that evidenced a continuity of purpose. See RSA 633:3-a, II(a)(2). In addition, we conclude that this evidence supports the trial court's finding that the defendant's conduct would have a caused a reasonable person to fear for his or her personal safety. Finally, we need not address the defendant's contention that no reasonable person could fear something of which he or she was not aware because, in this case, the plaintiff's petition was based upon conduct of which she was aware. Cf. State v. Gubitosi, 152 N.H. 673, 682-83, 886 A.2d 1029 (2005) (holding that communication between defendant and third party of which victim was later made aware supported finding of stalking). IV. Recusal of Trial Judge Finally, the defendant argues that the trial judge erred when he failed to recuse himself upon learning that Miller is the defendant's business partner. He asserts that the judge was required to recuse himself because he recused himself from other cases involving Miller. The defendant contends that the judge's prior decisions to recuse himself indicate that the judge was biased. Canon 3E(1) of the Code of Judicial Conduct requires disqualification of a judge in a proceeding in which the judge's impartiality might reasonably be questioned and to avoid even the appearance of impropriety. See Sup.Ct. R. 38, Canon 3E(1); see also Blaisdell v. City of Rochester, 135 N.H. 589, 593, 609 A.2d 388 (1992). "Whether an appearance of impropriety exists is determined under an objective standard, i.e., would a reasonable person, not the judge himself, question the impartiality of the court." Blaisdell, 135 N.H. at 593, 609 A.2d 388. "The test for the appearance of partiality is an objective one, that is, whether an objective, disinterested observer, fully informed of the facts, would entertain significant doubt that justice would be done in the case." Taylor-Boren v. Isaac, 143 N.H. 261, 268, 723 A.2d 577 (1998) (quotation omitted). We conclude that a reasonable person would not question the trial judge's impartiality in this case on the ground that the judge had previously recused himself from cases involving Miller. The instant case does not involve Miller. He is not a party to the petition. Even if he were a party, recusal would not necessarily be mandated. See Martin v. Monumental Life Ins. Co., 240 F.3d 223, 235-36 (3d Cir.2001) (judge not required to recuse self even though judge recused self in earlier action out of excess caution); Oslin v. State, 543 N.W.2d 408, 417 (Minn.Ct.App.1996) (judge who had previously recused himself from case could preside over matter, *750 where he never explained why he originally disqualified himself, and there was no showing that his original recusal was prompted by any interest in case). Moreover, the defendant has not provided a record to establish why the trial judge recused himself from matters involving Miller. Under these circumstances, we hold that the trial judge did not err when he did not recuse himself upon learning that Miller was the defendant's partner. We decline to address the defendant's remaining arguments because he has not preserved them for our review. Specifically, he argues that: (1) the trial court's order violated his constitutional rights to bear arms and to due process; and (2) the court's order unlawfully abrogated the rights of his detective partners. See N.H. CONST. pt. I, arts. 2-a, 12; U.S. CONST. amends. II, XIV. The defendant, however, has failed to demonstrate that he raised these arguments to the trial court and, thus, he has not preserved them for our review. See N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619, 843 A.2d 949 (2004). It is a long-standing rule that parties may not have judicial review of matters not raised in the forum of trial. Id. As the appealing party, the defendant has the burden of demonstrating that he raised his arguments to the trial court. See id. Miller's attempt to raise some of these arguments did not preserve them for our review. Miller was not a party to this proceeding and thus any arguments he attempted to make were not before the trial court. Affirmed. BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515971/	335 S.W.2d 23 (1960) STATE of Missouri, Respondent, v. John WASHINGTON, Appellant. No. 47663. Supreme Court of Missouri, Division No. 1. May 9, 1960. 24 No attorney for appellant. John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent. HYDE, Judge. Defendant was convicted of second degree burglary and stealing (Secs. 560.070 and 560.156) on joint prosecution of these crimes under a single indictment as authorized by Sec. 560.110. (Statutory references are to RSMo and V.A.M.S.) Defendant was found to have been previously convicted of a felony and his punishment assessed under the habitual criminal statutes (Secs. 556.280 and 556.290) at ten years for burglary and five years for stealing. (Secs. 560.095 and 560.110.) Defendant was sentenced in accordance with the verdict, sentence to run consecutively for a total of 15 years (see State v. Huff, 352 Mo. 1161, 181 S.W.2d 513, 516) and defendant has appealed. Defendant has filed no brief so we will consider all assignments properly made in his motion for new trial. State v. Statler, Mo.Sup., 331 S.W.2d 526, 527. Since assignments one and two alleging error in overruling motions for acquittal raise the question of sufficiency of the evidence to sustain a conviction, we state the facts shown by the State's evidence. Assignment three (verdict is against the weight of the evidence) preserves nothing for appellate review. State v. Jacobs, Mo. Sup., 321 S.W.2d 450, 451. Assignment one (overruling motion for acquittal at the close of the State's evidence) was waived by defendant offering evidence thereafter. State v. Statler, supra. Therefore, we will consider only the evidence favorable to the State and the reasonable inferences to be drawn therefrom (State v. Thomas, Mo. Sup., 309 S.W.2d 607, 609) in determining the correctness of the court's action in overruling defendant's motion for acquittal at the close of the case. Police officers hearing a burglar alarm, about 12:05 A.M., February 21, 1959, in the building of Morganthaler Cleaners and Dyers, 10th and Cole Streets, in the City of St. Louis, upon investigation found defendant in an alley from which the rear of the building could be reached. Defendant ran when he saw one of the officers but stopped at his command. Defendant had a shoe on his right foot and said he had lost his other shoe, which was later found inside the Morganthaler building where his brother was also found hiding. After his arrest, defendant attempted to destroy and dispose of the shoe he was wearing. There was a large jagged hole in the southwest corner of the building and a crowbar and a screwdriver were found near it. Defendant and his brother had white material on their clothes which a police chemist testified was mortar identical in all microscopic aspects with a sample of mortar taken at the time from the hole in the building. Two dollars which had been left the evening before in the cash drawer and about seven dollars left in a change box were missing; $4.78 in change was found on defendant's brother when he was searched at the police station. It was shown that all doors were secure when the last Morganthaler employe left the building at 5:30 P.M. the evening before, after setting the burglar alarm. Obviously it is a reasonable inference from these facts that 25 defendant participated in the burglary and stealing and we hold that his motion for acquittal was properly overruled. Assignments 4 and 5 allege error in admitting in evidence Exhibit 2, the shoe found inside the building in the possession of defendant's brother and in admitting the testimony of the officers concerning it; and assignments 9 and 10 allege error in admitting Exhibit 9, the shoe found in his cell, partly destroyed, after his arrest and in admitting the testimony of the officers concerning it. The shoe found in the building and the circumstances of finding it certainly were relevant as an important part of the chain of circumstances connecting defendant with the crimes charged. These shoes were identified as mates, identical in color, size, style, serial number and heels. Furthermore, defendant's own evidence was that the one found in the building was his shoe and that he attempted to destroy and dispose of the mate to it he had on when arrested by tearing it and flushing away the pieces while he was in a cell in the police station after his arrest. (Defendant's claim was that his brother took one of his shoes to make him follow him to the building.) Therefore, we hold that this evidence was properly admitted. Assignments 6 and 7 allege error in admitting the circuit court records of his previous convictions and the St. Louis City Workhouse records showing his sentences served and his discharges. This claim is based on failure to comply with the requirements of the Business Records Act. Secs. 490.660-490.690. Official records required by law to be kept were admissible before the adoption of this Act. See Snider v. Wimberly, 357 Mo. 491, 495, 209 S.W.2d 239, 241, and authorities cited; 32 C.J.S. Evidence §§ 637-638, pp. 489-495. Defendant's convictions were shown by a deputy circuit clerk producing and reading from the original circuit court record. The original Workhouse records were also produced and read by the record custodian. Sec. 490.130 provides for certification of court records but, in Carp v. Queen Ins. Co., 203 Mo. 295, 331, 101 S.W. 78, 89, we said this statute "was enacted for the public convenience, to provide for the means of proving the contents of records by certified copies thereof. It was not the purpose of this statute to exclude original instruments, which have been properly identified as such. * * * To hold otherwise would be to hold that an original instrument fully identified is not evidence, but that a copy of it would be. We think the objection is untenable." See also 32 C.J.S. Evidence §§ 626, 629, 634, 649. Furthermore, in his testimony, defendant admitted these convictions, saying he pleaded guilty in both cases. See State v. McCulley, Mo.Sup., 327 S.W.2d 127, 130, and cases cited. We hold there was no error in admitting these records. Assignments 8 and 11 allege error in admission of testimony of the officers concerning the following exhibits, 1 (crowbar), 3 (leather jacket), 4 (shirt), 5 (hat), 6 (trousers), 7 (gloves), 8 (silver coins), 10 (screwdriver), 11 (box of mortar). There is not a sufficient statement of grounds as to the first five of these to comply with the requirements of Rule 27.20, V.A.M.R. (This assignment stating "said exhibits do not tend to prove or disprove the issues herein.") As to the last four the ground stated is "that it was not proved that these exhibits had any connection with defendant." It is obvious from the facts hereinabove stated that sufficient connection was shown, they being found either in or near the building, and the hole in the wall thereof, near which both plaintiff and his brother were found. We hold this evidence was properly admitted as a part of the circumstances connecting defendant with the crime. The rest of defendant's assignments, 12, 13, 14 and 15, allege error in giving Instructions 2, 4, 5, 6 and 7. Instruction 2 stated the law as to the guilt of persons acting together with common intent in the commission of a crime. *26 Defendant does not claim that it incorrectly stated the law but that it "is not supported by the evidence and is a mere abstract proposition of law." We held in State v. Rozell, Mo.Sup., 279 S.W. 705, 709, that it was not prejudicial error to give a more cryptic instruction about this matter. Instruction 2 herein went further and stated the conditions under which defendant should not be found guilty. (If defendant was "only a spectator, innocent of any unlawful act or criminal intent, etc." (See also State v. Hardin, 324 Mo. 28, 21 S.W.2d 758, 761; and State v. Butler, Mo.Sup., 310 S.W.2d 952.) The facts in evidence hereinabove stated were sufficient to warrant a finding that defendant and his brother were acting together in burglary and stealing. The contentions concerning Instructions 4, 5 and 6 are that there was not sufficient evidence to support their essential findings of breaking, intent to steal, taking any money by defendant or anyone he was aiding and abetting. These contentions have been ruled adversely to defendant by our ruling on the sufficiency of the evidence to sustain his conviction. Therefore, these assignments are overruled. Assignment 15 alleges "there was not sufficient evidence of any prior convictions to support this instruction." This assignment has likewise been determined in our ruling on assignments 6 and 7 and it is also overruled. We have examined the record as required by Rule 28.02 and find no error respecting the sufficiency of the information, verdict, judgment and sentence. The record does not show arraignment of defendant but it does show that he was tried as though he had been duly arraigned and had entered a plea of not guilty. When so tried, the failure of the record to show arraignment and entry of plea of not guilty does not constitute reversible error. Rule 25.04; State v. Jacobs, Mo.Sup., 321 S.W. 2d 450, 452. The judgment is affirmed. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515974/	335 S.W.2d 112 (1960) Peter A. ISENMAN, Appellant, v. Francis X. SCHWARTZ, Rita M. Schwartz, and Fred Geiler, Respondents. No. 47284. Supreme Court of Missouri, Division No. 1. May 9, 1960. 114 Morton L. Schwartz, Robert A. Thomann, and Louis E. Zuckerman, St. Louis, for appellant. McClintock & Medley, Flat River, for respondents. HOLMAN, Commissioner. On April 12, 1952, the owners of a 330-acre tract of land referred to as the "Herman Farm" conveyed same to plaintiff Peter A. Isenman, and defendant Francis X. Schwartz, for a consideration of $16,000. In the first count of his petition in this action plaintiff sought a decree (1) enforcing a resulting trust in his favor as to the record interest of said defendant so that plaintiff would be "reinvested" with the absolute fee simple title thereto, (2) compelling defendants to account to plaintiff for all rents and profits arising from said real estate, and (3) enjoining the defendants from the use, occupation, and enjoyment of said premises. The original defendants in the suit were Francis X. Schwartz (hereinafter referred to as the defendant) and his wife Rita. Rita was made a defendant because of her possible marital rights in the property. After the suit had been pending for some time an amended petition was filed bringing in Fred Geiler as an additional defendant and a second count was added to the petition seeking relief against him. In that count plaintiff sought a judgment against said Geiler, a tenant on a portion of said land, for rent in the sum of $1,180.17. Defendant Geiler filed a counterclaim against plaintiff to recover rental in the sum of $590.09 which he claimed he had overpaid plaintiff. The cause was tried and the court found that plaintiff and Schwartz held title to the land as joint adventurers and denied plaintiff all of the relief he sought except certain injunctive relief which was decreed against defendant. Judgment was entered in favor of defendant Geiler in the sum prayed for upon his counterclaim. Plaintiff has appealed. We have appellate jurisdiction because the action is one to establish a resulting trust in real estate and hence title to real estate is directly involved. Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152. In March 1952 Francis Schwartz learned that the Herman farm could be bought for $16,000. He approached plaintiff with the proposition that they buy the farm, immediately sell the timber thereon, and then 115 sell the land and make a quick profit. Plaintiff apparently agreed to the proposal and on March 12, 1952, Schwartz entered into a written contract with the Hermans to buy the farm. Plaintiff furnished the $1,000 which was paid at that time. Shortly thereafter, Schwartz arranged to sell the cedar timber to one Boswell for $4,000 and the oak timber to Mr. Klepzig for $3,000 with the purchasers to have five years in which to remove said timber from the land. In the sale of the oak timber defendant may have been assisted by one Troy Grogan. The agreement to purchase the farm was consummated on April 12, 1952, and the land was conveyed to plaintiff and Francis Schwartz. The $15,000 balance on the purchase price was obtained in the following manner: $7,000 from the sale of the timber, $7,000 borrowed from the Bank of Bloomsdale upon a note signed by plaintiff, Schwartz, and their wives, secured by a first deed of trust upon the land, and $1,000 furnished by plaintiff. In regard to the agreement plaintiff testified that "Francis Schwartz, he came up and said if me and Troy Grogan go in with him that we could purchase a farm and it would be a good deal. We'd sell the timber and then sell the farm just in a short time. And so, he said if you let me get on the deed, why, we'll fix that up and split it three ways after we sell the property." His testimony that Grogan had a one-third interest in the deal was corroborated by the testimony of his daughter, Marie Isenman, and by the testimony of Troy Grogan. Plaintiff stated that in 1953 he paid Grogan $1,300 for "his one-third interest in the deal," and a written assignment wherein Grogan assigned his interest to plaintiff was admitted in evidence. Plaintiff testified that neither Grogan nor defendant advanced any of the purchase price. He stated that he paid $4,000 upon the purchase price of the farm but we are of the opinion that he, in fact, paid only $2,000 thereon. His contention that he paid $4,000 grows out of the fact that he loaned Boswell $2,000 with which to pay for the timber he purchased but it appears that Boswell gave him a note for that amount and later paid plaintiff the amount due on the note. There was considerable testimony by plaintiff as to various amounts of principal and interest he had paid on the note held by the bank, and numerous payments of taxes, insurance, repairs on the farm buildings, and for seed and fertilizer. Some of these payments were made from moneys collected for the rental of the farm and other payments appeared to have been made from his own money. Upon cross-examination plaintiff admitted that defendant had a one-third interest in the "Herman Farm." He also admitted that he and defendant had each paid half of the 1956 taxes on the farm. Defendant testified that he and plaintiff agreed to purchase the farm and that they were to be partners on a "fifty-fifty" basis and that Grogan had nothing to do with the transaction; that he arranged for the sale of the timber and took the appraisers from the bank to inspect the farm so they could get the loan from the bank; that he and plaintiff both signed the timber deeds conveying the timber to the purchasers; that he did not keep any books but told them (plaintiff and Marie) to keep the books and "whenever the farm was sold we'd split the profits"; that at one time he collected grain rent from Geiler in the amount of $1,129.10 and from that he paid $1,000 on the bank loan and deposited the remainder in plaintiff's account at the bank; that he did work on the farm with a bulldozer of the value of $512.50; that not long after they purchased the farm he obtained from Homer Schmidt an offer for the farm of $12,000, minus the timber that had been sold, which would have given them a $3,000 profit, but that plaintiff would not sell on that basis. Defendant further testified that early in 1955, after Klepzig and Boswell had gotten all of the timber they wanted from the 116 farm, he obtained deeds from each of them whereby the right to remove timber (which extended until April 1957) was conveyed to him. He started to cut the remaining timber but on August 15, 1955, the court upon application of plaintiff, issued a temporary injunction which prohibited him from continuing that operation. Upon cross-examination he admitted that upon the sale of the farm whatever amounts plaintiff had advanced out of his personal funds in connection with the farm were to be paid back to plaintiff before the profits were to be divided. The claim against Geiler in the second count arose out of a controversy concerning the 1956 crop rent. There was no controversy about the fact that Geiler owed rent in the amount of $1,180.18. He accordingly gave plaintiff and defendant each a check for $590.09. Thereafter, plaintiff demanded all of the rent upon the theory that he was the sole owner of the farm and Geiler gave him an additional check for $590.09 "to keep out of a lawsuit." Apparently, by that time, Geiler had been made a defendant and he thereafter filed a counterclaim against plaintiff to recover the last payment of $590.09 which he alleged he did not owe plaintiff. Plaintiff's first contention is that the court erred in failing to declare a resulting trust for his benefit in the proportion that the sum paid by him at the time the farm was purchased bore to the total purchase price of $16,000. We have recently stated that "`a resulting trust must arise, if at all, at the instant the deed is taken. Unless the transaction is such that the moment the title passes the trust results from the transaction itself, then no trust results. It cannot be created by subsequent occurrences.' Bender v. Bender, 281 Mo. 473, 220 S.W. 929, 930 * . `A resulting trust, as distinguished from an express trust, is one implied by law from the acts and conduct of the parties and the facts and circumstances which at the time exist and attend the transaction out of which it arises.' Little v. Mettee, 388 Mo. 1223, 93 S.W.2d 1000, 1009(8); James v. James, Mo.Sup., 248 S.W.2d 623, 627(10). `As between strangers, a purchase-money resulting trust arises against the grantee of real property in favor of the payor of the purchase money unless it was the payor's intent that no such trust should arise; but the presumption of a resulting trust is rebuttable. * * This presumption is based upon the sound principle that, absent evidence to the contrary, it is not the intent of any such payor to make a gift to the grantee.' Ferguson v. Stokes, Mo.Sup., 269 S.W.2d 655, 659." Davis v. Roberts, supra, 295 S. W.2d 152, 157. It is also well settled that the evidence required to establish a resulting trust must be clear, cogent and convincing. Dunlap v. Dunlap, Mo.Sup., 218 S.W.2d 108. If a resulting trust is established in a case where a person pays only a part of the purchase price the person so paying acquires a pro tanto interest in the real estate. Davis v. Roberts, supra. The evidence in this case clearly shows that no resulting trust for the benefit of plaintiff was created at the time the farm was purchased. Plaintiff testified that the agreement was that when the property was sold "all the expenses and all the money he had in it" were to be deducted first and the profit divided. Defendant testified to the same effect. The only conflict in their testimony in that regard was whether the profits would be divided "fifty-fifty" as defendant testified, or "three ways" as stated by plaintiff. It is apparent from that testimony that no resulting trust was intended. The testimony of both of said parties clearly indicates that plaintiff was to advance the money for the benefit of the joint venture and was to be repaid when the farm was sold. That arrangement is inconsistent with and negatives the concept and theory of a resulting trust. The conclusion just stated may be illustrated by the following example: If we assume that plaintiff's payment of a portion of the purchase price created a 117 resulting trust for his benefit plaintiff would have acquired a pro tanto interest in the farm (in addition to the one-half interest specifically conveyed to him), and, upon a sale of the land, would not have been entitled to a return of the amount of the purchase money he had advanced (as both parties say was the agreement) but would have been entitled to receive such part of the purchase price as represented his proportionate interest in the farm (one-half conveyed to him plus the assumed resulting trust interest). If the money advanced was in the nature of a loan, as indicated by the evidence in the case at bar, no resulting trust can arise. Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610. The remaining contention of plaintiff is that since the court found that plaintiff had made numerous expenditures in connection with the property, and that defendant had wrongfully cut and removed certain timber from the real estate, "and the court having denied the request for a resulting trust in appellant's favor, the court erred in failing to order the alternative relief for an accounting and the appointment of a commissioner or referee to take the same and report to the court for its approval and to adjust the equities further between the parties by charging any sums due from one to the other." The first difficulty arising in regard to that contention is that plaintiff's petition did not contain a prayer for a general accounting between the parties. The petition was drawn on the theory that since plaintiff contributed all of the individual capital that went into the purchase price, and since defendant allegedly did not contribute any of said purchase price, a resulting trust was created in favor of plaintiff as to the whole title to the property and that the record interest of defendant therein should be divested out of said defendant and reinvested in plaintiff. In that situation there was no suggestion in the petition that plaintiff should account for any receipts or expenditures in connection with the transaction. The portion of the prayer relating to an accounting was that defendant be compelled to account to plaintiff for all rents and profits he had received from the farm which were alleged to total $5,402.32. That was in accord with plaintiff's pleaded theory that he was, in fact, the sole owner of the farm and defendant was not entitled to receive anything in the nature of rents and profits therefrom. The petition concluded with a prayer for general relief. There was considerable evidence offered by each party concerning his receipts and expenditures in connection with the purchase and operation of the farm. But that evidence was not offered on the theory that the parties were rendering an accounting, or showing the need for an accounting, but was offered by plaintiff in an effort to show his dominion and control over the farm, thus supporting his claim of sole ownership, and like evidence was offered by defendant as proof of his continued claim of ownership to a one-half interest in the farm. As we have stated, there was no prayer for a general accounting and hence the trial court had no duty to order such an accounting unless it was by reason of the fact that the petition contained a prayer for general relief. In that connection it should be noted that there is nothing in the record to indicate that plaintiff made any request that the trial court order a general accounting. In that situation it is understandable that there is nothing in the findings of fact, conclusions of law, or decree to indicate that the trial court gave any consideration to that question. Defendant has also called our attention to the fact that an accounting at this time could not be a final accounting as the joint venture has not been terminated by a sale of the farm. Since the petition contained no specific prayer for a general accounting, and since the question as to whether such an accounting should have been ordered by virtue of the prayer for general relief was not presented to or expressly decided by the trial court, we rule that under all 118 the facts and circumstances of this case, principles of equity and justice do not require that this cause be remanded for the taking of a general accounting herein. The motion of all respondents to dismiss the appeal for violation of S.C. Rule 1.08, 42 V.A.M.S., is overruled. The motion of respondent Geiler to dismiss the appeal because plaintiff had abandoned his appeal as to said defendant is overruled. While no specific contention of error was advanced in regard to the judgment in favor of Geiler, the correctness thereof was necessarily involved in the determination of the contention that plaintiff was the owner of the whole title to the farm. The motion of defendant Geiler for an award of damages for vexatious appeal is also overruled. The judgment is affirmed. COIL and HOUSER, CC., concur. PER CURIAM. The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515726/	774 A.2d 581 (2001) 340 N.J. Super. 312 Debra FOUST, Plaintiff-Appellant, v. Craig GLASER, Defendant-Respondent. Superior Court of New Jersey, Appellate Division. Submitted April 24, 2001. Decided May 8, 2001. 582 Appellant filed a pro se brief. Respondent filed a pro se brief. Before Judges PRESSLER, KESTIN and ALLEY. The opinion of the court was delivered by ALLEY, J.A.D. Plaintiff appeals from a March 1, 2000, order denying reconsideration of an order directing her to pay $41 per week toward college tuition expenses as child support for the son of her marriage to defendant. We reverse. The background is as follows. The parties were married in 1977 and divorced in 1984. They had one child, their son Dustin, born February 16, 1980, custody of whom was awarded to defendant, Craig Glaser, with visitation rights to plaintiff, Debra Foust. The judgment of divorce provided that defendant "does not seek child support from the Plaintiff at the present time but reserves the right to apply for support." Defendant filed a motion for child support more than fourteen years later, on December 9, 1998, seeking to compel plaintiff to contribute to the expenses of college tuition for Dustin, who had started his college education at Stockton State in September 1998. The hearing officer recommended that plaintiff pay $9.00 per week, based upon an imputation of minimum 583 wage earnings to plaintiff. Because defendant was unwilling to accept that amount, the matter was referred to a judge. The judge also imputed minimum wage earnings to plaintiff and directed that she contribute $41 per week to the college expenses, effective immediately. Plaintiff sought modification of the support order on May 7, 1999, on the alleged basis of physical injuries sustained in an automobile accident. She then withdrew the motion, but in late 1999 she filed another motion to modify the support order, which a judge denied on January 5, 2000. This appeal is from a March 1, 2000, order which denied plaintiff's most recent motion to modify the child support payments. When the court established the figure of $41 per week as plaintiff's child support obligation, it apparently was aware that plaintiff had past drug problems, had been fired from numerous jobs due to "attitude" problems and "difficult[y] with authority" and that her recent jobs had been minimum wage. She had been unemployed from 1997 through at least March 1, 2000. She married Chris Foust in December 1998 but he left her in June 1999. Three months earlier, in March 1999, plaintiff was involved in a serious motor vehicle accident. Starting in October 1999, she began receiving Social Security disability payments of $573 per month, and that amount was raised to $587 per month in early 2000. Social Security did not consider Dustin to be plaintiff's dependent in computing the benefits it has paid plaintiff.[1] Plaintiff's difficulties have been compounded by a psychiatric disability in addition to the physical injury resulting from the automobile accident. As of early 2000, she was on antidepressant medication. At the time of the March 1, 2000, hearing, plaintiff testified that she paid her heating bill with her disability check and was eating meals with her relatives, and that her mother was paying her phone bill. Her monthly mortgage payment is about $630.26, and inasmuch as her monthly disability check amounts to only $573 she has evidently had some financial help in paying the mortgage. She has asserted that she pays $400 of the mortgage, with the rest contributed by Chris Foust. The trial court has substantial discretion in making a child support award. See Pascale v. Pascale, 140 N.J. 583, 594, 660 A.2d 485 (1995). If consistent with the law, such an award "will not be disturbed unless it is `manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J.Super. 591, 605, 726 A.2d 280 (App.Div.1999). The standard of review "is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence ..." in the record. Cesare v. Cesare, 154 N.J. 394, 411-412, 713 A.2d 390 (1998). Notwithstanding the deference we owe to trial court determinations in these matters, we are compelled to reverse the award of child support against plaintiff because we are not satisfied that it comports with governing legal standards. For example, nothing appears in the record to indicate that either party has appropriately focused on the applicable factors set forth in Newburgh v. Arrigo, 88 N.J. 529, 545, 443 A.2d 1031 (1982). Indeed, at the outset of this child support dispute one judge noted the parties' failure to focus on the Newburgh factors. Defendant has not 584 followed through on the court's observations about the failure to address the Newburgh factors, despite the many subsequent appearances before hearing officers and other judges. Plaintiff's requests for modification of the child support obligation required consideration of whether "changed circumstances had substantially impaired the [spouse's] ability to support himself or herself." Lepis v. Lepis, 83 N.J. 139, 157, 416 A.2d 45 (1980). Determining the impact and magnitude of "changed circumstances" necessarily entails knowing the starting point before the change, that is, the point from which the change can be measured. In this instance, an appropriate consideration of the Newburgh factors was essential to fixing the starting point of plaintiff's child support obligations and thus of her circumstances before the alleged change. Because that consideration did not occur, this evidentiary lacuna renders it impossible to know with reasonable accuracy the starting point for measuring an alleged change in circumstances. We consider unreliable by definition a Lepis determination made without accurately knowing the true point of beginning. Lepis does not presuppose an arbitrary or false starting point.[2] We note, moreover, that unlike what is perhaps the typical Lepis scenario, plaintiff does not base her changed circumstances argument on a change in actual income. Rather, she argues that changed circumstances exist due to a change in her earning capacity, thus affecting how much income should be imputed to her. Ordinarily, the imputation of income depends on a finding that a party is "without just cause, voluntarily unemployed." Dorfman v. Dorfman, 315 N.J.Super. 511, 516, 719 A.2d 178 (App.Div.1998); see generally Considerations in the Use of Child Support Guidelines, in Current N.J. Court Rules, Appendix IX-A at 2184 (2001) ("Imputing Income to Parents"). Failure to adequately consider evidence as to changed circumstances has been deemed reversible error. Dorfman v. Dorfman, supra, 315 N.J.Super. at 517, 719 A.2d 178. Finally, we note Judge Fall's apt observation in Connell v. Connell, 313 N.J.Super. 426, 430, 712 A.2d 1266 (App.Div.1998): Children are also entitled to share in the good fortune of their parents to meet their needs in accordance with the lifestyle of their parents. Italiano v. Rudkin (Italiano), 294 N.J.Super. 502, 506, 683 A.2d 854 (App.Div.1996); Walton v. Visgil, 248 N.J.Super. 642, 649-650, 591 A.2d 1018 (App.Div.1991); Zazzo v. Zazzo, 245 N.J.Super. 124, 130, 584 A.2d 281 (App.Div.1990), certif. denied, 126 N.J. 321, 598 A.2d 881 (1991). We have no doubt that the converse proposition generally applies to an equal extent. 585 Indeed, in our view it is implicit in a number of the factors in Newburgh, supra, 88 N.J. at 545, 443 A.2d 1031, such as "the financial resources of both parents," that an adult child desirous of pursuing higher education is not necessarily immunized from the ill fortune of a parent whose lifestyle involuntarily has come to preclude an ability meaningfully to contribute financial support. We are thus satisfied that the present record establishes that, as of the time of the order appealed from, factors under Newburgh, supra, remained to be sufficiently addressed. Defendant had the opportunity to make an appropriate showing in light of those factors and failed to do so. Plainly, then, there is not an adequate basis in the record to conclude that plaintiff has the duty or ability to pay. As a result, we are unable to sustain the order appealed from and are satisfied that it must be reversed. Moreover, because of a failure to focus on the Newburgh factors, which one judge flagged from the very start of the proceedings that eventually led to the instant awards by other judges, and because we contemplate that a full consideration of these factors in light of Lepis and Dorfman, supra, should have been undertaken, we are satisfied that vacating the award to defendant against plaintiff of $41 per week retroactive to its inception is appropriate. The order appealed from is reversed. NOTES [1] We note, however, that although on disability, plaintiff has made substantial purchases, apparently with borrowed money, including a dog and a used pick-up truck, and she has re-tiled the bathroom floor of her home. [2] We mean no criticism of the trial judges and hearing officers who have labored over the course of several hearings during these child support proceedings to handle the issues in dispute. In contrast to our vantage point, they have had to deal with the parties on a largely piecemeal, ad hoc basis, presumably under severe time constraints. They have not had the benefit our somewhat more distant perspective affords, such as the ability to study the entire course of the proceedings, to have transcripts available, and to have at least a modest amount of time for reflection. If a plaintiff and defendant neglect to inform judges or hearing officers that a judge at a previous stage of the proceedings has taken a certain position on the record, such as, for example, with respect to the Newburgh factors, we do not fault the adjudicators for remaining unaware of what the parties have not revealed. The difficulty is, of course, that, even if the judges and hearing officers have not been informed that the parties have already been directed to deal with such issues, this information is not rendered any less important, and our need to intervene is not diminished to any degree, by the parties' failure to impart the necessary information.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515760/	535 S.W.2d 898 (1976) JALCO, INC., Appellant, v. TOOL TRADERS, INC., Appellee. No. 16655. Court of Civil Appeals of Texas, Houston (1st Dist.). March 25, 1976. 899 Marvin Schulman, Houston, for appellant. Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellee. COLEMAN, Chief Justice. Tool Traders, Inc. sued to recover on an account from Jalco, Inc. for the rental of equipment and the value of equipment rented by defendant but not returned. The trial was to the court without a jury and resulted in a judgment for the plaintiff. Jalco contends that the trial court erroneously entered judgment for rentals which were not placed in issue by the pleadings and that Tool Traders was not entitled to recover under the bailment contract for the value of a pump and certain hose which were not returned because evidence was produced that these items were stolen. By Contract No. 64354 Jalco leased from Tool Traders three gas water pumps, three suction water hoses, and three discharge water hoses. The contract provided that Jalco would return to Tool Traders all articles rented in as good condition as received, ordinary wear and tear excepted. On March 4, 1974, Jalco returned two water pumps and one length of suction hose to Tool Traders. The returned equipment was in a condition not acceptable to Tool Traders. Mr. Nichols, the president of Tool Traders, informed Mr. Boyles, the shop superintendent of Jalco, of the repairs which Tool Traders would require and indicated that Jalco could either repair the equipment themselves or make a cash deposit with Tool Traders sufficient to cover the cost of repairs. On the instruction of Mr. Boyles, the truck driver for Jalco returned the pumps and hose to the shop for repair. Tool Traders continued the rental charges on the two returned pumps. One pump 900 was returned on April 16, 1974, and the other on July 10, 1974. Rentals were terminated on the respective dates of return. The third pump was not returned. Mr. Nichols testified that he was told on January 30, 1974, that this pump may have been lost. Tool Traders declared the pump lost on March 4, 1974, and ceased charging rental on that date. The three suction hoses and the three discharge hoses were not returned, and Tool Traders ceased charging rental on July 10, 1974. Jalco's account was charged for the value of the pump and the hoses that were not returned. The rental agreement specified a definite daily, weekly, or monthly charge, and included an agreement that Jalco would pay for repairs of all parts damaged by misuse, or for all other extraordinary damage done. In its original petition Tool Traders alleged the execution of the leasing Contract No. 64354 and attached a copy as an exhibit. It alleged that Jalco breached the contract in that part of the equipment was never returned to Tool Traders. It alleged that the rental on said equipment leased to Jalco became due and Jalco refused to pay same. Tool Traders alleged: "Pursuant to the terms of said lease, Plaintiff has been damaged in the amount of $5,708.42 as evidenced by the statement of account and invoices attached hereto as Exhibit `B', which defendant has failed and refused to pay after many demands, together with attorney's fees and interest as hereinafter alleged." Its prayer was for judgment in the sum of $5,708.42 plus interest, contractual attorney's fees of $556.26, possession of its equipment, costs of court, and general relief. Contract No. 64354, a delivery order referring to that contract dated April 15, 1974, noting the return of Pump No. U4742, and a delivery order referring, apparently by mistake, to Rental Contract No. 63354, dated July 10, 1974, noting the return of Water Pump No. U4829 and calling attention to the fact that three pieces of suction hose and three pieces of discharge hose had not been returned, were attached as Exhibit "A." Exhibit "B" attached to the petition, consisted of two pages of a ledger having vertical columns for old balance, date, folio number, debits, credits, and balance. The numbers appearing under the folio heading appear to be the numbers of the various contracts for rental. The account begins on June 18, 1973, and concludes on July 10, 1974. Various contracts other than 64354 together with the appropriate debits and credits appear on these debit sheets. The final balance dated July 10, 1975, is $5,708.42. Included in Exhibit "B" is an original invoice referring to Order No. 64354, a rental ticket on the lost pump, an invoice for the value of the lost pump, an invoice for rental for the pump returned March 4, 1974, and a rental ticket for all pumps and all the hose for one month, each of which referred to Contract No. 64354. Prior to trial Jalco excepted to plaintiff's petition for the reason that the account attached to the original petition contained items of debit and credit not referable to Contract No. 64354. These exceptions were overruled. At the trial Jalco objected to all evidence concerning contracts, debits, or credits referable to contracts other than No. 64354. The objections were overruled, and the trial court rendered judgment in favor of Tool Traders for the balance due on the account which included charges due on various contracts other than 64354. At the trial Tool Traders offered Exhibit Nos. 1 through 19 which were received into evidence over the objection of Jalco. Only Exhibit No. 2 related to the equipment covered by the rental Contract No. 64354. The objection that the instruments were extraneous and not covered by the pleadings should have been sustained as to all the exhibits except Exhibit No. 2. This was error on the part of the trial court. As a rule in a case tried before the court without a jury a reversal will not be required by reason of such an error since it will be presumed that the trial court did not consider such improper evidence. Here, however, the court entered a judgment in excess of the maximum amount which is supported by the evidence of the charges made by Tool Traders under Contract No. 64354. Under these circumstances we consider that the error in admitting evidence of 901 charges referable to contracts other than 64354 was one that was calculated to cause and probably did cause the rendition of an improper judgment. The fact that the ledger sheets exhibiting the full account between the parties was attached to plaintiff's petition as a part of Exhibit "B" did not authorize the introduction of evidence supporting indebtedness due from Jalco to Tool Traders other than those arising out of the Contract No. 64354 in view of the specific wording of the petition. This is a suit to recover for breach of contract and not a suit to recover other indebtedness which might be due to Tool Traders from Jalco. Jalco also contends that the trial court erred in awarding damages for its failure to return one of the leased pumps. The contention is that there is evidence to prove that the pump was stolen and that Tool Traders neither alleged nor proved negligence on the part of Jalco. In Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975), the Supreme Court noted that where there is a bailment for mutual benefit, a rebuttable presumption of negligence arises and a prima facie case of liability is established by a bailor against a bailee upon proof that the bailed chattel was not returned. The burden of proof on the whole case, including the issue of negligence, is on the bailor but where goods committed to a bailee have either been lost or been returned in a damaged condition, and the bailee's liability depends upon his negligence, the fact of negligence is presumed, placing on the bailee the duty of producing evidence of some other cause of loss or injury. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951). Numerous Texas cases have held that mere proof of loss by fire or theft was sufficient to rebut the presumption of negligence notwithstanding the failure to prove causation or the exercise of due care on the part of the bailee. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App. Houston [1st] 1973, no writ history). In Buchanan v. Byrd, supra, however, the Supreme Court noted that the rule in Texas as applied in fire and theft cases is contrary to the weight and trend of modern authorities and should be "reexamined in an appropriate case." The Court of Civil Appeals for the 14th District in Houston recently took the opportunity to reexamine this rule in Classified Parking Systems v. Dansereau, Tex.Civ.App., 535 S.W.2d 14, 1976, and noted its rejection of the fire and theft rule. That court stated that the bailee cannot discharge his burden of rebutting the presumption of negligence by showing only the bare fact of loss by fire or theft; the bailee must show its own lack of negligence before the presumption can be rebutted. The court further stated that where the presumption of the bailee's negligence was not destroyed by proof that the car was stolen there was no necessity for the bailor to plead negligence. The testimony in this case reflects that the pumps rented to Jalco were used at a subdivision called Diamond Head. The subdivision had guard gates and patrols. Mr. Boyles, Jalco's shop supervisor, testified that he was directed to locate the pumps and was able to locate only two of them. He said that the other pump was reported stolen and it was stolen, "as far as we know." This testimony is insufficient to rebut the presumption of negligence. The testimony is that the pump could not be found. As the Supreme Court stated in Trammell v. Whitlock, supra, Jalco offered an "explanation which does not explain." Since Jalco failed to rebut the presumption of negligence, it was not necessary for Tool Traders to have plead negligence, or to have introduced evidence in support of such pleading, as a prerequisite to its recovery. Classified Parking Systems v. Dansereau, supra. Jalco complains that the trial court erred in permitting Mr. C. A. Nichols, Jr. to testify regarding the value of used water pumps in Harris County. Jalco further argues that the record contains no evidence of market value on the date the pump and hose were "stolen." Mr. Nichols qualified as an expert by testifying that as president 902 of Tool Traders he was familiar with the reasonable prices in Harris County for water pumps of the type involved in the lawsuit. He stated that he purchased equipment of a same or similar nature. However, on cross-examination he admitted that he had never tried to buy or sell used pumps in Harris County; he reiterated that he had knowledge of the used pump market in Harris County. Where a conversion by the bailee of the subject matter of the bailment is established, the bailor is entitled to recover the reasonable market value of the subject of the bailment at the time of the conversion. 7 Tex.Jur.2d, Bailment, § 63, pp. 766-767. Since the bailor will be compensated for the use of the pump by the agreed-on rental payments up to the date that he is notified of the loss of the property, his recovery of the reasonable market value of the pump as of that date will most nearly compensate him for the loss of his property. One pump was declared lost by the parties on March 4, 1974. No rental was charged on that pump after that date. The bailor was entitled to recover the reasonable cash market value of that pump as of that date. Mr. Nichols testified that he purchased all equipment for Tool Traders and that he was familiar with the reasonable prices for pumps in Houston, Harris County, Texas, in 1974. He testified that he had an opinion as to the market value of the pump back in 1974 and that the value of the pump was $569.70. He further testified that he based this opinion on the replacement cost of the pump less depreciation. The replacement cost was determined by securing prices from various dealers as of January 30, 1974. There was no other evidence as to the reasonable cash market value of the pump. The lost pump was 23 months old. When asked if he had any knowledge of the used pump market in Harris County, Texas, Mr. Nichols testified: "I don't know what you are speaking of." He testified that he had never tried to buy and sell used pumps. He further testified: "If you are talking about the used pump market as you just mentioned, I don't know that." We sustain the appellant's point of error that there is insufficient evidence to support the implied finding of the trial court on the issue of the value of the lost pump. Jalco has also objected to the implied findings of the trial court allowing rentals on the equipment from and after the date on which the equipment was tendered to Jalco in a damaged condition. The Supreme Court of Texas has approved the rule stated in the Restatement of the Law of Torts, Vol. 4, Sec. 928, which provides that where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, he can "recover only the difference in its value before and after the harm, except that if, after the harm, it appears to be economical to repair the chattel, he can elect to recover the cost of repairs, together with the value of the loss of use during the repairs, or other losses which may have resulted during such time." Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127 (1950). The evidence will support a finding that Jalco elected to repair the damaged pumps rather than pay to Tool Traders the reasonable cost of such repair. Under those circumstances Jalco was properly held liable for the rental accruing during the time the repairs were being made. Jalco complains that the court erred in awarding attorney's fees to Tool Traders. The rental agreement forming the basis of this litigation provided: "Lessee to pay an additional 15% as collection charge in case of default in payments whereby it becomes necessary for the Lessor to place in the hands of an attorney for collection." Jalco further argues that the recovery should not be allowed for the reason that there is no testimony in the record regarding the reasonableness of the attorney's fees. Such a contention was considered by the Supreme Court of Texas in Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960), where the rule was stated in these words: *903 "It is now settled that as between the legal owner and holder of a promissory note and those who are obligated to pay the same, the former is prima facie entitled to recover the attorney's fees stipulated therein upon the happening of the contingency which makes the same payable. In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable ..." Jalco failed to introduce any evidence which would support a conclusion that the contractual attorney's fee was not reasonable. The point presents no error. This case must be reversed and remanded to the trial court. In view of this action we find it unnecessary to consider the appellant's points of error dealing with its special exceptions which the trial court denied since these matters will not likely occur on retrial. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515761/	535 S.W.2d 269 (1976) Alfred RYDER and Mary Ann Ryder, Appellants, v. Max WESCOAT and Virginia Wescoat, Respondents. No. KCD 27484. Missouri Court of Appeals, Kansas City District. March 1, 1976. Motion for Rehearing and/or Transfer Denied March 29, 1976. Application to Transfer Denied May 5, 1976. Ronald A. Barker, Andrew A. Krohn, Barker & Krohn, Princeton, for appellants. Wm. H. Norton, Jr., Norton & Pollard, Inc., North Kansas City, for respondents. Before TURNAGE, P. J., and WELBORN and HIGGINS, Special Judges. TURNAGE, Presiding Judge. This case poses the problem of a rejection on the part of an option holder and a subsequent acceptance within the time limited. The trial court held the rejection terminated all rights under the option. This court holds the option rights were not terminated. Wescoat, for a valuable consideration, gave Ryder an option to purchase a 120 acre farm upon which Wescoat held an option. The parties agree the deadline for Ryder to exercise the option was September 1. This was prior to the time within which Wescoat had to exercise his option so that in the event Ryder exercised his option with Wescoat, Wescoat would have time in turn to exercise his option and acquire title to convey to Ryder. The parties do not clash on any factual issue, but rather strongly disagree as to the effect of a rejection Ryder made of his right to purchase the farm. It is tacitly agreed that on August 20, before Ryder's option expired on September 270 1, Ryder said he was going to "pass" on the 120 acre farm. Wescoat testified he took this to mean Ryder was not going to exercise his option to purchase such farm, and thereupon talked with a bank about obtaining the necessary financing to purchase the farm himself under his option. Wescoat also stated he talked with a bulldozer operator and obtained a price for doing some work on the farm, and in addition, arranged to do some liming. Wescoat admitted he had not legally obligated himself under any of these arrangements, and stated if Ryder had actually purchased the farm on September 1, he would not have been obligated for any expenditure on the land. On August 30, Ryder caused a contract to be prepared by which he agreed to purchase the 120 acre farm from Wescoat. This contract along with a down-payment was given to Wescoat on that day. Wescoat refused to sign the contract and stated he did not sell the land to Ryder because of Ryder's previous rejection of his right to purchase on August 20. The trial court made findings of fact in which it was found Ryder had informed Wescoat on August 20 that he would not exercise his option to purchase and Ryder had thereby rejected and relinquished his option and right to purchase. The court further found on August 30 Ryder undertook to exercise his option but that Wescoat refused to honor the same or to comply with the terms of the option. On review of this court tried case it is the duty of this court to make its own findings, giving due deference to the finding and judgment of the trial chancellor. Cartmill v. Evans, 498 S.W.2d 541, 544 (Mo. 1973). Since there is no factual dispute, the only question is the legal effect of the rejection by Ryder and his subsequent acceptance. No case has been cited, and diligent research on the part of this court has failed to locate any case involving this precise issue. However, text writers have dealt with the problem. In Simpson on Contracts, 2d Ed., § 23, the author states: "Where an offer is supported by a binding contract that the offeree's power of acceptance shall continue for a stated time, will a communicated rejection terminate the offeree's power to accept within the time? On principle, there is no reason why it should. The offeree has a contract right to accept within the time. At most rejection is a waiver of this right, but waiver not supported by consideration or an estoppel by change of position can have no effect upon subsequent assertion of the right. So an option holder may complete a contract by communicating his acceptance despite the fact that he has previously rejected the offer. Where, however, before the acceptance the offeror has materially changed his position in reliance on the communicated rejection, as by selling or contracting to sell the subject matter of the offer elsewhere, the subsequent acceptance will be inoperative. Here the rejection is a waiver of the offeree's contract right to accept the offer, binding the offeree by estoppel, so his power to accept is gone." To the same effect is Corbin on Contracts, Vol. I, § 94, p. 392, 1963. It must be kept in mind Ryder had purchased for a valuable consideration the right to purchase this farm. This removes this case from the rule applied in those cases where an offer has been made, but the offeree has not paid any consideration for the making of the offer. In those cases, it is uniformly held that a rejection of the offer terminates the offer. Likewise, the making of a counter-offer terminates the original offer and places it beyond the power of the offeree to thereafter accept the offer. However, the courts treat options which are purchased for a valuable consideration in a different manner. Thus, in Sunray Oil Company v. Lewis, 434 S.W.2d 777 (Mo.App. 1968) this court quoted with approval from Corbin on Contracts the rule that a counter-offer does not terminate the power of acceptance when the original offer is an irrevocable offer. In Lively v. Tabor, 341 Mo. 271 352, 107 S.W.2d 62, 66[3-7] (1937) it was stated: "The purpose of an option contract for land is to bind the landowner for a valuable consideration not to withdraw a specified offer for the sale thereof during a fixed period, so that he is bound `to convey his land to another upon condition that such other shall, within a specified time, accept his offer and comply with the terms proposed.'" Since an option stands on a different footing from an offer which is made without consideration being paid therefor, and since it has been held that an option is irrevocable for the time stated, and that a counter-offer does not effect a rejection, it necessarily follows that a rejection standing alone would not end the rights of the option holder. This court adopts the rule stated in Simpson and Corbin and holds that a rejection of an option which has been purchased for a valuable consideration does not terminate the rights of the option holder unless the optionor has materially changed his position prior to a timely acceptance. This rule fully protects the rights of both parties. It extends to the optionor the protection he requires in the event a rejection of the option is communicated to him and he thereafter changes his position in reliance thereon to his detriment. At the same time it protects the right of the option holder to have the opportunity to exercise his option for the full period for which he paid, absent the material change in position. To apply this rule in this case, it must be held Ryder retained his right to exercise the option for the reason Wescoat has not shown any material change in his position between the time of the rejection and the later acceptance. The material change required by the rule adopted is the same as that in the well established rules of estoppel. This requires that a party must suffer a legal detriment or change his position for the worse and be prejudiced. Martinelli v. Security Insurance Co. of New Haven, 490 S.W.2d 427 (Mo.App.1972). Wescoat did not show that he had suffered any detriment, had changed his position for the worse, or had been prejudiced by any action he took between the time of Ryder's rejection and acceptance. Wescoat talked about obtaining a loan, doing bulldozing and spreading lime on the farm, but actually took no action which obligated him to pay prior to Ryder exercising his option to purchase. In that situation, Wescoat did not materially change his position prior to the acceptance by Ryder, and Ryder's acceptance prior to September 1 was a valid exercise of his right to purchase the farm. Wescoat's position on this appeal is based solely on the proposition that a rejection once communicated terminated all Ryder's rights under the option. In taking this position, Wescoat relies on cases involving continuing offers for which no valuable consideration was paid. In addition, Wescoat relies on Doerflinger Realty Company v. Maserang, 311 S.W.2d 123 (Mo.App.1958). However, that case was decided upon a disputed factual question of whether or not a loan had been obtained upon the terms the purchaser agreed to accept. The court did not discuss the issue present in the case at bar, and nothing in that case indicates anything contra to the holding in this case. The parties have not raised any other question concerning the validity of the option. The only question presented to this court is the effect of the rejection by Ryder as shown by the circumstances in this case. The judgment in favor of Wescoat is reversed and the cause is remanded with directions to enter a judgment in favor of Ryder. The court shall direct specific performance of the agreement between Ryder and Wescoat for the purchase and sale of the 120 acre farm. The court is also directed to enter judgment in favor of Wescoat and against Ryder for $1500 admittedly due Wescoat under the option. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515763/	774 A.2d 655 (2001) 340 N.J. Super. 432 ESSEX COUNTY BOARD OF TAXATION, Plaintiff-Respondent/Cross-Appellant, v. CITY OF NEWARK, a municipal corporation of the State of New Jersey; Kenneth A. Gibson, Mayor of Newark; Earl Harris, Michael Bottone, Anthony Giuliano, Marie Villani, James Allen, Anthony Carrino, Henry Martinez, Donald Tucker, Individually and as members of the Municipal Council of Newark; and Frank D'Ascensio, City Clerk of Newark, Defendants-Appellants/Cross-Respondents, and Sharpe James, Mayor of Newark, Defendant-Respondent,[1] and John Grexa, Finance Director of Newark and Joseph Frisina, Tax Assessor of Newark, Defendants. Superior Court of New Jersey, Appellate Division. Argued March 13, 2001. Decided May 25, 2001. 656 Leonard H. Berkeley, Parsippany, argued the cause for appellants/cross-respondents City of Newark, the Municipal Council of Newark and its members and the City Clerk (Weiner Lesniak, attorneys; Mr. Berkeley, of counsel, and Richard L. Rudin, David J. Reich and Paula J. Mercado, on the brief). Julian F. Gorelli, Deputy Attorney General, argued the cause for respondent/cross-appellant (John J. Farmer, Jr., Attorney General, attorney; Nancy Kaplen, Assistant Attorney General, of counsel; Mr. Gorelli, on the brief). Brown and Brown, Newark, for defendant-respondent Mayor Sharpe James (Raymond A. Brown and Alan Dexter Bowman, of counsel and on the brief). Before Judges STERN, A.A. RODRIGUEZ and FALL. The opinion of the court was delivered by FALL, J.A.D. This is an appeal by the City of Newark, the members of its Council and certain of its fiscal officers from an order entered in the Law Division on October 5, 1999, directing them to undertake all steps necessary to complete and implement a municipal-wide revaluation, including entering into an approved revaluation contract on or before December 1, 1999; requiring the City and its tax assessor to provide the Division of Taxation (Division) with a corrected, revised and up-to-date tax map for approval pursuant to N.J.A.C. 18:12-4.7, on or before October 1, 1999; and upon their failure to perform these court-ordered actions, authorizing the Division to contract for revision of the City's tax map and for the revaluation and to fund the costs thereof through application of the City's entitlement to a share of taxes collected from banking corporations pursuant to N.J.S.A. 54:10A-33, from its share of replacement revenue from state-imposed Class II railroad taxes, pursuant to N.J.S.A. 54:29A-24.1 to -24.6, and from its entitlement to revenue-sharing funds pursuant to N.J.S.A. 54A:10-1 to -12. The Essex County Board of Taxation (Tax Board) cross-appeals, seeking an amendment to the October 5, 1999 order, permitting the costs of completion of the tax map and revaluation to be funded by application of the City's entitlement to state aid from the Consolidated Municipal Property Tax Relief Aid (CMPTRA) fund. The procedural background leading to this appeal is lengthy, beginning with the entry of an order by the Tax Board on March 1, 1972, approved by the Division on March 20, 1972, directing the City to implement a municipal-wide tax revaluation, to be implemented and effective for the tax year 1973. The basis of that order was the use by the City of "reproduction cost statistics without change from 1960[,]" and "that the revaluation figures as reflected in the tax duplicates filed in 1961 have not been kept current and revised accordingly[.]" The last property revaluation to be implemented in the City was in 1961, now forty years ago. On March 18, 1974, when the City failed to comply with its revaluation order, the Tax Board filed a complaint in lieu of prerogative writs in the Law Division, seeking an order compelling the City to update its tax map and complete the revaluation, 657 to be effective for the tax year 1976. On May 8, 1974, the Law Division entered an order directing the City to "comply immediately with [the Tax Board's] order of March 1, 1972." Specifically, the order directed the City to complete and effectuate the revaluation by October 1, 1975, to be effective for the tax year 1976. The trial court retained jurisdiction "for the purpose of obtaining compliance with this Order and ... to entertain an application for an extension of time if it appears probable that such an extension would be necessary." On September 11, 1974, an order was entered in the Law Division, directing the City and its tax assessor to show cause why sanctions should not be imposed for failure to comply with the May 8, 1974 order. After a hearing on the order to show cause, the trial court entered an order on October 25, 1974, directing the City and its tax assessor to "comply immediately with the Court's Order of May 8, 1974." The order further directed the Council and its individual members, to "provide, by the enactment of appropriate ordinances, sufficient appropriations pursuant to the pending bid to fund the revaluation program of the City of Newark ordered by the Court... by November 4, 1974." The order also directed the City, its Council and officials to enter into a revaluation contract by November 4, 1974 and authorized the Attorney General to seek sanctions in the event of continued non-compliance. On application of the Attorney General, an order was executed on November 13, 1974, permitting amendment of the complaint to name the Mayor, members of the Municipal Council, the City's Finance Director and City Clerk as individual defendants. When the City and its officials failed to move forward with the revaluation as ordered, the trial court entered an order on December 12, 1974, directing defendants to show cause why the court should not authorize the Tax Board to proceed with the revaluation and update of the tax map at the cost of the City. After a hearing on the order to show cause, the trial court entered an order on January 20, 1975, authorizing the Tax Board to contract for the revaluation and preparation of an updated tax map. The order extended the effective date of the revaluation to the 1977 tax year and directed that the contract costs be the sole responsibility of the City. On application of the Attorney General seeking specific approval of the method to fund the cost of the revaluation program, the trial court entered an order on March 10, 1975, authorizing the Tax Board to receive, from the State Treasurer, the City's share of replacement revenues distributable to the City pursuant to N.J.S.A. 54:11D-1 to -9, and to use such funds as the source for payment of completion of the revaluation and updated tax map. Defendants appealed the March 10, 1975 order. In a reported decision issued on February 4, 1976, we reversed, holding that the order impermissibly resulted in the disbursement of municipal funds without a requisite prior appropriation by the City's governing body. Essex Cty. Bd. of Taxation v. Newark, 139 N.J.Super. 264, 274, 353 A.2d 535 (App.Div.1976). However, we noted that, [S]ince this appeal does not challenge the court's order of January 20, 1975 authorizing the county board to contract for a revaluation and the preparation of a tax map, we need not resolve the validity of that order. We suggest, however, that it is more appropriate that the contracts for revaluation and preparation of a tax map be entered into by the city itself after the municipal council 658 adopts the required appropriation ordinance and resolutions authorizing the execution of the contracts. [Id. at 275, 353 A.2d 535.] We commented further that members of the governing body refusing to take the necessary steps to appropriate funds for the revaluation, "will subject themselves to further charges of criminal contempt as well as to commitment under R. 1:10-5 [now, R. 1:10-3] until the orders have been complied with." Id. at 275-76, 353 A.2d 535. On April 1, 1976, the trial court entered an order directing the Council to enact an appropriation ordinance to fund the revaluation program. The Council failed to do so. Thereafter, the Attorney General moved for enforcement of the April 1, 1976 order. On June 7, 1976, the court entered an order committing the recalcitrant members of the City's Municipal Council to the Essex County Jail until such time as they complied with the April 1, 1976 order.[2] Defendants appealed from the June 7, 1976 order, which was reviewed by the Supreme Court on direct certification. The order of commitment was stayed pending that review. The Court issued its opinion on March 31, 1977, stating, in pertinent part: Such periodic revaluations are an absolute essential, particularly in times of continuous fluctuation of realty values, to accomplish the constitutional and statutory imperative of uniform and non-discriminatory taxation. .... In granting certification herein, we stayed the order of commitment and invited argument by the parties on the appropriateness of a declaratory judgment by this court (a) declaring the validity of the remedy ordered by the Law Division in March 1975 or (b) adjudging that the expense of a revaluation to be ordered by the Board constitute[s] an obligation of the city equivalent to a judgment against it such that enforcement thereof might be had in the manner provided by N.J.S.A. 2A:17-72 and N.J.S.A. 54:4-43 and 44. All parties now before us agree that it is preferable that the court adjudicate a means of executing the revaluation and providing for its payment without insisting upon incarceration of the councilmen as the sole means of achieving that result. While we do not condone the refusal of the defendant councilmen to comply with the law mandating periodic revaluations, we are in agreement with the Attorney General that the public interest in this matter urgently dictates resort to any valid recourse which will expeditiously accomplish the revaluation so long overdue and so essential to the proper assessment for taxation of all taxable property in the city. It is obvious that protraction of a contest of wills between the councilmen and the court is not the best way to achieve the desired result. Upon careful consideration of the matter, we are satisfied that the remedy invoked by Judge Margolis in March 1975 is legally correct and capable of achieving the desired objective. In effect, the trial court in 1975 ordered a diversion to the Board, for financing of the revaluation, of tax revenues distributable by the State Treasurer to the city for its general purposes under N.J.S.A. 54:11D-1 et seq. The Appellate Division thought that the statutory prohibition of expenditure by municipalities of unappropriated 659 funds stood in the way of that recourse. N.J.S.A. 40A:4-1 et seq.; N.J.S.A. 40A:4-57. 139 N.J.Super. at 274-75, 353 A.2d 535. We think otherwise. .... This is not a case of a municipality undertaking an expenditure not undergirded by an appropriation but rather a municipality refusing to make an expenditure which the law renders mandatory. [Essex Cty. Bd. of Taxation v. Newark, 73 N.J. 69, 72-74, 372 A.2d 607 (1977) (citations and footnote omitted; emphasis added).] Upon application for reconsideration, the Court entered the following order: ORDERED that the funding of the contract of revaluation and ancillary work thereto is to be provided from funds distributable to the City of Newark under N.J.S.A. 54:29A-24.1 to 24.6, N.J.S.A. 54:10-1 et seq., and N.J.S.A. 54:10A-33. [Id. at 76, 372 A.2d 607.] On July 28, 1977, the trial court entered an order authorizing the Tax Board "to enter into a contract of revaluation and any work necessarily ancillary thereto for the City of Newark[,]" and to act "as the agent of the City of Newark." The order further directed, in pertinent part: 9. That the funding of the contract of revaluation and ancillary work thereto is to be provided to the Essex County Board of Taxation from funds distributable to the City of Newark under N.J.S.A. 54:29A-24.1 to 24.6, N.J.S.A. 54:10-1 et seq., and N.J.S.A. 54:10A-33 by the State Treasurer; .... 15. That this Court retain[s] jurisdiction of this matter for purposes of insuring compliance with the ordered relief. In accordance with the July 28, 1977 order, the Tax Board entered into an agreement with PRC Jacobs, Inc. for performance of the revaluation. However, the revaluation was never completed due to a series of legislative enactments in response to the ordered property revaluation. See L. 1976, c. 58, eff. July 28, 1976 (prohibiting cities of the first class having a population in excess of 300,000 from entering into a contract for the general revaluation of real property for six months); L. 1980, c. 124, eff. October 16, 1980 (prohibiting the revaluation of real property in a city of the first class having a population in excess of 300,000 for the tax years 1981 to 1982, inclusive); L. 1982, c. 224, eff. December 31, 1982 (no city of the first class having a population in excess of 300,000 shall be required to implement a revaluation of real property for the first two months of 1983); L. 1983, c. 30, eff. January 26, 1983 (no city of the first class having a population in excess of 300,000 shall be required to implement a revaluation for the tax years 1983 to 1984, inclusive); L. 1985, c. 152, eff. April 25, 1985 (no city of the first class having a population in excess of 300,000 shall be required to implement a revaluation for the tax year 1985); L. 1985, c. 511, eff. January 21, 1986 (no city of the first class having a population in excess of 300,000 shall be required to implement a revaluation of real property for any tax year commencing or terminating within nine months after the completion of the final report of the Property Tax Assessment Study Commission); L. 1991, c. 112, eff. April 19, 1991 (no city which has not implemented a revaluation of real property since January 1, 1970 shall be required to implement a revaluation until January 1, 1992). By letter dated July 12, 1993, the Tax Board advised the City's Tax Assessor to submit monthly progress reports on the 660 status of the revaluation. The Tax Board noted that "unless the [B]oard reconsiders the revaluation order and further receives approval for the same from the Director, the revaluation order is still in full effect." In a progress report dated March 4, 1994, the City's Tax Assessor advised that the City would complete its tax maps in May 1994, approve a bonding ordinance for the revaluation in November 1994, and award a revaluation contract in December 1994. After those projected deadlines were not met, the Tax Board adopted a resolution on January 10, 1995, requesting the Attorney General initiate enforcement proceedings against the City seeking "the compliance, completion and implementation of a district-wide revaluation for the City of Newark[.]" By letter to counsel for the City dated September 24, 1996, the Attorney General advised: This letter is to put the City on formal notice that, at the request, and on behalf, of the Essex County Board of Taxation, this Office intends to take legal action seeking to compel compliance with the outstanding revaluation orders if the City does not voluntarily comply. Please advise in writing by October 10, 1996 whether the City intends to comply. If we do not receive a written response by that date, we will file an application pursuant to R. 1:10-3. Counsel for the City replied to the Attorney General by letter dated October 7, 1996, advising that the City "does not believe that revaluation would be proper until it has exhausted all avenues of bringing... previously untaxed properties onto the tax rolls so that they could be included in the revaluation[,]" and requested a meeting "for the purpose of perhaps negotiating some middle ground which would be satisfactory to the City Council as well as to the State of New Jersey." Further discussions between the parties took place without reaching a resolution. In December 1997, the Governor appointed 25 individuals to the New Jersey Property Tax Commission. The Commission, with its membership consisting of academics, government officials and individuals from the business community, were charged "with recommending ways to help county, school and municipal officials ease the heavy burden of property taxes on New Jersey residents." Property Tax Commission "Report of Recommendations to Governor Christine Todd Whitman," p. 1, September 1998. In addition, "[t]he Commission sought to address both the cost of New Jersey's method of providing local government services as well as the state's historically heavy reliance on the property tax to fund these government services." Ibid. The Commission recognized the problems at issue in the present matter by stating, in pertinent part: Some municipal governments have forestalled long-overdue property revaluations because they fear the tremendous burden that may be placed on taxpayers who would suddenly face dramatically higher tax bills. .... The Commission also recognizes that some New Jersey jurisdictions have not performed property valuations in decades, despite a Constitutional mandate to perform them yearly. This is largely due to local political and economic factors that have militated against comprehensive property revaluations in such municipalities. As a consequence, the property tax base in these jurisdictions is skewed. As more and more time passes and the imbalances remain uncorrected, the potential remedial action would appear to have ever more dramatic consequences, and revaluation is deferred 661 on that account. The result is an ever-spiraling inequity. To date, New Jersey has had insufficient fiscal mechanisms in place to cushion the shock of revaluation. [Id., Chapter V, p. 1.] The Commission also recognized a "host of problems in the administration of the property tax in New Jersey." Ibid. These included, "a fragmented administrative structure with a concomitant blurring of accountability, failure to take full advantage of computer-aided mass property appraisal technologies, and difficulties in accurately valuing commercial and industrial property." Ibid. As a means of combating these problems, the Commission recommended "a more centrally administered assessment system that would ensure regular adjustments in property values across the state[,]" and proposed "that the State establish a program to absorb, for a fixed period of time, property tax burden increases that are the result of municipal consolidation" by enacting "a State-funded program to phase in over three years the property tax increase directly resulting from revaluation." Id. at Chapter V, p. 2. In the monthly report issued on April 29, 1998, the City's Tax Assessor listed an estimated completion date of July 1998 for resubmitting corrected tax maps to the Division, and an estimated completion date of December 1998 for forwarding a recommendation to the Council that it award a revaluation contract. Tax maps, which were submitted by the City to the Division for approval, were returned to the City for revisions and corrections on April 4, 1998, but were not resubmitted to the Division for approval. In a report issued by the Council dated May 7, 1998, entitled "Revaluation Update # 2," the Council stated its intent to "strongly resist revaluation." On application by the Tax Board, the trial court issued an order on June 9, 1998, directing defendants to show cause on June 29, 1998, why the prior orders of the court directing submission of an updated tax map and completion of the revaluation should not be enforced. The City opposed the Tax Board's application with the affidavit of Howard S. Lazarus, Director of Engineering of the City of Newark. Mr. Lazarus outlined the efforts taken by the City to complete revisions to the tax map and stated "the City has taken steps by contracting with companies and dedicating certain staff members to work on completion of the tax maps." With one exception, Mr. Lazarus further stated, "[i]t is the City's intention to resubmit these maps for review of the required comments [by the Division] and changes on August 15th [, 1998.]" The City also filed a cross-motion, seeking an order dismissing the verified petition or, in the alternative, the vacation of the Tax Board's March 20, 1972 order, or a stay of the enforcement proceedings. The City submitted the supporting affidavit of its Tax Assessor, Evelyn E. Laccitiello, who stated, inter alia, that: 17. The changes made to real property assessments in the City of Newark as a result of demolitions, new construction and the large number of tax appeals has cast the conclusions reached by the Board in their 1972 Order in serious doubt as they relate to present conditions. In addition, changes in assessment procedure have made the Board[`]s conclusions inapplicable to the present situation. For example, new construction is placed on the assessment rolls using current reproduction costs. .... 19. On January 10, 1995, the Essex County Board of Taxation adopted a Resolution requesting that [its counsel] 662 undertake the requisite legal action to bring about compliance, completion and implementation of a district wide revaluation of the City of Newark. The reasons given for adopting this Resolution [are] that the Director's ratio is 16.21% for 1994 and that the City of Newark's general coefficient of deviation is 49.77% for 1994. These conclusions were reached without providing the City of Newark the opportunity to appear and refute the facts upon which they were based. In addition the County Board has adopted no Order approved by the Director of the Division of Taxation incorporating these findings and has therefore prevented the City of Newark from challenging said conclusions in the Tax Court. Ms. Laccitiello further stated that the City awarded a contract to William Merdinger, MAI, CTA, to study the impact of a revaluation, and that Mr. Merdinger's May 1996 "report shows the devastating effect that a revaluation would have on residential property owners in the City." Mr. Merdinger's affidavit was also submitted by defendants, outlining what he characterized as the "dramatic" change in the residential tax burden that a revaluation would create, predicting that a revaluation would cause flight from the City and the erosion of its tax base. The Tax Board's enforcement application and defendants' cross-motion were argued in the Law Division on February 11, 1999. It was noted by counsel for the Tax Board that the Division had conditionally approved the City's tax map for revaluation purposes, and "that the revaluation can proceed with the tax maps as they are with the understanding that the tax maps would be completed before the ... revaluation is completed." Accordingly, the Tax Board's application to the court was directed to the revaluation. In granting the Tax Board's application, and denying the City's cross-motion, the motion judge stated, in pertinent part: The County Tax Board as agent to the city is responsible for seeing to the completion and implementation of the revaluation program for the earliest tax year possible. The funding of this contract is to be provided to the County Tax Board from funds distributable to the City of Newark by the State Treasury. The revaluation was undertaken in accordance with this order, but was never implemented ... [b]ecause of a series of legislative moratorium[s] commencing with July 28th, 1976 through and including January 1, 1992. It is well to note that from 1982 to 1992 this moratorium legislation was permissive and would have permitted Newark to implement a revaluation had it chosen to do so, which it did not. This is said because Newark could have implemented a revaluation, complete[d] it in 1981, to be effective for the tax year 1983, while the data was still fresh and useable. To this date, the City of Newark has failed to comply, both with the tax board's revaluation order and with the order that this Court entered on May 8, 1974. The last revaluation being some 37 years ago in 1961. .... The defendants, still to date, have not submitted to the Division of Taxation for approval a contract of a revaluation firm for the completion and implementation of the court ordered revaluation of the City of Newark.... .... In the brief filed on behalf of the municipal council, [counsel] states that this action for relief under [R. 1:10-3] should be dismissed since the city has not willfully violated the court order and, in fact, completed a revaluation. 663 And, further, states that the revaluation was never implemented because moratorium legislation was enacted by the Legislature from 1976 to 1992. It should be readily understood that there has been a willful failure to comply with this Court's prior order and the direction of the Supreme Court in 1977 because this Court and the Supreme Court expressly stated through its order of July 28, 1977 that the cost of the revaluation and any work necessarily ancillary thereto is to be the sole responsibility of the City of Newark. And that the County Board of Taxation, as agent of the city, is responsible for seeing to the completion and implementation of the revaluation for the earliest tax year possible. And the language of this order was taken directly from the opinion of the New Jersey Supreme Court[.] ... .... What the board seeks in this case is relief by application in the action and the board is entitled to the benefit of the rule unless the city can show that there is no entitlement to relief. The order of this Court based on the opinion of the Supreme Court remains viable to this day and the city has willfully failed to comply with the order in that opinion. The city then make[s] the argument or at least makes the statement that the board should be required to file a new complaint in lieu of prerogative writ[s] to require the city to undertake a current revaluation. That is the very relief that the board seeks by way of this petition under [R. 1:10-3] and the filing of a new complaint would be a waste of time and activity. This Court is not the "permanent revaluation supervisor" as the defendant argues in it brief. The Court is simply complying with the mandate of the Supreme Court which it is obliged to do. .... What the city seeks by requiring the filing of a new complaint would be to further delay the revaluation and would not change the underlying issue in this enforcement proceeding. The sole issue before this Court is whether Newark has complied with this Court's order based upon the opinion of the Supreme Court. The defendants' failure to do so is recognized by the Supreme Court in its opinion. .... It is true that the property tax commission was appointed by Governor Whitman and reported [its] recommendations to her in September of 1998. Those recommendations have not in any way been adopted as to the State. It is also true that there is a Bill before the Legislature by Assemblyman Tucker seeking certain phases in revaluation. It is further true that while the commission reports have been submitted in September 1998 and the Bill before the Legislature has been submitted in the year 1998, the commission reports have not been acted upon nor has the Legislature at this writing taken any action with respect to any of the Bills presently pending here. .... On balance, considering the equities of the situation, and taking into consideration the opinion of the Supreme Court, the earliest tax year for the revaluation would militate toward a stay of up to six months to allow the Legislature time to consider the commission report and any bill pending before it and determine just how the city shall revalue its property. An order was executed on March 5, 1999, granting the Tax Board's application and denying the City's cross-motion. In its order, the trial court granted a stay to the City of up to six months to allow the 664 Legislature to consider and act on the Property Tax Commission's recommendations and pending legislation, with the parties to appear before the court on September 7, 1999. As required, the parties appeared before the court on September 7, 1999 for further argument. Counsel for the City outlined numerous remedial legislative efforts and requested that the stay contained in the March 5, 1999 order be extended for an additional six-month period to allow for further action by the Legislature on pending bills. The judge reviewed the action taken by the Legislature and the proposed bills before it stating, in pertinent part: [T]hese proposals, and that's what they are, do little to change what the Supreme Court said in its opinion in this case ... in which it said that the equities of the situation are that the earliest tax year for revaluation should be considered.... If you take the opinion of the Supreme Court in the case that we have before us now and measure it against [Switz v. Township of Middletown, 23 N.J. 580, 130 A.2d 15 (1957) ], the present Supreme Court opinion would have to govern and the revaluation must commence. On October 5, 1999, the trial court entered an order discharging the stay, and requiring the City to provide the Division with a corrected, revised and up-to-date tax map on or before November 1, 1999, and to appropriate sufficient funds and enter into an approved revaluation contract on or before December 1, 1999. Upon the City's failure to do so, the order provided for the Division to contract, either to secure an up-to-date tax map or for the performance of the revaluation, or both. In the event it is necessary for the Division to contract to do so, the necessary funds are to be provided from funds distributable by the State to the City pursuant to N.J.S.A. 54:10-1, et seq., N.J.S.A. 54:10A-33, and N.J.S.A. 54:29A-24.1 to 24.6. The proposed form of order submitted to the court by the Attorney General's Office had included a request for inclusion in the order of the City's entitlement to CMPTRA funds as a source of payment of the costs of both the updating of the tax maps and revaluation. Counsel for the City objected, on the basis that neither the rulings made by the trial court at the September 7, 1999 hearing, nor the Supreme Court's March 31, 1977 order that was being enforced, provided for the use of CMPTRA funds as a source for payment of the costs of the revaluation or updating of the tax maps. The October 5, 1999 order did not permit the use of CMPTRA funds for these purposes. On November 23, 1999, we entered an order, denying the City's application for a stay. It appears the City did not seek a stay from the Supreme Court pursuant to R. 2:9-5(b). On July 5, 2000, we granted the application of Sharpe James, Mayor of Newark, to file a respondent brief, nunc pro tunc. On appeal, the City presents the following arguments for our consideration: POINT I THE TRIAL COURT ERRED IN ALLOWING THE COUNTY BOARD TO DISREGARD PROPER PROCEDURE. POINT II THE COURT BELOW ERRED IN NOT DELAYING REVALUATION IN ORDER TO GIVE THE LEGISLATIVE AND EXECUTIVE BRANCHES SUFFICIENT OPPORTUNITY TO ACT. On its cross-appeal, the Tax Board argues: THE COURT BELOW ERRONEOUSLY LIMITED THE FUNDING OF 665 THE REVALUATION TO SOURCES OF STATE AID INSUFFICIENT TO COVER THE COST, CONTRARY TO THE INTENT AND SPIRIT OF THE SUPREME COURT'S REMAND. I The City argues that in ordering the revaluation, the Tax Board failed to follow the required procedures, as outlined in N.J.A.C. 18:12A-1.14(b)(1)(i)(x), and failed to gain approval from the Director of the Division of Taxation before the passage of its 1995 resolution, pursuant to N.J.A.C. 18:12A-1.14(a). Our review of the record discloses that this argument is clearly without merit and does not warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). On this issue, we are substantially in agreement with the reasons for entry of the March 5, 1999 and October 5, 1999 orders as articulated by Judge Harry A. Margolis in his oral opinions delivered on February 11, 1999 and September 7, 1999. We note the following. The resolution adopted by the Tax Board on January 10, 1995, specifically notes that "the City of Newark ha[d] been previously ordered to complete and implement a district-wide revaluation[.]" Moreover, the resolution states the Tax Board had consulted with the Attorney General's Office "regarding the enforcement of the Tax Board's previous order for revaluation as it pertains to the City of Newark[.]" It is clear that the 1995 resolution was not a new order of revaluation, but rather constitutes a logical step in the procedure to enforce the March 1, 1972 revaluation order, which the City failed to comply with. Accordingly, there was no requirement that the Tax Board follow the procedures outlined in N.J.A.C. 18:12A-1.14 (b)(1)(i)(x), or seek further approval from the Division. II Citing to Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957), the City further argues that the trial court erred by refusing to further delay implementation of the provisions of the October 5, 1999 order directing the revaluation process to commence, to allow the Legislature to further act on revaluation issues. This argument is also clearly without merit and does not require extensive discussion. See R. 2:11-3(e)(1)(E). In Switz, supra, the trial court entertained an action by a property owner "to compel assessment of all realty in [the] township at full and fair value and to compel equalization of all assessments in [the] county at such value as required by statutes." 23 N.J. at 580, 130 A.2d 15. The trial court granted plaintiff the relief sought and the township and its tax assessor appealed. Ibid. We affirmed in part and reversed in part, Switz v. Middletown Tp., 40 N.J.Super. 217, 122 A.2d 649 (App. Div.1956), and the Supreme Court granted certification. 22 N.J. 222, 125 A.2d 234 (1956). Recognizing the harsh consequences that the act of assessment at true value may have on the public, and that the Legislature recognized the concern and had committed to acting on it, the Court held: The inquiry as to true value shall proceed, but the mandate otherwise shall not apply to the tax years 1957 and 1958, thereby to afford the Legislature the opportunity to take such measures and provide for such administrative procedures as its own inquiry may prove to be essential to the public interest, and to allow the Township time needed for the fulfillment of the project. [Switz, supra, 23 N.J. at 598, 130 A.2d 15.] 666 As in Switz, this case focuses on issues of great concern to the public as revaluation could have significant economic implications for people who reside in the City. However, despite a constitutional mandate and a Supreme Court order, it has been forty years since the City revalued its property. In recognition of the impact of revaluation, the trial court delayed implementation of its order in 1999 for a period of six months, in contemplation of action by the Legislature. However, since the passage of the "Revaluation Relief Act of 1999," L. 1999, c. 216, §§ 1, 2, 10-12, eff. September 21, 1999, codified as N.J.S.A. 54:1-35.51 to -35.55, and amendments to the "Revaluation Relief Act of 1993," N.J.S.A. 54:1-35.39 to -35.50, L. 1999, c. 216, §§ 3-9, eff. September 21, 1999, permitting the phase-in of revaluations over a period of five years to mitigate the anticipated "fiscal shock," we have been presented with nothing indicating that further legislative action is imminent or even probable in the reasonably foreseeable future. It has been forty years since the City's last revaluation and more than twenty-four years since the Supreme Court ordered the method for funding the City's revaluation, enforced by the trial court in its October 5, 1999 order. We find no abuse of discretion by the trial court in rejecting the City's request for an additional stay of the implementation of the revaluation order. Moreover, as in Switz, the inquiry as to true value can proceed and the Legislature can take action to effect its result. III In its cross-appeal, the Tax Board argues that of the three funds from which the trial court authorized the diversion of funds from in order to fund the revaluation, as contained in the October 5, 1999 order, two are no longer legislatively funded in their original form. The Tax Board contends that the single remaining fund is insufficient to cover the anticipated costs of the revaluation, contrary to the intent of the Supreme Court's order issued on March 31, 1977. See Essex Cty Bd. of Taxation v. Newark, 73 N.J. at 76, 372 A.2d 607 (1977). One of the funding sources ordered by the trial court and approved by the Supreme Court is "replacement revenue to municipalities," pursuant to N.J.S.A. 54:29A-24.1 to 24.6, designed to compensate municipalities for revenue lost due to the uniform state taxation of railroad property. The Tax Board notes that, beginning with fiscal year 1995-96, railroad property tax replacement revenues were included within the CMPTRA funds provided each fiscal year to municipalities.[3] This was the result of the consolidation of various state aid programs into one fund, now known as CMPTRA, beginning with the fiscal year 1996 annual appropriations act. See L. 1995, c. 164. The Tax Board contends that unless this court authorizes the Division to apply CMPTRA monies due the City to pay for the revaluation costs, railroad replacement revenue would not be available as a funding source, as originally intended in the March 31, 1977 order of the Supreme Court. See Essex Cty. Bd. of Taxation, supra, 73 N.J. at 76, 372 A.2d 607. Stated another way, railroad replacement revenue, previously separately funded in accordance with N.J.S.A. 54:29A-24.1 to -24.6, is now encompassed within the City's entitlement to CMPTRA funds. The Tax Board also notes that funding the revaluation through application of the City's entitlement to revenues collected 667 from banking corporations, pursuant to N.J.S.A. 54:10A-33, is not possible because that source of aid is not currently being funded.[4] The third funding source contained in the October 5, 1999 order, the "State Revenue Sharing Act of 1976," N.J.S.A. 54A:10-1 to -12, involves senior citizen and veterans' deduction replacement revenues. The Tax Board argues this funding source "is insufficient to reimburse [the Division] fully for the anticipated cost of the revaluation project[,]" stating that for fiscal year 1999-2000, revenue distributable to the City pursuant to that source "was approximately $450,000[,]" and that "[e]ven with the phased-in increase of the veterans deduction authorized under N.J. Const. [A]rt. 8 § 1, ¶ 3, as amended by ACR29, [the Division] could not hope to recoup the cost of revaluation for several years after completion of and payment for the project." The cost of the revaluation is estimated to be approximately $6.2 million over a three-year period.[5] The Tax Board further asserts that "[f]or FY 1999-2000, approximately $55 million was appropriated for distribution to Newark under CMPTRA." The City contends that by designating the three funding sources contained in its March 31, 1977 order, "the Supreme Court made a conscious decision that only certain specific designated State funding sources should be withheld[,]" and that in 1977 "Newark had other State funding sources that were not made subject to the Supreme Court's decision." Our review of the City's certified audit for 1977, contained in the record as supplemented, discloses that the three funding sources designated in the Court's March 31, 1977 order generated in excess of $4 million in state aid revenue to the City during 1977. Although the City had other sources of State aid in 1977 that were not designated in the Court's March 31, 1977 order, the three funds that were designated would have been sufficient, prior to the creation of CMPTRA, to adequately fund the costs for the revaluation and up-dating of the tax map at that time. However, due to subsequent revisions by the Legislature to the methods by which State aid is distributed to municipalities, the sources designated by the March 31, 1977 order are now either no longer funded, have been incorporated under CMPTRA, or are presently inadequate to fulfill the mandate contained in the Court's order. Based on our careful review of the history of this case, we conclude that the intent of the Supreme Court order entered on March 31, 1977 was to provide a source of funds from which the costs of the ordered revaluation could be paid. It is undisputed that due to changes in the methods of providing State aid to municipalities, those funding sources designated by the Supreme Court, although once adequate to fund "the contract of revaluation and ancillary work thereto[,]" are now insufficient to do so. Moreover, the record discloses that the City was distributed $54,802,471.35 in CMPTRA funds during fiscal year 1999-2000. Accordingly, in order to effectuate the intent of the Court's order that State aid due to the City be diverted to fund the costs of the revaluation contract, we direct that paragraphs 5 and 10 of the October 5, 1999 order be modified to require that the costs incurred by the Division in updating the tax map and to pay for the property revaluation of the City shall be paid from State aid funds distributable to the City under N.J.S.A. *668 54A:10-1 to -12, and the Consolidated Municipal Property Tax Relief Aid (CMPTRA) fund. We affirm the October 5, 1999 order, as modified, and remand for entry of a modified order consistent herewith. We do not retain jurisdiction. NOTES [1] Although listed as a member of the Municipal Council in the initial caption, Sharpe James was subsequently elected Mayor of Newark and, by order entered on July 5, 2000, was granted leave to file a respondent brief, as Mayor. [2] The Municipal Council members ordered to be incarcerated were Councilmen Anthony Carrino, Sharpe James, Henry Martinez, Donald Tucker, and Councilwoman Marie Villani. [3] This assertion by the Tax Board, supported by the Appropriations Handbook for years 1995-95 and 1999-2000, is not disputed by the City. [4] The Tax Board submits no authority to support this assertion; however, the City does not dispute same to be the case. [5] This assertion by the Tax Board is not disputed by the City.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515769/	774 A.2d 296 (2001) In re KO.W. and K.W. Nos. 98-FS-128, 98-FS-187. District of Columbia Court of Appeals. Argued April 17, 2001. Decided June 7, 2001. 297 Annie R. Alexander, appointed by this court, for appellant. Sheila Kaplan, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellee, the District of Columbia. 298 Before WAGNER, Chief Judge, and SCHWELB and GLICKMAN, Associate Judges. SCHWELB, Associate Judge: S.S., the father of respondents K.W., born on February 23, 1989, and Ko.W., born on November 24, 1990, appeals from an order barring all visitation between him and his sons. The order was entered without an evidentiary hearing, and the trial court has never made a finding regarding whether the key allegation against the father, namely, that the father sexually abused K.W., was true or false. On appeal, the father contends, in substance, that the denial of visitation was based on an inadequate factual record and insufficient findings, and that the trial judge failed to apply the correct legal standard. We agree and reverse. I. BACKGROUND On December 11, 1995, the principal of the elementary school that K.W. was attending called the police to report that D.W., the mother of the two respondents, had struck K.W., then six years old, in the face with her fist, causing a black eye and other bruises. The mother told the police that she felt depressed, and she admitted striking her son. Both respondents were removed from the mother's home and placed in the custody of the Department of Human Services (DHS). On December 18, 1995, an Assistant Corporation Counsel petitioned the court for an order declaring both boys to have been neglected by the mother. The petition contained no allegation against the father. Attorneys were appointed for the mother and for the father, and a guardian ad litem was appointed for the respondents. The court conditionally released both boys to G.W., their maternal aunt, pending further order of the court. On March 14, 1996, the mother entered into a stipulation with the District and with the guardian ad litem. In the stipulation, the mother acknowledged that she had struck K.W., as alleged, that she had been depressed at the time, and that her "depression was caused in part by inappropriate use of drugs, specifically cocaine." The mother admitted that she was "presently unable to provide proper control and supervision over the respondents," but she agreed to participate in drug therapy and parenting classes "with a goal of drug rehabilitation of the mother and reunification of the mother and the children." It was agreed that the respondents would continue to live with their maternal aunt pending final disposition. The father was not a party to the stipulation, and no finding was made that he had neglected or abused either of the respondents. On May 15, 1996, the trial judge entered a disposition order in conformity with the stipulation. The respondents were placed in the third-party custody of the maternal aunt. The disposition order also authorized supervised visitation of the children by the mother. The order further stated: Visitation is PROHIBITED for [the father for] the following reasons: Allegations of abuse against respondents. The prohibition against visitation by the father was apparently based on the following passage in the pre-disposition report, which had been prepared for the court by Andrew T. Donelan, a DHS social worker: Both children are presently doing very well in the care of their maternal aunt. However, within the past few months, their maternal aunt found the two boys engaged in some sexual activity together. Upon talking to the children about this incident, the boys 299 reported having seen their parents engage in sexual intercourse together. The older boy (K.W.) also reported that his father, [S.S.], would lie down on top of him. Based on these reports, the boys were referred to the Child Protection Center at Children's Hospital for a sexual abuse evaluation in late March.[1] At the time that visitation by the father was prohibited, the father had not yet been served with any papers in the case, nor had he appeared in court. According to representations made to the trial court by the father's appointed attorney,[2] the attorney was first able to locate her client in the late summer of 1996. It appears that the father had been made aware of the court case, but he apparently believed that the proceedings were against the mother only, and that they did not concern him. The father appeared in court for the first time at a review hearing on September 10, 1996, and he requested that he be permitted to visit his two sons. In an order entered at the conclusion of that hearing, the trial judge continued in effect the prohibition against visitation by the father. On September 17, 1996, the father, through appointed counsel, filed a "Motion to Compel Visitation Rights of Father." In his motion, the father denied that he had engaged in any improper conduct visa-vis K.W., and he claimed that K.W.'s mind was being poisoned against the father by the maternal aunt: Neither the Metropolitan Police Department Complaint nor the Superior Court of the District of Columbia Family Division PETITION allege[s] any misconduct by the father toward his children. The mother is the named abuser in both the complaint and the petition. However, in court the mother and the caretaker made some unsubstantiated allegations based on speculations and interpretations from drawings on the children's walls, misbehavior by the children when the father was not around, and a statement by seven year old [K.W.] that his father got on top of him. This statement was repeated to [the social worker] during testing at The Washington, Assessment and Therapy Services (WATS). During the test [K.W.] described his worst memory as the time "my father got on top of me." No other description is given of the alleged incident. Whether or not the incident took place, or was rough housing or some type of disciplinary action that was not at all of a sexual content is not discussed. Most importantly, whether or not the child is simply remembering an actual occurrence or a suggestion implanted in his mind by his caretaker, his maternal aunt, [G.W.,] or others was not discussed. At the 9-10-96 court review, the father reports he never sexually abused his child and that [G.W.] has publicly accused him of being a rapist. This accusation was 300 made in the presence of the children. She has repeatedly made derogatory remarks about the father in front of the children and made attempts to turn the children against their natural father (at the last court hearing [the] attorney for the father ask[ed] the court to prohibit the caretaker from continuing her attempts to turn the children against their father). A child of a tender age as [K.W.] can actually be made to believe that something happened even though it never happened. When an event is retold time and time again to a child the child can easily believe that it is true. Notwithstanding the father's efforts to resume contact with the respondents, his motion for visitation rights remained pending for more than seventeen months. Following each review, the judge extended the prohibition against visitation by the father on account of the prior "allegations of sexual abuse." No hearing was held to determine whether or not the sexual abuse had in fact occurred. The judge did attempt, however, to develop more information regarding whether visitation by the father would be in the respondents' best interest. In an order dated December 31, 1996, the judge referred the father for psychological evaluation and for drug testing. On February 7, 1997, the father appeared for a psychological evaluation at DHS' Youth Forensic Services Division. In his report of that evaluation, the examining psychologist concluded that the father was more likely to abuse his sons physically than sexually. The psychologist expressed the view that although custody should not be awarded to the father, supervised visitation by the father would not be unreasonable: While achieving visitation with his sons appears to be a realistic goal for him, his goal of having full custody and parenting them appears to be quite unrealistic. It is unlikely, given the results of this evaluation, that [the father] could adequately parent or care for the children at this time. If he is granted visitation privileges, they should be supervised, and should be closely regulated by observations of [K.W.'s] and [Ko.W.'s] reactions. With respect to the results of the drug testing, counsel for the District represented at a hearing on October 2, 1987, that the father had tested positive for cocaine, most recently on April 15, 1987. The father did not contest this assertion. According to representations made to the court by the father's attorney, however, the father attended drug testing regularly, and his urine tested positive twice for the presence of cocaine but negative thirty-one times. This representation by counsel for the father was not contradicted by any other participant at the hearing. On March 13, 1997, the judge directed that the father participate in parenting classes, in a domestic violence program, and in Narcotics Anonymous/Alcoholics Anonymous. The father's compliance (or lack thereof) with these directives is disputed by the parties. On September 30, 1997, the DHS social worker prepared a "Permanency Planning Hearing Report" in which he recommended that the court's goal for the two respondents be changed from reunification of the family to adoption. II. THE HEARING AND THE COURT'S ORDER A "permanency planning" hearing for K.W. and Ko.W. was scheduled for October 3, 1997. On the day of the hearing, the father's attorney filed what she 301 termed a "Motion for Return of Children to Biological Father or to Biological Mother and Father and Motion in Opposition to Recommendation for Adoption." In her motion, counsel represented that the respondents' father and mother were living together and that they intended to be married. The father again denied the allegations of sexual abuse, and he claimed that his innocence had been "confirmed" by the police and by the results of his psychological evaluation. With respect to his compliance with the conditions imposed by the court, the father represented: To date [the father] has attempted to gain the court's permission to visit his children. He has complied with the court's order for drug testing and has not tested positive since April 15, 1997. Drug records indicate that since December, 1996 until May of 1997, [the father] tested positive two times and negative 31 times. The last positive was on April 15, 1997 (almost six months ago). [The father] fulfilled his testing requirements on April 11, 1997 but continued to test until May 20, 1997. [The father] has attempted to enter the NA program and has asked his counsel to assist him in that area. He has also attended parenting class. He was under the impression that the Psychological evaluation fulfilled his therapy requirements, but having been informed that he is required to obtain therapy, indicated a willingness to undergo therapy. The father asked that the respondents be returned to the custody of their parents or, in the alternative, that the goal remain family reunification and that he be permitted, in the interim, to visit and communicate with the respondents. The October 3 hearing began with an extended discussion between the judge and the attorneys regarding whether or not an evidentiary hearing would be necessary to resolve the issues before the court. Anticipating an evidentiary hearing, the Assistant Corporation Counsel had subpoenaed several witnesses, including the mother and the father. The father's attorney represented to the court that she wished to call at least two witnesses, and perhaps more. The mother's attorney stated that if there was to be an evidentiary hearing, he was not prepared to proceed. The judge ultimately "finessed" the "evidentiary hearing" issue, stating: "Well, let's go on and see how far we can go." The hearing was completed without the swearing of a witness and without the taking of formal testimony. Andrew Donelan, the DHS social worker, made an oral report to the court.[3] Mr. Donelan stated that the father had appeared for his psychological evaluation, that he had attended at least three parenting classes, but that he had not gone to his first AA/NA meeting until the day before the hearing.[4] Donelan represented that both parents had failed to appear at a number of scheduled meetings with him at DHS, and that these failures had resulted in a delay in their attendance at parenting classes and had made it difficult to proceed with various referrals. Donelan confirmed that there appeared to have been a misunderstanding regarding whether, after having appeared for his psychological 302 assessment, the father was also required to participate in ongoing therapy. Finally, Mr. Donelan stated that he had attempted to enroll the father in a domestic violence class at the Superior Court, but he explained that the domestic violence charges against the father had been dismissed and that the father was apparently ineligible for the class. Mr. Donelan concluded by stating that the maternal aunt had done an excellent job in caring for the respondents and that she had signed a letter of intent to adopt the children. After further extensive debate and discussion between the attorneys, the judge suggested: Maybe the thing to do now is give [the parents] an opportunity and let's see just how serious they are, well-intentioned they are in doing what it is that they need to do in order to achieve the goal of reunification. The judge inquired whether "there is any objection to granting the father visitation, even if it's at the Department of Human Services, supervised." The social worker responded that before such visitation took place, "I would like to get a current assessment from the two therapists of [K.W.] and [Ko.W.]." Following the hearing, the two boys were examined by two different social workers. The individual who examined K.W. characterized the question of visitation with K.W.'s father as "complex." According to the social worker, K.W. "expressed some curiosity about his father," and "[c]ontact with [the] father at a future date would probably be helpful." The social worker recommended, however, that planning for visitation should proceed with caution, and that ideally, visitation should begin "at a point when [K.W.] experiences some inner strength and security." The social worker who examined Ko.W. approached the task of assessing the boy's state of mind somewhat obliquely. She reported that in a scenario in which the children were asked to set rules for their parents and for themselves, "[Ko.W.] expressed a willingness and readiness to see his mother and felt it was okay for her to come to the aunt's house. It was also stated as a rule by him that he would continue to live with his aunt. He did not invite his father to the house." Further, when the subject of a possible site for a visit was broached, "there was no suggestion and real reticence to accept a neutral area like Children & Family Services where the visit would be supervised."[5] Although the report did not so specify, the social worker apparently believed that Ko. W.'s failure to "invite his father into the house" or to suggest a meeting at a DHS office indicated that visitation ought not to be authorized. On December 23, 1997, the trial judge issued a memorandum opinion and order and held that "the goal in this matter is changed from reunification to adoption." With respect to the issue of visitation, the judge wrote as follows: On September 17, 1996, respondents' father moved to compel visitation. [The father] was denied visitation with respondents on May 15, 1996 pending investigation into an allegation that he sexually abused [K.W.].[6] Although contact with both parents is presumed to be in the best interest of the child, visitation may be denied if it would be detrimental to the child. In 303 re M.D., 602 A.2d 109, 114-5 (D.C. 1992). At the December 31, 1996 hearing on the father's motion to compel visitation, the motion was held in abeyance pending a psychological evaluation of the father. [The father's] February 1997 psychological evaluation states he is more likely to physically abuse than to sexually abuse his children and recommends individual psychotherapy and domestic violence counseling to address his propensity toward violence. Because [the father] has not followed through with individual psychotherapy or domestic violence counseling, his propensity to abuse respondents has not been and cannot be evaluated. Moreover, [the father] has not made any other efforts which would demonstrate a desire to visit respondents, such as completing parenting classes or addressing his substance abuse problem. Reports as recent as November 1997 from respondents' therapists state neither child is psychologically ready or willing to resume contact with [the father]. See Lewis v. Lewis, 637 A.2d 70 (D.C.1994) (upholding decision not to allow visitation as long as children would suffer emotional injury). In light of [the father's] failure to address the issues which resulted in denial of visitation, respondents' psychologically vulnerable state, and the change in goal to adoption, the Court finds visitation with [the father] is not in the best interests of the children. III. LEGAL DISCUSSION A. Jurisdiction and standard of review. An order denying a parent the right to visit his child is appealable, notwithstanding that proceedings to terminate parental rights have not been instituted. In re D.M., 771 A.2d 360, 363-65 (D.C. 2001). The proper disposition of a neglected child, including the question whether a non-custodial parent should be granted visitation rights, is committed to the sound discretion of the trial court; the exercise of that discretion is reviewable only for abuse. Id. at 365 (citations omitted); see also Lewis v. Lewis, 637 A.2d 70, 72 (D.C. 1994). As we explained in In re J.D.C., 594 A.2d 70, 75 (D.C.1991), however, [j]udicial discretion must ... be founded upon correct legal principles, Conrad v. Medina, 47 A.2d 562, 565 (D.C.1946), and a trial court abuses its discretion when it rests its conclusions on incorrect legal standards. Jett v. Sunderman, 840 F.2d 1487, 1496 (9th Cir.1988); see also Johnson [v. United States], 398 A.2d [354], 365 [(D.C. 1979)]. Moreover, "[a]n informed choice among the alternatives requires that the trial court's determination be based upon and drawn from a firm factual foundation.... [I]t is an abuse [of discretion] if the stated reasons do not rest upon a [sufficient] factual predicate." Johnson, supra, 398 A.2d at 364 (citations omitted). (Footnote omitted.) "A [trial] court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996). The question before us is whether the judge's exercise of discretion was undermined by the judge's failure to apply the correct legal standard and, especially, by the lack of a firm factual foundation for the action taken by the court. B. The father's rights. The right of a parent to raise his or her child is of constitutional dimension; 304 it has been characterized as "essential" and as "far more precious than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (citations, internal quotation marks, and ellipsis omitted). Moreover, "the fundamental liberty interest of natural parents in the care, custody and management of their children does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see also In re N.H., 569 A.2d 1179, 1182 (D.C.1990). A parent's right to custody is not absolute. N.H., supra, 569 A.2d at 1182. The court must act in the child's best interest and may not expose the child to serious risk of harm. In re S.L.E., 677 A.2d 514, 519 (D.C.1996). Nevertheless, a father's interest in retaining custody of his children is both legally cognizable and substantial, Stanley, supra, 405 U.S. at 652, and may not be overridden in the absence of persuasive evidence that the children's well-being requires that custody be placed elsewhere. In the present case, the restriction on the father's association with the respondents is more extreme than a denial of custody.[7] For more than five years, the father has been deprived of any opportunity for visitation with his sons. Both boys are now in their teens; they were seven and five respectively when the ban on visitation was first issued.[8] As a practical matter, for more than half a decade, the father's situation has closely resembled that of an individual whose parental rights have been terminated. From the father's quite reasonable perspective, this has been a drastic curtailment of his rights as a parent, which could properly be imposed only upon a persuasive showing that visitation by him would imperil the well-being of his sons. We have recognized that a non-custodial parent has "the right of visitation with the children and ought not to be denied that right unless by his conduct he has forfeited his right, or unless the exercise of the right would injuriously affect the welfare of the children." In re M.D., 602 A.2d 109, 112 (D.C.1992) (emphasis in original) (quoting Surrey v. Surrey, 144 A.2d 421, 423 (D.C.1958)). Visitation should be permitted "unless the chancellor is convinced that [it would be] detrimental to the best interests of the infant." Id. (citations and internal quotation marks omitted). The applicable Superior Court rule is consistent with the case law, and provides that during the pendency of a neglect proceeding, the court should authorize visitation at least on a weekly basis unless such "at least weekly visitation would create imminent danger or be detrimental to the well-being of the child." Super. Ct. Neglect R. 14(b) (emphasis added). Even the "temporary placement of a neglected child [with a non-parent] can substantially interfere with a natural parent's right to develop a relationship with a child." In re J.F., 615 A.2d 594, 598 (D.C. 1992). The long-term denial of visitation rights will interfere with that right even more severely; in the present case, for five years, the father has been denied any contact whatever with the two respondents. 305 C. Analysis. The trial judge made reference to several justifications for the complete prohibition against visitation which the trial judge imposed on the father: 1. the father's alleged sexual abuse of K.W.;[9] 2. the father's alleged failure to co-operate with the court and with the social worker during the pendency of the case;[10] 3. the father's lack of initiative in seeking reunification with his sons from 1995 to September 1996; and 4. the change of the goal for the respondents from family reunification to adoption. We address each of these issues in turn. (1) The alleged abuse. A father's sexual abuse of his young son would fill any reasonable person with revulsion. Unfortunately, such cases are not so very rare in this jurisdiction, but the comparative frequency with which the sexual exploitation of defenseless children may occur should not be permitted to mask its unremitting horror. If the father in fact forced K.W. to perform oral sex upon him, or if he lay on top of his son in a sexual manner, then the father should arguably be remitted to a facility from which the issue of visitation would be moot for years to come. But the "if" in the preceding sentence is a big one. If the father was falsely accused of these shameful deeds, then the unfairness of a baseless allegation should not be compounded by a prohibition of all contact with both of the respondents. In the present case, the evidence of misconduct by the father consists exclusively of hearsay statements allegedly made by K.W. to his aunt, to his mother, and to a therapist. The original accusation that his father lay on top of him, and that this was K.W.'s worst moment is somewhat ambiguous in relation to whether the alleged incident involved sexual exploitation or some kind of horseplay. The allegation regarding oral sex appears to have emerged after the ban on visitation was imposed. The father has denied any sexual abuse, and he has claimed that the maternal aunt, who is alleged to be hostile to him, may have influenced K.W.'s account. K.W. apparently made no allegations against the father when K.W. was interviewed by the police, and no criminal charges were ever brought against the father. Yet the father has been denied all visitation with his sons without ever having been given the opportunity to rebut the serious hearsay allegations against him. An exercise of discretion must, as we have noted, rest on a firm factual predicate. Johnson, supra, 398 A.2d at 364. In this case, the judge knew, at least from May 1996 on, that the father had been accused of sexually abusing his young son. The judge also knew that the father had denied the charge.[11] The fact most critical to an informed exercise of discretion was whether the allegations against the father were true or false-did he do it or didn't he? But this potentially dispositive question has never been resolved, and no evidentiary 306 hearing has ever been held. Thus, the ban on visitation by the father could not have been imposed on the basis of a finding that the father had abused K.W., for no court has ever found that he did so. Rather, the father has been denied any association with his sons on the basis of second-hand and third-hand hearsay allegations of abuse.[12] Moreover, he has never been given the opportunity to tell his side of the story, under oath, to the judge as the trier of fact. In our view, an evidentiary hearing was called for as soon as these disputed allegations came to light, so that the judge could determine whether or not the father "did it." If the father sexually abused K.W., then a prohibition against visitation was presumptively reasonable. If, on the other hand, the father was innocent, then the prohibition perpetuated an injustice which can no longer be altogether undone, but which certainly ought not to be prolonged without some compelling reason. It is true that, in her initial motion to enforce visitation rights, the father's attorney did not explicitly request an evidentiary hearing. If such a request had been made when the issue first arose, or if the judge had ordered such a hearing on his own initiative, the case might well have taken a significantly different course. At the hearing on October 3, 1997, however, the father's attorney explicitly stated that she proposed to call witnesses (presumably including her client, who hoped to clear his name). Nevertheless, the father was never given the opportunity to testify, and his request for visitation was denied on the basis of proffers,[13] and without an evidentiary hearing or a finding as to whether the father did or did not abuse K.W. Although other reasons for the denial of visitation were offered, it was the allegations of sexual abuse that animated the judge's initial concern and that remained at the heart of the issue. These allegations have yet to be resolved. Indeed, no attempt has been made to resolve them. Given the nature of the rights at stake, we are constrained to conclude that the trial judge abused his discretion by prohibiting visitation without conducting a factual inquiry, and without making a finding, as to whether the accusations against the father were true or false.[14] The psychologist who examined the father expressed the view that the father was more likely to abuse the respondents physically than sexually. As far as we can discern from the record, however, there is no evidence that the father physically abused either of his sons, although he did 307 allegedly beat the mother. The orders imposing and continuing the ban on visitation all refer to the sexual abuse allegations. It is difficult to believe that the potentiality of physical abuse by the father led to the prohibition against visitation, when actual physical abuse by the mother was not deemed to warrant such a restriction on her. (2) Failure to cooperate. The trial judge also based his decision, in part, on the ground that the father "has not followed through with individual psychotherapy and domestic violence counseling," and that he "has not made any other efforts which would demonstrate a desire to visit respondents, such as completing parenting classes or addressing his substance abuse problem." The judge found that the father's lack of follow-through impeded the judge's efforts to evaluate the appropriateness of further visitation. Under the legal standards that we have discussed in Part III B, supra, we question whether the father's deficient attendance, standing alone, would be sufficient to warrant a complete prohibition of visitation. As the judge pointed out during the hearing, visitation could have been arranged at the DHS office, and any threat of "domestic violence" against the respondents could thereby have been preempted. In any event, the failure to hold an evidentiary hearing renders somewhat problematical the trial judge's reliance on the father's lack of cooperation. The father's attorney represented to the court, without contradiction, that the father's urine was found to be positive twice and negative thirty-one times; the last positive test was almost six months before the hearing. Through counsel, the father offered to provide a urine sample on the day of the hearing. In the absence of admissible evidence refuting the father's counsel's version, it is difficult to discern any basis for a categorical finding that the father failed to address his substance abuse problem. The other evidence of non-cooperation to which the judge alluded was likewise inconclusive. The proffer by the father's attorney, see p. 300, supra, described some commendable efforts on the father's part. Moreover, the father was no longer a defendant in a domestic violence case, and this impaired his eligibility to participate in a domestic violence class at the Superior Court. There also appears to have been a misunderstanding as to whether the father was required to attend psychotherapy sessions in addition to meeting with the psychologist for an initial assessment.[15] In addition, although his attendance at parenting classes and NA/AA was less than perfect, he had at least begun to attend. Both the father and the mother missed appointments with the social worker, but denial of all visitation is a somewhat drastic remedy for imperfect compliance. It is noteworthy, in assessing what it was that the judge found to be most important, that the mother's attendance was no more regular that the father's, but that her visitation privileges were not withdrawn or reduced on that account. It is important to recognize, in this connection, that according to the clinical psychologist who examined him, the father is a man with "limited intellectual functioning." His IQ was reported to be 76, plus or minus 5. Common sense tells us that individuals whose intellectual resources 308 are so impaired are rarely able to comply perfectly with programs devised for them by probation officers or social workers, especially where these programs require concentration on schedules and time tables for protracted periods of time. We cannot agree with the notion that the father's record of compliance an imperfect record, but one that was not by any means "all bad" warranted the denial, potentially forever, of any contact whatever with his sons. It is true that the father's deficient attendance reduced in some measure the information about him immediately available to the judge. But if the representations by the father's attorney on the subject were accurate, then many of the relevant facts were already known, and the father was ready to cooperate by attending psychotherapy sessions and parenting classes. Indeed, but for the allegations of sexual abuse, we think it unlikely that visitation would have been completely forbidden. (3) The father's alleged lack of initiative. The respondents were removed from the mother's custody in December 1995. The father did not appear in court until September 1996. At the time the case was petitioned, the boys and their mother were living with their paternal grandfather. After the grandfather died, the mother and the children moved in with the mother's sister. The father apparently took no active steps to maintain his relationship with his sons until his attorney filed a motion for visitation in September 1996. We do not believe, however, that the father's seeming lack of initiative during this period could warrant the entry of an order denying the father all contact with his sons. It is worth noting that, in the absence of an evidentiary hearing, the father never had the opportunity to testify, either about the alleged abuse or about his apparent passivity after the respondents were removed from the mother's home. In addition, as we have explained above, the father's intellectual resources were limited. The District government had alleged neglect of the respondents by the mother, but not by the father. The boys were with the children's maternal aunt, who was allegedly quite hostile to the father. With the respondents in apparently unfriendly hands, it is surely understandable, under all of the circumstances, that the father may not have known just what he could or should do next. We have no doubt that the order prohibiting visitation was principally animated by the allegations of sexual abuse. This is evident from the face of the successive orders entered by the court. Without these allegations, it does not appear likely that the judge would have viewed the father's lack of initiative in late 1995 and much of 1996 as a basis for denying visitation. (4) The change of the goal from family reunification to adoption. In his written order, the judge found that visitation by the father was not in the respondents' best interest, in light, inter alia, of "the change of the goal to adoption." This is undoubtedly a legitimate factor in the visitation calculus, and the trial court should address it on remand. It is not at all clear, however, that reunification would have been abandoned at all if there had been no allegation of sexual abuse. We also note that the change in goal does not appear to have been a dispositive consideration, for continued visitation by the mother was not *309 prohibited.[16] IV. CONCLUSION In sum, we are constrained to conclude that the judge's exercise of discretion lacked a firm factual predicate, and that the judge's action cannot be reconciled with the applicable legal standard.[17] Accordingly, the order of the trial court prohibiting visitation by the father is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. In light of the substantial lapse of time, it will of course be necessary for the trial court to update its findings so that they embrace all relevant events that may have happened while the case was on appeal. So ordered. NOTES [1] Additional details of the father's alleged misconduct vis-a-vis his older son emerged at later stages of the case. In an assessment of K.W. dated August 6, 1996, a psychologist reported that K.W. recalled his "worst memory" as the time "my father got on top of me." According to a February 18, 1997 report by a different psychologist who had evaluated the father, there had also been "an allegation, reportedly made by [the mother], that [K.W.] told her that [the father] had made [K.W.] perform oral sex on [the father]." [2] Because no sworn testimony was taken in this case, the facts related herein are based on representations by counsel, by DHS social workers, and by individuals who assessed or treated the various participants. [3] Much of Mr. Donelan's report was devoted to the mother's performance of her responsibilities. We focus here on that part of the report that describes the conduct of the father. [4] The father's attorney represented that the father was working full time and overtime and that the original referrals for AA and NA were in Virginia and not readily accessible. The meeting that he attended was at a convenient location in northwest Washington, D.C. [5] At the time of this assessment, Ko.W. was barely seven years old, and it is difficult to understand how he could have been expected to "suggest" a "neutral" meeting place. [6] The judge stated that the results of the police investigation were inconclusive because K.W. was reportedly uncooperative. [7] In fact, the father has not appealed from that part of the trial judge's order which declined to award custody to the father alone or to the father and mother jointly. [8] Much of the delay appears to be attributable to technical problems since the notices of appeal were filed. [9] The judge also mentioned the concern that the father might abuse the boys physically. [10] The judge indicated that this failure to cooperate on the part of the father made it difficult to determine whether visitation would pose a danger to the boys. [11] Somewhat ironically, the mother, who admitted that she has neglected her sons and that she punched K.W., has been permitted to visit the respondents. The father, who was never charged with neglect at all, and who has not been found to have abused either respondent in any way, has been denied visitation for several years. [12] Although we do not suggest that in-court testimony by K.W. is the only possible way of ascertaining the facts, it is significant that none of these accusations has been tested by cross-examination, which is "the greatest legal engine ever invented for the discovery of truth." Tyree v. Evans, 728 A.2d 101, 103 (D.C.1999) (quoting 5 JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 1367, at 32 (Chadbourn rev. ed.1974)). Indeed, so far as the record shows, none of the allegations would be admissible in evidence. [13] "A mere proffer is not evidence." In re R.E.G., 602 A.2d 146, 148 (D.C.1992). A finding as to a critical disputed fact cannot be made on the basis of an unsubstantiated proffer. Id. Whether or not the father sexually abused K.W. was a critical and disputed question of fact. [14] We recognize that the conscientious trial judge gave much thought and attention to this sensitive and difficult case. We therefore reiterate that "abuse of discretion is a phrase which sounds worse than it really is." King v. United States, 550 A.2d 348, 353 n. 3 (D.C. 1988) (citation omitted). A disagreement between the trial court and the appellate court on a point of law obviously "does not imply any reflection on the [trial] judge." Id. (ellipsis omitted). [15] The psychologist found the father to be "relaxed and cooperative, talking at length about a variety of topics, including his personal history, his work, his relationship with [the mother] and her family, and the allegations of sexual abuse." [16] The judge also referred in his order to then recent "reports from respondents' therapists stat[ing] that neither child is psychologically ready or willing to resume contact with the father." We have summarized the 1997 reports at pp. 302-03, supra. In the case of K.W., the social worker believed that eventual contact with the father would probably be "helpful." The report on Ko.W. was more guarded and, as we have noted, rather indirect in its approach. The psychologist who examined the father believed that "achieving visitation with his sons appears to be a realistic goal." All in all, the reports of the three therapists, two of whom appeared to favor visitation by the father, cannot fairly be described as supporting the view that such visitation would cause the respondents to suffer emotional injury. In any event, we do not believe that a complete ban on visitation would have been imposed, on the basis of these reports, if the judge had concluded that the allegations of sexual abuse were baseless. [17] Although the judge did not misstate the legal standard, we find it difficult to square his disposition with the formidable burden imposed by the law on those who seek to deny a father all contact with his children, particularly where, as here, the father has not been found to have neglected the respondents or engaged in any wrongdoing.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515809/	774 A.2d 551 (2001) 340 N.J. Super. 264 Woodrow HALL, by and through his guardian ad litem Sandra HALL, Sandra Hall, individually and as guardian ad litem of Carly Hall, Woodrow Hall Jr., and Ryan Hall, minors, Plaintiffs-Respondents/Cross-Appellants, v. Baltazar RODRICKS, M.D., Defendant-Appellant/Cross-Respondent, and John Marstella, C.R.N.A., and Burdette Tomlin Memorial Hospital, Defendants, and Robert Salasin, M.D., Defendant-Respondent. Woodrow Hall, by and through his guardian ad litem Sandra Hall, Sandra Hall, individually and as guardian ad litem of Carly Hall, Woodrow Hall, Jr., and Ryan Hall, minors, Plaintiffs-Respondents/Cross-Appellants, v. Baltazar Rodricks, M.D., Defendant, and John Marstella, C.R.N.A., and Burdette Tomlin Memorial Hospital, Defendants/Third-Party Plaintiffs/Appellants/Cross-Respondents, and Robert Salasin, M.D., Defendant-Respondent, and Thomas Scott, Alan Grip, Arthur Lefkoe, and Mary Fay, Defendants/Third-Party Plaintiffs, v. Michael S. Berger and The Law Offices of Michael S. Berger, Third-Party Defendants. Superior Court of New Jersey, Appellate Division. Argued March 26, 2001. Decided April 30, 2001. 552 A. Michael Barker, Linwood, argued the cause for defendant-appellant/cross-respondent 553 Baltazar Rodricks, M.D. in A-440-99T1. Michael S. Berger, Haddonfield, argued the cause for Woodrow Hall, et al plaintiffs-respondents /cross-appellants in A-440-99T1 and A-444-99T1 (Andres & Berger, attorneys, Mr. Berger, of counsel; Kevin Haverty and Laura M. LeWinn, on the brief). Donald Grasso, Toms River, argued the cause for defendant-appellant/cross-respondent Robert Salasin, M.D. in A-440-99T1 and A-444-99T1 (Orlovsky, Grasso, Bolger, Mensching & Halpin, attorneys, Mr. Grasso, of counsel; Colleen L. Brandt, on the brief). Timothy M. Crammer, Pleasantville, argued the cause for defendants/third-party plaintiffs/appellants/cross respondents John Marstella, C.R.N.A., and Burdette Tomlin Memorial Hospital in A-444-99T1 (Paarz, Master, Koerning, Crammer, O'Brien, Bishop & Horn, attorneys; Mr. Crammer, on the brief). Before Judges PETRELLA, NEWMAN and WELLS. The opinion of the court was delivered by NEWMAN, J.A.D. During surgery at defendant Burdette Tomlin Medical Center ("Burdette Tomlin"), plaintiff Woodrow Hall suffered a cardiac arrest and as a result remains in a persistent vegetative state. Plaintiffs[1] presented two theories of liability at trial: one, that defendants Baltazar Rodricks, an anesthesiologist, and John Marstella, a certified registered nurse anesthetist, failed to properly ventilate plaintiff during the surgery, and two, that Robert Salasin, a surgeon, failed to transfuse blood prior to surgery. The jury returned a verdict in favor of plaintiffs for $7,828,420 against Marstella and Rodricks, finding Marstella sixty percent at fault and Rodricks forty percent at fault. The jury found Salasin negligent, but did not find that his negligence was a proximate cause of the injury. Marstella and Burdette Tomlin, his employer, (referred to jointly as "defendants") and Rodricks have filed separate appeals from the same judgment. Plaintiffs have filed a cross-appeal, contending the court erred in dismissing their loss of parental consortium claim. Defendants and Rodricks argue that the court erred in: 1) instructing the jury that failure to communicate was negligence, in failing to define the terms "medically significant" and "communication," and in charging a "one-sided" recitation of the facts; 2) permitting plaintiffs' and Salasin's experts to testify that Marstella and Rodricks had deviated from the experts' personal standards of care, as opposed to the established standards of care for an anesthesiologist and nurse anesthetist; 3) allowing testimony regarding Marstella's failure to set the alarms on the monitoring machines and failure to keep legible records; 4) admitting portions of a medical textbook under the learned treatise exception to the hearsay rule because the experts did not rely on the text in formulating their opinions for trial; 5) restricting their cross-examination of Salasin regarding bias; 6) instructing the jury to consider whether Salasin's conduct involved the exercise of judgment; 7) instructing the jury as to Rodricks's duty to supervise Marstella because the charge was not supported by substantial credible evidence and the language of the charge was erroneous; 554 8) instructing the jury that in assessing future medical expenses plaintiff had a right to be cared for at home; 9) awarding prejudgment interest on the future loss damages; and 10) limiting closing argument to one hour. Defendants, but not Rodricks, also argue that: 1) the court erred in denying their application to dismiss juror number four after she commented that plaintiff's children were lovely; and 2) denying their motion for a change in venue. Because of the commonality of issues, we consolidate the appeals for the purpose of this opinion. We affirm both the direct appeal of defendants and Rodricks and the cross-appeal of plaintiffs. Since we are only publishing issues relating to damages, our discussion of the facts will be limited to the damages testimony and to the legal issues involving the jury instruction and plaintiff's right to be cared for at home in assessing future medical expenses and awarding prejudgment interest on the future loss damages. I. [At the court's direction, the facts relating to liability have been redacted for publication purposes.] With regard to damages, it was undisputed that plaintiff was in a persistent vegetative state and needed daily medical care for all of his bodily functions, including feeding through a tube, and breathing by way of a tracheostomy tube. At the time of trial, plaintiff had been moved to Crest Haven Nursing Home in Cape May County. Michelle Grimmer, a registered nurse at the nursing home, testified that plaintiff was "healthy" and "very stable" and given his condition, had relatively few medical problems. She also testified that Sandra Hall visited plaintiff every day and took care of all his laundry and some of his basic hygiene needs. At the time of trial, plaintiff had incurred medical and nursing home bills totaling $743,855.14. Sandra Hall testified that she wanted to care for plaintiff at home because he had previously expressed a desire not to be placed in that particular nursing home, and because it would be easier for her and the children to spend time with plaintiff. The Hall children, Carly, who was sixteen years old at the time of trial, Woody, who was thirteen years old at the time of trial, and Ryan, who was ten years old at the time of trial, also testified that they wanted plaintiff cared for at home. Lorraine Buchanan, plaintiffs' expert rehabilitation nurse and life care planner, testified that plaintiff needed continuous care because he could not control his movements or bodily functions. That care could be provided by Sandra Hall and other medical support personnel at home, at a total cost of approximately $180,492.91 annually, which included $163,027.50 for medical and medical support expenses and $17,465.41 for equipment expenses. Buchanan admitted that home care cost twenty to forty percent more than nursing home care and that Crest Haven charged approximately $50,000 annually. However, she stated that Sandra Hall could decide where plaintiff would be cared for and that she had prepared his life care plan accordingly. M. Elizabeth Sandel, plaintiffs' expert in rehabilitative medicine, testified via videotaped depositions, that plaintiff had a life expectancy of fifteen to twenty years. Joel Posner, defendants' expert in the care and treatment of immobilized patients, testified that plaintiff had a life expectancy of two to five years, even though he admitted that at least two individuals in a persistent vegetative state had lived for thirty-seven and forty-one years respectively. He was of the opinion that it 555 was not medically reasonable or necessary for plaintiff to be cared for at home, although the choice of home or institutional care was the family's. He testified that plaintiff would incur expenses of approximately $55,000 annually in a nursing home and $110,000 for home care. Roma Santaniello, plaintiff's prior employer, testified that plaintiff, as a cook, had earned $660 per week plus an annual $1000 bonus. Finally, Robert Wolf, plaintiffs' expert vocational economist, opined that because of the need for liquidity, a relatively low-risk investment strategy should be pursued for the fund to be created to pay for plaintiff's future medical expenses. He explained that the return on an investment is proportional to the risk undertaken and generally the higher the risk the greater the rate of return. Wolf conceded that while a long-term investment strategy can absorb a greater risk, a fund, which requires liquidity because of the need for regular and frequent withdrawals, cannot. In that regard, he concluded that the expected rate of return on the fund would be approximately 4.8%, which was the expected rate of return for short-term government-guaranteed treasury notes. Wolf maintained that the rate of inflation for health care costs exceeded the general rate of inflation by a factor of one-and-a-half, resulting in a six to seven percent rate of inflation. Thus, the inflation rate for health care costs would exceed the fair rate of return in this case. Nevertheless, Wolf adopted a "more conservative approach" and ultimately concluded that the interest rate would equal the inflation rate, resulting in a net discount rate of zero, or a "total offset." Wolf conceded however, that a different discount rate would apply if the funds were invested in a balanced portfolio including securities, bonds, and treasury securities. For example, he admitted that assuming a ten to twelve percent rate of return on a balanced securities portfolio, and an inflation rate of six to seven-percent, the discount rate would be approximately five percent. Applying that discount rate to plaintiff's projected $180,492.91 in annual medical expenses resulted in a present value of $110,804 annually for a ten-year fund. Wolf also admitted that recent investments in common stock had yielded in excess of a twenty percent rate of return, and that inflation had been 1.7% in 1998, and 1.9% in 1997. Additionally, he conceded that interest on a one-year certificate of deposit yielded 5.5%. Rodricks and defendants did not otherwise present any independent expert testimony on present value. The jury returned a unanimous verdict finding that Rodricks and Marstella had deviated from accepted standards of medical practice, and that that deviation proximately caused plaintiff's injuries. The jury also found that Salasin had deviated from the accepted standards; however, the jury indicated that the vote was not by at least six jurors. After further deliberations, the jury returned with a six to one verdict finding that Salasin had deviated from the accepted standards, but by unanimous vote that the deviation had not proximately cause plaintiff's injuries. The jury allocated fault forty percent to Rodricks and sixty percent to Marstella, and awarded plaintiffs the following damages: 1) Pain, suffering, disability, loss of enjoyment of life: $1,000,000 2) Past medical expenses: $ 743,855 3) Future medical expenses: $4,442,070 4) Past lost wages: $ 103,000 5) Future lost wages: $ 516,000 6) Past loss of consortium: $ 43,500 7) Future loss of consortium: $1,000,000 __________ TOTAL $7,828,425 556 The court entered an order of judgment on July 6, 1999, which included a $1,422,620 prejudgment interest award. On that same date, Rodricks moved for a judgment n.o.v. or a new trial. Defendants filed a similar motion on July 19, 1999. The court heard argument on the motions on August 10, 1999, and by order entered on that date, denied the motions, commenting as follows: Any reviewing court should understand that this med-mal case against the anesthesia team is so strong that it should be considered the med-mal equivalent of a rear-end collision. If the jury had not found the anesthesia team negligent and a proximate cause, this court would have entered that judgment because any other finding against the anesthesia team would represent, in the court's mind, a miscarriage of justice. We address the issues raised on appeal. [At the court's direction, sections II through IX, XI through XIII, and XV through XVIII have been redacted for publication purposes.] X. Defendants and Rodricks argue that the court erred in instructing the jury that in awarding future medical expenses, plaintiff had a right to be cared for at home. They contend that the instruction improperly precluded the jury from considering and awarding expenses for institutional care. Our Supreme Court in a right-to-die case, held that "[a] competent patient's right to exercise his or her choice to refuse life-sustaining treatment does not vary depending on whether the patient is in a medical institution or at home." In re Farrell, 108 N.J. 335, 354, 529 A.2d 404 (1987). The Court recognized that the law traditionally respects "the private realm of family life which the state cannot enter." Id. at 355, 529 A.2d 404 (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944)). In that regard the Court held: We believe that this tradition of respect for and confidence in the family should ground our approach to the treatment of the sick. Whether a patient remains at home or not, therefore, should be the unencumbered decision of the patient and the patient's family with the advice of the doctor. Thus, we do not want to impose any restrictions or burdens on the competent patient's right to have life-sustaining treatment withdrawn if he or she is at home that would not be present if he or she were in a hospital or nursing home. [Id. at 356, 529 A.2d 404.] Moreover, a "constant goal" of our courts "is to insure that patients' medical preferences are respected." In re Peter, 108 N.J. 365, 377-78, 529 A.2d 419 (1987). "When the patient is incompetent, a surrogate decision-maker may assert the patient's rights of self-determination and privacy." In re Hughes, 259 N.J.Super. 193, 199, 611 A.2d 1148 (App.Div.1992). It is clear that a party may recover the reasonable value of future medical services necessitated by a defendant's tortious conduct. Campo v. Tama, 133 N.J. 123, 129, 627 A.2d 135 (1993); Coll v. Sherry, 29 N.J. 166, 174, 148 A.2d 481 (1959). As previously noted, the law allows a guardian to decide whether a patient will be cared for at home. In that regard the trial court properly charged the jury that plaintiffs had the burden to prove "the reasonableness of the charge for future medical care" and that they should "determine the services and estimated expenses which are reasonable and necessary to provide care at the family home." To allow the jury to consider and award the 557 less expensive institutional care expenses would by financial necessity preclude Sandra Hall from exercising her right to take care of plaintiff at home. That decision, as in the analogous right-to-die cases, should not be encumbered. In re Farrell, supra, 108 N.J. at 356, 529 A.2d 404. Plaintiffs are not entitled to every conceivable home care expense. Here, Buchanan detailed the medical services necessary for home care, including the need for continuous medical personnel and equipment, such as a hospital bed, van with modifications, wheelchair, hydraulic lift, catheters, tracheostomy tubes, and other necessary equipment. The jury was properly instructed to decide whether those expenses were reasonable and necessary. If plaintiffs had sought extravagant expenses the jury could have found those expenses not reasonable and necessary and rejected them. We are satisfied that the trial judge correctly charged the jury regarding future medical expenses. XIV. Rodricks argues that the court erred in instructing the jury that in determining future losses of enjoyment of life, wages, and consortium, it should disregard the expert testimony as to plaintiff's shortened life expectancy and instead consider plaintiff's pre-injury life expectancy of approximately thirty-four years, in accordance with the mortality table set forth at Pressler, Current N.J. Court Rules, Appendix I (2001). Sandel testified that plaintiff had a post-injury life expectancy of fifteen to twenty years, and Posner claimed that plaintiff had a post-injury life expectancy of two to five years. Based on plaintiff's age at the time of trial, the mortality table set forth in Appendix I listed his pre-injury life expectancy as approximately thirty-four years. In the charge conference, the court posited that to the extent plaintiff's shortened life expectancy was the result of defendants' negligence, it would affect the various elements of compensable damages differently. The court noted that the [e]xperts say that [plaintiff] will live at most another 15 to 20 years or as little as two to three years. If this shortened life expectancy was caused by negligence, then this negligence deprived [plaintiff] of a great deal of his life expectancy. This stolen life expectancy should ... not deprive him of a fair and reasonable award in recovering monies for his disability, the loss of enjoyment of life, his loss of future wages, and for Mrs. Hall's claim for loss of services and consortium. I'm going to advise the jury that they should not consider the expert testimony of the negligently produced lesser life expectancy when considering damages for [future losses].... I will advise them that the expert testimony can be considered when fixing an award for future medical bills. Rodricks and defendants objected to the proposed charge on the basis that it allowed the jury to award damages "beyond the point of probable death." The court charged the jury that with regard to future losses of enjoyment of life, wages, and consortium, they should "disregard" Sandel's and Posner's testimony regarding plaintiff's life expectancy and instead consider that plaintiff had a thirty-four-year life expectancy. However, the court charged the jury that it should consider plaintiff's shortened life expectancy in awarding damages for future medical expenses. The court instructed the jury to consider plaintiff's life expectancy as set forth in the tables, instead of the diminished life expectancy 558 as set forth by the experts. The majority rule in this country is that a tort victim suing for damages for permanent injuries is permitted to recover loss of earnings based on life expectancy at the time of the injury, undiminished by any shortening of that expectancy as a result of the injury. Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 594, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974), impliedly overruled on other grounds by Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). See Monias v. Endal, 330 Md. 274, 623 A.2d 656, 659 (1993) (proper measure of lost earnings damages for a plaintiff with reduced life expectancy caused by the defendant's negligence is loss based on life expectancy had the tortious conduct not occurred, rather than on shortened life); Morrison v. State, 516 P.2d 402, 406 (Alaska 1973) (future damages must be based on pre-injury life expectancy); Overly v. Ingalls Shipbuilding, Inc., 74 Cal.App.4th 164, 172-73, 87 Cal.Rptr.2d 626 (Cal.Ct.App.1999) (a plaintiff may recover for lost earnings during the period by which her life expectancy has been cut short); Doe v. State, 189 A.D.2d 199, 595 N.Y.S.2d 592, 596 (1993) (court erred in limiting the plaintiff's future economic loss to her post-injury life expectancy); Roers v. Engebretson, 479 N.W.2d 422, 424 (Minn.Ct.App.1992) (Minnesota is within a majority of jurisdictions that measure future loss by pre-injury life expectancy); In re Joint E. and S. Dist. Asbestos Litig., 726 F.Supp. 426, 429 (E.D.N.Y.1989) (if the injury shortens the plaintiff's life expectancy, the weight of American authority computes future earning loss on the basis of the life expectancy the plaintiff would have had without the injury). See also Restatement (Second) of Torts § 924 comment c (1977) (a plaintiff is entitled to damages measured by the extent to which his or her capacity for earnings has been reduced). But see Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976) (Iowa follows the minority rule that shortened life expectancy caused by the injury may be used to reduce damages when determining loss of earning capacity). Plaintiffs cite to a somewhat similar factual case, Kurak v. A.P. Green Refractories Co., 298 N.J.Super. 304, 689 A.2d 757 (App.Div.1997), certif. denied, 152 N.J. 10, 702 A.2d 349 (1997). However, in Kurak, we did not address the issue raised here; namely, whether the life expectancy set forth in Appendix I is admissible where it directly conflicts with the expert testimony. It was undisputed that plaintiff was injured as a result of either Rodricks's and Marstella's, or Salasin's, negligence, and that as a result of those injuries his life expectancy was likely shortened. In following the majority rule, the trial court did not err in instructing the jury to disregard the experts' testimony as to the shortened life expectancy, and instead measure future loss by pre-injury life expectancy. Sea-Land Services, supra, 414 U.S. at 594, 94 S.Ct. at 819, 39 L.Ed.2d at 26. Rodricks and defendants should not be allowed to reap the benefits of plaintiff's shortened life expectancy, occasioned by their tortious conduct. To hold otherwise would reward them for causing injuries so severe that they resulted in plaintiff's premature death. It would also result in gross under-compensation to the injured plaintiffs, because as a result of plaintiff's premature death, he and his family would not be compensated for the years of lost earnings, loss of enjoyment of life, and loss of consortium. Of course, as properly charged by the court, future medical expenses should be based on plaintiff's shortened life expectancy, and not his pre-injury expectancy, because those damages compensated him for actual projected 559 expenses. Green, supra, 310 N.J.Super. at 536, 709 A.2d 205 (the expert recognized that the plaintiff's life expectancy because of his injuries had been shortened, and based his projected medical expenses on that basis). Affirmed as to both direct appeals and the cross-appeal. NOTES [1] Plaintiffs refers to Woodrow Hall, by and through his guardian ad litem Sandra Hall, Sandra Hall, individually and as guardian ad litem of Carly Hall, Woodrow Hall, Jr., and Ryan Hall, minors.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515875/	335 S.W.2d 281 (1960) Charlene GOFORTH, Appellant, v. Curtis R. GOFORTH, Appellee. No. 3529. Court of Civil Appeals of Texas, Eastland. April 29, 1960. Brady, Drake & Yates, Dallas, for appellant. C. O. McMillan, Stephenville, C. C. Hampton, Comanche, for appellee. COLLINGS, Justice. This is a divorce suit brought in Comanche County by Curtis R. Go forth against his wife, Charlene Goforth, on the ground of cruelty. The defendant filed a plea in abatement alleging that the court should not entertain the suit, but should abate same, because plaintiff was not and 282 had not been an actual bona fide inhabitant of the State of Texas for one year nor a resident of Comanche County for the last six months prior to filing said suit as required by Article 4631, Vernon's Ann.Tex. Civ.St. The case was tried before the court, the plea in abatement overruled and judgment rendered granting plaintiff a divorce as prayed, providing for custody of two minor children to be in defendant, Charlene Goforth, except for the summer months of June, July and August, when temporary custody was given to plaintiff, and providing that plaintiff should pay to defendant $50 per month per child for the care and support of said children. Charlene Goforth has appealed. Appellee Curtis R. Goforth alleged in his petition for divorce filed on June 4, 1959, that he was a resident of Comanche County, Texas, at the time of and for at least six months preceding the filing of his suit and that he had, for a period of twelve months prior to the filing of his petition, been an actual bona fide resident of the State of Texas. Appellee testified upon the trial on October 29, 1959, that his home was at Comanche, Texas, on East College Street, Number 315; that since he had his wife separated about a year and a half prior thereto, he had lived and made his home with his father and mother in Comanche; that they first lived in the Comanche Hotel which was operated by his father and mother; that about five months prior to the trial his father and mother bought a house at 315 East College Street in Comanche where he with his parents has since resided. He testified that he had worked as a truck driver for Auto Convoy Company of Dallas, Texas, for about six or seven years; that the home terminal out of which he worked was in Quopaw, Oklahoma; that he got his orders from the office in Quopaw and operated a truck, delivering automobiles at various places in Oklahoma and Texas or at any other place his employers directed him to go; that in the course of his employment he was obligated to be available at Quopaw, and that he had his pay checks mailed to the bank at Quopaw where he would go to "pick up" his money. He testified that his employers paid his lodging except when he stayed in Quopaw, but that he did not maintain a residence there from month to month; that when he was there it was usually for one night and he just went in and paid for that night. He stated that he got his mail at Box 875, Comanche, Texas, and that the box was in his father's name; that his company sends his mail to that address; that any mail sent to him at Quopaw would go to the terminal headquarters. He testified that he had a room in his father's and mother's home and that his winter clothes were there. He stated that when the Ford plant shut down to change models or when he was laid off on account of seniority, or for any reason his work would stop, he would stay at his home in Comanche with his father and mother. He stated that he was laid off for a total of about six months during the preceding year and that when he was "off" he stayed in Comanche with his parents; that when he was eligible to go back to work he was notified by registered letter addressed to Box 875, Comanche, Texas. He stated that it was his intention and had been for the one and one-half years since he and his wife separated, for Comanche, Texas, to be his home. Two witnesses who resided in Comanche, Texas, were called by appellant, both of whom were casually acquainted with appellee. One of these witnesses testified that he didn't have any idea where appellee lived. The other stated he didn't know where appellee lived; that he didn't see him very often and based upon this he would think appellee lived away from Comanche. Appellant also introduced the deposition of Mr. J. T. Bryant, the personnel manager for appellee's employer, Auto Convoy Company, in Dallas Texas. Mr. Bryant testified that appellee Goforth was an employee of the company under his supervision and that appellee's job was to transport and deliver automobiles; that appellee's home terminal, as shown on the seniority roll, was 283 Quopaw, Oklahoma, and that he worked out of that terminal most of the time; that a terminal is where "we interline with other carriers"; that Fords and Mercurys and other cars were brought to Quopaw from St. Louis or Detroit; that appellee might come by Dallas and get a load if he had a load to Dallas; that he might go to Houston, or to the valley. Mr. Bryant further testified that the only address the company had for appellee was General Delivery, Commerce, Oklahoma, until August 29, 1959, when he gave the company the address of Post Office Box 875, Comanche, Texas; that the company considered Quopaw as the place where appellee was stationed, had his residence, and was required to be available to go to work. The requirements of Article 4631, V.A.T.C.S., a bona fide inhabitancy of the State for a period of twelve months and residence in the County where suit is brought for six months next preceding the filing of same are not jurisdictional but are facts constituting qualifications upon the right of a plaintiff to maintain a divorce suit. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198. Where, as here, the question of a plaintiff's residential requirements are raised in a plea of abatement, the burden of proof is upon the defendant to establish by a preponderance of the evidence that such residential requirements do not exist. 1 Tex.Jur.2d 104; Robertson v. Ephraim, 18 Tex. 118; Pippin v. Pippin, Tex.Civ. App., 193 S.W.2d 236. The trial court was the judge of the credibility of the witnesses and of the weight to be given to the testimony. Nolen v. Nolen, Tex.Civ.App., 196 S.W.2d 529. After a consideration of the evidence, we are of the opinion that appellant herein, who was defendant in the trial court, did not meet the burden of establishing contrary to the presumed finding of the court that appellee was not a resident of Comanche County for a period of six months prior to the filing of this divorce suit, and was not a bona fide inhabitant of the State of Texas for a period of more than one year prior to the filing of such suit. The court therefore did not err in overruling the plea in abatement. The undisputed evidence does show that appellee's work carried him at times to other states and to many places in Texas other than Comanche County which he claimed as his home and place of residence. But appellee was separated from his wife. His father and mother lived in Comanche and the evidence supports the conclusion that he desired and intended to make his home with them. The evidence also shows that the nature of his work was such that he was "laid off" a large part of the time and that he always spent such periods of time with his parents in Comanche where he had a room and kept his clothes. Under these circumstances appellee had the right to choose and claim Comanche County, Texas, as his domicile and place of residence and to bring suit for divorce therein. See Dahl v. Dahl, Tex.Civ.App., 253 S.W.2d 691; Burk v. Burk, Tex.Civ.App., 255 S.W.2d 908; Hogue v. Hogue, Tex.Civ.App., 242 S.W.2d 673. After overruling the plea in abatement the court proceeded to hear the case on the merits and rendered judgment for appellee. Upon a trial on the merits the burden is on the plaintiff to establish the existence of statutory residential requirements. Therwhanger v. Therwhanger, Tex.Civ.App., 175 S.W.2d 704. There is no statement of facts showing the evidence heard by the court at the hearing on the merits, and in the absence thereof, it is presumed that the trial court heard evidence sufficient to sustain the judgment rendered. Clare v. Clare, Tex.Civ.App., 138 S.W.2d 220; Stugard v. Stugard, Tex.Civ.App., 200 S.W.2d 832. Appellant's points are overruled and the judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515874/	955 F. Supp. 1331 (1996) UNITED STATES of America, Plaintiff, v. Kieran George KENNEDY, Defendant. Cr. No. 94-534 JP. United States District Court, D. New Mexico. October 31, 1996. Adam G. Kurtz, Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, NM, for defendant. Ned Gines, Sandy, UT, pro se. Allison Siau, Tucson, AZ, pro se. Robert D. Kimball, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for U.S. MEMORANDUM OPINION AND ORDER PARKER, District Judge. The subject of this memorandum opinion and order is defendant's motion to reconsider (Doc. # 73) filed May 19, 1995. Defendant seeks reconsideration of the memorandum opinion and order (Doc. # 72) filed May 12, 1995 in which I denied defendant's motion to suppress physical evidence. Defendant argued in his motion to suppress (Doc. # 31) that the narcotics-detecting canine, Bobo, who positively alerted to defendant's luggage, was unreliable, and therefore, unable to provide the necessary probable cause to support issuance of a search warrant. DEA Special Agent Kevin Small had prepared an affidavit for search warrant based almost 1332 exclusively on Bobo's positive alert to defendant's luggage. Defendant asserted that Bobo's handler, Detective Rob Lujan, had failed to properly document Bobo's field searches, thereby making it impossible to accurately determine how many times Bobo had alerted when no seizable amounts of contraband were found. Consequently, defendant argued, the lack of daily records precluded the government from demonstrating that Bobo was sufficiently reliable to independently support an affidavit for search warrant and justify a neutral magistrate's finding of probable cause. In an attempt to recreate Bobo's field searches, the government and defendant expended considerable time and effort locating documents related to Bobo's prior searches; e.g., search warrants, DEA investigative reports, etc. These efforts produced documents and reports establishing that in 40 out of the 56 times that Bobo alerted, seizable amounts of contraband were discovered. Based on Bobo's extensive, albeit not complete, re-created history, I determined, with reservations about Detective Lujan's failure to follow instructions about proper procedures, that Bobo was a sufficiently reliable narcotics-detecting canine to support a finding of probable cause. I also found that Agent Small did not knowingly or intentionally, or with reckless disregard for the truth, include false information in his affidavit for search warrant. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Defendant now requests that I reconsider my previous denial of his motion to suppress physical evidence. DISCUSSION Defendant asserts that the memorandum opinion and order denying his motion to suppress contained an incomplete Franks analysis regarding whether Agent Small's affidavit for search warrant was deficient. The memorandum opinion and order stated that [t]here is a presumption of validity regarding the affidavit in support of a search warrant. Franks, at 171, 98 S.Ct. at 2684. In order to void a search warrant, a defendant must show by a preponderance of the evidence that the affiant included a "false statement knowingly and intentionally, or with reckless disregard for the truth." A defendant must also prove that if the false material is stricken, the affidavit's remaining content is insufficient to establish probable cause. Id. at 155-56 [98 S.Ct. at 2676-77]. "Suppression ... remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." United States v. Leon, 468 U.S. 897, 923 [104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677] (1984). Several courts have agreed that the "deliberate falsehood" and the "reckless disregard" standards set out in Franks apply to material omissions as well. See, e.g., Stewart v. Donges, 915 F.2d 572, 582 (10th Cir.1990). Defendant does not contend that a Franks v. Delaware analysis was incorrect, but rather asserts that the standard used was incomplete because it considered only Agent Small's knowledge and failed to consider information known to Detective Lujan regarding Bobo's training,[1] field searches, and records which Detective Lujan had not imparted to Agent Small. Defendant argues that what Detective Lujan knew was critical on the question of Bobo's reliability and should not have been omitted from Agent Small's affidavit. In the affidavit for search warrant, Agent Small testified that "Bobo is a certified narcotics canine with the Albuquerque Police Department and is trained to alert to the odors associated with Marijuana, Heroin, Cocaine, and/or Methamphetamine." Agent Small also stated that Bobo had alerted to defendant's "large American Tourister hardsided suitcase." Based on Bobo's positive alert Agent Small approached defendant's roomette and proceeded to ask defendant questions related to his travel plans and destination. In response to Agent Small's questions, defendant stated that he was "dropping a bag" for an individual named Will. Agent Small concluded that based on Bobo's alert to defendant's luggage, and defendant's statements regarding Will, probable cause existed to seize defendant's luggage and to obtain a search warrant. 1333 After thoroughly reviewing Agent Small's testimony and Bobo's records, I determined that Agent Small did not knowingly or recklessly include false information in his affidavit for search warrant. Specifically, I found that: (1) Agent Small was unaware that Detective Lujan had not followed proper recordkeeping protocol; (2) Agent Small was unaware that Bobo had alerted on more than two occasions when no seizable amounts of contraband were found;[2] and (3) Agent Small had no reason to suspect Bobo's reliability, especially since he previously had relied on Bobo's alerts to support 10-15 search warrants and was aware of only two occasions when no seizable quantity of contraband was found. Based on these findings, I concluded that Judge Lorenzo Garcia, the magistrate who issued the search warrant, was justified in finding probable cause to issue a search warrant based on Agent Small's affidavit. Defendant correctly argues that the Franks analysis in the May 12, 1995 memorandum opinion and order was incomplete because it did not take into consideration Detective Lujan's knowledge of Bobo's training, field searches, and records, which was not mentioned in the affidavit. "If we held that the conduct of ... the affiant[] was the only relevant conduct for the purpose of applying the teachings of Franks, we would place the privacy rights protected by that case in serious jeopardy. As the Supreme Court noted in Franks, `police [can]not insulate one officer's deliberate misstatements merely by relaying it through an officer-affiant personally ignorant of its falsity.' 438 U.S. at 164 n. 6, 98 S.Ct. at 2680." United States v. DeLeon, 979 F.2d 761, 764 (9th Cir.1992) (quoting United States v. Calisto, 838 F.2d 711, 714 (3d Cir.1988)); see also United States v. Pritchard, 745 F.2d 1112, 1118 (7th Cir.1984). Here, Bobo's reliability at the time he alerted to defendant's luggage is central to a finding of probable cause. Under DeLeon, the affiant Agent Small must be charged with, at least, the knowledge of Detective Lujan, Bobo's handler, relating to Bobo's reliability. To successfully challenge an allegedly deficient affidavit for search warrant, defendant must show that the investigating officers "omitted the information with the intent to make, or in reckless disregard of whether they made, the affidavit misleading." United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993). The omitted material must be clearly critical to the finding of probable cause. Jacobs, 986 F.2d at 1235. Similarly, "[r]ecklessness may be inferred from omission of facts which are `clearly critical' to a finding of probable cause." Bruning v. Pixler, 949 F.2d 352, 356 (10th Cir.1991) cert. denied, 504 U.S. 911, 112 S. Ct. 1943, 118 L. Ed. 2d 548 (1992); DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990) (citations omitted), cert. denied, 502 U.S. 814, 112 S. Ct. 65, 116 L. Ed. 2d 41 (1991). If it is established that the critical information was recklessly omitted from the affidavit, then defendant must show that the affidavit, if supplemented with the omitted information, would not be sufficient to support a finding of probable cause. Jacobs, 986 F.2d at 1235. In this case, Agent Small's affidavit stated that Bobo was a certified narcotics canine and that Bobo had alerted to defendant's luggage. The affidavit, however, did not include any information about Bobo's training, accuracy rate, and post-certification reliability. The issue of Bobo's reliability has been the focus of extensive hearings because Detective Lujan failed to properly maintain daily records documenting Bobo's field searches. Detective Lujan has been unable to give accurate information related to the number of searches Bobo conducted, how many searches uncovered seizable quantities of contraband, or the nature of the contraband seized. As a result, it has been impossible to determine Bobo's overall success rate or, more critically, his failure rate. Detective Lujan's contention that he relied on other law enforcement agencies to document Bobo's activities lacks merit because Detective Lujan, the only person trained to work 1334 with Bobo, never requested a copy of search warrants or incident reports, and did not follow through to determine if Bobo's alerts in those instances resulted in the seizure of contraband. The problems associated with Detective Lujan's record-keeping are set forth fully in the May 12, 1995 memorandum opinion and order. [I]t is impossible to determine what Bobo's overall accuracy rate is because of the inadequate and incomplete records kept by his handler, Detective Lujan. Mr. Gelsinger's testimony illustrates gaps in Bobo's history and demonstrates the imperfections in Detective Lujan's records. Moreover, the records that are available do not supply any information with respect to why Bobo may have alerted on certain occasions when no drugs were seized. When the training and performance records fall short of establishing the reliability of a narcotics-detecting canine, the testimony of the canine's handler may be found to be sufficient to demonstrate the dog's reliability in order to support a valid sniff. See United States v. Diaz, 25 F.3d 392, 396 (6th Cir.1994). Unfortunately, Detective Lujan's testimony does little to enhance Bobo's reliability. During motion hearings addressing this subject,[3] Detective Lujan's testimony was frequently inconsistent and he failed to clarify many of the questions that his spotty records had raised. For example, in response to being asked how many times Bobo had been called upon to check for the odor of controlled substances in vehicles, suitcases, or rooms, Detective Lujan first testified that Bobo's actual field searches totaled well over 20 to 30 times. Transcript of Motion Hearing held September 15, 1994 at pp. 25-26. A few minutes later, Detective Lujan asserted that Bobo had alerted probably 50 to 60 times when seizable quantities of controlled substances were found. Id. at 42. On re-direct, Detective Lujan recalled that Bobo had alerted "over 60 times" when a controlled substance was found. Id. at 95. In addition, at the hearing on September 15, 1994, Detective Lujan first maintained that he could only remember "right around three times" when Bobo had alerted and no drugs were seized. Id. at 42. Several minutes later on cross-examination, Detective Lujan's memory cleared slightly and he recalled a total of six times when no seizable amounts of drugs were found after Bobo had alerted. On re-direct, he remembered five times when Bobo had alerted and no seizable items were found. Id. at 94. The passage of time seems to have improved Detective Lujan's memory. Four months later, during cross-examination on January 11, 1995, Detective Lujan was able to recall the 13 occasions listed on page 10, supra, when Bobo had alerted but no seizable amounts of drugs were found. Detective Lujan also testified that he had started to write down as of April 19, 1994 "everything the dog has done, whether it's good alerts or bad alerts, as you call it." Id. at 65. However, at the motion hearing on January 11, 1995, Detective Lujan indicated that the starting date of April 19, 1994 was incorrect and that he had begun keeping complete records on Bobo's field searches only since October 1994. Transcript of Motion Hearing, January 11, 1995 at p. 85. Detective Lujan's shoddy recordkeeping and unconvincing testimony is relevant when viewed in light of the special continuous training necessary to help Bobo maintain his ability to detect controlled substances. Defendant's expert, Dr. Dan Craig, testified about conditioning techniques used to train dogs to alert to specific odors. Basically, a dog is trained to alert to narcotics through a hierarchy of reinforcement. Specifically, the trainer gradually eliminates associative odors so that the dog finally alerts only to the target odor. The dog's behavior is reinforced through a reward system: for example, a ball may be given to the dog after a positive alert. The ultimate goal is to eliminate the non-target cues through extinction training. Although this system of training has recognized reliability, it is not 1335 without inherent problems. Foremost is that the dog can spontaneously revert to his prior behavior. It is not uncommon for a dog to be distracted by associative odors from his handler or from the multitude of sources present during field work. Dr. Craig further testified that spontaneous recovery, i.e. reversion to pre-training behavior, is common because a dog will seek the path of least resistance. Therefore, the handler must be constantly vigilant to make sure that the dog does not pick up false cues or bad habits. Maintenance of a dog's reliability depends on progressive training and daily documentation of the dog's activities. Dr. Craig emphasized that thorough and complete daily documentation is "extremely important" and is mandatory for proper on-going training. The handler must design the dog's training schedule based on perceived problems in the field, and it is very important to document false alerts in the field because they are warning signs to the handler that there may be problems with the dog. It is insufficient for the handler to rely on other law enforcement officers to keep detailed records on the dog because they will not be designing or conducting the training sessions. If potential problem areas are unknown, training has little value because it is not tailored to address the dog's deficiencies and the training exercises will have low task difficulty. Detective Lujan's practice prior to October 1994 was not only contrary to Dr. Craig's recommendations but also to the written requirements set forth in Global's manual. Global's training manual provided extensive direction on how to properly train a dog to maintain the dog's reliability. Global's manual made it clear that proficiency training and record-keeping were critical. "[Y]ou are the key to the success of [Global's] training and to the continued success of your dog once you leave [Global]. If you fail to provide the proficiency training needed to maintain the dog's proficiency, and your's, then our efforts have been wasted." Global openly warned graduating dog handlers that "[t]he credibility and ability to conduct effective training is only as good as the records you maintain on your dog." It is unquestioned that Global considered accurate documentation and continued training to be essential in maintaining the dog's reliability. The May 12, 1995 memorandum opinion and order makes clear that I had serious reservations related to Detective Lujan's failure to adhere to Global's express requirement that the handler properly document the dog's daily activities. In fact, I stated that it would "behoove whoever in the future signs an affidavit for a search warrant relying on an alert by Bobo to explain to a neutral magistrate the full background of Detective Lujan's slipshod recordkeeping and consequent cloud on Bobo's reliability." The omission from Agent Small's affidavit of any mention of Detective Lujan's lack of proper record keeping was a material omission that, had it been included in Agent Small's affidavit, would have negated Agent Small's statement that Bobo was still a certified narcotics canine as of August 18, 1994, the date Bobo alerted to defendant's luggage. Bobo had last been certified approximately ten months earlier during November, 1993. Logic illustrates the deficiency in relying solely on Bobo's status as a previously certified narcotics canine to support a finding of probable cause as of a much later date. It is unquestioned that during November 1993 Bobo completed Global's extensive training program with a passing rate of 96% and, therefore, received Global's certification as of that time. Consequently, a neutral magistrate who read an affidavit stating merely that Bobo "is a certified narcotics canine" would be justified in concluding that Bobo's positive alert was a reliable indicator of a controlled substance, thereby supporting a finding of probable cause and issuance of a search warrant. The analysis fundamentally and logically changes, however, if the underlying foundation supporting Bobo's certified reliability is removed. Specifically, would a neutral magistrate be justified in relying on Global's certification if the training were flawed or incomplete? Certainly not. In effect, that is the situation presented in this case. 1336 Global rightfully stands behind the dogs it trains as reliable narcotics-detecting canines, but with an important reservation. Global's manual dictates that the dog handler is "the key to success of [Global's] training and to the continued success of [the] dog once you leave [Global]. If you fail to provide the proficiency training needed to maintain the dog's proficiency, and your's, then our efforts have been wasted."[4] Global openly warned graduating dog handlers that "[t]he credibility and ability to conduct effective training is only as good as the records you maintain on your dog." The inescapable conclusion is that Global stood behind its graduation pass rate and certification only as long as the dog handler maintained the reliability of the dog through daily records and training sessions prescribed by Global. Dr. Craig further emphasized the importance of daily records when he stated that valid training sessions could be developed only if the handler documented the dog's field activities. In the absence of thorough and complete records, the handler would be unaware of potential problems and the designed training methods would be ineffective. Put simply, Global expressed doubts about the reliability and continued success of a narcotics detecting canine it had certified in the absence of copious records and corresponding continuous field training. A certification pass rate of 96% would have only temporary value if the dog handler did not take active, continuing steps to maintain the dog's proficiency. As Dr. Craig testified, the dog will develop poor habits in the field and revert to the path of least resistance. If the handler is not diligently supervising the dog, the handler will fail to recognize potential problems as they arise. That is exactly the situation presented in this case. Detective Lujan failed to document Bobo's field searches in direct contradiction of Global's instructions. It appears that Global itself would have serious doubts about Bobo's continued reliability and success under these circumstances. A neutral magistrate could not, of course, place reliance on a certification rating that the issuing institution would no longer endorse. Here, however, Agent Small's affidavit did not give Judge Garcia any information regarding Detective Lujan's failure to follow the proper procedures mandated by Global. This omission made it impossible for Judge Garcia to make an informed decision as to the presence of probable cause. Detective Lujan's poor record-keeping and failure to perform regular field training evidences a pattern of reckless supervision[5] of a canine with highly sensitive olfactory abilities. There is no evidence that Detective Lujan deliberately avoided telling Agent Small about his failure to follow Global's required record-keeping and field training or of Bobo's previous field searches. Nonetheless, Detective Lujan's omissions of fact recklessly misled the neutral magistrate into relying on the statement in the affidavit that Bobo was "a certified narcotics canine" to support a finding of probable cause. If Judge Garcia had been advised of Detective Lujan's flagrant disregard of Global's instructions to document Bobo's field searches, and Global's insistence on such records, he would not have found probable cause to issue 1337 a search warrant.[6] Agent Small's affidavit should have contained the following information, all of which was known to Agent Small or Detective Lujan at the time the affidavit was submitted to Judge Garcia and all of which was directly related to the critical fact of Bobo's reliability: Agent Small, who was not Bobo's trained handler, had worked with Bobo on 10-15 prior occasions. During their work together, Bobo alerted in 2 instances where no seizable amounts of contraband were found. Bobo alerted to defendant's luggage on August 18, 1994. Bobo had been trained and certified, and recertified during November, 1993 by Global with a passing rate of 96%. Global, Bobo's certifying agency, mandated that Detective Lujan keep daily records of Bobo's activities and regularly field train if Bobo was to remain a reliable, certified dog. After recertification during November, 1993, Detective Lujan did not keep daily records, and he unilaterally decided not to keep daily records without conferring with Global. Detective Lujan conducted only sporadic field training with Bobo. Detective Lujan believed Bobo was a reliable dog who was usually successful but that he could not provide even close to reliable statistics about Bobo's actual performance. Detective Lujan is the lone person familiar with the critical information regarding his lack of mandated record keeping among the small group of officers who routinely work at the Amtrak station. The failure to include in the affidavit information known to Detective Lujan that directly impacts Bobo's reliability was a material omission clearly critical in this case to a finding of probable cause. It was omitted in reckless disregard of whether it made Agent Small's affidavit misleading.[7] That information should have been included in Agent Small's affidavit in order to properly inform Judge Garcia. Had Judge Garcia been presented with this evidence, he would have concluded that there was not sufficient evidence of Bobo's reliability at the time he alerted to defendant's luggage on August 18, 1994, to support a finding of probable cause. The affidavit's remaining content Agent Small's knowledge of defendant's itinerary and that defendant was carrying bags for an individual named "Will" is insufficient, standing alone, to support a finding of probable cause. IT IS THEREFORE ORDERED that: (1) Defendant's motion to reconsider is GRANTED; and (2) Defendant's motion to suppress physical evidence is GRANTED.[8] NOTES [1] Bobo was trained and certified by Global Training Academy in San Antonio, Texas. [2] Detective Lujan never discussed with Agent Small the fact that Bobo had alerted as many as 16 times in the past when no seizable quantity of contraband was found. Motion Hearing, January 18, 1995, p. 85. [3] Detective Lujan not only testified in this case but also in United States v. Cummings, Cr. No. 94-221 JP, a substantially similar case where the defendant attacked Bobo's reliability. [4] Officer Lujan testified that he was aware that Bobo could develop poor habits in the field that would reduce his effectiveness. Q. That is a problem because the dogs continue to learn new things even when they are done at Global and they are in the field, they may pick up bad habits like that because once they are trained, they are not just trained forever, they might develop bad habits, right? A. Right, that is why we have to train them and keep a training record. Q. Global taught you how important it is to train and keep for the handler in the field to keep an eye on how the dog is doing? A. Yes, sir. Q. So it doesn't find a shortcut or develop a problem that you might not be aware of, right? A. Yes, sir. Transcript, Motion Hearing, January 11, 1995 [5] Detective Lujan was reckless in both his supervision of Bobo and in his failure to apprise Judge Garcia, either personally or through Agent Small, of his inexplicable failure or refusal to follow Global's instructions regarding post certification maintenance of reliability. I base my decision, however, only on his recklessness in failing to provide Judge Garcia with the critical information about his failure to perform mandated post certification responsibilities. [6] It has been developed through evidentiary hearings in this case that Bobo's positive alerts uncovered seizable amounts of contraband in 40 out of 56 occasions for which records were located. However, Detective Lujan was unaware of Bobo's actual accuracy rate when Agent Small prepared the affidavit for search warrant in this case. Because Detective Lujan did not keep the records Global specified, it is impossible to know whether Bobo had alerted falsely other times. I should note that the question of Bobo's reliability in this case is restricted to the date of Bobo's alert to defendant's luggage. If Detective Lujan now keeps the proper records and performs the requisite field training, these reasons for questioning Bobo's accuracy would no longer exist. [7] "Recklessness may be inferred from omission of facts which are `clearly critical' to a finding of probable cause." DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir.1990) (citations omitted), cert. denied, 502 U.S. 814, 112 S. Ct. 65, 116 L. Ed. 2d 41 (1991). [8] The May 12, 1995 memorandum opinion and order is revised and superseded to the extent that it is inconsistent with this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515997/	335 S.W.2d 681 (1960) Charlie VITT, Respondent, v. Earl BAER, Appellant. No. 23031. Kansas City Court of Appeals, Missouri. April 4, 1960. 682 Errol Joyce, Robert Devoy, Brookfield, Jack C. Jones, Carrollton, for appellant. Don C. Carter, Sturgeon, Christian Stipp, Carrollton, James J. Wheeler, Keytesville, for respondent. SPERRY, Commissioner. This is a replevin case. Plaintiff, a farmer, owned one hundred and thirteen head of hogs and, in November of 1956, learned that twenty eight head were gone from his farm. He inquired in the neighborhood and found twenty one head, which he identified as his hogs, in the feed lot of defendant, a neighboring farmer. He instituted this suit and defendant executed a redelivery bond. The cause was tried to a jury in December, 1958. From a verdict and judgment for plaintiff, in the amount of $746.25, defendant appeals. There was a large volume of testimony, from twenty five witnesses. However, since defendant does not challenge the sufficiency of the evidence, we will not set it out here, but will discuss the pertinent evidence in connection with the various points presented for review. The first error urged is that the Court permitted plaintiff's counsel to engage in unwarranted and prejudicial argument and conduct during the trial and in closing arguments and that, as a result, the verdict was the result of bias and prejudice. During cross examination of some of defendant's witnesses, counsel for plaintiff questioned them concerning a meeting held at a hotel in Carrollton, the night before, which was attended by defendant and by certain of his witnesses, invited by him, and by two of his attorneys. Some of the witnesses stated that, at that meeting, they discussed with counsel what their testimony would be. During colloquy between opposing counsel the Court admonished counsel for plaintiff not to make remarks which might reflect on defense counsel. It is not, and could not successfully be contended, that plaintiff could not properly inquire concerning the meeting, its purpose, the subjects there discussed, and the interest of witnesses in defendant's cause. In the closing argument of one of plaintiff's attorneys the following occurred: "Have you ever been to the theater and seen a puppet show? There is a fellow you know that gets up in the loft here and has a lot of little fellows on the strings and they do all kinds of antics, and he is the master and they are called the marionettes. And the man who handles that would be the master. Now, in that hotel room the other night was, if you had been there, you would have seen the master and the 683 greatest puppet show you ever saw. The master and the marionettes, and that is what you heard. They take all of their witnesses to the house, the courthouse, I mean the hotel, and that is why all of them trackedtracked trackedbecause they have been coached and told and `now you tell it this way.' "Mr. Joyce: I am going to have to object. That is highly improper. "Mr. Carter: That is my inference. "Mr. Joyce: You drew an inference. "The Court: Be careful about making serious insinuations, Mr. Carter. "Mr. Carter: Oh, of course, Earl (the defendant) was in that room Tuesday night and of course it was said how are you going to answer Cressek how are you going to answer what he said. "Mr. Jones: Now I object. "The Court: The jury should understand it is only inference. "Mr. Carter: Plaintiff's case stops where the defendant's case starts. The evidence that the defendant has presented is manufactured evidence; all of it. It is evidence which was manufactured for this case. "Mr. Joyce: I want to object to that." Later, during the closing argument of another of plaintiff's attorneys, the following is recorded: "The Court: Mr. Wheeler, base your arguments on fact Mr. Wheeler, and don't argue probabilities. "Mr. Wheeler: They manufactureed. "Mr. Joyce: Just a minute. "The Court: Come up, gentlemen. "Mr. Joyce: The defendant wants to object to counsel's statement in argument that the defendant's evidence in this case is `manufactured evidence'; all of it, and asks thatI want the record to show that defendant objects to counsel's statement in argument that all of the defendant's evidence was manufactured evidence, and asks the Court first, to admonish counsel for making that kind of a statement to this jury, and second, defendant asks that the jury be instructed to disregard it, and not to consider any portion of that statement for any reason. "The Court: The Court rules that the plaintiff may argue facts of the case, and if there are any inaccuracies that exist in the defendant's case, he may argue the factbut in his estimation, if there is any manufactured evidence, it is based upon the evidence, and if it is not, then the jury should disregard it, and should point out the evidence if he has such an opinion that points it out. "Mr. Joyce: And defendant excepts to the Court's refusal to admonish the counsel, and excepts to the Court's failure to advise the jury not to consider it. "The Court: Proceed. "Mr. Wheeler: The evidence of the defendant started where the evidence of the plaintiff stops. Not one person with the exception of the defendant's father testified that these were the hogs of the defendant, these were defendant's hogs, and the defendant's father was the inducer of it." Later, plaintiff's counsel said that defendant had said that all of plaintiff's witnesses, and plaintiff, had lied, that the only truth that plaintiff told was in giving his name. Defendant says plaintiff's counsel's argument was improper, and not fair comment on the evidence. There appears to have been no intended reflection upon the moral 684 or professional integrity of defendant's attorneys; nor is there ground in the record for such an inference. However, the argument directed the jury's attention to the evidentiary facts and tended to point to an inference that defendant (not his counsel), had coached his witnesses. The testimony of plaintiff's witnesses clearly indicated his ownership of the hogs, because of paint markings said to have been acquired from his freshly painted harn and fences; but defendant's witnesses stated that there was no paint on the hogs two days after the sheriff seized and marked them. Plaintiff's witnesses testified to certain clearly defined physical characteristics of the hogs which were not noticed, or were not present, when defendant's witnesses later saw the hogs claimed to have been those marked by the sheriff. Clearly, the evidence indicates that one of the parties, plaintiff or defendant, was a conscious wrongdoer in claiming the hogs in controversy. We cannot say that plaintiff's attorneys, in closing argument, were not entitled to argue an inference of manufactured and perjured evidence; but there was no charge made that defendant's counsel was guilty of knowledge thereof or that any attorney in the case had a part therein. The argument made, in view of the particular circumstances shown in evidence, was legitimate; and the court committed no error in refusing to reprimand counsel therefor. In that respect the situation here differs from that in Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 426. In Dunn v. Terminal Railroad Ass'n, Mo., 285 S.W.2d 701, 709, certain argument was condemned because not based on substantial evidence. The same was said of argument condemned in Dodd v. Missouri-K.-T. R. Co., 353 Mo. 799, 184 S.W.2d 454, 457. Counsel may not be condemned for argument based on the evidence, or or reasonable inferences to be drawn therefrom, and the verdict may not be overturned because of such an argument. Defendant next complains that the Court erred in excluding competent evidence and in unduly restricting defendant's cross examination of his witnesses concerning the hotel meeting of attorneys and witnesses heretofore mentioned. From an examination of the record it does not appear that counsel was unduly restricted, as claimed, although he was not permitted to produce self serving declarations or other statements made by counsel and witnesses out of the presence of plaintiff. It is a well recognized rule that, if a witness has become confused in giving testimony, counsel may ask such questions as will elicit testimony calculated to rehabilitate his original testimony and to explain apparent inconsistencies; but that rule may not be so enlarged as to permit the reception of hearsay and self serving testimony. The record shows that the Court exercised a fair discretion in this connection. Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617, 623. Defendant urges that plaintiff's Instruction 2 is prejudicially erroneous in that it submitted, as the measure of damages, the value of the twenty one hogs as of the date of trial, even though some of the hogs were not in possession of defendant at that time. In replevin, the general rule is that the value of the property, if it is still in possession of defendant, is to be assessed as of the date of the trial; but, if the property be sold before date of trial upon court order, the value assessed may be the sale price received. Huntington v. Jamieson, Mo.App., 50 S.W.2d 705, 707-708. The judgment need not conform to the statute but may be modified by the facts and circumstances in each case so as to meet its equities. Willison v. Smith, 60 Mo.App. 469, 475. So, when plaintiff sells the goods before trial he may be held to answer, as in conversion, as of the date of the taking. The instruction is erroneous but, since the trial court overruled the motion 685 for new trial, the burden is on defendant to establish reversible error, or that the error materially affected the merits of the action. Par. 2, Section 512.160 RSMo 1949, V.A.M.S.; Joseph Greenspons' Sons Iron & Steel Co., v. Gerstein, 224 Mo.App. 330, 27 S.W.2d 487, 489; State ex rel. Chicago, R. I. & P. R. Co., v. Shain, 338 Mo. 217, 89 S.W.2d 654, 656. There is no evidence tending to show that the value of the five hogs sold by defendant before trial was any different on the day of trial than it was on the day they were taken, and there was uncontradicted evidence, admitted without objection, which tended to prove that the value of the hogs remaining in defendant's possession on the day of trial was much greater than the amount of the verdict. It does not appear the error was prejudicial. Defendant also predicates error on the charge that there was not sufficient evidence before the jury touching the value of the hogs as of any date, so as to form the basis of the verdict adjudging damages at the sum of $746.25. There was evidence from which the jury could have found that, as of November 17, 1956, the hogs would have weighed two hundred and thirty four and one-third pounds each, and that they were worth 15 cents per pound, having a total value of $737.10. But there was testimony to the effect that the hogs remaining after disposition of five, had farrowed, three times, producing one hundred pigs at one such farrowing. Plaintiff testified to the effect that there were some five hundred pound sows in defendant's pasture the week before trial, that they had pigs, and that such sows, together with their litters, would be worth $150 each. Plaintiff stated that he believed those sows were a part of the hogs claimed by him. There was substantial evidence from which the jury could have believed that defendant had in his possession sixteen producing sows belonging to plaintiff, that had farrowed three times, and that said sows were of the value of $746.25. No damages were awarded for detention of the property for a period of more than two years. Defendant may not complain of the amount of the verdict on the ground that the jury did not consider or allow anything for the five hogs that defendant had disposed of before trial. The verdict is in excess of the value of $450, the value of the property fixed in plaintiff's petition and affidavit in replevin filed two years before date of trial. Defendant says the verdict cannot stand for that reason. In Smith v. Mallory, Mo.App., 188 S.W. 934, 935, plaintiff sued in replevin for a bull calf alleged to have been of the value of $10. The case was tried in Circuit Court several months later and the evidence was to the effect that the bull calf was, as of the date of trial, of the value of $25, and verdict and judgment was for that amount. There, as here, plaintiff could have asked to amend his petition to conform to the evidence, but he failed to do so. The Court held that the judgment could not stand and ordered a remittitur of $15, although it was stated in the opinion that the calf had increased $15 in value between the date of institution of the suit and the date of the trial. That decision was rendered in 1916 and the result is in accord with many others rendered before and since. However, rules of procedure were not as liberal at that time as they are now. Section 509.500, V.A.M.S., provides, in part, as follows: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues, * * ." (Emphasis ours.) In this case, one of the issues pleaded was the value of the property at the time the petition was filed. But, under all of the 686 decisions, the issue to be tried is the value of the property at the time of the trial. The evidence went to the value of these brood sows as of the day of trial. That testimony was admitted without objection. that issue was not pleaded but, because of the command of the statute, failure to have amended the petition to conform to the proof does not affect the judgment, which will stand just as though the amendment had been made. In La Presto v. La Presto, Mo., 308 S.W.2d 724, 727, the Court disapproved an amendment which would have broadened the issues beyond those pleaded. But that was a default judgment. The decision is based on the theory that one who defaults may not suffer a more onerous judgment than he would have suffered under the petition served on him. It is not, therefore, in point. This section is the same as Federal Rule 15. Ed. comment under Section 509.500, V.A.M.S. In Hubshman v. Louis Keer Show Co., 7 Cir., 129 F.2d 137, 142, the counterclaim litigated related only to merchandise purchased prior to June 14, 1939. The evidence, unobjected to, showed that a part of the merchandise for the value of which defendant recovered, was purchased prior to that date. Plaintiffs were not prejudiced in their defense thereby. The Court held that the counterclaim would be deemed to have been amended to conform to the proof. See Falls Industries, Inc. v. Consolidated Chem. Indus., Inc., 5 Cir., 258 F.2d 277,285; Menefee v. W. R. Chamberlin Co., 9 Cir., 183 F.2d 720; Shelley v. Union Oil Co., 9 Cir., 203 F.2d 808, 809. Defendant complains of the Court's refusal to give his instruction seven, as offered, and in giving same as modified by insertion of the word "approximately" before the words "from 140 each to 190 each." The modification was in accordance with the evidence in the case and could not have prejudiced defendant. The jury was the sole judge of the weight and credibility to be given to the evidence bearing on the identity of plaintiff's hogs. There was substantial evidence on the subjects of the identity and value of the hogs sufficient to sustain the verdict and judgment. The judgment should be affirmed. MAUGHMER, C., concurs. PER CURIAM. The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. HUNTER, P. J., and BROADDUS, J., concur. CROSS, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515981/	913 A.2d 1180 (2006) In the Matter of a Member of the Bar of the Supreme Court of Delaware, Darryl K. FOUNTAIN, Respondent. No. 471, 2006, Board Case Nos. 30, 2005 1, 2 and 3, 2006. Supreme Court of Delaware. Submitted: November 8, 2006. Decided: December 1, 2006. James E. Liguori, Liguori, Morris, Yienst, Dover, DE, for Darryl K. Fountain. Patricia Bartley Schwartz, Office of Disciplinary Counsel, Wilmington, DE. Before HOLLAND, BERGER and JACOBS, Justices. PER CURIAM: This is an attorney disciplinary matter directed to charges of professional misconduct against Darryl K. Fountain, the Respondent. The report of the Board on Professional Responsibility (the "Board") 1181 concluded that Fountain knowingly misappropriated client funds by depositing unearned retainers into his operating account, by refusing to refund unearned retainers and by converting to his own use the Medicaid reimbursement payment of one client ("Board Report"). As a result of Fountain's ethical violations, the Delaware Lawyers' Fund for Client Protection ("LFCP") has paid out more than $100,000 in claims. In this opinion, we approve the Board's recommendation that Fountain be disbarred. Vacatur Properly Denied[1] The Petition for Discipline was filed on April 5, 2006, and Fountain's answer was due no later than April 26, 2006. Fountain did not file a timely answer nor did he seek an extension of time to file an answer. Accordingly, on April 27, 2006, the Office of Disciplinary Counsel ("ODC") made a written request that the allegations and charges set forth in the Petition be deemed admitted pursuant to Rule 9(d)(2) of the Delaware Lawyers Rules of Disciplinary Procedure. Fountain did not oppose this request or otherwise respond to it. On May 8, 2006, the Chair of the Panel (the "Chair") wrote to the parties advising that the allegations in the Petition were deemed admitted because no answer or request for an extension of time to answer had been filed. On May 26, 2006, Fountain sent a letter to the Chair requesting that the deemed admission be vacated. Fountain stated that he had recently been released from the hospital for treatment of an ulcer. He did not, however, provide the dates or any evidence of his hospitalization, nor did he provide any medical documentation that he was unable to respond to the Petition. Fountain also submitted a proposed Answer. ODC objected to Fountain's request to vacate. On June 5, 2006, the Chair sent a letter denying the request to vacate the deemed admissions. The Chair explained that under Procedural Rule 9(d)(2), the failure to file a timely answer required that the allegations and charges in the Petition be deemed admitted. Specifically, Rule 9(d)(2) states in pertinent part: In the event the Respondent fails to serve an answer within the prescribed time, all of the allegations and charges in the petition shall be deemed admitted, such that the sole remaining issue to be determined by the Board shall be the appropriate disciplinary sanction. (Emphasis added). In addition, the Chair noted that Fountain had not submitted any proof of his hospitalization or other evidence of the health problems which he had cited as the reasons for his failure to file a timely answer. Accordingly, even if the Chair had discretion under Procedural Rule 9(d)(2), the request to vacate would have been denied. On June 16, 2006, Fountain filed a Motion for Reargument in Support of Vacating the Default Judgment. On June 21, 2006, the Chair denied the Motion for Reargument, again explaining that Rule 9(d)(2) used the mandatory word "shall" and not the permissive word "may." In addition, the Chair explained that even if Procedural Rule 9(d)(2) gave the Chair discretion, Fountain had still not submitted any medical evidence supporting his claim that he was unable either to timely answer the Petition or to request an extension. Fountain has filed objections to the Board's Report on the basis of its decision to deny his application for vacatur. We have concluded that Fountain's objections 1182 are without merit. The Board's decision to deny Fountain's application for vacatur is supported by the record and is the product of an orderly reasoning process. Facts[2] Fountain was admitted to the Bar of the Supreme Court of Delaware in 1984.[3] At all relevant times, Fountain was engaged in the private practice of law with an office in Wilmington. Board Case No. 30, 2005(ODC) On July 11, 2005, Fountain was suspended for three years from the practice of law. The suspension was based on a "multi-year failure to maintain proper books and records and safeguard client funds; a failure to timely file and pay personal state and federal income taxes; and a ten-year failure to accurately report the status of his books and records on his Certificates of Compliance."[4] By Order of the Court of Chancery dated July 14, 2005, Randolph K. Herndon, Esquire, was appointed Receiver of Fountain's law practice. He took immediate control of Fountain's law firm files, books and records, and bank accounts. The negative balance in Fountain's operating account on July 14, 2005 was ( )$1,677.77, and the balance in his escrow account was $33.50. On July 17, 2005, Mr. Herndon met with Fountain to discuss the client files and accounts. During this discussion, Fountain told Mr. Herndon that there was potentially $46,000 of unearned fees and other funds that Fountain owed to approximately 22 clients. At the request of ODC, Joseph McCullough, auditor for the LFCP, conducted an audit of Fountain's law practice to determine how funds were received into the practice and how the funds were withdrawn. Mr. McCullough selected three client matters, which he detailed in his audit report, that are indicative of Fountain's practices in handling money coming into the firm. These client matters indicate that large retainer checks would either be (1) cashed; (2) deposited into Fountain's operating account and the entire amount withdrawn the following day or very shortly thereafter; or (3) deposited into Fountain's escrow account and the entire amount withdrawn the following day or very shortly thereafter. Mr. McCullough also reviewed various Internal Revenue Service ("IRS") notices received by the Receiver which revealed that the IRS had no record of Fountain having filed or paid taxes for the tax years 1998, 1999, 2002 and 2003. Mr. McCullough also reviewed numerous W-2G forms showing that Fountain had amassed over $617,000 in gambling proceeds from 1999-2004. In two previous audits conducted by the LFCP, on April 2, 2004 and September 1, 2004, respectively, Fountain indicated that he had not filed his 2002 federal and state tax returns. He did not mention, however, that he had not filed tax returns for the years 1998, 1999 and 2003. Board Case No. 1, 2006 (Bernadeane Thompson) In July 2004, Bernadeane Thompson retained Fountain to represent her in a creditor matter involving her business, B & B Container. On July 15, 2004, Ms. Thompson gave Fountain two checks. One check in the amount of $12,500 was to be used to pay a creditor, Center Capital Corporation. A lump sum payment of $10,000 would be paid to reduce the debt owed to 1183 this creditor. The remaining $2,500 was to be Fountain's flat fee for handling the matter. The second check was in the amount of $2,500 and was to be a down payment on a $5,000 retainer to Fountain for future legal services which, Fountain said, would "keep the wolves from [her] door." On July 16, 2004, Fountain cashed Ms. Thompson's $12,500 check at her bank, Wachovia Bank. On July 19, 2004, Fountain deposited the $2,500 check into his escrow account. Ms. Thompson made two more check payments to Fountain to complete the $5,000 retainer. The first check, issued on July 26, 2004, was in the amount of $1,000 and was cashed by Fountain on the same day at Wachovia Bank. The second check, issued on August 5, 2004, in the amount of $1,500, was cashed by Fountain on August 9, 2004 at Wachovia Bank. On December 10, 2004, Fountain called Ms. Thompson regarding a new security agreement on her loan with Center Capital. She signed the agreement on that day. The agreement provided for new loan terms and a lump sum payment of $7,000 on her existing debt. Fountain explained that he had been able to negotiate the intended $10,000 lump sum payment down to $7,000. Ms. Thompson understood that the $3,000 difference would be deposited into Fountain's escrow account and used for future legal services. The $3,000 was never returned to Ms. Thompson, nor was she ever provided any type of statement showing how it was used. Nor did Ms. Thompson ever receive any statement showing how the $5,000 retainer was used. In early 2005, Ms. Thompson received a subpoena to appear in Superior Court on January 28, 2005, in the matter of Center Capital v. B & B Container, Inc. and Bernadeane Thompson, and to produce proof of payment or attempted payment to Center Capital. Center Capital had not received her signed security agreement or any lump sum payment. Ms. Thompson was then presented with another security agreement to sign, which she did, and then forwarded it to Fountain's office. On March 16, 2005, Fountain paid Center Capital $7,000 on Ms. Thompson's behalf. On June 14, 2005, Ms. Thompson terminated Fountain's representation and requested an accounting of the use of her funds, as well as a refund of any unused funds. Ms. Thompson sent numerous faxes to Fountain requesting an accounting and a refund. Each fax was answered by a fax from Fountain saying that he did a lot of work for Ms. Thompson and that he would refund the balance of the Center Capital advance. No accounting was provided and no monies were refunded. On July 20, 2005, Ms. Thompson filed a claim with the LFCP for $8,900, consisting of (1) $3,000 representing the portion of the $12,500 check never used to pay Center Capital; (2) the $5,000 retainer paid to represent her in future matters; and (3) an additional $900 which Fountain had received as a refund to Ms. Thompson from another attorney. After an investigation by the LFCP, this claim was paid in full on October 17, 2005. Case No. 2, 2006 (Vera Ann Smack) Vera Smack retained Fountain to represent her in a personal injury matter in 1998. She did not receive a contingency fee agreement at any time during the representation. Ms. Smack's claim was settled on March 26, 2004. Her settlement statement indicated that the total recovery was $32,500 and that Fountain was receiving a "Discounted Attorneys Fee" of $7,500 plus costs from her settlement. Ms. Smack received $14,095.37. A total of $10,000 was to be held by Fountain in the event of a worker's compensation lien on the proceeds. 1184 Fountain released an additional $5,000 to Ms. Smack following the final settlement. Fountain continued to hold $5,000 on behalf of Ms. Smack or the worker's compensation carrier. By letter to Fountain dated April 18, 2005, Ms. Smack informed Fountain that the worker's compensation carrier case was closed, and she requested that the remaining $5,000 be disbursed to her. By letter dated May 26, 2005, Fountain advised Ms. Smack that she was not entitled to the $5,000. He said that she was entitled only to $2,000 and that he would take the remainder as attorney's fees. By letter dated June 8, 2005, Ms. Smack advised Fountain that she did not agree to an increased attorney's fee. Nevertheless, Fountain did not forward any further funds to her. Case No. 3, 2006 (Michael Lacy) In July 2004, Michael Lacy retained Todd Edward Henry, Esquire of the Henry Law Firm to represent him in criminal matters in Delaware. Todd Edward Henry, Esquire, is not a member of the Delaware Bar. Mr. Henry contacted Fountain to refer Mr. Lacy's criminal matters to local counsel. Mr. Henry believed that Fountain would attempt to negotiate a guilty plea on Mr. Lacy's behalf in two criminal matters. If a plea could not be negotiated, Fountain would move Mr. Henry's admission pro hac vice. On October 25, 2004, Mr. Henry, pursuant to Fountain's instructions, deposited $1,000 into Fountain's operating account at PNC Bank. Fountain entered his appearance in one of Mr. Lacy's criminal matters on November 19, 2004. Mr. Henry made two subsequent deposits into Fountain's PNC operating account: $1,000 on March 11, 2005, and $500 on April 25, 2005. On December 23, 2004, Mr. Lacy was arrested on a third set of charges. The Public Defender's Office entered an appearance for Mr. Lacy on those charges and on a set of prior charges. The State of Delaware was willing to negotiate a plea for all of Mr. Lacy's outstanding criminal matters, and the Public Defender made several unsuccessful attempts to contact Fountain regarding the State's plea offer. Fountain never met with Mr. Lacy. He did not attempt to conduct discovery. He did attempt to file a pro hac vice admission motion on Mr. Henry's behalf, but it was not ruled upon by the court as it was in the wrong form. Ultimately, the Public Defender's Office negotiated a plea to all pending criminal charges against Mr. Lacy. As part of the plea package, the charges for which Fountain had been hired to represent Mr. Lacy were nolle prossed. Mr. Lacy entered his plea on April 13, 2005, at a hearing in Superior Court at which Fountain was ordered to be present. On November 14, 2005, Mr. Lacy filed a claim with the LFCP for reimbursement of the monies paid to Mr. Henry for Fountain's legal services. After investigation, the LFCP reimbursed Mr. Lacy $2,500. Sanctions Hearing[5] After the allegations in the Petition were deemed admitted, the Board convened on June 28, 2006, to hear testimony with respect to sanctions. The ODC called the following witnesses: Randolph K. Herndon, the Receiver for Fountain's law practice; Joseph McCullough, the auditor for the LFCP; Bernadeane Thompson, a former client of Fountain, and Marvin A. Davis, Jr., another former client. Fountain was present at the hearing and represented by James E. Liguori, Esquire. Fountain did not call any witnesses or present other evidence. Four witnesses testified at the hearing on sanctions. Mr. Herndon testified about 1185 his efforts to identify Fountain's clients and trace retainers those clients had paid to Fountain. At a meeting with Fountain on July 17, 2005, Fountain admitted to Mr. Herndon that there were several clients who had provided Fountain with retainers, portions of which remained "unearned." This was troubling to the Receiver, because Fountain's escrow account had a very minimal balance and his operating account had a negative balance. Mr. Herndon testified that these unearned fees totaled approximately $46,000.[6] Mr. Herndon also testified that during June 2005, Fountain had collected approximately $20,000 in retainers from eight clients, but no work had been done on most of these client files. According to Mr. Herndon, Fountain had essentially "checked out," and the little work that was done in June 2005, was performed by a legal assistant. Fountain missed one or two hearings and missed some filing deadlines. During this time, Fountain was making frequent ATM cash withdrawals from his operating account, often from ATM machines at Dover Downs. Mr. Herndon described several instances where, based on his review of client files and Fountain's bank records, Fountain had kept unearned retainers. For example, Mr. Herndon described a situation involving a client named Joe Young, who had paid a $10,000 retainer to Fountain in December 2004. Fountain told Mr. Herndon that $5,000 of that retainer had been earned. Nevertheless, all of it had been deposited into Fountain's operating account which, as of July 2005, had a negative balance. In another situation involving a car warranty case, a client gave Fountain a $3,000 retainer. Fountain told Mr. Herndon that $1,500 had been earned. In April 2005, the client requested his money back because his car had been fixed. Fountain sent the client a letter stating that the client was not entitled to any refund. Mr. McCullough, the LFCP auditor, testified about his audit report. He explained that Fountain did not have any cash receipts or cash disbursement journals. Mr. McCullough was able to determine, however, that many retainers received by Fountain were deposited directly into Fountain's operating account, from which cash withdrawals were then made. Mr. McCullough cited illustrative examples. In one case, a $5,000 retainer check was deposited into Fountain's escrow account on March 31, 2005, followed by a cash withdrawal on April 1, 2005, of $5,000. In another case, a $1,000 retainer check was deposited into Fountain's operating account, from which $1,000 in cash was immediately withdrawn. Mr. McCullough also testified that 47 former clients of Fountain had filed claims with the LFCP, for a total of $268,000. Of these, 31 claims totaling $101,635 have been paid. Ms. Thompson testified about the work that Fountain did for her in connection with the debt which her business owed to Center Capital. On July 15, 2004, Ms. Thompson gave Fountain two checks, one for $12,500 and one for $2,500. The $12,500 check was supposed to be used to make a $10,000 payment to a debtor, with the remaining $2,500 to be Fountain's fee. The second $2,500 check was a down payment toward a $5,000 retainer for Fountain representing Ms. Thompson's business 1186 and, in Fountain's words keeping "the wolves from the door." On July 16, 2004, Ms. Thompson received a call from Wachovia Bank, advising that Fountain was attempting to cash the $12,500 check. Ms. Thompson thought this was odd and called Fountain to ask why he had cashed the check. Fountain assured Ms. Thompson that he would put the money into his escrow account. Fountain subsequently cashed two smaller retainer checks that Ms. Thompson provided, one for $1,000 and one for $1,500. As noted above, the $10,000 payment to the debtor was never made. Instead, Fountain told Ms. Thompson that he had negotiated that payment down to $7,000. The $3,000 difference was not refunded to Ms. Thompson. She was never provided any accounting for those funds, nor was she given a statement showing how, if at all, it was earned. Likewise, with respect to the $5,000 retainer that was supposed to be used to keep the "wolves" from her door, Ms. Thompson never received any accounting. Ms. Thompson testified that Fountain did very little work. The new security agreement which she signed in December 2004 was never sent to Center Capital. Moreover, Fountain did not timely provide it to her. According to Ms. Thompson, the agreement that Fountain presented to her in December 2004 should have been given to her in November 2004, because it required her to make certain payments starting in December. Although $7,000 was eventually paid to Center Capital, Fountain did not make the payment until March 2005, and Ms. Thompson did not learn that until August 2005. The last witness to testify was Marvin Davis, Jr. In early 2005, Mr. Davis retained Fountain to represent him in a criminal case. Mr. Davis and his ex-wife were charged with Medicaid fraud. Mr. Davis wanted to resolve the matter by reimbursing the State for the Medicaid payments. Fountain told Mr. Davis to make a check payable to Fountain in the amount of $10,531, which Fountain would pay to the State. Mr. Davis' check, which was dated March 3, 2005, was deposited into Fountain's operating account on March 4, 2005. Although Fountain was supposed to pay this money to the State on Mr. Davis' behalf, he did not do so. Mr. Davis did not know that Fountain had not paid the State. Mr. Davis was later arrested because the payment was not made, and as a result he was put on 18-month probation. Mr. Davis also retained Fountain in connection with another matter and paid him a $4,000 retainer. Fountain later withdrew his representation and referred Mr. Davis to a Dover attorney. The $4,000 retainer was not refunded. Mr. Davis also loaned Fountain $2,000 which has not been repaid. According to Mr. Davis, Fountain owes him a total of $16,531. Disciplinary Violations Deemed Admitted[7] The following violations of the Delaware Lawyers Rules of Professional Conduct ("Rules") have been deemed admitted by virtue of Fountain's failure to file a timely answer: Board Case No. 30, 2005(ODC)failure to safeguard client funds (Rule 1.15(a)); failure to promptly deliver funds to a third party (Rule 1.15(b)); knowingly making false statements (Rule 8.1(a)); engaging in criminal conduct (Rule 8.4(b)); conduct involving dishonesty (Rule 8.4(c)); conduct involving misrepresentation (Rule 8.4(c)); and engaging in conduct prejudicial to the administration of justice (Rule 8.4(d)). 1187 Board Case No. 1, 2006 (B. Thompson)failure to act with diligence and promptness (Rule 1.3); charging an unreasonable fee (Rule 1.5(a)); failure to safeguard client funds (Rule 1.15(a)); failure to promptly deliver funds to a third party (Rule 1.15(b)); failure to protect client's interest upon termination of representation (Rule 1.16(d)); and engaging in dishonest conduct (Rule 8.4(c)). Board Case No. 2, 2006 (V. Smack) failure to provide a written contingency fee agreement (Rule 1.5(c)); failure to safeguard client property (Rule 1.15(a)); failure to promptly deliver funds to a third party (Rule 1.15(b)); failure to hold funds separate (Rule 1.15(c)); and engaging in dishonest conduct (Rule 8.4(c)). Board Case No. 3, 2006 (M. Lacy) failure to act with diligence and promptness (Rule 1.3); charging an unreasonable fee (Rule 1.5(a)); failure to safeguard client funds (Rule 1.15(a)); failure to protect client's interest upon termination of representation (Rule 1.16(d)); and engaging in dishonest conduct (Rule 8.4(c)). Board Recommends Disbarment The ODC recommends that Fountain be disbarred citing various ABA standards, In re Carey,[8]In re Greene,[9] and In re Maguire.[10] Fountain argues that disbarment is too onerous and relies on In re Hiner.[11] The Board recommends disbarment under the facts and circumstances of this case. The Board's recommendation is helpful to the Court, but it is not binding.[12] When determining an appropriate sanction for lawyer misconduct, this Court "looks to the ABA Standards for Imposing Lawyer Sanctions as a model for determining the appropriate discipline warranted under the circumstances of each case."[13] The ABA's four factors to consider include "(a) the ethical duty violated; (b) the lawyer's mental state; (c) the extent of the actual or potential injury caused by the lawyer's misconduct; and (d) aggravating and mitigating factors."[14] In reaching its recommendation, the Board carefully considered the ABA standards for imposing lawyer sanctions (the "ABA Standards") and the four-factor analysis considered under those standards, as follows: A. Duties Violated by Fountain The Board concluded that the ethical violations include duties to clients, the legal system and the profession. B. Fountain's Mental State The Board concluded that Fountain's mental state was knowing. Mr. Davis' testimony, which was unrebutted, illustrates Fountain's knowing state of mind. When Mr. Davis wanted to reimburse Medicaid funds to the State, Fountain told Mr. Davis to make the check payable to Fountain and that Fountain would tender payment on behalf of Mr. Davis. Fountain immediately deposited Mr. Davis' check into his own operating account and did not pay the State. The Board concluded that Fountain did not intend to use the check to reimburse the State, and that he took advantage 1188 of Mr. Davis, who was not financially sophisticated. C. Injury Caused by Fountain's Misconduct The Board concluded that Fountain's clients, including Ms. Thompson, Ms. Smack, Mr. Lacy and Mr. Davis, were injured financially by Fountain's conduct.[15] D. Aggravating and Mitigating Circumstances ABA Standard § 9.22 sets forth a list of aggravating factors, many of which exist here. Based on the deemed admissions and the evidence presented at the hearing, the Board found the following aggravating factors: 1. Fountain has a prior disciplinary record (ABA Standard § 9.22(a)). By Order dated July 11, 2005, the Delaware Supreme Court suspended Fountain from the practice of law for three years. The Board notes that many of the violations addressed in this Report occurred during the pendency of the disciplinary proceedings leading up to the 2005 suspension. 2. Fountain was dishonest and had a selfish motive (ABA Standard § 9.22(b)). For example, Fountain led Mr. Davis into believing that if Mr. Davis gave Fountain money to reimburse the State, Fountain would pay the money to the State. To the contrary, Fountain deposited Mr. Davis' check into his operating account. That operating account had a negative balance three months later when the Receiver took control of it. Fountain apparently used Mr. Davis' money for Fountain's personal expenses. 3. Fountain has engaged in a pattern of misconduct (ABA Standard § 9.22(c)). 4. Fountain's misconduct consists of multiple offenses (ABA Standard § 9.22(d)). 5. Fountain took advantage of vulnerable clients (ABA Standard § 9.22(h)) including, for example, Mr. Davis. 6. Fountain has substantial experience in the practice of law (ABA Standard § 9.22(i)). He was admitted to the Delaware Bar in 1984. ABA Standard § 9.32 sets forth a variety of factors to be considered in mitigation. The Board found that the following mitigating factors exist: 1. Fountain appears to have personal and/or emotional problems including a potential gambling problem (ABA Standard § 9.32(c)). We use the word "appears" because Fountain did not offer any testimony. There was other evidence, however, that suggests Fountain has a gambling problem. 2. Fountain appears to have cooperated for the most part with the Receiver appointed for his practice (ABA Standard § 9.32(e)). The Board concluded that the following ABA Standards point to disbarment as the appropriate sanction: Standard 4.11 (disbarment generally appropriate for knowing conversion of client property and causing injury or potential injury to a client); Standard 4.41(b) (disbarment generally appropriate when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client); Standard 5.11(b) (disbarment generally appropriate when a lawyer engages in intentional conduct involving dishonesty, *1189 fraud, deceit or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice); and Standard 7.1 (disbarment generally appropriate when a lawyer knowingly engages in conduct that violates a duty owed to the profession with intent to obtain a benefit for the lawyer and causes a serious or potentially serious injury to the client, public or legal system). Disbarment Appropriate Sanction We agree with the Board's conclusions and its recommendation that Fountain be disbarred. Although we have not adopted a per se rule, this Court has consistently imposed the sanction of disbarment in situations where the conversion of clients' funds has been established.[16] In fact, in every prior Delaware disciplinary matter in which an attorney has intentionally misappropriated client funds, the attorney has been disbarred.[17] In Fountain's case, we again conclude that any sanction other than disbarment would not provide the necessary protection for the public, serve as a deterrent to the legal profession, nor preserve the public's trust and confidence in the integrity of the Delaware lawyers' disciplinary process. Now, therefore, it is ordered that Darryl K. Fountain be disbarred from membership in the Delaware Bar. His name shall be immediately stricken from the Roll of Attorneys entitled to practice before the courts of this State. NOTES [1] This procedural history is taken almost verbatim from the Board's Report. [2] These facts are taken almost verbatim from the Board's Report. [3] In re Fountain, 878 A.2d 1167, 1168 (Del. 2005). [4] In re Fountain, 878 A.2d at 1174. [5] This recitation is taken almost verbatim from the Board's Report. [6] The Panel notes that, in his proposed Answer, Fountain admitted the allegations in paragraph 5 of the Petition, including the fact that Fountain told Mr. Herndon that he owed potentially $46,000 of unearned fees and other funds to his clients. Thus, if Fountain's request to vacate had been granted, the Answer that Fountain intended to file would have admitted that Fountain owed potentially $46,000 of unearned fees and other funds to over 20 clients. [7] These facts are taken almost verbatim from the Board's Report. [8] In re Carey, 809 A.2d 563 (Del.2002). [9] In re Greene, 701 A.2d 1061 (Del.1997). [10] In re Maguire, 725 A.2d 417 (Del.1999). [11] In re Hiner, 796 A.2d 654 (Del.Supr.2002) (ORDER) ("Hiner I") and In re Hiner, 813 A.2d 1140 (Del.Supr.2002) (ORDER) ("Hiner II"). [12] In re Froelich, 838 A.2d 1117, 1120 (Del. 2003). [13] In re Bailey, 821 A.2d 851, 866 (Del.2003). [14] Id. [15] Fountain's counsel admitted financial injury to clients caused by Fountain's deposit of unearned fees directly into his operating account. [16] In re Priestley, 663 A.2d 488 (Del.1995); In re Agostini, 632 A.2d 80 (Del.1993); In re Sullivan, 530 A.2d 1115 (Del.1987); In re England, 421 A.2d 885 (Del.1980); In re Clark, 250 A.2d 505 (Del.1969). [17] See, e.g., In re Garrett, 909 A.2d 103 (Del. 2006); In re Carey, 809 A.2d 563 (Del.2002) (attorney disbarred for intentionally misappropriating client funds); In re Benge, 783 A.2d 1279 (Del.2001) (attorney disbarred for conduct including conversion of client property); In re Maguire, 725 A.2d 417 (Del.1999) (conduct warranting disbarment included misappropriation of client funds); In re Greene, 701 A.2d 1061 (Del.1997) (despite mitigating factors of inexperience in the practice of law, personal and emotional problems relating to drug addiction, eventual cooperation with the ODC, interim rehabilitation, imposition of other penalties or sanctions, and remorse, attorney disbarred for misappropriation of client funds); In re Dorsey, 683 A.2d 1046 (Del.1996) (theft of client funds warranted disbarment); In re Priestley, 663 A.2d 488 (Del.1995) (attorney disbarred for intentionally and feloniously committing multiple acts of conversion of client funds); In re Agostini, 632 A.2d 80 (Del.1993) (attorney disbarred following felony conviction for theft of client funds); In re Higgins, 582 A.2d 929 (Del. 1990) (lawyer disbarred for felonious conversion of client funds held in trust); In re Sullivan, 530 A.2d 1115 (Del.1987) (disbarment appropriate sanction for commingling and misappropriating clients' funds); In re England, 421 A.2d 885 (Del.1980) (disbarment for misconduct including the illegal conversion of client funds for personal use); In re Clark, 250 A.2d 505 (Del.1969) (attorney disbarred for converting clients' funds for personal purposes); In re Hawkins, 87 A. 243 (Del.Super.1913) (attorney reinstated after disbarment for embezzlement).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516005/	335 S.W.2d 15 (1960) STATE of M'ssouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Leonard SCHWABE et al., on Counterclaim of Louis M. Noble, Mary L. Noble, and Exchange National Bank, a Corporation, Respondents. No. 47477. Supreme Court of Missouri, Division No. 1. May 9, 1960. 16 Robert L. Hyder, Minor C. Livesay, Jefferson City, for appellant. 17 Robert C. Smith, Columbia, Smith & Lewis, Columbia, of counsel, for respondents. COIL, Commissioner. Respondents Louis and Mary Noble were defendants in a condemnation proceedings instituted by the State Highway Commission. In Count 2 of their amended counterclaim they sought the reformation of a deed by which they had conveyed real estate to the State of Missouri. The trial chancellor found that the deed in question did not reserve a right of access to Highway 40 but that, as contended by respondents, such reservation had been omitted as a result of mutual mistake, and adjudged that the deed be reformed to include such reservation. The State Highway Commission (hereinafter called commission) has appealed from that judgment. Inasmuch as the title to real estate is directly involved, we have appellate jurisdiction. Dalton v. Johnson, Mo.App., 319 S.W.2d 66; Dalton v. Johnson, Mo., 320 S.W.2d 569, 571. In 1948 the commission was acquiring right of way in Boone County for new U. S. Highway 40. Respondents Louis Noble and his wife Mary (respondent Exchange National Bank was the holder of notes secured by deeds of trust on the Nobles' property) owned 45 acres on the north side of the proposed east-west highway. The commission wished to acquire 5.9 acres of that property and in the spring of 1948 its employees and agents, T. H. Erwin (head of the right-of-way division in 1948) and Mr. Hoehler (deceased prior to the trial of the present case), began to negotiate with the attorney and agent for Louis and Mary Noble. Those negotiations culminated in a deed dated November 17, 1948, executed by the Nobles to the State of Missouri conveying the 5.9 acres. For purposes pertinent to any question here involved, the deed conveyed a strip of land approximately 1550 feet in length. About 250 feet from the west end of that strip an existing northsouth county road intersected the strip of land, the existing highway, and the proposed new highway. The present condemnation proceedings was filed January 10, 1958. Its purpose was to acquire additional land for new Highway 40. In the meantime, that is, from the date of the deed, November 1947 until the summer of 1957, the Nobles had used the county road and thereby had enjoyed continuous access to the highway. In the summer of 1957, however, the commission blocked the county road by an embankment apparently at the north edge of the right of way of new Highway 40. In the condemnation petition the commission recited, as to respondents' land, that there was "no right of direct access to land heretofore acquired except as set out in the" deed from respondents to the state. To that petition respondents filed the amended counterclaim heretofore mentioned. It was and is respondents' contention that the agreement of the parties was that an easement of access was to be reserved in the deed at the place where the county road intersected the existing and proposed highways and that if the deed as written did not express that agreement, it should be reformed to accord therewith. Appellant adduced no evidence below and contends here that the deed is plain and unambiguous and does not reserve but specifically conveys and relinquishes all rights of access, and that for reasons to which we shall hereinafter refer, respondents were not entitled to have the deed reformed. Respondents' agent who negotiated for them and who approved the deed for their signatures was an experienced lawyer. He negotiated with Messrs. Erwin and Hoehler during the period from the spring to November of 1948. He testified that when he first examined the property in question he understood that all of his clients' access to Highway 40 was to be cut off and that as a result he consulted with a real estate 18 agent as to the amount of damages which would accrue based on the loss of all direct access and that the suggested figure was $30,000 (the actual consideration for the deed as finally signed was $5,900); that the commission's agents offered $3,000 for the desired property and pointed out that it was not true, as he thought, that all access would be cut off but, on the contrary, the sale and purchase would be made with the understanding that access would be guaranteed to the new highway at the point where the existing county road intersected it; that the agents repeatedly so stated during the negotiations, and that it was the expressed intent of the commission's agents and himself as agent for the Nobles that the deed was to contain a reservation of a right of access to new Highway 40 at the place where the county road intersected existing Highway 40 as shown on the plat; that the first deed submitted did not make provision for any such reservation and when that was pointed out to agents Hoehler and Erwin they had another deed (the one signed) prepared. Noble's attorney testified further that he was of the view that the new deed was not as clear as it should have been with respect to the right of access but that the commission's agent pointed out that the deed did in fact reserve a right of access at the point mentioned because by its terms the Nobles were not relinquishing any right of way they had by reason of the existence of the county road ; that he (the witness) concluded that the deed was so drawn that the Nobles did not relinquish but retained the right of access which they had by reason of the county road; that such was the way the commission's agents and he understood it and that if the language used did not or does not mean that, or is not so construed, then the deed does not represent the agreement of the parties. Ira McDonald, in the real estate business in Columbia, testified that he was present at some of the negotiations and that at first the commission's agents wished to eliminate all access from Noble's abutting land but later agreed that he would continue to have access through the county road at the place where it intersected the highway and that he heard those agents tell Mr. Noble that he would be able to get on the highway at the place where the county road intersected it. Respondent Louis Noble testified that commission agent Erwin said his (Noble's) access would be at the point where the county road intersected the existing highway and that Erwin cautioned him that if he sold any lots from his property in the future the purchasers would have no access to the highway other than by the county road; that he, Noble, executed the deed and determined to accept $5,900 for the property based on the understanding that he would have access at only one place, viz., where the county road intersected, and that otherwise he and his wife would not have signed the deed. Noble testified further that he had continued to use the county road and thereby had had access to the highway for about ten years following the execution of the deed, during which time no one from the commission had ever attempted to interfere with his access; that he first learned that the commission claimed that he had no such access but had conveyed it by his deed, in the early summer of 1957 when the county road was blocked by a 20-foot high embankment and his access to the highway thereby cut off. T. H. Erwin, undisputedly the agent of the commission for the purpose of acquiring the right of way in question in 1948, testified that the testimony given by Noble's attorney at the trial of the present case was substantially correct as to what had transpired during their negotiations; that he had specifically pointed out to Noble where he would have access to the highway, viz., at the place where the county road intersected; that the property was purchased by the commission with the understanding that Noble would retain that right of access; that he had pointed out to Noble that it would be his only point of access; that it was the understanding of 19 the parties that the right of access at the county road would remain. In the view we take of this case it will be unnecessary to set forth the language of the deed or to construe any of its terms. We shall assume that the deed properly construed clearly did convey and relinquish all respondents Nobles' rights of direct access, including any right of access at the place where the county road intersected the highway. We are reminded by appellant that our review of this equity case is de novo and that it is our province to weigh the evidence and reach our own conclusion as to its weight; and that to justify the equitable relief of reformation on the ground of mistake, the burden is on the party seeking that relief to show by clear and convincing evidence that the instrument did not express the agreement of the parties to it by reason of their mutual mistake. Walters v. Tucker, Mo., 308 S.W.2d 673, 679[7]. In the present case, inasmuch as all the evidence was adduced by respondents and inasmuch as all the testimony which went to the question of whether the deed in fact expressed the agreement of the parties or failed to do so by reason of a mutual mistake, was favorable to respondents, the only question as to whether there was in fact a mutual mistake is the credibility of that testimony. There is nothing in the record which causes us not to defer to the finding of the trial chancellor on that issue. If the testimony adduced by respondents was credible, as the trial chancellor found and as we have found it was, it seems apparent that the only reasonable conclusion is that there was an agreement of the parties that the deed was to contain a reservation of an easement of access to new Highway 40 at the point where the existing county road intersected the existing highway. In other words, it seems plain that unless the deed provided for grantors' access to Highway 40 at the point where the county road intersected, then both parties did what neither intended to do because it is clear from the testimony that both parties intended that the deed provide for grantors' access at the point noted. It follows that the failure of the deed to so provide was the result of a mutual mistake as to the legal meaning of the language used in the deed. "It has been said it is the province of a court to enforce contracts and conveyances, not to make or alter them; but it is the duty of the court to enforce the contract that was really made, and when by mutual mistake a contract or other instrument is not expressed in such terms as have the force and effect that the parties intended, then it is the clear duty of the court to correct the mistake. This power of a court of equity to reform an instrument, which by reason of mistake fails to express the intention of the parties, has long been considered unquestionable. Leitensdorfer v. Delphy, 15 Mo. 160. And courts of equity have exerted the power to reform an instrument so as to make it speak the real agreement made between the parties in those cases where, because of the mistake or inadvertence of the scrivener, the writing fails to do so; * * . However, a mistake affording ground for the relief of reformation must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended." Walters v. Tucker, supra, 308 S.W.2d 675 [2-4]. Although the commission contends to the contrary, parol evidence was admissible to show the true intention of the parties to have included in the deed a reservation of an easement of access even though the deed as executed was unambiguous and in fact contained no such reservation. Walters v. Tucker, supra, 308 S.W.2d 675 [1]. And the power of a court of equity to reform a deed includes the power to insert a reservation which has been omitted by mutual mistake. 45 Am.Jur., Reformation of Instruments, § 37, p. 604. Cf. Baumhoff v. Lochhaas, Mo., 253 S.W. 762. Appellant contends, however, that equity will not reform a deed because of a 20 mutual mistake, where, as here, the mistake is one of law. It is true that there are expressions in some of the cases to the effect, e. g., that one cannot avoid his act or deed on the ground that he was ignorant of the law, Simmons v. Friday, 359 Mo. 812, 825, 224 S.W.2d 90, 99, or "That a mistake of law pure and simple will not afford an adequate ground for relief is well settled * * ." McIntyre v. Casey, Mo., 182 S.W. 966, 969[3]. It appears, however, that whatever effect the rule that equity will not relieve against a mistake of law may have in its application to various fact situations, it does not apply to the kind of a mistake involved in the present case whether that mistake be one of fact, of law, or of law and fact. The language of this court in the early case of Corrigan v. Tiernay, 100 Mo. 276, 280, 13 S.W. 401, is precisely applicable : "The point pressed upon our attention is that, according to the answer, Patrick Tiernay had full knowledge of all of the facts, and the mistake was simply a mistake of law in supposing the deed would convey the title to him and his wife jointly. It is a well-established general rule that a court of equity will not grant relief against a mistake of law unmixed with any mistake of fact. Price v. Estill, 87 Mo. 378; Norton v. Highleyman, 88 Mo. 621. There are, however, some exceptions to this general rule. Cases arise where there is a mixed mistake of law and of fact in which relief will be granted. Thus in the case of Griffith v. Townley, 69 Mo. 13, an administrator sold land of his intestate, supposing that it was the fee that he was selling, and the purchaser supposed that it was the fee that he was buying. It transpired that nothing passed by the sale but the equity of redemption. It was held there was such a mutual mistake of fact and law as entitled the purchaser to relief. See also Cassidy v. Metcalf, 66 Mo. 519. "But it is not necessary to a disposition of the case in hand to follow out the many distinctions taken in the class of cases just mentioned. If an agreement is what the parties thereto intended it should be, equity does not interfere because the parties did not understand its legal effect. `The principle underlying the rule is,' says Mr. Pomeroy, `that equity will not interfere for the purpose of carrying out an intention which the parties did not have when they entered into the transaction, but which they might or even would have had, if they had been more correctly informed as to the law.' 2 Pom. Eq. Jur., sec. 843. A different case is presented where the instrument, as it is reduced to writing, fails to express the contract which the parties actually entered into. In such cases equity will reform the contract, and this, too, though the instrument fails to express the contract which the parties made by reason of a mistake of law. Says the author last named: `In short, if a written instrument fails to express the intention which the parties had in making the contract which it purports to contain, equity will grant its relief, affirmative and defensive, although the failure may have resulted from a mistake as to the legal meaning and operation of the terms or language employed in the writing.' [2 Pom.Eq.Jur.,] § 845." In the present case the deed when executed failed to express the contract which the parties had actually entered into and thus equity will reform that deed even though the instrument fails to express the contract which the parties made by reason of a mistake of law. In the early case of Leitensdorfer v. Delphy, 15 Mo. 160, this court said at page 166: "The supreme court of the United States in Hunt v. Rousmaniere's Adm'r, 1 Peters [1] 13 [7 L. Ed. 27], say, `there are certain principles of equity applicable 21 to this question, which as general principles we hold to be incontrovertible. The first is, that where an instrument is drawn and executed, which professes or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfil or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.' " * * * It is not necessary, in order to establish a mistake in an instrument, that it shall be shown that particular words were agreed upon by the parties as words to be inserted in the instrument. It is sufficient that the parties had agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention." (Italics present writer's.) Bramhall v. Bramhall, Mo., 216 S.W. 766, was a suit to reform a deed on the ground that as a result of a mutual mistake the deed conveyed lands to plaintiff and the heirs of his body when the parties had agreed and intended that it convey title to plaintiff in fee. The court said at page 769 : "Appellants say plaintiff, by acceptance of the first deed, was charged with knowledge of its contents; but this doctrine is inapplicable to the present action. The rule applicable is that if, after an agreement has been made, a mistake, either of law or fact, occurs in writing it out, so that it fails to express the contract of the parties, equity will reform it. 2 Pomeroy, Eq.Jur. (4th Ed.) § 845." See also, as directly supporting relief by reformation under the facts of this case, Williamson v. Brown, 195 Mo. 313, 331, 93 S.W. 791, 796; McVey v. Phillips, Mo., 259 S.W. 1065, 1067 [5]; Kanan v. Hogan, 307 Mo. 269, 270 S.W. 646. Thus, even if it be conceded that when parties erroneously suppose that the words used in an instrument are legally effective to secure a certain result, the mistake is one of law, it is clear that equity will correct such a mutual mistake of law under the rules stated in the foregoing cases, provided, of course, that the fact of the mutual mistake is shown by clear and convincing evidence. The commentator, in a note in 135 A.L.R. 1452, says at page 1453: "The best-considered modern cases recognize that the main object of equitable jurisdiction should be to effectuate the intention of the parties to the instrument, and that any mistake made by them which would defeat such intention should be corrected in equity, irrespective of the question whether the mistake is one of law or of fact." Whether our decisions are all in full accord with the above statement, it is clear that they support the assertion when the mutual mistake is like the one shown in the present case. Appellant's point 1C is: "In the absence of constitutional or statutory authority, the employees or agents of the state highway commission cannot by their representations, actions, or attempted agreements, bind the state or the state highway commission in the exercise of its duties as prescribed by the constitution and the statutes of the State of Missouri." The argument under that point consists of quotations from cases, two of which hold that an agent of the state highway commission may not legally agree that a certain road will be permanently located in a certain place because the commission and none of its agents may abdicate the power delegated to that commission to relocate or discontinue roads forming part of the state highway system; another of which holds that a state is not liable for the unauthorized exercise of power by its agents unless liability therefor is imposed by the constitution or statutes; and two more of which hold that a state is not answerable in damages for the negligent acts of its officers and agents. The only Missouri case cited is Aquamsi Land Co. v. City of Cape Girardeau, 346 Mo. 524, 142 S.W.2d 332, but that case is not mentioned *22 in the argument and its application is not apparent. We are unable to discern the applicability of appellant's point aforequoted and its cited cases to any question in the present case. After quotations from the cited cases, appellant concludes that the agents of the commission had no authority to make the representations and agreement which the surviving agent Erwin said they made, because it was not shown that the commission at a regular meeting specifically delegated the specific authority to that particular agent to make the specific reservation in question. We are of the opinion that the status of the pleadings and the evidence as reflected by the record precludes appellant from making that contention here. As noted heretofore, respondents, as defendants below, filed a counterclaim to plaintiff's condemnation petition and averred therein that respondents Louis and Mary Noble had sold to the plaintiff certain land and executed and delivered a deed conveying it to plaintiff; that the parties to the transaction intended to reserve a right of access to the grantors in that deed; that it was so agreed between the parties, but that as a result of mutual mistake the deed did not expressly reserve that right of access, and defendants prayed for reformation of the deed. Appellant, as plaintiff below, did not file a reply to that counterclaim, although one was required. RSMo 1949, Section 509.010, V.A.M.S. It is probable that the contention that admittedly a right-of-way agent exceeded his authority in agreeing to a particular condition in a deed is an affirmative defense and that it must have been specifically pleaded, and that the burden of proof as to such defense was upon the defendant. See Berberet v. Myers, 240 Mo. 58, 144 S.W. 824, syllabus 19; 3 C.J.S. Agency § 312(2)b, p. 247, § 317(2) (a), p. 259; RSMo 1949, § 509.090, V.A. M.S. Be that as it may, however, RSMo 1949, Section 509.100, V.A.M.S., provides in part, "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleadings." Appellant knew, of course, that the very deed relied upon in its condemnation petition and referred to in respondents' counterclaim had been negotiated and obtained through its right-of-way agents. Thus, it seems clear that appellant's failure to have raised the issue of its agents having exceeded their authority in making the agreement averred in respondents' counterclaim, was an admission of their authority to so agree. Furthermore, appellant, as we have noted, adduced no evidence and did not at the trial by a direct statement or inference raise any issue as to the commission's agents having exceeded their authority in agreeing to take the deed in question with a reservation of access therein, nor did appellant specifically include any such point in his motion for new trial. On the contrary, appellant tacitly conceded at the trial, and indeed makes no contrary contention here, that Messrs. Erwin and Hoehler were the duly authorized agents of the commission to negotiate for the purchase of property for the right of way in question and to accept deeds of conveyance thereof. And certainly the commission does have the power, through its duly employed agents, to purchase land for right of ways for reconstructed highways. RSMo 1949, Section 227.120, V.A. M.S. We are of the opinion that under the pleadings and evidence in this case appellant is in no position to here urge that its right-of-way agents exceeded their authority in agreeing that the deed in question was to contain a reservation of access. The judgment is affirmed. HOLMAN and HOUSER, CC., concur. PER CURIAM. The foregoing opinion by COIL, C., is adopted as the opinion of the court. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516000/	335 S.W.2d 159 (1960) Gerald R. KELLY, Respondent, v. KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, and Harold B. Backer, Appellants. No. 47461. Supreme Court of Missouri, Division No. 2. April 11, 1960. Motion for Rehearing or to Transfer Denied May 9, 1960. 160 Ima M. Goehring, E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellants. John P. Zimmerman, Kansas City, Rufus Burrus, Independence, for respondent. Motion for Rehearing or to Transfer to Court en Banc Denied May 9, 1960. BARRETT, Commissioner. The plaintiff, Gerald R. Kelly, driving a 1956 Plymouth station wagon north on Prospect Avenue passed through the lightcontrolled intersection of 27th Street and by reason of a "traffic jam" at 26th Street stopped with the traffic ahead opposite 2619 Prospect, just behind a Sears delivery truck. While he was thus stopped a Kansas City Public Service Company trolley bus, operated by Harold B. Backer, ran into the 161 rear end of the stopped station wagon, jamming the front end of it into the rear end of the stopped Sears truck. To recover damages for his resulting personal injuries and the injury to his station wagon Kelly instituted this action against the Kansas City Public Service Company and its trolley bus operator, Backer. A jury awarded the plaintiff a total of $36,000 damages and upon this appeal the defendants make four principal claims: that they are entitled to a new trial because the court erred in giving to the jury instructions 1 and 8, abused its discretion in permitting the plaintiff to offer evidence in rebuttal, and if they are not entitled to a new trial that the verdict is excessive and should be reduced by remittitur. First as to the rebuttal evidence: at the close of the defendants' case the plaintiff, over the objection of the defendants, called five witnesses in rebuttal. The defendants, while asserting that the court abused its discretion, admit that they "have found no Missouri decision holding that the trial court had abused its discretion in this regard." And, 6 Wigmore, Evidence, Secs. 1873, 1876, pp. 510, 519, the authority upon which they rely, likewise does not indicate that the court erred in this particular regard. The defendants' tacit admission is perhaps sufficient to dispose of this claim of error. However, without detailing at length and illustrating, some of the testimony was in point of fact rebuttal in character, some of it was collateral if not immaterial, and some of it was appropriately a part of the plaintiff's case in chief. The subject was recently reviewed in Peters v. Dodd, Mo., 328 S.W.2d 603, 609-610, in which the court excluded rebuttal testimony and here as in that case it does not plainly appear that the court's discretion "has been clearly abused." And see Jones v. Chicago, B. & Q. R. Co., 343 Mo., 1104, 1127, 125 S.W.2d 5, 17-18. Instruction 1 was the principal instruction and hypothesized the defendants' liability upon a finding of negligence in that the trolley bus operator failed to keep a lookout for plaintiff's station wagon or operated the bus at a greater speed than was reasonable or prudent under the circumstances or operated the bus at a greater speed than would permit the operator to exercise proper control of the bus and to decrease its speed or stop and thus avoid colliding with the station wagon. The appellants have lodged eight specific objections to this instruction: (1) failure to hypothesize the alleged negligent rate of speed shown by the respondent's evidence, (2) submitting plaintiff's signals of stopping but failing to submit whether they were timely, (3) submitting that "Plaintiff was not negligent in any respect" which conflicts with instruction 2 defining "ordinary care" and therefore requires of plaintiff only that standard of conduct, (4) it assumes that the operator did operate the bus at a greater speed than was reasonable or prudent, (5) assumes that he operated the bus at a greater speed than would permit him to exercise proper control of the bus and decrease its speed or stop, (6) assumes that he failed to keep a lookout, (7) in saying "Such negligence, if any, directly caused injury to plaintiff" the instruction assumes that the acts set forth in paragraphs 1 and 2 were negligent and (8) assumed that plaintiff was not negligent. Objections 1, 2, 4, 5, 6 and 7, particularly the arguments with respect to "assumption" of fact or of negligence are all based upon the appellants' assertion that the rate of speed of the trolley bus, what the bus operator was or was not doing, and all other matters involved in the instruction "were in dispute" or "were controverted issues" or "disputed issues" and therefore the instruction erroneously and prejudicially assumed them. What the appellants must mean by their assertion and argument is that in their pleadings they denied these particular matters and, therefore, the burden of proof was upon the plaintiff to sustain his claim by proof and furthermore to specifically hypothesize the proof in his principal instruction. What the appellants overlook is that long after 162 the pleading stage and by the time the case was submitted to the jury there was not in point of fact any real dispute or controversy as to a single essential fact. As to the facts of the occurrence the only difference between the plaintiff and the defendants was whether there was once another vehicle between the trolley bus and the station wagon. The bus operator said there was, an "old model" car 70 feet ahead, and that it pulled into the curb near 2619 Prospect without warning and that was his excuse, as he repeatedly admitted, for taking his "eyes off of the straight-ahead traffic" and "just momentarily" watching to see what became of that old vehicle. No one else, and there were several witnesses, saw this "old model" car and Mr. Backer was unable to otherwise identify it or to pick it out from photographs (taken but a few minutes after the collision) of vehicles along the curbing. But the presence or absence of this old vehicle aside the facts were that Mr. Backer stopped the trolley bus at 27th Street for passengers and as he pulled away saw the Plymouth station wagon north on Prospect, he said 85 feet away. As he drove down the street he did not apply his brakes, instead he "just released the power" when his attention was "diverted" by the old vehicle and when he again looked ahead at the traffic the station wagon was stopped "45 to 50 feet" away and it was too late to stop and, of course, the front end of the bus crashed into the rear end of the station wagon and knocked it into the rear end of the Sears truck. The plaintiff and the Sears driver who heard the conversation testified that the reason Backer gave for hitting the station wagon was "`I just wasn't looking.'" An investigating police officer asked Mr. Backer what happened and this was his cryptic report: "He stated he was northbound on Prospect at 20 to 25 miles per hour and realized danger 40 to 50 feet away but was unable to avoid." But as to the facts bearing upon the acts submitted in the instruction; on a clear, sunny afternoon, about 5:30 on July 18, 1956, the trolley bus admittedly ran into the rear end of the station wagon while it was stopped in the traffic. There were at least three eyewitnesses other than the plaintiff and Mr. Backer and the only difference in their testimony and that of Mr. Backer is that some of them said that the trolley bus was 150 to 175 feet up the street when the station wagon stopped in the traffic. Kelly said that he had been stopped 10 to 12 seconds when the bus struck his station wagon. One witness, a pedestrian, said that when he first saw the bus it was 250 feet away and traveling "at a rapid speed, very rapid speed." Another witness, a young boy on the porch at 2619 Prospect said that the bus was traveling at a speed of 30 to 35 miles an hour 250 feet from the point of collision. The appellants seize upon this particular testimony and urge that there was a dispute as to the speed of the bus and, therefore, the instruction assumes or fails to properly hypothesize the detailed facts with respect to speed. But in this connection the plaintiff, Kelly, traveled north on Prospect at a speed of approximately 20 miles an hour, as he crossed 27th Street on a changing light he saw that the traffic ahead in the 2600 block was stopped and so he pumped his brake to signal and at the same time gave an arm signal for stopping. He stopped about five feet to the rear of the Sears truck and had been stopped 10 to 12 seconds when the trolley bus crashed into the rear of his station wagon. Kelly first saw the Sears truck as he left 27th Street 350 feet aheadthe measured distance from 27th Street to 2619 Prospect is 359 feet. There was no signal or warning from the bus and Kelly did not testify to its speed but others did and except as indicated the witnesses said that just before colliding the speed of the bus was 20 miles an hour. Mr. Backer said that as he left the bus stop he "just pulled out in the stream of traffic and, of course, accelerated" to a maximum speed of 20 to 25 miles an hour after he crossed 27th Street and after his momentary inattention ahead and by the time the bus collided with the station wagon 163 he had reduced its speed to "five to eight, and not to exceed ten miles an hour." In short, Mr. Backer offered an excuse but the fact was that he did not maintain an observant lookout ahead as well as laterally. Furthermore, in the circumstance of his not looking ahead, even "momentarily," any speed of the bus was hazardous if not negligent. In any event there could be no "dispute" or "controverted issue" as to the fact that the speed of the bus as it left 27th Street was 20 miles an hour and, of course, at that speed and looking elsewhere even momentarily he could not and did not properly operate or control the bus so that he could look ahead and timely decrease its speed or stop upon his recognition of the stopped traffic and danger. In these circumstances and as to these submitted assignments of negligence there were no disputed or controverted fact issues. Hanser v. Lerner, Mo.App., 153 S.W.2d 806. This is not to say that an instruction should or may assume essential facts even when the proof is overwhelming (Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559) but it does illustrate that in these circumstances there is no fundamental base for the appellants' claim that the issues were complex or sharply disputed and, therefore, must have been explicitly set forth in detail. Compare Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. Dahlen v. Wright, 361 Mo. 524, 235 S.W.2d 366, was a nighttime collision, there was a dispute whether the defendant's speed was 35 miles an hour or 65 to 70 miles an hour, and the case was submitted on both humanitarian and primary negligence. As to primary negligence of speed the case simply followed Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541, and aside from the fact that the underlying doctrine of these two cases has been modified considerably (Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972), "Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, that if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction." Hooper v. Conrad, 364 Mo. 176, 188-189, 260 S.W.2d 496, 500-501. The submission here was disjunctive but admittedly there was evidentiary support for each of the assignments and there was no counterclaim or other complexity (Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756) and there was no injection of "concurring and joint" negligence. Jones v. Rash, Mo., 306 S.W.2d 488, 491. While there was an original plea of contributory negligence there was no evidence in support of the claim and the defendants made no effort to support or submit it and the plaintiff was not bound to negative the bare charge. Shepard v. Harris, Mo., 329 S.W.2d 1. It is not necessary to sprinkle an instruction with "if you so find" in order to avoid the charge of assumption of facts (88 C.J.S. Trial § 327(d), p. 857) ; if the instruction in its beginning, as this one does, plainly requires the jury to find the hypothesized facts from the evidence that is sufficient. There was no evidence contradictory of Kelly's testimony that he gave two signals of his intention to stop, and, since Backer was not looking or did not "realize danger" until as he said it was too late, it would seem to make but little if any difference whether his signals were "timely." In any event there was no evidence from which the jury could draw the inference that his signals were not timely. It was not as if the plaintiff had submitted his cause and the defendants' liability upon a finding of failing to signal and omitted a finding of its timeliness as was the fact in Stermolle v. Brainard, Mo.App., 24 S.W.2d 712. The instruction concludes with the finding that 164 "Plaintiff was not negligent in any respect" but we are unable to see how this phraseology assumes that he was not negligent or that it imposed upon him the obligation to use "only ordinary care" as that term was defined in instruction 2. The vehicle involved here was a trolley bus (the defendants took the position that it was not a "motor vehicle") and defendants' counsel made the utmost use of the fact in his argument to the jury. After explaining what had caused Backer "to divert his attention momentarily" counsel said, "This was not an automobile. His duty on the street in driving was to exercise the ordinary care." He went on to explain the differences in the degrees of care and finally called upon the jury to consider all the instructions and particularly that "he acted as the Court tells you by way of definition: `The jury are instructed that "ordinary care" as used in these instructions means such care as an ordinarily prudent person would exercise under like or similar circumstances * "' and so he continued and argued that Mr. Backer had done just that. Instruction 2, whether correctly defining the defendants' duty or not, had no application to the plaintiff and in these circumstances did not alter his duty and was not erroneous in submitting conflicting standards of care. Compare: Hamre v. Conger, 357 Mo. 497, 209 S.W.2d 242, and Young v. Anthony, Mo., 248 S.W.2d 864. And in conclusion as to all of the assignments specifically directed against instruction one and in the particular circumstances of this record, the facts were very simple, "easily understood and within the common knowledge of the members of the jury." Carson v. Evans, 351 Mo. 376, 381, 173 S.W.2d 30, 32. This was indeed a most elemental motor vehicle collision and in the absence of plainly confusing or misleading instructions manifestly infringing substantial rights in a demonstrably substantial manner there was no error "materially affecting the merits of the action" (V.A.M.S. § 512.160(2)) and demanding the granting of a new trial. Carson v. Evans, supra; Hooper v. Conrad, supra; Moloney v. Boatmen's Bank, 288 Mo. 435, 458, 232 S.W. 133; Crosby v. St. Louis County Cab Co., Mo.App., 320 S.W.2d 944; Stewart v. Boring, Mo., 312 S.W.2d 131, 134; Cammarata v. Payton, Mo., 316 S.W.2d 474; Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912. Instruction 8 was upon the measure of damages and the appellants make three objections to that instruction: (1) that there was "no substantial evidence to support the submission of impairment in plaintiff's capacity to work and labor and earn a livelihood in the future," (2) that in mentioning "impairment, if any, in plaintiff's capacity to work and labor and earn a livelihood" the instruction improperly authorizes a recovery of triple damages and (3) in submitting impairment of capacity to work and labor the instruction ignores "vital, qualifying evidence" of his own physician that he would suffer no such impairment if he had another operation. There is no substance in points (1) and (3); it was not claimed, proved or submitted that Kelly was totally disabled or that he was so incapacitated that he could not work at all and, therefore, had no earning capacity whatever. It is not necessary to lengthen this opinion by detailing the evidence and demonstrating, it was the opinion of Kelly's doctors that he was not capable of doing heavy workone doctor said, "In my opinion he is disabled from manual labor or work involving standing for long hours on his feet." He was a tool and die maker and prior to his injury earned about $6,000 a year. Since his injury he has had, largely by reason of friends, two or three jobs of light tool and die employment but at reduced rates of pay and when the work became heavy was unable to continue, gave up the jobs and attempted to "pick up a few odd jobs of my own." In the first half of 1957 at the light job he earned $3,351.16 and in the remainder of the year earned $280. In 1958, January to October, he earned $1,280. Since his laminectomy the 165 doctors have recommended a stabilization operation, in which one out of five "fail" to achieve the desired results, but they have not said that it would restore his capacity to work and labor. In short, there was proof of serious impairment of ability to work and labor, an injury for which he was entitled to recover damages. Bone v. General Motors Corp., Mo., 322 S.W.2d 916, 922-923; Shepard v. Harris, Mo., 329 S.W.2d 1, 11-12. The only meritorious problem involved in all of these assignments is the old question of whether an instruction on the measure of damages which permits an award, as this instruction does, for all injuries and also permits the jury to take into consideration "impairment of earning capacity" or impairment of ability to work and labor is erroneous in that it submits and permits recovery of "double compensation"here called triple recovery. It would serve no useful purpose to again attempt a review of this subject other than to repeat that the cases involving married women and minors, who it was said had "no established record of earnings," are not in point. See for example Wolfe v. Kansas City, 334 Mo. 796, 68 S.W.2d 821, and Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583. Instruction 8 is a rescript of the instructions in Bone v. General Motors Corp., supra; Moss v. Mindlin's, Inc., Mo., 301 S.W.2d 761, and Murphy v. St. Louis Public Service Co., 362 Mo. 772, 244 S.W.2d 31. While this and similar instructions have not been "warmly commended" (no case has been reversed and remanded because of them), the test of duplication of damages is whether the instruction would lead the jury to believe that an award must be made "for respondent's injuries and then allow him an additional sum for damages." Wild v. Pitcairn, 347 Mo. 915, 926, 149 S.W.2d 800, 805. And it has been repeatedly said that instructions do not have the effect of permitting duplication when they do not "direct the jury to allow for all of such items or a duplication of same or any of them, but to consider the same, if any, and to allow one sum that would fairly compensate her for such injuries as the jury might find that she received." Hieber v. Thompson, Mo.App., 252 S.W.2d 116, 125; Wolfe v. Kansas City, supra. It has been recently indicated that there is still some unresolved doubt if not conflict in the cases dealing with this problem. Seymour v. House, Mo., 305 S.W.2d 1, 7. The only case that could cast any doubt upon what has been the general policy or rule or that supports the appellants' claim is Murphy v. St. Louis Public Service Co., supra, and what the court there said upon the subject was not necessary to the decision. The most recent case in which the problem was in fact involved is the decision in Moss v. Mindlin's, Inc., which admittedly supports the respondent and the instruction and even though a divisional opinion impliedly purports to overrule the Murphy case. The distinctions in the cases and the instructions are appropriately noted in the Moss case and, as indicated, impairment of earning capacity or ability to work and labor is a matter which the jury may properly consider in awarding damages. Bone v. General Motors Corp., supra; Shepard v. Harris, supra. Other than as indicated in the Murphy case, in comparable circumstances there has never been any really serious problem and new trials have not been granted because of any error in similar instructions. Wild v. Pitcairn, supra; Hieber v. Thompson, supra; Wolfe v. Kansas City, supra; Moss v. Mindlin's, Inc., supra. As to the excessiveness of the verdict of $36,000 it is not necessary to detail the evidence as the parties have in their briefs and indicate the permissible inferences ; similar injuries and treatment with attendant disability have been described in detail in several comparable cases and so will be but briefly indicated here. The plaintiff was forty-three years old when injured on July 18, 1956, and had a life expectancy of about twenty-four years. His hospital, medical and surgical expense was *166 $3,304.08, automobile damage $550 and loss of earnings, as calculated by the plaintiff, of $9,098.84, thus a total monetary loss of $12,952.92 is accounted for. From July 18 to September 5, 1956, he was treated intermittently by Dr. Atcheson who tried unsuccessfully to relieve his pains by means of medicine and heat therapy. When finally he did not respond to this treatment Dr. Atcheson recommended his hospitalization and he entered St. Joseph's Hospital on September 4. He was in traction nine weeks and when he failed to respond to that treatment orthopedic specialists, Drs. Pipkin and Piper, were called. A myelogram confirmed their previous diagnosis of an injured disk between the fourth and fifth lumbar vertebrae. Following their advice and to relieve the pressure on the nerves a laminectomy was performed November 5 and the injured disk was removed. The pathologist's report, according to them, confirmed their diagnosis and the degeneration of the disk. Kelly was discharged from the hospital on November 17th but has since worn a brace or support. There has been a narrowing between the "4th and 5th separation" and he has an unstable back which his doctors say is permanent and has rendered him incapable of again doing heavy work, particularly as a tool and die maker. When the laminectomy was performed his surgeons did not think a further stabilization operation was indicated; they have since come to the conclusion that while a stabilization or fusion would still leave him with an abnormal back and prevent his doing heavy work it is nevertheless advisable. It was the opinion of the defendants' doctors, Drs. Pickard and Rhoades, that the degeneration of the disk had started prior to the injury, if there was degeneration, and it was their opinion, despite the operation, that he "could return to regular work" and that there was no necessity for a stabilization operation. In short, they found him to be completely normal and were unable to account for his present complaints. Under the general rules with respect to remittiturs and in quite similar injuries verdicts of $40,000 and $37,500 have been approved. In some of the instances there was but a diagnosis of a disk injury without the confirmation of a myelogram and in one or more of the cases there had been no operation. In Hayes v. Wabash R. Co., 360 Mo. 1223, 233 S.W.2d 12, there was an unoperated herniated disk injury between the 5th lumbar vertebra and the sacrum and this court in 1950, although the trial court had required a remittitur of $10,000, reduced a total award of $45,000 to $37,500. In Pinter v. G., M. & O. R. Co., 362 Mo. 887, 245 S.W.2d 88, there were other injuries but particularly a disk injury and an operation between the sacrum and the 5th lumbar vertebra and this court refused to further reduce a $40,000 award after a trial court remittitur of $5,000. In Rogers v. Thompson, Mo., 308 S.W.2d 688, 693, the plaintiff was but twenty-four years old and this court refused to reduce a $40,000 judgment for a confirmed but unoperated "ruptured and prolapsed intervertebral disk with resulting disability" between the 5th lumbar and 1st sacral vertebrae. In conclusion, whatever one may think of the size of these verdicts and regardless of what the truth may be as to the seriousness of these injuries and the disabling effect of the operations, it is obviously not possible in view of these precedents to reduce this verdict of $36,000. Accordingly the judgment is affirmed. BOHLING and STOCKARD, CC., concur. PER CURIAM. The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court. LEEDY, P. J., EAGER and STORCKMAN, JJ., and ELMO B. HUNTER, Special Judge, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516022/	913 A.2d 1096 (2007) 99 Conn.App. 326 Maria RIVNAK v. David RIVNAK. No. 26838. Appellate Court of Connecticut. Argued October 16, 2006. Decided January 23, 2007. 1098 David Rivnak, pro se, the appellant (defendant). George J. Markley, Fairfield, with whom was Sheryl A. Shaughnessey, Southport, for the appellee (plaintiff). DiPENTIMA, HARPER and LAVINE, Js. DiPENTIMA, J. The pro se defendant, David Rivnak, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Maria Rivnak. On appeal, the defendant claims that the court improperly (1) entered financial orders because it (a) failed to consider and to apply the statutory factors set forth in General Statutes § 46b-82, (b) assigned the plaintiff an exceedingly high portion of the marital assets while assigning him an exceedingly high portion of the marital debt and liabilities, 1099 (c) imputed the ability to earn income solely to him and (d) ordered him to replenish an account established pursuant to 26 U.S.C. § 529 of the Internal Revenue Code for the higher education of the parties' two minor children; and (2) failed to address his motions for articulation, clarification and correction in a timely manner, which resulted in a contempt finding against him.[1] We affirm the judgment of the trial court. The parties married on August 10, 1996, and, at the time of the trial, had two minor children. The court rendered judgment dissolving the marriage on July 7, 2005. The court found that the marriage had broken down irretrievably and that the defendant was the immediate cause of the breakdown as a result of his extramarital affairs. The court entered orders regarding property distribution, alimony, child support and other miscellaneous matters. As part of the dissolution decree, the court ordered the defendant to pay the plaintiff $5000 per month in unallocated alimony and child support for a period of seven years. The plaintiff retained title to certain investment properties located in New Haven that she owned jointly with her parents for estate planning purposes. The defendant was ordered to quitclaim the marital home to the plaintiff, and, upon its sale, the proceeds were to be divided 60 percent to the plaintiff and 40 percent to the defendant. Once the defendant quitclaimed the marital home, he would no longer be responsible for the mortgage on that home. This appeal followed. Additional facts will be set forth as necessary. I The defendant's first four claims challenge the financial orders entered by the court at the time of dissolution and the factual basis underlying those orders. We conclude that the court properly awarded alimony and child support and that its findings are supported by the record. We review each of these claims under the same well settled standard of review. "An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) Demartino v. Demartino, 79 Conn.App. 488, 492, 830 A.2d 394 (2003). "A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony 1100 and dividing property as long as it considers all relevant statutory criteria. . . . In reviewing the trial court's decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other." (Internal quotation marks omitted.) Kunajukr v. Kunajukr, 83 Conn.App. 478, 481, 850 A.2d 227, cert. denied, 271 Conn. 903, 859 A.2d 562 (2004). We apply the abuse of discretion standard of review because it "reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties." Casey v. Casey, 82 Conn.App. 378, 383, 844 A.2d 250 (2004). A The defendant first claims that the court abused its discretion when it failed to consider and to apply the statutory factors set forth in § 46b-82. Specifically, the defendant's argument focuses on the absence of any discussion of the statutory criteria in the court's memorandum of decision.[2] We are not persuaded. "Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes." Hartney v. Hartney, 83 Conn. App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). General Statutes § 46b-82[3] describes circumstances under which a court may award alimony. "The court must consider all of these criteria. . . . It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express finding[s] as to each statutory factor. . . . Nor need it give each factor equal weight." (Citation omitted; internal quotation marks omitted.) Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 137, 869 A.2d 164 (2005); see also Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Chyung v. Chyung, 86 Conn.App. 665, 669-70, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005). In its memorandum of decision, the court stated that it "considered the criteria set forth in [General] Statutes §§ 46b-56c, 46b-81, 46b-82 and 46b-84 in entering its orders." The court attributed the breakdown of the parties eight year marriage to the defendant's extramarital affairs, domestic violence and "frequent use of marijuana during the course of the marriage." The court further found that "[d]espite the husband's philandering and abusive behavior, [the plaintiff] made every effort to make the marriage work." The court clearly considered the statutory criteria set forth in § 46b-82. There is no additional requirement that the court specifically 1101 state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor. See Chyung v. Chyung, supra, 86 Conn.App. at 669-70, 862 A.2d 374. Accordingly, the defendant's argument fails. B The defendant next argues that the court incorrectly imputed the ability to earn income solely to him. We disagree. As stated with regard to the defendant's previous argument, the court considered the relevant statutory criteria for making a financial award, including § 46b-82(a), which specifically calls for the court to consider, inter alia, the "amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment." General Statutes § 46b-82(a). Moreover, the court considered the plaintiff's previous employment with New Haven Savings Bank until the birth of the parties' first child and considered the plaintiff's future employability. The plaintiff was awarded custody of the couple's two minor children, and the court found that she had "indicated her willingness to seek employment to support her children." Contrary to the defendant's assertions, there is no indication in the record that the court unfairly imputed the ability to earn income solely to the defendant.[4] C The defendant next argues that the court incorrectly assigned the plaintiff an exceedingly high portion of the marital assets while assigning him an exceedingly high portion of the marital debt and liabilities. This claim warrants little discussion. "General Statutes § 46b-81(c) directs the court to consider numerous separately listed criteria. No language of presumption is contained in the statute. Indeed, § 46b-81(a) permits the farthest reaches from an equal division as is possible, allowing the court to assign to either the husband or wife all or any part of the estate of the other. . . . On the basis of the plain language of § 46b-81, there is no presumption in Connecticut that marital property should be divided equally prior to applying the statutory criteria." (Emphasis in original; internal quotation marks omitted.) Wendt v. Wendt, 59 Conn.App. 656, 682, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000). The parties submitted financial affidavits, which listed the property values that the defendant now calls into question. As 1102 we have so often stated, "[t]he trier [of fact] is free to accept or reject, in whole or in part, the evidence offered by either party." (Internal quotation marks omitted.) Cushman v. Cushman, 93 Conn. App. 186, 195, 888 A.2d 156 (2006); Olson v. Olson, 71 Conn.App. 826, 833, 804 A.2d 851 (2002). The court's memorandum specifically stated that it considered the fact that the plaintiff was given an interest in the investment properties by her parents to help "supplement [the parties'] income," and that the defendant "maintained and helped out with the properties sporadically at best." The court did not abuse its discretion by awarding the investment properties accordingly to the plaintiff. The liabilities were similarly assigned on the basis of the court's consideration of the parties' affidavits and the respective ownership of each debt. We conclude that the court did not abuse its discretion. D The defendant's final argument with respect to the financial orders is that the court incorrectly ordered the defendant to replenish the § 529 account. The § 529 account was established to fund the higher education of the parties' two children. The account, which at one time contained $93,000, had been used by the defendant during the pendency of the divorce for personal expenses. At the time of dissolution, the account had been reduced to $25,500. The court ordered the defendant to add an additional $24,500 to that account and to discontinue making any further withdrawals. It was well within the court's discretion to make such an order on the basis of the nature of the fund, which was to provide support and maintenance for the children for their future higher educational needs. See Valante v. Valante, 180 Conn. 528, 532, 429 A.2d 964 (1980); Louney v. Louney, 13 Conn.App. 270, 274-75, 535 A.2d 1318 (1988).[5] II The defendant next challenges both the court's denial of his motion for articulation, clarification and correction, and its finding him in contempt. Specifically, the defendant argues that because the motion for articulation was untimely, he was unable to comply with the court's order. We conclude that the first part of the defendant's claim is not a proper subject for review on appeal, and, as to the second part, we are not persuaded. Following the court's decision, filed on July 7, 2005, the plaintiff filed a motion for articulation, which was granted in part by the court.[6] On August 31, 2005, the defendant filed a motion for articulation, clarification and correction, which was denied on November 10, 2005. On September 29, 2005, the court began its hearing on the plaintiff's motion for contempt. It found that there was an arrearage in alimony and child support of $15,000 as of the date of the hearing and found the defendant to be in contempt of court. The court ordered the defendant incarcerated until he purged the contempt by paying the sum of $15,000 to the plaintiff. Three days later, the defendant purged his contempt and was released. 1103 The defendant mistakes the procedural route to take when seeking review of an articulation. Practice Book § 66-5 provides in relevant part that "[t]he sole remedy of any party desiring the court having appellate jurisdiction to review the trial court's decision on the motion [for articulation] filed pursuant to this section . . . shall be by motion for review under Section 66-7. . . ." The defendant's pursuit of review and remedy through appeal is, therefore, inappropriate. See Burke v. Burke, 94 Conn.App. 416, 420, 892 A.2d 964 (2006). The defendant's second argument centers on the court's finding of contempt. The defendant contends that the court improperly determined that he wilfully failed to pay the alimony and child support in light of his financial circumstances, which were strained because he was paying the mortgage on the parties' marital home. We begin our analysis by addressing the appropriate standard of review. "Contempt proceedings are a proper means of enforcing a court order of child support. A willful failure to pay court ordered child support as it becomes due constitutes indirect civil contempt." Mulholland v. Mulholland, 31 Conn.App. 214, 220, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 246 (1994); see also General Statutes § 46b-215. "[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases. . . . A finding of contempt is a factual finding. . . . We will reverse that finding only if we conclude that the trial court abused its discretion." (Citations omitted; internal quotation marks omitted.) Billings v. Billings, 54 Conn. App. 142, 152, 732 A.2d 814 (1999). The defendant's claim that he did not obey the court's order because it was impossible for him financially to do so is unavailing. We note that the defendant was ordered to quitclaim the marital home to the plaintiff. Upon that transfer, the plaintiff would be responsible for the taxes and mortgage on the home. The defendant's failure to effect that transfer resulted in his strained financial condition. "[T]here is no privilege to disobey a court's order because the alleged contemnor believes that it is invalid." Cologne v. West-farms Associates, 197 Conn. 141, 148, 496 A.2d 476 (1985); Mulholland v. Mulholland, supra, 31 Conn.App. at 221, 624 A.2d 379. "[A]n order issued by a court of competent jurisdiction must be obeyed by the parties until it is reversed by orderly and proper proceedings." (Internal quotation marks omitted.) State v. Wright, 273 Conn. 418, 425, 870 A.2d 1039 (2005). Accordingly, the defendant's argument fails. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] The defendant's brief is divided into seven sections, each of which purportedly sets forth a discrete issue. A reading of the brief, however, reveals that few, if any, of those sections fully set forth distinct claims and many arguments are interrelated. In addition, the defendant makes only a cursory mention of the standard of review, presented in the context of a quotation. For those reasons, among others, the defendant's brief does not comply with Practice Book § 67-4(d). Nevertheless, by interpreting the various sections of the brief, we have discerned what we believe are the defendant's principal claims. [2] During oral argument before us, the defendant did not address this issue, choosing, instead, to raise for the first time the claim that the court based its financial orders on his gross income rather than on his net income. Because the issue was raised for the first time during oral argument and, therefore, has not been properly briefed, we decline to afford it consideration. See State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985). [3] The criteria to be considered in determining an award of alimony include "the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81. . . ." General Statutes § 46b-82(a). [4] The defendant attempts to frame a constitutional issue within his argument that the court imputed income only to him by arguing that the court's actions resulted in sexual discrimination. While mindful of the defendant's pro se status, we cannot ignore the fundamental purpose of our rules and procedures. "[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. . . . Nonetheless, [a]lthough we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law." (Citation omitted; internal quotation marks omitted.) New Haven v. Bonner, 272 Conn. 489, 497-98, 863 A.2d 680 (2005). The plaintiff's argument contains mere assertions devoid of any authoritative support or real analysis. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Anderson, 67 Conn.App. 436, 441 n. 8, 787 A.2d 601(2001). For those reasons, we decline to entertain this claim. [5] We note that the defendant also attempts to assert an equal protection claim premised on the court's failure to consider his interest equally with that of the plaintiff. Among other deficiencies, the defendant has not provided adequate briefing on this claim. For the reasons asserted with respect to the defendant's sexual discrimination claim, we decline to review this claim as well. See footnote 4. [6] On August 8, 2005, the court issued an articulation of its decision with respect to real estate, alimony and medical insurance.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516040/	955 F. Supp. 44 (1997) Druscilla GWYN, Plaintiff, v. WAL-MART STORES, INC., Defendant. Civil No. 6:95CV667. United States District Court, M.D. North Carolina, Winston-Salem Division. January 30, 1997. 45 Herman L. Stephens, Law Office of Herman L. Stephens, Winston-Salem, NC, for Druscilla Gwyn. Scott C. Gayle, Fisher Fisher Gayle Clinard & Craig, High Point, NC, for Wal-Mart Stores, Inc. MEMORANDUM OPINION BULLOCK, Chief Judge. In August 1995, Druscilla Gwyn sued Wal-Mart Stores, Inc., in the General Court of Justice, Superior Court Division, Forsyth County, North Carolina. Wal-Mart removed the action to federal court, alleging diversity jurisdiction. Now before this court is Plaintiff's motion to remand this action to state court. For the reasons given in this memorandum opinion, Plaintiff's motion will be granted. BACKGROUND This case arises out of a visit by Gwyn to the Wal-Mart in Winston-Salem, North Carolina. Gwyn says that Wal-Mart employees stopped her when she tried to leave the store, and that they insisted on inspecting Gwyn's shopping bag. She further says that although she was released and given an apology after she found the receipt for her purchases, she suffered severe psychological trauma during this episode. She seeks recovery under several legal theories. Gwyn's complaint did not demand specific monetary relief, but, as required by the North Carolina Rules of Civil Procedure, requested damages "in excess of $10,000.00." N.C.R.Civ.P. 8(a)(2). Pursuant to 28 U.S.C. § 1441(a), Wal-Mart removed this case to the United States District Court for the Middle District of North Carolina, alleging diversity jurisdiction under 28 U.S.C. § 1332. The notice of removal alleges that the amount in controversy exceeds $50,000. Plaintiff says that the claim is actually less than the $50,000 jurisdictional amount and has moved to have this case remanded to state court. ANALYSIS Section 1441 of the Federal Civil Code allows a defendant to remove an action to federal court if the case could originally have been brought there. In this case, the basis for removal is diversity of citizenship. Section 1332 limits diversity jurisdiction to cases in which the amount in controversy exceeds $50,000. The burden of establishing federal jurisdiction lies on the party seeking to litigate in federal court. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936). Here, the burden is on the defendant. In many cases, this burden will be either trivial or insurmountable. The reason is, if a plaintiff in good faith claims specific monetary damages in the complaint, the amount claimed binds the defendant. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938). In North Carolina, however, a plaintiff is forbidden in some cases to claim a specific amount greater 46 than $10,000 in damages. N.C.R.Civ.P. Rule 8(a)(2). Instead, a plaintiff must say simply that the relief demanded is "in excess of $10,000.00." Id. The question for this court is determining the amount in controversy for jurisdictional purposes when it is not apparent from the complaint. The Fourth Circuit Court of Appeals has not adopted a specific rule. Other courts have adopted a variety of standards, and the trend seems to require a defendant to show by a preponderance of the evidence that the amount in controversy exceeds $50,000. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993); Gafford v. General Elec. Co., 997 F.2d 150, 158 (6th Cir.1993). But see also Atkins v. Harcros Chems., Inc., 761 F. Supp. 444, 446 (E.D.La. 1991) (holding defendant must prove amount in controversy exceeds $50,000 to a "legal certainty"); Partlow v. Jones Motor Co., 736 F. Supp. 744, 745-46 & n. 2 (E.D.Mich.1990) (holding plaintiff, to achieve remand, must show to a "legal certainty" that amount in controversy will not exceed $50,000). This court need not choose between these theories because Defendant has not shown, by any standard, that the amount in controversy exceeds $50,000. The defendant has some evidentiary burden, see McNutt, 298 U.S. at 189, 56 S.Ct. at 785, but Wal-Mart's removal is based on speculation, not fact. Indeed, besides the conclusory statement in the notice of removal that "[t]he amount in controversy ... exceeds $50,000.00," the only support for Defendant's view of the amount in controversy is a written offer by Plaintiff to settle the case for $50,000. The letter adds: "We evaluate the damages sustained by Mrs. Gwyn to be in excess of $50,000.00." This offer does not adequately establish the amount in controversy, however. In trying to settle a claim, counsel naturally will try to inflate its value. Such "puffing" cannot be taken as evidence of the amount in controversy. See Navarro v. Subaru of America Operations Corp., 802 F. Supp. 191, 194 (N.D.Ill.1992) (holding assertion of value of claim made in settlement negotiations does not establish jurisdictional amount); Saunders v. Rider, 805 F. Supp. 17, 19 (E.D.La. 1992) (holding plaintiff's settlement demand of $63,000 does not establish that claim exceeds $50,000). A further consideration is that Plaintiff has stipulated that her damages do not exceed $50,000. Ordinarily, whether a case is removable is determined by "the status of the case as disclosed by the plaintiff's complaint." St. Paul, 303 U.S. at 291, 58 S.Ct. at 591. A post-removal stipulation or amendment of the complaint to allege damages below the jurisdictional amount will not destroy federal jurisdiction once it has attached. Id. at 289-90, 58 S.Ct. at 590-91. However, when facing indeterminate claims, several courts have held that the court may consider a stipulation filed by the plaintiff that the claim does not exceed $50,000. E.g., Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir.1993), cert. denied, 510 U.S. 1041, 114 S. Ct. 685, 126 L. Ed. 2d 653 (1994); Griffin v. Holmes, 843 F. Supp. 81, 88 (E.D.N.C.1993); Cole v. Great Atlantic & Pacific Tea Co., 728 F. Supp. 1305, 1308-09 (E.D.Ky.1990). The implicit premise is that until jurisdiction becomes determinate, the court may consider any evidence of the amount in controversy. If the complaint does not specify the money damages sought, jurisdiction remains indeterminate while the court considers any other information. On this view, plaintiff's stipulation is simply the first evidence of the value of the claim. See, e.g., Cole, 728 F.Supp. at 1309. However, if a court can find the amount in controversy from the face of the complaint, the normal rule still applies: a later stipulation by the plaintiff is irrelevant. De Aguilar, 11 F.3d at 57. Gwyn's complaint does not claim more than $50,000. The stated demand is for damages in excess of $10,000; although Gwyn asks for both compensatory and punitive damages, the value of this claim is speculative. A finding of jurisdiction cannot be premised on such speculation. Hohn v. Volkswagen of America, Inc., 837 F. Supp. 943, 945 (C.D.Ill.1993); Robinson v. Quality Ins. Co., 633 F. Supp. 572, 577 (S.D.Ala.1986). But cf. Allen v. R & H Oil & Gas Co., 63 *47 F.3d 1326, 1337 (5th Cir.1995) (holding claim for punitive damages facially exceeds jurisdictional minimum where claim is based on explosion of oil well that caused evacuation of town and extensive damage). Because the court cannot determine the amount in controversy from the face of the complaint, it will consider Plaintiff's stipulation that the value of the claim does not exceed $50,000. Defendant's evidence is insufficient to show otherwise. The court thus finds that it lacks jurisdiction over this case and will remand the case to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina. In her reply brief, Gwyn asks this court to award her the actual costs, including attorney's fees, incurred as a result of Defendant's removal of this case, pursuant to 28 U.S.C. § 1447(a). Such an award is within the discretion of the court, but there is no evidence that removal was done in bad faith or without a reasonable basis. Accordingly, the court will not award costs or attorney's fees to Plaintiff. An order in accordance with this memorandum opinion shall be entered contemporaneously herewith. ORDER For the reasons set forth in the memorandum opinion filed contemporaneously herewith, IT IS ORDERED that Plaintiff's motion for remand be, and the same hereby is, GRANTED, and this action is REMANDED to the General Court of Justice, Superior Court Division, Forsyth County, North Carolina.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516045/	913 A.2d 697 (2006) John BOYNTON and another. v. Dennis FIGUEROA and another. No. 2005-652. Supreme Court of New Hampshire. Argued: October 3, 2006. Opinion Issued: December 21, 2006. 700 Bernstein, Shur, Sawyer & Nelson, of Manchester (Andru H. Volinsky on the brief and orally), for the plaintiffs. Edward D. Philpot, Jr., PLLC, of Laconia (Edward D. Philpot, Jr. on the brief and orally), for defendant Signature Building Systems, Inc. DALIANIS, J. Defendant Signature Building Systems, Inc. (Signature) appeals the jury verdict entered in Superior Court (McGuire, J.) awarding the plaintiffs, John and Alicia Boynton, $250,000 in damages and assigning Signature 90% of the fault for the negligent construction and installation of their home. We affirm. The jury could have found the following facts. Signature is a manufacturer of factory-built modular homes. Rather than sell its homes directly to consumers, Signature maintains a network of approved builders from whom its homes may be purchased. Upon receiving an order from one of its builders, Signature builds the home in its Pennsylvania plant and delivers it to the building site; one of its approved builders then erects the home on the site and finishes it there. The plaintiffs learned about Signature's modular homes through an acquaintance, defendant Dennis Figueroa. Figueroa was one of Signature's approved builders. He worked with his father, who was the exclusive dealer for Signature homes in New Hampshire. Figueroa provided the plaintiffs with brochures about Signature homes, which stated that: the plaintiffs could expect to move into a new modular home in "3 to 4 weeks after delivery"; Signature homes are "top-quality" and "custom built"; Signature uses "only the best quality products" in constructing its homes; "[q]uality will be consistent throughout the home"; 701 Signature "goes to extraordinary lengths to provide top quality construction"; the "customized styling, affordable pricing and structural integrity" of a Signature home is "unmatched in a `site-built' home"; Signature "sell[s] our homes through a trusted team of building professionals trained in the intricacies of construction and detailed finish work"; and, "[i]f problems should arise, we have a fully trained staff of field professionals capable of performing any task quickly and efficiently." Before buying a Signature home, the plaintiffs investigated other modular home manufacturers. They eventually chose Signature because of the representations made in its marketing materials with respect to the quality of its homes and the builders with whom it works. As Alicia Boynton testified, "One of the things that helped us decide was all the literature that we were handed and all the information I could find on the internet." The plaintiffs purchased their Signature home on June 12, 2003. The total price for the home, a two-car garage, deck and pool, was $214,400. Of this amount, $69,000 was paid directly to Signature for the modular home itself. The remainder, $145,000, was for the two-car garage, deck and pool and the services of Figueroa and his subcontractors. Under the purchase and sale agreement, the plaintiffs were responsible for the "proper setting of the modular units on to the foundation," as well as "the proper installation of doors, siding, trim, and the tightening or adjustment of plumbing fitting that may loosen during shipment, as well as other items that must be shipped loose." The plaintiffs entered into a separate agreement with Figueroa to complete this work. Figueroa agreed to "furnish all of the materials and perform all of the work utilizing appropriate Signature Building Systems Modular construction and other sub-contractors as needed." The contract originally specified that the work would be substantially completed by September 1, 2003. This date was later changed to October 15, 2003. Anticipating that they would move into their new modular home soon after purchasing it, the plaintiffs sold their former home in August 2003. Until their modular home was ready, they lived with their two teenage children and two dogs in a small camper. The plaintiffs were unable to move into their new home until January 2004. The plaintiffs noticed problems with the foundation before the modular home was set on it. They noted, for instance, that Figueroa had not sited their home where they had directed him to site it. When they confronted him about this, he told them not to worry and that their home would be sited where they wanted it. Figueroa's assurance notwithstanding, the home was not sited where they wanted it to be, so the plaintiffs were unable to have a pool in their backyard and to have their two-car garage, as planned. Shortly after the foundation was poured, the plaintiffs also noticed that one of its walls was cracked and "had to be removed and a section of [it] re-poured." The plaintiffs also observed that when Figueroa re-poured the new section of concrete, he created a patch that did not continue below the grade, even though the foundation continued below the grade. The plaintiffs further observed that a bulldozer blade had hit the foundation, leaving a "big chunk" of it missing. When John Boynton asked Figueroa about how this would be fixed, Figueroa responded: "[W]e're just going to stuff it full of insulation and then re-Tyvac it and put siding over it." Mr. Boynton told Figueroa that he needed to "fix it the right way and cut 702 out the bad plywood, put some more insulation in and then . . . put in a patch of plywood and . . . Tyvac it and side it." Because Figueroa never fixed this problem, Mr. Boynton did it himself. The modular home was set on its foundation at the end of September 2003. After it was set, the plaintiffs noticed that the aluminum fascia boards, underneath the shingles, were "dinged-up." They also noticed that the closet walls sagged. When the plaintiffs asked Figueroa about the sagging closet walls, he told them that it was "just an optical illusion." The plaintiffs believed that the sagging walls indicated that the roof was pushing down on them. Because of the problems the plaintiffs observed, and Figueroa's inadequate responses when confronted about them, the plaintiffs fired him on November 17, 2003. The "last straw" for the plaintiffs concerned the setting of their gravity-fed septic tank. Figueroa set the septic tank higher than the opening coming from the house, which meant that the effluent would not go into the tank, but would stay in the house. As of the date they fired him, the plaintiffs had paid approximately $129,000 for their new home and for the services of Figueroa and his subcontractors. A few days after the plaintiffs fired Figueroa, Jay Bradley, an area sales manager for Signature, came to their property to drop off some materials. Ms. Boynton took Bradley through the home and explained "all the things that we, as homeowners, thought were wrong, the issues that we had brought forward to our contractor that were never resolved." At the same time, she asked him what she and her husband could do to "fix things or if the things that we had done were fixed right and, if not, how to remedy what we did." Ms. Boynton showed Bradley problems with the roof, vent pipes, siding, dormers, weather-proofing and windows. Specifically, she showed him that: (1) the roof lacked shingles in places and did not "line up properly"; (2) she and her husband had replaced sagging beams in the closets because they were concerned the roof was caving in; (3) the vent pipes were too small; (4) the entrance to the basement did not have siding on it; (5) one of the dormers was not properly connected to the roof; (6) there was damaged "step flashing" between another dormer and the roof; (7) there was no tar over certain exposed nails and screws; (8) one of the home's windows was missing a piece that made the window "weather-tight"; and (9) some of the windows were incorrectly installed and, thus, also were not "weather-tight." Ms. Boynton also informed Bradley that the foundation was not level, which he confirmed. While touring the home, Bradley determined that the "sill plate," pressure-treated wood that is bolted or strapped to the foundation upon which the home is then set, was not level. Because Ms. Boynton had been told that Signature only worked through authorized dealers and did not service customers directly, she asked Bradley to put her in contact with another Signature dealer. He did not do so. Ms. Boynton also requested that Bradley send her a copy of the "set manual" for the home. The set manual "tells you everything you need to know, how [the home] was constructed, how the roof system works[,] . . . what your lot should be like, what your foundation should be like." Although she requested the manual in November 2003, she did not receive it until January 2004. From the set manual, the plaintiffs learned that the "lally columns" in the basement were supposed to be secured to 703 the beams and to the floor. The lally columns in the plaintiffs' home were not secured. To fix this problem, Mr. Boynton "took a jack and we jacked the house up so [that all of the floor joists] had the same measurement, and then we. . . . added steel plates until I made it level." The plaintiffs also learned that the "mating walls" of the house were supposed to be tied together with factory-supplied square galvanized plates. Ms. Boynton testified that "[t]here [were] gaps in all of the mating walls within [the] house." In trying to fix this problem, the plaintiffs discovered that "the walls were too far apart because of the gaps." Therefore, they "had to suck the walls in with [C] clamps" and lag bolts. After the plaintiffs moved into the house, they discovered that it "would only get up to 55 degrees, no matter what you put the thermostat on, and [that] . . . the windows [were] drafty." To remedy this problem, the plaintiffs insulated the second floor and, for the winter of 2005, had the windows shrink-wrapped. The plaintiffs also noticed problems with their driveway. As Ms. Boynton testified, "It was a mud bog. You would sink in the mud up over your ankles if you walked up through." As a result of this problem, the plaintiffs "hired someone to . . . take out the first few layers of top soil . . . and . . . put in hard pack and stone." Additionally, to fix other problems, the plaintiffs had: (1) a new septic system designed and installed; (2) a foundation drain installed; and (3) the well excavated and rocks and debris removed from it. The plaintiffs also attempted to make the house level. Mr. Boynton explained that they "jacked the backside of the house[,] . . . where the cracked foundation was." Using six-by-six pressure treated beams, the plaintiffs "tried to work the jacks as even as we could and a little bit at a time, . . . going from one jack to the other." Mr. Boynton then put a shim in between the mudsill and home to make the home level. The plaintiffs spent $53,000 to remedy the problems they observed. They were anxious to get the house completed because they were "homeless, living in a trailer." Additionally, Ms. Boynton testified that her lost wages for the time spent fixing the home were approximately $2,700. She testified that Mr. Boynton's lost wages were approximately $380. Ms. Boynton also testified that, because their garage was never built, they had paid $85 per month for two storage units, for a total of $1,785. The plaintiffs' expert testified that the quality of the work done in installing their modular home was "very poor." The standard of care by which the plaintiffs' expert measured Signature was the standard of a custom home, because of Signature's representations in its marketing materials. In his opinion, the plaintiffs' home did not "even meet the minimum building code standards in a number of respects." The plaintiffs' expert opined that, in his professional judgment, there was no way to remedy the home's problems completely. He testified that "if the home is going to meet the standard of habitability, thermal integrity, structural firmness that was intended and promised," then it was necessary to remove the house "down to the foundation to get the custom home" the plaintiffs wanted and had been promised. As he testified: "If [the home] were to be brought to the standard that was represented at this point, I believe you should take it down and crush it like my 17-year-old's old car and put new boxes on a very carefully leveled, shimmed, anchored mudsill as meets . . . the code." 704 In April 2004, the plaintiffs sued Signature for, among other things, negligence, negligent and intentional misrepresentation, and for a violation of the New Hampshire Consumer Protection Act (CPA), see RSA ch. 358-A (1995 & Supp. 2006). Following a four-day trial, which included a view, the jury returned a verdict in favor of the plaintiffs. Signature moved for judgment notwithstanding the verdict (JNOV), to set aside the verdict, and for remittitur; the trial court denied all three motions. Over Signature's objection, the trial court doubled the jury verdict of $250,000 based upon the jury's finding that Signature acted willfully when it violated the CPA. The plaintiffs requested that the court either attach property belonging to Signature or require it to post a bond sufficient to cover the damages award. The trial court granted this request, ruling that a bond was warranted because Signature had "not demonstrated or even represented[ ] that it will be able to satisfy the judgment." On appeal, Signature argues that the trial court erred when it: (1) denied Signature's motions in limine to prohibit the plaintiffs from testifying about their remediation efforts and the costs thereof; (2) permitted the plaintiffs to offer their lay opinions about the alleged defects in the home and the means necessary to repair those defects; (3) denied Signature's motions for JNOV and for remittitur; and (4) ordered Signature to post a bond. I Signature argues that the trial court erred when it permitted the plaintiffs to testify about the existence of the alleged defects in the home, efforts they undertook to remedy those defects, the need for those efforts, the cost of their remedial efforts and the reasonableness of those costs. Signature asserts that these subjects required "specialized expertise and thus expert testimony." Signature also contends that the plaintiffs' testimony was not based upon their own observations, but rather upon information they received from "undisclosed third[-]party experts." We first address whether the trial court erred when it permitted the plaintiffs to testify about the home's defects, their remedial efforts and the costs of those efforts. We review a trial court's decisions on the admissibility of evidence under an unsustainable exercise of discretion standard. Desclos v. S.N.H. Med. Ctr., 153 N.H. 607, 610, 903 A.2d 952 (2006). We will not disturb the trial court's decision absent an unsustainable exercise of discretion. Id. New Hampshire Rule of Evidence 701 permits a lay witness to give an opinion provided that it is rationally based upon the witness's perception and is helpful to a determination of a fact issue. Transmedia Restaurant Co. v. Devereaux, 149 N.H. 454, 460, 821 A.2d 983 (2003). Signature contends that the plaintiffs' testimony was impermissible lay opinion testimony because it was not rationally based upon their perceptions. The record reveals that, contrary to Signature's assertions, the plaintiffs merely testified about their observations and their personal actions. Ms. Boynton testified, for instance, that she could see daylight coming through a crack between one of the home's dormers and the roof. Where there was supposed to be flashing, she saw roof paper. She testified that she could see that there was a gap between the two halves of the home's roof, and that she knew that there were problems with the driveway because her "shoes stuck in [the mud] several times." She testified that she knew that she and her husband spent 705 $53,000 on their remediation efforts because she "ha[s] the receipts and [the] cancelled checks that [she] paid the money out of"; she personally wrote the checks. Similarly, Mr. Boynton testified that he saw that the top of the septic tank "was at the same height as the sill of the house." He testified that the aluminum fascia boards were "dinged up." Mr. Boynton also testified that he and his wife saw that the top part of a closet wall when first installed "was straight" and after a week they "saw sags." He testified that he concluded that this meant that the roof was pushing down on the wall based upon his observation of the wall. He also saw "with [his] own eyes" that factory-installed kneewalls had begun "bowing out." Mr. Boynton testified about the remediation efforts that he personally took. For instance, to remedy the problem with the closet wall, he used "a couple of 20-ton bottle jacks, which [are] hydraulic jack[s]" and his own "screw jacks." He described the process as follows: With the jacks, everything in place, ready to go. We would undo the collar tie. We had a string across. We took 1½ block and went from one end of the house to the other along this rafter line, and we took a measure from that string to the rafter to make sure they were all the same all the way across as we were jacking. . . . Once, like I said, we removed the collar tie, we would get it to where the measurement was, re-nail the collar tie, and then we would reconstruct the tops of the closet walls with that solid header, which is one of the pictures. Well, as you seen when you were at the site, it's solid now, there's not openings with 2 by 4's, and then we would make sure that wall is secure, and then we worked our way down. Similarly, to make the lally columns fit better, Mr. Boynton testified: There again, we ran a string across. We took measurements from the floor joists down to the string. I think it was floor joists. I can't remember exactly where I measured it to, but we took a jack and we jacked the house up so they all had the same measurement, and then we filled in. I had to end up cutting. That's why those big, thicker plates are there. I just used what I had. I went to my family's house . . . and got the heavy steel, and I took my torch and cut them into pieces, and then I added the steel plates until I made it level. The crux of Signature's objection to the plaintiffs' testimony goes to its weight, not its admissibility. It was the jury's function to weigh the evidence. See id. at 461, 821 A.2d 983. As the plaintiffs' testimony was rationally based upon their own perceptions, we hold that the trial court did not err by admitting it. We next address Signature's contention that expert testimony was required. Expert testimony is required where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. Carbone v. Tierney, 151 N.H. 521, 527, 864 A.2d 308 (2004). Expert testimony is not required where the subject presented is within the realm of common knowledge and everyday experience. Id. We disagree with Signature that the plaintiffs were required to provide expert testimony to prove the existence of the alleged defects in the home and the reasonableness of costs to repair them. The types of defects at issue were not so far beyond the ken of the average layperson as to require expert testimony; they were defects that the plaintiffs observed themselves and, to the extent that they were not remedied, could be observed by 706 the jury when it took its view. Moreover, the plaintiffs testified as to the expenses they have already incurred to remedy the defects they observed. As they note in their brief, "the remedial work in question here has already been completed, obviating the need for detailed expert projections of what damage award would be necessary to cover prospective construction costs." II Signature next asserts that the trial court erred when it failed to grant Signature's motion for JNOV upon the plaintiffs' negligence claims. The plaintiffs alleged two negligence claims against Signature. The first concerned Signature's allegedly negligent construction of their modular home. The second concerned Signature's alleged negligence in selecting, training and/or supervising Figueroa. The plaintiffs also alleged that Signature was responsible, as the principal, for the negligence of its apparent agent, Figueroa. Signature contends that it was entitled to JNOV upon these claims because the plaintiffs' attempted remediation was either a superseding cause that terminated Signature's liability or was evidence of their contributory negligence. Signature also implies that because Figueroa was an independent builder, Signature was not responsible for his negligence. Signature argues that it was also entitled to JNOV upon the plaintiffs' negligent misrepresentation and CPA claims because they failed to prove that they relied upon Signature's statements about the qualifications of its builders. Signature further contends that it was entitled to JNOV upon the plaintiffs' CPA claim because the plaintiffs failed to establish that Signature's ads were deceptive. A party is entitled to JNOV only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand. Id. at 529, 864 A.2d 308 In deciding whether to grant the motion, the trial court cannot weigh the evidence or inquire into the credibility of witnesses. Id. If the evidence adduced at trial is conflicting, or if several reasonable inferences may be drawn, the court must deny the motion. Id. Our standard of review of a trial court's denial of a motion for JNOV is extremely narrow. Id. We will not overturn the trial court's decision absent an unsustainable exercise of discretion. Id. A We first examine whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that the plaintiffs' efforts to remedy the problems with their home were neither a superseding cause nor evidence of contributory negligence. Generally, an independent intervening cause will not interfere with the connection between the original act and the injury if the intervention was probable or foreseeable. Marcotte v. Timberlane/Hampstead School Dist., 143 N.H. 331, 348, 733 A.2d 394 (1999). Here, there was evidence from which the jury reasonably could have found that the plaintiffs' remediation efforts were probable or foreseeable. The plaintiffs testified that they asked Figueroa to fix various problems with the home and that he never did so. They also testified that they asked Signature to refer them to another approved builder, and that Signature did not do so. They further testified that until they were able to move into their home, they lived 707 with their teenage children and dogs in a small camper. From this testimony, viewed in the light most favorable to the plaintiffs, the jury could have reasonably found that it was foreseeable that the plaintiffs would attempt to remedy the home's problems to make it habitable, rather than continue to live in a camper. There was also evidence from which a reasonable jury could have found that the plaintiffs were not contributorily negligent. The plaintiffs' expert testified, for instance, that the home was improperly set on its foundation in the first instance. He testified that "once you've lost the opportunity to get it right, it's very hard to turn the clock back, and I think more so with a modular home than with a conventional-type construction." He testified that because the home was improperly set, it was "racked," which he explained as follows: "When a cube, a cube shape is placed on a foundation that's not level from one corner to another, the floor takes the form of a hyperbolic parabola, a warped plane. It takes the walls and it racks them into parallelograms, to the extent that it's out of level." Accordingly, he testified that for the home to meet the standards promised, it would have to be removed down to its foundation. Signature's president testified as well that "[t]here is no question" that a "modular home is really only as good as the foundation it's set on." If the foundation is out of level, "[i]t magnifies or amplifies right up straight through" the home. From this testimony, viewed in the light most favorable to the plaintiffs, the jury reasonably could have found that any harm to the plaintiffs was complete before they undertook any remedial actions and that any of their remedial actions did not exacerbate their harm. We therefore conclude that the trial court did not err when it denied Signature's motion for JNOV on this ground. We next examine whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that Signature was responsible for Figueroa's negligence. With respect to the plaintiffs' negligence claims, the jury was instructed, without objection by Signature, that the plaintiffs had alleged that Figueroa had apparent authority to act on Signature's behalf and that Signature was therefore bound by Figueroa's acts. We interpret this as an instruction that the jury could find Signature to be vicariously liable for Figueroa's negligence if it found that Figueroa had apparent authority to act on Signature's behalf and was, thus, Signature's agent. See VanDeMark v. McDonald's Corp., 153 N.H. 753, 761, 904 A.2d 627, 634 (2006). To the extent that Signature now argues that the jury could not have reasonably found that Figueroa had apparent authority to act on its behalf, we disagree. Whether an agency relationship has been established is a question of fact. Id. The necessary factual elements to establish agency involve: (1) authorization from the principal that the agent shall act for him or her; (2) the agent's consent to so act; and (3) the understanding that the principal is to exert some control over the agent's actions. Id. Authority to act can be actual or apparent. See State v. Zeta Chi Fraternity, 142 N.H. 16, 22, 696 A.2d 530, cert. denied, 522 U.S. 995, 118 S. Ct. 558, 139 L. Ed. 2d 400 (1997). "Apparent authority . . . exists where the principal so conducts itself as to cause a third party to reasonably believe that the agent is authorized to act." Id. (quotation and brackets omitted). There was evidence in the record from which a reasonable jury could have found that Figueroa had apparent authority to act on Signature's behalf. For instance, 708 Signature's brochures stated that Signature homes are sold "through a trusted team of building professionals." There was also testimony that Signature has a "co-op advertising" program through which it pays its builders to place approved ads containing Signature's logo and the builder's own logo. Figueroa's father testified that he was part of this advertising program, which permitted him to use Signature's logo and name in any of his promotions, advertising and distribution of marketing materials. Moreover, Figueroa and the plaintiffs signed various agreements that described his relationship with Signature. For instance, Figueroa and the plaintiffs signed an order form, on Signature letterhead, in which he agreed to sell a Signature home to the plaintiffs. Further, an exhibit entitled, "PURCHASE OF YOUR FACTORY DIRECT MODULAR HOME," signed by Figueroa and the plaintiffs, stated that: (1) the signatories to the agreement acknowledged that the plaintiffs were purchasing a Signature modular home through a Signature dealer (Figueroa's father's company); (2) all orders for a Signature home "shall be in writing and processed through the Dealer and shall be subject to acceptance by the Manufacturer"; (3) all deposits and payments must be in cash or in a check issued to the Signature dealer; (4) delivery of the home is to be completed within sixty days, but may be extended "through the Dealer by mutual agreement of Manufacturer and Buyer"; (5) "[t]he Dealer is responsible for handling the administrative functions required for the Buyer and for coordinating and servicing the house with the Manufacturer in a satisfactory manner." In the separate contractor agreement between Figueroa and the plaintiffs, Figueroa agreed to "perform all of the work utilizing appropriate Signature Building Systems Modular construction." Further, although the agreement between Signature and the company owned by Figueroa's father stated that there was no agency relationship between the two, this language did not appear in any of the agreements the plaintiffs signed. Viewing all of the above evidence in the light most favorable to the plaintiffs, we hold that a reasonable jury could have concluded that Figueroa had apparent authority to act on Signature's behalf. Accordingly, the trial court did not err when it denied Signature's motion for JNOV on this basis. B We next address whether the trial court erred when it ruled that the jury reasonably could have found, viewing the evidence in the light most favorable to the plaintiffs, that they relied upon Signature's statements about the qualifications of their builders. As there was evidence in the record from which a reasonable juror could have found that the plaintiffs relied upon Signature's statements, we conclude that the trial court did not err when it denied Signature's motion for JNOV on this basis. Mr. Boynton specifically testified that he and his wife "rel[ied] on [Signature's] representations about . . . the quality of the product in deciding to go with the Signature home" and "about [the] quality of [its] builders in deciding to go with Signature and . . . Figueroa." In addition, Ms. Boynton testified that the company's literature and the information it provided on its website helped the plaintiffs decide to purchase a Signature home. We next examine whether the jury reasonably could have found that Signature's statements about its builders were deceptive. Signature's marketing materials referred to its builders as "a trusted team of building professionals trained in the intricacies 709 of construction and detailed finish work." There was evidence, however, that a builder need not have had any prior modular home construction experience to become part of Signature's "trusted team of building professionals." Nor did a builder need any "minimum building experience" to become a Signature builder. Indeed, at trial, Bradley testified that although he was the sales manager responsible for Figueroa's area at the time, he did not take any steps to determine whether Figueroa was a competent builder. Figueroa's father confirmed that when he became a Signature builder, he had never built modular homes before. He became an approved Signature builder based upon a "casual conversation" with Bradley. Signature approved Figueroa's father without asking him for bank or trade references and without knowing that his prior business ended in bankruptcy. And, Signature did not revoke its approval of Figueroa's father as a builder even after the buyers of the first Signature modular home he built sued him because of construction problems. There was also evidence that while Signature gives its builders tours of its plants as training, there is "no kind of standardization or quality control practice for what actually is said during these plant tours." As Bradley testified, "It depends on which sales rep takes them through." Further, Figueroa's father testified that before becoming a Signature dealer, he did not receive any formal instruction on how to build a Signature modular home. He did not take a training course; nor was he provided a book or given a test on how to build such a home. From this evidence, viewed in the light most favorable to the plaintiffs, the jury could reasonably have found that Signature's statements about its builders were deceptive. Thus, we hold that the trial court did not err when it denied Signature's motion for JNOV on this ground. III Signature next contends that the trial court erred when it failed to grant Signature's motion for remittitur. Signature asserts that remittitur was required because the plaintiffs offered "little or no evidence to support their damages claims." New Hampshire law does not require that damages be calculated with mathematical certainty, and the method used to compute them need not be more than an approximation. Transmedia Restaurant Co., 149 N.H. at 461, 821 A.2d 983 (quotation omitted). Whether remittitur is appropriate rests with the trial court's sound discretion. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 838, 891 A.2d 477 (2005). Direct review of a damages award "is the responsibility of the trial judge, who may disturb a verdict as excessive (or inadequate) if its amount is conclusively against the weight of the evidence." Daigle v. City of Portsmouth, 129 N.H. 561, 588, 534 A.2d 689 (1987) (quotation omitted). The court may also order remittitur if the verdict is "manifestly exorbitant." Id. (quotation omitted). The amount of a verdict is conclusively against the weight of the evidence only if no reasonable jury could have reached it. Mullin v. Joy, 145 N.H. 96, 96, 749 A.2d 826 (2000). Once the trial court has reviewed the amount of the verdict under this standard, we will not disturb the judge's finding unless no reasonable person could make it. Daigle, 129 N.H. at 588, 534 A.2d 689. "Our task on review is not to attempt to ascertain or divine the one and only correct verdict." Transmedia Restaurant Co., 149 N.H. at 463, 821 A.2d 983 (quotation omitted). Absent an 710 unsustainable exercise of discretion, we will not reverse the trial court's decision. Kelleher, 152 N.H. at 838, 891 A.2d 477. The party seeking to modify the verdict's amount bears a heavy burden. Id. Based upon our review of the record, we conclude that the trial court did not unsustainably exercise its discretion by denying Signature's motion for remittitur. There is evidence in the record to support the damage award. The jury was instructed, without objection, that it could award damages "[f]or each item of loss or harm that the plaintiffs claim," provided that the plaintiffs proved the loss and that it was caused or substantially caused by the defendants' negligence. The plaintiffs testified that their out-of-pocket costs were approximately $182,000. Additionally, there was evidence that they lost wages of approximately $3,000, and, because their garage was never built, had paid $85 per month for two storage units, for a total of $1,785. Moreover, the plaintiff's expert testified that they could not have been fully compensated for their injuries without demolishing their current home and building a new one. Further, the plaintiffs testified that they expected to move into their home in October 2003 and did not move into it until January 2004. In the meantime, they and their two teenage children and two dogs lived in a small camper on the property. Given this evidence and the court's broad instruction to the jury, we cannot conclude that the trial court unsustainably exercised its discretion when it ruled that the jury's award of $250,000 was not exorbitant or conclusively against the manifest weight of the evidence. To the extent that Signature asserts on appeal that the trial court erred when it doubled the damages because the evidence did not support a finding that Signature acted knowingly or willfully, see RSA 358-A:10 (1995), we observe that Signature has failed to demonstrate that it preserved this claim for appellate review and has failed to develop its argument sufficiently for our review. See State v. Blackmer, 149 N.H. 47, 48-49, 816 A.2d 1014 (2003). IV Finally, Signature asserts that the trial court erred when it required Signature to post a bond sufficient to cover the damages award. We first address the plaintiffs' assertion that Signature's argument is moot because it submitted cash in lieu of the required bond. Whether the trial court had the authority to require an appeal bond may be moot, but as the plaintiffs conceded at oral argument, the trial court's authority to require security of any kind is not a moot issue. Signature first argues that the trial court had no authority to require it to post security. We disagree. Before trial, the plaintiffs sought to attach "any modular homes, cash and/or checks belonging to Signature in the State of New Hampshire." The trial court denied the plaintiffs' motion to attach after finding that "Signature has sufficient assets to satisfy a judgment in this case and because the assets sought to be attached, modular homes purchased by others and transported into New Hampshire, are not appropriate for such." After the jury returned its verdict, the plaintiffs renewed their petition to attach. The plaintiffs alleged that attachment was warranted because "Signature's assets are located primarily outside of the State" and the plaintiffs "have suffered great economic loss and . . . seek to protect their ability to recover the judgment to which they are entitled." Alternatively, the plaintiffs asked the court to order Signature to post 711 a bond sufficient to satisfy the damage award. They asserted that such a bond was necessary "to prevent injustice." Signature objected to the motion to renew the petition to attach on the ground that its property "mov[ ]es within interstate commerce and is beyond the attachment power of the Court for that reason." Signature further asserted that either requiring it to post a bond or attaching its property would cause it to suffer undue prejudice. Following a hearing, the trial court granted the plaintiffs' motion. Because it was concerned about the impact that an attachment would have upon the conduct of Signature's business in the state and its customers, the court granted the plaintiffs' request for alternative relief and ordered Signature to post a bond sufficient to cover the damage award. The court found that Signature failed to "demonstrate[ ] or even represent[ ] that it will be able to satisfy the judgment." Under the circumstances of this case, we hold that this was not error. Contrary to Signature's assertions, the trial court had the inherent equitable authority to require Signature to post security. See RSA 498:1 (Supp. 2006). "The trial court has broad and flexible equitable powers which allow it to shape and adjust the precise relief to the requirements of the particular situation." Dunlop v. Daigle, 122 N.H. 295, 300, 444 A.2d 519 (1982) (quotation omitted); see also N.H. Donuts, Inc. v. Skipitaris, 129 N.H. 774, 783, 533 A.2d 351 (1987) (it is historic purpose of equity to secure complete justice and courts may adjust remedies to grant necessary relief). Further, "[i]t is settled law that an appeal to this Court from a nisi prius court does not necessarily stay all further proceedings in the trial court, nor does it strip said court of all power over the proceeding in which the appeal has been taken." In the Matter of Nyhan & Nyhan, 151 N.H. 739, 745, 867 A.2d 470 (2005) (quotation and brackets omitted). In addition to other things, the trial court "may make such orders and decrees as may be necessary for the protection and preservation of the subject matter of the appeal." Id. (quotation omitted). Even after an appeal has been perfected, the trial court "has adequate authority and jurisdiction to preserve the status quo." Id. (quotation omitted). Thus, in Nyhan, we upheld a trial court's order requiring the respondent in that divorce case to pay the petitioner $2,600,000 within ten days of the clerk's notice of the trial court's order following remand. Id. at 745-46, 867 A.2d 470. In that case, the court ordered the respondent to make this payment to prevent him from further dissipating assets. Id. at 746, 867 A.2d 470. Here, we conclude that the trial court had the inherent authority to protect the subject matter of the appeal the jury's damage award. See In the Matter of Hampers & Hampers, 154 N.H. ___, 911 A.2d 14 (2006) (upholding trial court's order requiring petitioner to pay respondent $500,000 in the event of an appeal to permit her to secure suitable housing for her and the parties' child). To the extent that Signature asserts that the trial court's determination that it had failed to demonstrate or represent its ability to satisfy the judgment was in error, we observe that because Signature has failed to provide a transcript of the hearing in question, we must assume that the evidence supports the trial court's finding. See Tiberghein v. B.R. Jones Roofing Co., 151 N.H. 391, 394, 856 A.2d 21 (2004). Finally, Signature contends that the requirement that it post security violated *712 its state constitutional right to access to courts. Part I, Article 14 of the State Constitution states: Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws. "The purpose of this provision is to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts." Town of Nottingham v. Newman, 147 N.H. 131, 134-35, 785 A.2d 891 (2001) (quotation omitted). Signature has not been denied access to the court. See id. at 135, 856 A.2d 21. The injury of which it now complains, having to post security, came as a result of a hearing in superior court regarding its ability to pay the damages award. See id. Signature has contested this requirement in superior court and this court. See id. Accordingly, we cannot say that the trial court's order was an arbitrary or discriminatory infringement upon Signature's access to the court, in violation of Part I, Article 14 of the State Constitution. See id. Affirmed. BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516033/	913 A.2d 407 (2007) 281 Conn. 50 Donna WINN, Administratrix (Estate of Glenn Winn) v. David POSADES et al. No. 17567. Supreme Court of Connecticut. Argued September 21, 2006. Decided January 9, 2007. 408 Norman A. Pattis, Bethany, with whom were Erin M. Kallaugher and Kimberly Coleman, for the appellant (plaintiff). David S. Monastersky, Hartford, with whom was Claudia A. Baio, for the appellees (defendants). BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js. VERTEFEUILLE, J. This certified appeal arises from an action brought by the plaintiff, Donna Winn, the administratrix of the estate of her deceased son, Glenn Winn (decedent), against the defendants, David Posades and the town of Plainville, for the wrongful death of the decedent resulting from an automobile collision at an intersection. On appeal, the plaintiff claims that the Appellate Court improperly affirmed the judgment of the trial court, which had granted the defendants' motion for judgment of dismissal for failure to make out a prima facie case at the close of the plaintiff's case. Winn v. Posades, 91 Conn.App. 610, 881 A.2d 524 (2005). Specifically, the 409 plaintiff claims that the Appellate Court improperly concluded that the plaintiff had failed to present sufficient evidence of proximate cause as an element of her negligence and recklessness claims. We disagree, and, accordingly, we affirm the judgment of the Appellate Court. The Appellate Court opinion sets forth the procedural history of this case and the following evidence that was presented by the plaintiff at trial. "On September 4, 1997, Posades, a member of the Plainville police department, was scheduled to work the midnight shift, from 11:45 p.m. until 7:45 a.m. He arrived at the police station at approximately 11:35 p.m. and, shortly thereafter, realized that he had left his handcuff keys at home. He set out for home in his police cruiser, traveling west on Route 372 toward the intersection with Route 177, an intersection controlled by a traffic light. As he entered that intersection, Posades, with a clear view to the south on Route 177, but an obstructed view to the north on Route 177, looked to the south. He was traveling at a speed of fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone. Meanwhile, the . . . decedent, who was traveling south on Route 177 at a speed of thirty-seven to forty-six miles per hour in a thirty-five mile per hour zone, proceeded into the intersection directly in the path of Posades' vehicle. Posades' vehicle struck the vehicle being driven by the . . . decedent, causing the decedent's vehicle to flip before it settled off the road. There were no skid marks in the area. The impact injured Posades and fatally injured the . . . decedent, who died nine days after the accident. The . . . decedent never regained consciousness to explain what had happened before his death. Posades, the sole [surviving] eyewitness to the accident, testified that he recalled nothing of the accident or how it had occurred. He last remembered traveling west on Route 372 toward the intersection with Route 177. "The plaintiff subsequently filed this action against the defendants, alleging, inter alia, that the collision in which the . . . decedent was killed was caused by Posades' negligent and reckless operation of his vehicle. After presentation of the plaintiff's case-in-chief, the defendants filed a motion for a judgment of dismissal. The court heard arguments and granted the motion, stating: `I have read and reread most of the cases on the topic of speed and proximate cause, and, after viewing the evidence most favorabl[y] toward the plaintiff, I have reluctantly concluded that the plaintiff has not made out a prima facie case. The plaintiff has the duty of proving the elements of the case, that includes duty, negligence, proximate cause and damages. The evidence to me, clearly, there was a duty. These were operators on the highway. They had a duty to each other. Clearly, there was damage, and clearly, in my view, there was evidence of negligence. In fact, there was evidence of recklessness. The fact that this defendant was operating at a speed which charitably could be fifty-eight miles per hour and could have been as high as seventy-five miles per hour in an area, which based on photographs, appears to be an area of mixed commercial-residential use, an area that has a speed limit of twenty-five miles per hour. To me, there is no question that that is negligence and the jury could reasonably find that it's recklessness. And, personally, I find it reprehensible that a police officer on duty not responding to an emergency was traveling that fast. . . . However, on balance, I simply find that there is not such evidence on the issue of proximate cause.'" Id., at 611-13, 881 A.2d 524. The trial court therefore granted the defendants' motion for judgment of dismissal and rendered judgment in favor of the defendants. 410 The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had granted the defendants' motion for judgment of dismissal. The Appellate Court affirmed the judgment of the trial court, concluding that the plaintiff had failed to present evidence of how the accident actually happened. Id., at 618-19, 881 A.2d 524. Thereafter, we granted the plaintiff's petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: "Did the Appellate Court properly affirm the directed judgment of the trial court?" Winn v. Posades, 276 Conn. 923, 888 A.2d 91 (2005). The plaintiff claims that the Appellate Court improperly affirmed the trial court's judgment of dismissal. Specifically, the plaintiff asserts that the Appellate Court misapplied the law regarding proximate cause, and failed to recognize that she had produced sufficient evidence to establish an unbroken sequence of events that tied the decedent's death to Posades' conduct. In response, the defendants contend that the Appellate Court properly affirmed the trial court's judgment of dismissal. The defendants assert that evidence of Posades' improper or negligent conduct in traveling at an excessive speed was not sufficient to remove the issue of proximate cause from the realm of pure speculation or guesswork, and that, therefore, the plaintiff failed to introduce sufficient evidence to establish proximate cause. We agree with the defendants, and, accordingly, we affirm the judgment of the Appellate Court. As an initial matter, we set forth the applicable standard of review. Practice Book § 15-8 provides in relevant part: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . ."[1] "A prima facie case, in the sense in which that term is relevant to this case, is one sufficient to raise an issue to go to the trier of fact. . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . In evaluating [the denial of] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Citations omitted; internal quotation marks omitted.) Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). "Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary." DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005). We view in the light most favorable to the plaintiff the following additional evidence, which was presented to the trial court and is relevant to the determination of whether the plaintiff had established a prima facie case of negligence or recklessness. The police officer who had performed 411 an investigation of the accident testified that the front of the cruiser driven by Posades struck the driver's side of the vehicle driven by the decedent at the intersection of Route 372 and Route 177, causing the decedent's vehicle to roll over and the decedent to be ejected from his vehicle, resulting in the serious injuries that led to his death. The officer further testified that, at the time of the collision, Posades was traveling in a westerly direction on Route 372 at approximately fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone, and the decedent was traveling in a southerly direction on Route 177 at approximately thirty-seven to forty-six miles per hour in a thirty-five mile per hour zone. The evidence further indicated that Posades was looking to the left of the intersection at the time of the accident, not to the direction from which the decedent was approaching. The evidence also established that the traffic light at the intersection was controlled by an electronic trigger, which was activated when motor vehicles approached the intersection from the north or south on Route 177. Posades was unable to recall how the accident happened, the decedent never regained consciousness, and there were no witnesses to the accident. In affirming the judgment of the trial court, the Appellate Court concluded that "the plaintiff presented no evidence as to how the accident actually had happened. Even if the plaintiff's evidence tended to show that Posades was negligent or reckless in driving his police cruiser through the intersection at a speed of fifty-eight to seventy-five miles per hour in a twenty-five mile per hour zone, there was no evidence that that conduct proximately caused the collision." Winn v. Posades, supra, 91 Conn.App. at 618, 881 A.2d 524. We agree. We begin our analysis with a brief review of the law of negligence. "[E]ssential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004). "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct. . . . The second component of legal cause is proximate cause. . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). "An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . The finding of actual cause is thus a requisite for any finding of proximate cause." (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986). This court has recognized that in a case involving an automobile accident, "[a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant 412 operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation." (Internal quotation marks omitted.) O'Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976). The plaintiff in the present case claims that the Appellate Court improperly applied Wallace v. Waterhouse, 86 Conn. 546, 86 A. 10 (1913), and Palmieri v. Macero, 146 Conn. 705, 155 A.2d 750 (1959), to the facts of this case. Specifically, the plaintiff asserts that, unlike the evidence in Wallace and Palmieri, the evidence presented in the present case established an unbroken sequence of events that tied the decedent's death to Posades' conduct. We disagree. In Wallace v. Waterhouse, supra, 86 Conn. at 548, 86 A. 10, this court affirmed the judgment of the trial court granting the defendant's motion for judgment of nonsuit[2] in a negligence action brought by the plaintiffs against the driver of a motor vehicle that had run over and killed their dog. The evidence in Wallace demonstrated that the defendant, who had been driving his vehicle at a high rate of speed, hit the plaintiffs' dog while the dog was attempting to cross the street. Id., at 547, 86 A. 10. In determining whether the plaintiffs had introduced sufficient evidence to establish a prima facie case, this court concluded that the plaintiffs had not met their burden because it was easy to surmise factors other than the defendant's speed that might have caused the accident, and the plaintiffs had failed to introduce any evidence to demonstrate what the "real proximate cause of the killing of the animal was." Id., at 548, 86 A. 10. This court rejected the notion that the plaintiffs' proof of the defendant's excessive speed was sufficient to prove proximate cause, stating: "The improper speed of the automobile may have concurred in point of time with the dog's injury without being the cause of it. Excessive speed being proved, the cause of the accident would still be a matter of conjecture with the jury." (Internal quotation marks omitted.) Id. This court addressed a similar issue forty-six years later in Palmieri v. Macero, supra, 146 Conn. at 705, 155 A.2d 750. Palmieri involved a negligence action brought by the passenger of a motor vehicle who was injured when the motor vehicle went over an embankment on the Pennsylvania Turnpike. Id., at 706, 155 A.2d 750. The plaintiff was unable to testify as to the cause of the accident because he had been asleep at the time of the accident. The driver of the vehicle, the defendant's decedent, did not survive the accident, and there were no other witnesses to the accident. Id. This court stated that, from the evidence presented at trial, "the jury could find that the car, westbound, ran for about thirty feet along the north shoulder of the road, crossed the two westbound lanes into the grassy center strip, where it left marks for eighty-seven feet, and then went diagonally across the westbound lanes for a distance of 294 feet, on through two sections of the guardrail on the northerly shoulder, and 413 down the embankment for a distance of 100 feet." Id. After the jury returned a verdict for the plaintiff, the trial court set aside the verdict and rendered judgment for the defendant, finding that "while the marks upon and about the highway indicated that the car was then traveling at a fast rate of speed and was out of control, there was no basis for finding what caused the vehicle to make these marks or to follow the course which it did." Id., at 707, 155 A.2d 750. In affirming the judgment of the trial court after the plaintiff appealed, this court concluded that "[t]he conclusion of the jury that negligence of the [defendant's decedent] was established was without evidential basis and could only have resulted from guesswork. . . . The existence of so many possibilities as to the proximate cause of this accident, together with the lack of facts pointing significantly to any one of them as due to the negligence of the [defendant's decedent], renders the question of his negligence too conjectural and uncertain to warrant a verdict against the defendant." (Citation omitted.) Id., at 708, 155 A.2d 750. Similar to Wallace and Palmieri, the evidence presented by the plaintiff in the present case failed to establish that Posades' conduct in operating his vehicle at a high rate of speed was the legal cause of the decedent's injuries. It is well established that in order to demonstrate that the defendant's conduct legally caused the decedent's injuries, the plaintiff must prove both causation in fact and proximate cause. See Paige v. St. Andrew's Roman Catholic Church Corp., supra, 250 Conn. at 24-26, 734 A.2d 85. In the present case, the Appellate Court properly concluded that the plaintiff had presented insufficient evidence of the actual cause, or cause in fact, of the collision. Although the plaintiff's evidence showed that Posades had been negligent or reckless in operating his police cruiser through the intersection at a highly excessive rate of speed, there was no evidence that his speed actually had caused the collision.[3] There are a number of factual possibilities that could explain how the accident occurred. The decedent may have run a red light, improperly entering the intersection. Alternatively, the traffic light may have malfunctioned, permitting both Posades and the plaintiff's decedent to enter the intersection simultaneously. Moreover, we must note that the record in the present case reveals that the plaintiff's counsel conceded, during her opening statement to the jury, that the decedent had consumed alcohol and smoked marijuana prior to operating his vehicle on the evening of the accident. This admission further supports the conclusion that factors other than Posades' excessive speed, including the possibility of the decedent's own impairment, might have caused the accident. The plaintiff also contends that the Appellate Court improperly concluded that the present case is distinguishable from Terminal Taxi Co. v. Flynn, 156 Conn. 313, 240 A.2d 881 (1968). We disagree. The plaintiff taxicab driver in Terminal Taxi Co. brought an action to recover damages for injuries he had suffered when the motor vehicle that he was operating was struck in the rear by a motor vehicle operated by the defendant's decedent. Id., at 314-15, 240 A.2d 881. The evidence presented at trial consisted of testimony from the police officer who had performed 414 an investigation of the accident and testimony from the plaintiff, who was able to testify as to what he saw immediately prior to the accident. Id., at 317, 240 A.2d 881. The testimonial and physical evidence demonstrated that the plaintiff was traveling in a northerly direction on the right side of Long Wharf Drive in New Haven and that his vehicle was struck at the left rear by the right front of a vehicle operated by the defendant's decedent. Id., at 314-15, 240 A.2d 881. The evidence also indicated that the accident occurred on a portion of Long Wharf Drive that was designated one-way for northbound traffic. Id., at 315, 240 A.2d 881. The evidence further showed, and the defendant did not challenge, that the defendant's decedent was traveling at a fast rate of speed immediately prior to the collision with the plaintiff's vehicle. Id., at 317, 240 A.2d 881. At the conclusion of the evidence, the defendant moved for a directed verdict on the ground that the evidence was insufficient to find the defendant's decedent liable. Id., at 314, 240 A.2d 881. The trial court denied the motion, and the jury subsequently returned a verdict in favor of the plaintiff. Id. The defendant thereafter moved for judgment notwithstanding the verdict on the ground that there was no evidence as to what might have caused the defendant's vehicle to collide with the plaintiff's vehicle. Id., at 314-16, 240 A.2d 881. The trial court denied the motion and rendered judgment for the plaintiff, and the defendant appealed. Id., at 314, 240 A.2d 881. On appeal, this court found the evidence sufficient, stating, "[h]ere, there was evidence as to how the accident happened: [the plaintiff] testified about what he saw, and evidence of physical facts was introduced through the investigating officer. . . . [T]here is little doubt about the manner in which the accident occurred. The facts were adequate to warrant the jury in drawing the inference that [the defendant's decedent] was the responsible agent in causing his car to take the course it did. The jury could have found from the nature and the extent of the damage to the vehicles that [the defendant's decedent] was operating his car at an excessive speed and that he was not driving at a reasonable distance apart from the [plaintiff's vehicle]. It was reasonable to infer that [the defendant's decedent] was attempting to pass [the vehicle driven by the plaintiff] and, because the one-way traffic pattern terminated at the intersection, he accelerated the speed of his vehicle in order to complete the passing prior to entering the section of Long Wharf Drive where he would be confronted with oncoming traffic in the westerly lane." Id., at 317-18, 240 A.2d 881. Because the plaintiff in Terminal Taxi Co. had adduced sufficient evidence to establish the actual and proximate cause of the accident, that case is readily distinguishable from the present case. The plaintiff's reliance on Toomey v. Danaher, 161 Conn. 204, 286 A.2d 293 (1971), is equally unavailing. Toomey involved a negligence action brought by the plaintiff against the estate of his deceased wife for injuries he had suffered as a result of a motor vehicle accident, which he claimed had occurred while his wife was driving the vehicle. Id., at 205-206, 286 A.2d 293. The plaintiff's wife, who died as a result of the injuries she had sustained in the accident, never regained consciousness, the plaintiff was unable to recall anything about the accident due to amnesia, and there were no eyewitnesses to the accident. Id., at 207, 286 A.2d 293. This court reversed the judgment of the trial court in favor of the plaintiff, concluding that the trial court should have set aside the verdict and rendered judgment notwithstanding the verdict for the defendant 415 on the ground that no negligence had been proved. Id., at 211-12, 286 A.2d 293. Despite the factual similarity in Toomey to the present case, the plaintiff relies, nevertheless, on the following dicta from Toomey: "An unreasonable rate of speed would be a speed which was not safe considering the type of road, the amount of traffic thereon, the condition of the road, and the weather conditions. It would also include the physical condition of the driver and the general condition of the vehicle. The posted speed limit is indicative of the maximum reasonable speed under optimum conditions. Exceeding the posted speed limit, if the proximate cause of the accident, would be actionable negligence." Id., at 208-209, 286 A.2d 293. The plaintiff asserts that the facts of the present case, namely, that Posades was traveling at an unreasonable speed established that his negligent and reckless conduct was the proximate cause of the accident. While we agree with the plaintiff that there was evidence that Posades was traveling at an unreasonable speed,[4] our inquiry does not end there. As this court recognized in Toomey, "[e]xceeding the posted speed limit, if the proximate cause of the accident, would be actionable negligence." (Emphasis added.) Id. Even with the existence of evidence of unreasonable speed, the plaintiff nevertheless must demonstrate that the unreasonable speed was the proximate cause of the accident. See Wallace v. Waterhouse, supra, 86 Conn. at 548, 86 A. 10; see also Hines v. Davis, 53 Conn.App. 836, 839, 731 A.2d 325 (1999) ("[s]peed alone, even rapid speed, does not suffice to establish proximate cause in a negligence action"). The plaintiff's final claim is that public policy favors finding liability on the part of a police officer who operated a vehicle at an excessive rate of speed by recognizing that evidence of excessive speed is sufficient evidence of proximate cause. We disagree. Nothing in our ruling today suggests that the operator of a motor vehicle, including a police officer, who travels at an excessive speed will not be liable in damages for negligence or recklessness. Our conclusion today is simply that we decline to vary from our previous case law that consistently has concluded that proof of excessive speed by the operator of a motor vehicle is insufficient, standing alone, to establish legal cause.[5] The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. NOTES [1] Although a motion to dismiss pursuant to Practice Book § 15-8 is not properly made in a jury trial, like the present case, the trial court acknowledged that the issue of whether the defendants' motion properly should have been brought as a motion for a directed verdict was not dispositive because the standard for granting a motion for a directed verdict is the same as the standard for granting a motion for judgment of dismissal. We agree. [2] "We note that [a] motion for judgment of dismissal has replaced the former motion for nonsuit [pursuant to General Statutes § 52-210] for failure to make out a prima facie case." (Internal quotation marks omitted.) Jackson v. Water Pollution Control Authority, 278 Conn. 692, 700 n. 9, 900 A.2d 498 (2006). [3] We note that the plaintiff failed to present any expert testimony regarding whether Posades' excessive rate of speed prevented him from avoiding the accident. Such evidence would have provided an evidentiary basis for a determination that the defendant's excessive rate of speed was the cause of the accident. [4] In fact, as the trial court stated, Posades' conduct was not only negligent, but "reprehensible. . . ." (Internal quotation marks omitted.) Winn v. Posades, supra, 91 Conn.App. at 613, 881 A.2d 524. [5] See footnote 3 of this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516042/	913 A.2d 1160 (2006) 50 Conn. Super. Ct. 51 Michael PERUTA et al. v. OUTBACK STEAKHOUSE OF FLORIDA, INC. No. X01-CV-04 4001683S. Superior Court of Connecticut, Complex Litigation Docket at Waterbury. August 24, 2006. 1163 Madsen & Prestley & Parenteau, LLC, Hartford, and Hayber & Pantuso, LLC and Consumer Law Group, LLC, Rocky Hill, for the named plaintiff et al. Jackson Lewis, LLP, Hartford, for the defendant. SHEEDY, J. FACTUAL BACKGROUND Former employees of the defendant, Outback Steakhouse of Florida, Inc., bring this action on behalf of themselves and other current or former employees of the defendant's seven Outback Steakhouse restaurants in Connecticut who worked as food servers (servers) from June 2, 2002 to the present. They claim to have been underpaid in violation of the Connecticut Minimum Wage Act (the act) General Statutes § 31-58, et seq., and § 31-62 El et seq. of the Regulations of Connecticut State Agencies. The class is said to consist of "certainly well over 200 or 300 individuals." The defendant has objected; both parties have filed memoranda with extensive attachments and oral argument was heard on June 6, 2006. The named plaintiff, Michael Peruta, and coplaintiffs Malia Fontaine and Caragh Silverio, all of whom were employed at the Newington Outback Steakhouse restaurant, bring individual claims in counts one through three of the first amended complaint (complaint). Count four asserts the class action claim and alleges three violations. First, the defendant took the tip credit of 29.3 percent of the state mandated minimum wage (presently $7.40/hr.) for all hours worked when it was not so entitled. Second, the defendant failed to segregate the servers' time spent on "non-service" duties from time spent performing "service" duties or to obtain from the servers signed tip statements as mandated by §§ 31-62-E2 (c) and 31-62-E3 (c) of the Regulations of Connecticut State Agencies. Third, and finally, because the defendant required the servers to "tip out,"[1] it exercised control over the servers' tips and deprived them of gratuities. As a result, the servers claim, they were not "service employees" under § 31-62-E2 (c) of the aforementioned regulations and the defendant was not, therefore, entitled to take the tip credit. CERTIFICATION STANDARDS The plaintiffs' burden is to demonstrate that the prospective class meets the requirements of both Practice Book § 9-7 (numerosity, commonality, typicality and adequacy of representation) and Practice 1164 Book § 9-8. Specifically, under Practice Book § 9-8, it must be demonstrated "that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." In adjudicating this motion, the "court is bound to take the substantive allegations of the complaint as true." (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 743, 818 A.2d 731 (2003). Although the question for the court on a motion for class certification "is not whether the plaintiff or plaintiffs have [either] stated a cause of action or will prevail on the merits, but rather whether the [class action] requirements . . . are met"; (internal quotation marks omitted) Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974); that determination "generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs' cause of action"; (internal quotation marks omitted) General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); and it may sometimes be necessary "to probe behind the pleadings before coming to rest on the certification question." Id. Doubts regarding the propriety of certifying a class should be resolved in favor of certification. Rivera v. Veterans Memorial Medical Center, supra, at 743, 818 A.2d 731. Because the requirements of our statutes are similar to those of rule 23 of the Federal Rules of Civil Procedure, we look to federal law in construing the prerequisites of Practice Book §§ 9-7 and 9-8. Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 322, 880 A.2d 106 (2005). The plaintiff has the heavy burden of establishing that each requirement is satisfied. McKernan v. United Technologies Corp., 120 F.R.D. 452, 453 (D.Conn.1988). Once, however, there has been a preliminary legal showing such requirements have been met, it is the defendant's burden to demonstrate otherwise. See 2 H. Newberg, Class Actions (3d Ed. 1992) § 7.22, pp. X-XX-X-XX. ADJUDICATION A Numerosity Requirement Under Practice Book § 9-7 Numerosity is established if the class is too large to make joinder of all members feasible. No "magic number" serves as a bright line guide to measure the fulfillment of this requirement because "numerosity is tied to the impracticality of joinder under the particular circumstances of the case." Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn.App. 585, 590, 583 A.2d 152 (1990). Though speculation about the size of the class will not suffice; id.; an estimate based on reasonable inferences drawn from available facts satisfies the requirementparticularly where, as here, more precise information is within the defendant's control. The record indicates that each of the seven Outback Steakhouse restaurants employed about forty servers at a time. Counsel's estimate of class size (200-300) suggests the impracticality of joinder and, thus, the existence of a class. See, e.g., Hirschfeld v. Stone, 193 F.R.D. 175, 182 (S.D.N.Y. 2000) (numerosity established where plaintiffs estimated 150 to 170 class members). The numerosity requirement is satisfied here. B Commonality Requirement Under Practice Book § 9-7 "The threshold of commonality is not high." (Internal quotation marks omitted.) Flanigan v. General Electric, United States District Court, Docket No. 1165 3:93cv516 (JBA), 1998 U.S. Dist. Lexis 22873, 8 (D.Conn., September 28, 1998). It requires only "the same legal or remedial theory for the class claim." Walsh v. National Safety Associates, 44 Conn.Supp. 569, 584, 695 A.2d 1095 (1996), aff'd, 241 Conn. 278, 694 A.2d 795 (1997) (whether defendant's conduct violated state law presented common question of law). Although both rule 23(a)(2) and Practice Book § 9-7(2) reference "questions" (plural), our Supreme Court has said there "need only be one question common to the class." Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 323, 880 A.2d 106. The present case turns on the claimed existence of general practices by Outback Steakhouse in violation of Connecticut's wage laws; where, as here, it is asserted that the violations affected all servers, a claim the court is bound to accept as true for certification purposes, the commonality requirement is satisfied. See, e.g., Reep v. Barco Auto Leasing Corp., United States District Court, Docket No. 3:94cv798 (JBA), 1997 U.S. Dist. Lexis 22400, 5 (D.Conn., August 28, 1997). (if challenged practice is a practice of general applicability, then it necessarily affects the entire plaintiff class [internal quotation marks omitted]). "[T]he fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a class action [on commonality grounds]." (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, at 326, 880 A.2d 106. C Typicality Requirement Under Practice Book § 9-7 Typicality requires that the claims of the representative parties arise out of the same event or practice as gives rise to the class members' claim and that they be based on the same legal or remedial theory (It is, therefore, in many respects similar to commonality.) "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." (Internal quotation marks omitted.) Duprey v. Connecticut Dept. of Motor Vehicles, 191 F.R.D., 329, 337 (D.Conn.2000) citing Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir.1993). The defendant asserts that this requirement cannot be met because, while the proposed class includes servers employed at all seven restaurants located throughout the state,[2] all three of the aforementioned plaintiffs have been employed only at the Newington restaurant. The evidence (provided in the form of exhibits to memoranda) is that each Connecticut restaurant is run by a managing partner who has the authority to hire, fire and assign work shifts and job duties. Scant information is provided with regard specifically as to how what may be "nonservice" duties are assigned or performed at each of the restaurant locations other than Newington, whether servers were required to "tip out" in each of the other locations and the like. None of the plaintiffs here have any personal knowledge regarding specifically how those other locations were in fact run by their respective general managers. The plaintiffs cannot sustain their burden of demonstrating the same event or practice occurred at all seven 1166 restaurants.[3] The typicality requirement is, however, satisfied if the "class" represented by the plaintiffs in the present case is limited only to former and current employees of the Newington location during the applicable period. If certification were to be granted here, the court would necessarily restrict the class to Newington servers during the identified time period. See Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 633, 894 A.2d 240 (2006) ("[w]ithout individual standing to raise a legal claim, a named representative does not have the requisite typicality to raise the same claim on behalf of a class"). D Adequacy of Representation Under Practice Book § 9-7 This requirement is satisfied if "the representative parties will fairly and adequately protect the interests of the class." Practice Book § 9-7. This standard is met when the representatives: "(1) have common interests with the unnamed class members; and (2) will vigorously prosecute the class action through qualified counsel." Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 326, 880 A.2d 106. The inquiry's aim is to reveal conflicts of interest between the named plaintiffs and the class they seek to represent. Id., at 326-27, 880 A.2d 106. There is an additional concern here in that two of the three aforemention plaintiffs presently reside[4] in Florida.[5] Curiously, the plaintiffs do not respond to this argument in their reply brief and, thus, the court is without any information with regard to how helpful the Florida residents will be in the prosecution of the case. If, at trial, the non-participation by Peruta and Fontaine is clear, Silverio, the sole remaining plaintiff, can prosecute the action on behalf of current and former Newington employees. At present, there are no attacks on the competency of plaintiffs' counsel to prosecute this matter and the court knows of no conflicts of interest between the three aforementioned plaintiffs and the class (which would be restricted to Newington Outback Steakhouse employees). There is adequacy of representation. E Predominance Requirement of Practice Book § 9-8 "[C]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." (Emphasis in original; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 329, 880 A.2d 106. That requires a consideration of "what value the resolution of [each] class-wide issue will have in each class member's underlying cause of action." (Emphasis added; internal quotation marks omitted.) Id., at 329-330, 880 A.2d 106. "Common issues of fact and law predominate if they ha[ve] a direct impact on every class member's effort to 1167 establish liability and on every class member's entitlement to . . . relief." (Internal quotation marks omitted.) Id., at 330, 880 A.2d 106. "[When], after adjudication of the class-wide issues, [the] plaintiffs must still introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual[ized] claims, such claims are not suitable for class certification." (Internal quotation marks omitted.) Id. Thus, although the trial court cannot conduct an inquiry into the merits of the case, the court must undergo a practical analysis of the kinds of proof required at trial if the class is certified. Collins makes clear that the court must undergo a three part analysis; it must: (a) review the elements of the causes of action asserted on behalf of the putative class; (b) determine whether generalized evidence can be offered to prove those elements on a class-wide basis or whether individualized proof is needed to establish each member's entitlement to relief; and (c) weigh the common issues subject to generalized proof against the issues requiring individualized proof to determine which predominate. Id., at 331-32, 880 A.2d 106. The predominance test is satisfied only if most of the litigants' and the court's efforts will be on common questions of law or fact. Id. The plaintiffs state that their generalized proof with regard to the claim that the defendant failed to obtain and maintain weekly tip statements in violation of § 31-62-E2 (c) of the Regulations of Connecticut State Agencies consists of deposition excerpts claimed as "admissions." That portion of Tony Scacca's testimony to which the court is referred does not constitute an admission; it is evidence only that the servers daily declared their tips on a checkout form and, when they clocked out, they entered the same in a computer. That testimony is corroborated by Kyle Lancaster and Joseph Kadow.[6] What is relevant to this alleged violation is whether the defendant used the information the servers have provided in the computer and on a checkout form completed daily to keep and maintain weekly tip statements in violation of the applicable regulation. Regarding the defendant's alleged failure to record tip credit amounts claimed and to obtain and maintain signed statements as required under § 31-62-E3 (b) of the Regulations of Connecticut State Agencies,[7] the plaintiffs state only that such facts "will be easily demonstrated through generalized evidence in the form of admissions by Defendant's management, and an examination of the `wage record.'" No elucidation is provided. Generalized proof that the defendant exerts control over the servers' tips (and thereby prevents the servers from directly receiving their tips as required under § 31-62-E2 [e] of the Regulations of Connecticut State Agencies) by obligating them to share tips with support staff will consist, the plaintiffs claim, of a written policy statement by Outback Steakhouse of that requirement, the testimony of Outback Steakhouse managers and excerpted deposition testimony by individuals whose roles are not identified but are presumed to be managers assigned to various restaurant locations. Finally, the plaintiffs state that the generalized proof that the defendant failed to segregate "service" from "nonservice" duties of the servers in violation of § 31-62-E4 of the Regulations of Connecticut State Agencies will consist of a multiplicity of corporate documents (memoranda, policy statements, 1168 portions of a server training outline, and the like) and deposition excerpts.[8] As to what constitutes "service" and "nonservice" duties, the plaintiffs agree that that will be a function of the court, presumably to be made following the admission of documents into evidence as exhibits most of which were created by individual Outback Steakhouse managers or corporate staff and which were provided in discovery. At trial, the plaintiffs plan to use such documents as a memo entitled "Sidework"; that memo includes activities such as "brew coffee and tea," "refill ice at soda machine," "stock rameikins," and the like. They urge the restriction of "service duties" to those activities "related to the guests seated at the tables in their (services') immediate service area, which is comprised of two or three tables."[9] (The deponent, Wayne Hull, is "presumed" to be an Outback Steakhouse employee at some level of management.) The identification of "service" and "non-service" duties is critical to the resolution of many of the plaintiffs' claims. Neither our state's General Statutes nor the Regulations of Connecticut State Agencies define the terms and no decisional law defines those terms as applicable to servers. Section 31-62-E2 (e) of the Regulations of Connecticut State Agencies, however, defines "service employee" as one "whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths and to the performance of duties incidental to such service and who customarily receive gratuities." (Emphasis added.). The defendant argues that the regulation requires an expansive interpretation such that "service" be read to include functions other than waiting on customers (as the plaintiffs state). If the evidence at trial prompts the court to adopt the definition of "service employee" stated in § 31-62-E2 (e) of the Regulations of Connecticut State Agencies, "non-service" duties are necessarily those that either: (a) do not "relate solely to the serving of food [and] beverages"; or (b) do not relate "to the performance of duties incidental to such service." Since it is apparently conceded that the defendant took the tip credit for all hours worked by a server, a class member suffers a loss only if he or she performed "nonservice" duties for any of the hours for which Out-back Steakhouse took the tip credit. Additionally, if a server performed both "service" and "nonservice" duties and the time spent on each is definitely segregated and recorded as such, "the allowance for gratuities as permitted as part of the minimum fair wage may be applied to the hours worked in the service category." Regs., Conn. State Agencies § 31-62-E4. Conversely, if a server performs both "service" and "nonservice" duties and the time spent on each cannot be definitively segregated and recorded or is not so segregated and recorded, "no allowances for gratuities may be applied as part of the minimum fair wage." Id. The centerpiece of the plaintiffs' case is the claim that it was the uniform practice of the defendant to assign servers "running duties" and that that practice, coupled with its claimed failure to segregate time spent on those "nonservice" duties, precludes the defendant's taking of the tip credit. 1169 The task in adjudicating this motion is to determine whether, in the trial of this matter, most of the litigants' and the court's efforts will be on common questions of law or fact subject to generalized evidence or whether the issues requiring individualized proof will predominate. Collins v. Anthem Health Plans, Inc., supra, 275 Conn. at 332, 880 A.2d 106. With that inquiry in mind, each claimed violation of the act needs to be analyzed. The act (General Statutes § 31-60[b]) prohibits employers from paying employers less than the minimum fair wage. Section 31-60(b) further provides that employers in the hotel and restaurant industry may take the tip credit and pay an hourly wage 29.3 percent less than the currently mandated minimum "for persons, other than bartenders, who are employed in the hotel and restaurant industry . . . who customarily and regularly receive gratuities." The statute vests authority with the commission of the department of labor to adopt regulations as may be appropriate to effectuate the intent of the act. Pursuant to that authority, the regulations adopted are codified as § 31-62-E1 et seq. of the Regulations of Connecticut State Agencies. Under the regulations, several requirements must be met before an employer may take the "tip credit" as against the minimum wage paid "service employees."[10] Specifically, the employer must obtain and maintain a signed statement from the employee certifying that he or she has received gratuities of at least two dollars per day (for part-time employees) or ten dollars per week (for full-time employees). Regs., Conn. State Agencies § 31-62-E2 (c). The employer must weekly record the amount claimed as credit as a separate item in the wage record. Regs., Conn. State Agencies § 31-62-E3 (b). Section 31-62-E2 (e) of the Regulations of Connecticut State Agencies further provides that the tips must be "received by the employee directly from a guest, patron or customer for service rendered" before the employer can take the tip credit.[11] Finally, the employer must "segregate" time spent by the employee on "service" and "nonservice" duties as discussed previously. Regs., Conn. State Agencies §§ 31-62-E2 (c) and 31-62-E4. The plaintiffs cite as authority for their argument Macarz v. Transworld Systems, Inc., 193 F.R.D. 46 (D.Conn.2000) in which the court noted the predominance requirement often focuses on the liability issue "and if the liability issue is common to the class, common questions are held to predominate over individual questions." (Internal quotation marks omitted.) Id., at 54. Macarz was brought under the Fair Debt Collection Practices Act; the plaintiffs there had received collection letters that the District Court had already found to be in violation of that act. The court granted the motion for certification, noting the predominance requirement was "a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws." (Internal quotation marks omitted.) Id. The court also noted that the defendant there did not seriously challenge the predominance element and, curiously, noted "damage amounts may vary. . . ." Id.[12] One paragraph in the thirteen 1170 page decision addressed predominance. The present case is unlike Macarz in multiple ways. It is not a consumer or securities fraud case nor does it allege an antitrust violation. The centerpiece of this action is not a "common document"; id., at 54; such as the letter sent to all 15,000 proposed class members and consumers in Macarz but, as the plaintiffs concede, a variety of documents relative to the listing of side duties and the performance of that sidework, the alleged corporate policy regarding the taking of the tip credit, and Outback Steakhouse's alleged requirement that servers "tip out." Nor is there here, as there was in Macarz, a prior court finding of a prohibited practice which was subsequently repeated (15,000 times) and a ruling upon which the class was "entitled to rely" so as to preclude the defendant from relitigating liability. Id., at 49. Liability here is not only to be established but is aggressively contested by Outback Steakhouse. The plaintiffs have provided the court with approximately forty documents as exhibits to their memorandum, many of which, the defendant asserts, are either not relevant to practices at the Newington Outback Steakhouse or do not establish the violations of the act asserted. The case before this court is simply not "served up" in the same way as is Macarz absent the undisputed "standardized conduct" in the federal case. Id., at 50. Given the unusual circumstances of a prior finding of a statutory violation which precluded the defendant's contesting of liability in Macarz, the finding of predominance there followed naturally. The plaintiffs here have asserted specific violations of the act regarding Outback Steakhouse's taking of the tip credit for each hour of each server's work. Before any violations can be established, the court must first grapple with the issue of "service" versus "nonservice" duties. (If, for example, all duties performed by the servers are "service" duties because they are "incidental" to the service of patrons, no violation of the act for failure to segregate under § 31-62-E4 of the Regulations of Connecticut State Agencies is established. If, however, "service" is limited to duties performed at tables "in the immediate service area" of the servers, the plaintiffs may be able to establish such violation.) The plaintiffs assert that this issue may be adjudicated by "generalized proof" to consist of such exhibits (offered through Newington managers presumably) as the earlier referenced lists of sidework duties and job descriptions without evidence of what work the servers performed daily at the Newington restaurant. The court is puzzled as to how a mere listing of "sidework" duties or the suggested "service" and "nonservice" jobs listing in a guide published by the state department of labor's wage and workplace standards division can be determinative of the issue as the plaintiffs suggest. It needs first to be said that the aforementioned guide is no more than a guidebook which, as the director of the standards division notes, "does not take the place of actual Connecticut General Statutes and regulations and/or court decisions." When an administrative "agency's determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference" in its interpretation of legal terminology. (Internal quotation marks omitted.) Cendant Corp. v. Commissioner of Labor, 276 Conn. 16, 26, 883 A.2d 789 (2005). "[I]t is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Id. If, in 1171 the absence of any decisional or statutory law defining "service" and "nonservice," duties, this court chooses to rely on the guide's suggested listing, on what evidence would the court determine whether the Newington servers were required to perform the suggested "nonservice" duties[13] without testimony from class members? Further, if the court chooses to look to the federal tip credit law (in view of Connecticut's silence on the issue), the United States Department of Labor's Fact Sheet No. 15, a "guide" which addresses the treatment of tipped employees under the Fair Labor Standards Act, has this to say about servers performing nonservice duties: "When an employee is employed concurrently in both a tipped and a non-tipped occupation, the tip credit is available only for the hours spent in the tipped occupation. The [Fair Labor Standards] Act permits an employer to take the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips, provided such duties are incidental to the regular duties and are generally assigned to such occupations. Where tipped employees are routinely assigned to maintenance, or where tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties." United States Department of Labor, Employment Standards Administration Wage and Hour Division, "Fact Sheet No. 15: Tipped Employees Under the Fair Labor Standards Act (FLSA)," at http://www.dol.gov/esa/ regs/compliance/whd/whdfs15.htm. In a trial of this matter, assuming the court were to conclude that the servers performed both "service" and "non-service" duties as the plaintiffs urge, how would it determine what percentage of the servers' tasks were "non-service" and consumed more than twenty percent of their time, thus prohibiting Outback Steakhouse's taking of the tip credit for those hours without hearing the testimony of class members? To conclude, as the plaintiffs do, that the situation before this court is like that in Scott v. Aetna Services, Inc., 210 F.R.D. 261 (D.Conn.2002) is to ignore that, in Scott, there was a working definition of "Systems Engineer"provided by the defendantand, once having concluded the job duties of the proposed class of Systems Engineers were "of the same type"; id., at 265;[14] it was a facile transition to adjudicate whether the claimed failure to pay each worker overtime compensation constituted a violation of the actand thus to find that predominance could be established by generalized proof. To suggest this court's interpretation of "service" versus "nonservice" duties can or should be premised solely on a guidebook's "sample" listings or on the defendant's description of "sidework" is impermissibly to restrict the court's analysis on an issue which goes to the very heart of this casethe defendant's entitlement to take the tip credit. The court is persuaded that the claimed violation of failing to segregate 1172 service and nonservice duties cannot be established by generalized proof. The extensive individualized proof required to arrive at the meaning of those terms in the context of restaurant duties predominates over whatever generalized proof the plaintiffs might offer on this issue. The plaintiffs assert in count four of their complaint that the defendant failed to obtain and to maintain weekly tip statements from servers and thus violated §§ 31-62-E2 (c) and 31-62-E3 (b) of the Regulations of Connecticut State Agencies because it did not record the amount of gratuities claimed as a tip credit against the minimum wage. Further, they also allege that the defendant violated § 31-62-E3 (c) of the Regulations of Connecticut State Agencies by not obtaining and maintaining signed statements from the servers certifying that they had in fact received at least two dollars per day (if part-time servers). The plaintiffs intend to demonstrate these claimed violations "through generalized evidence in the form of admissions by Defendant's management, and an examination of the `wage record.'" The plaintiffs specifically point to excerpted (and uncertified) deposition testimony by Lancaster, Scacca, and Kadow as proof of such admissions. Nothing in the plaintiffs' submission of these documents informs the court at what locations (or when) these individuals served as managing partners at any Connecticut Outback Steakhouse. For reasons stated earlier, only the Newington restaurant will be at issue at trial and the defendant has informed the court that the managing partner there was Manny Paolucci. No claimed statement by Scacca, Kadow or Lancaster constitutes an "admission" with regard to these violations. During his testimony, Scacca was shown what was there described as a "Connecticut Department of Labor Wage and Workplace Standards Division Tip Statement." As the defendant points out, this sample form, which the plaintiffs claim Outback Steakhouse should have been using, misstates the law. Scacca's testimony was that he had not seen the form before, which is not an admission of a violation. He then went on to testify that employees declared their tips in the computer when they clocked out daily and filled out a "checkout form" not otherwise there identified. The defendant asserts that this process of logging in constitutes a "signed statement" under the Connecticut Uniform Electronic Transactions Act, General Statutes § 1-266 et seq. Whether such entries constitute a "signature"[15] under the Connecticut Uniform Electronic Transactions Act[16] is a question of law to be decided by the court at trial since statutory interpretation is a court function. Nor is the testimony of either Kadow or Lancaster helpful to the plaintiffs on this point. The excerpted testimony from Kadow establishes only that the state department of labor website form (the so-called "tip credit statement") was not one he had seen before.[17] That portion of Lancaster's testimony to which the plaintiffs direct the court establishes only that a "check-out form" was used by employees to acknowledge tips received. Thus, the court has 1173 not been provided with any "admission" which may be offered as generalized proof. As to the "wage record" the plaintiffs plan to offer as generalized proof of these claimed violations, no clarification of what is meant by "wage record" is provided. Without such guidance, the court concludes that the term embraces the daily computerized record of each class member, since the plaintiffs' burden is to prove the defendant's violation of the act as to each named plaintiff and class member. It is unclear how many plaintiffs were employed in Newington, but it is likely that hundreds of records will need to be offered to cover the entire employment period of each class member. Such proof is "individualized" and, since the defendant has both a right and a desire to examine each class member, the result will likely be the conduct of as many minitrials as there are class members, a result which eliminates any advantage to the proposed class action. Finally, the plaintiffs allege that the defendant exercised control over the plaintiffs' tips by maintaining a "policy and/or practice" of requiring the servers to share a portion of their tips with hostesses, bussers and bartenders. Thus, the plaintiffs assert, the servers did not customarily receive "gratuities," were not "service employees" as defined by § 31-62-E2 (e) of the Regulations of Connecticut State Agencies, and the defendant was not entitled to take the tip credit. The generalized proofs which will establish these factsand thereby the conclusion that the defendant violated the regulationare the "policies and testimony of managers." Specifically, the plaintiffs rely upon a document captioned "Outback Steakhouse Tip Policy Version 1," dated January, 2004. The opening paragraph of that document declares that the practice of sharing tips "is required" and that tips "will be used as a credit against the minimum wage as permitted by federal and/or state laws." Paolucci, the Newington manager, testified at his deposition that 3 percent of the servers' gross sales[18] is taken out of the tips received and put into a tip pool for that purpose and that, although the practice was a "requirement" and he had not known any instance where a server had "opted out" of the tip share pool, he believed they could. Paolucci testified that the Newington servers were not required to sign the aforementioned document. He stated that, if a server advised him that he or she did not wish to share tips, he would seek direction from a supervisor. The initial difficulty for the court is the plaintiffs' failure to cite any statute or regulation which makes tip sharing a violation of Connecticut law. That practice is neither addressed by the act nor by any regulation. The plaintiffs build their claim on a two step construct: (1) § 31-62-E2 (e) of the Regulations of Connecticut State Agencies defines "gratuities" as a "voluntary monetary contribution received by the employee directly from a guest, patron or customer for service rendered"; and (2) a guide published by the state department of labor for Connecticut restaurant employers reads into that definition of gratuities a requirement that "the employer cannot exert any control over it." Connecticut Department of Labor, Automation Support Unit, "Gratuities in the Restaurant Industry," at http://www.ctdol.state.ct.us/ wgwkstnd/wage-hour/restaurant.htm. The guide goes on to state: "This means that if a restaurant employer chooses to require customers to pay an added `service charge' directly to the restaurant (not the employee), it is not a tip, even if the employer chooses to pass it along intact to the employee. 1174 Under this scenario, the employer could not take any tip credit." Id. Of interest is that the authors of this guide, which, as already discussed, does not have the effect of law, chose to expand upon the regulation's definition of "gratuities" and then to apply that definition to a practice other than tip pooling. The plaintiffs' construct leads to conclusions unwarranted by the language of either the regulation or the guide; specifically, that because Outback Steakhouse asserts control over the servers' tips by requiring them to share those tips with employees who do not receive tips, the tips received by the servers are, therefore, not "gratuities" (despite their being paid directly by the customers and the servers' receiving such tips "intact" and "whole") that the servers are not "service employees" (despite the definition of that term under § 31-62-E2 [c] of the Regulations of Connecticut State Agencies) and that Outback Steakhouse may not, therefore, take the tip credit. The logic is, at best, tenuous and returns the court to the "service" versus "nonservice" issue, an inquiry already determined to require predominantly individualized proof.[19] CONCLUSION The motion to certify the class is, therefore, denied for all of the foregoing reasons. NOTES [1] "Tipping out" is a practice whereby the servers pay a portion of their tips to other employees such as bartenders, hostesses, expediters and the like. The defendant argues that the practice was not mandatory, as the plaintiffs claim, but that it was voluntary. [2] The other locations are Danbury, Manchester, New London, Orange, Southington and Wilton. [3] Had there been, for example, a named plaintiff from each of the Outback Restaurant locations, it is likely the court would have found those plaintiffs had common interests with the unnamed class members. [4] At his deposition in March, 2005, Peruta testified he had then been living in Florida for six months and did not plan to move back to Connecticut "anytime in the near future" but "quite possibly could do so in the future." [5] Fontaine was not asked whether she planned on returning to Connecticut. [6] In the plaintiffs' supporting memorandum, there are scattered references to suggest these individuals are managers at various locations. [7] The defendant denies the allegation and points to the electronic signatureswhich does not address all aspects of the regulation. [8] No transcript excerpts have been certified and the opening pages of the transcripts have not been provided, making identification of deponents difficult at best and sometimes impossible. [9] The defendant has argued that this sidework assignment sheet is used exclusively at the Orange location (no longer relevant in the trial of the present case) and that four of the five managers deposed had never before seen the document before their depositions. Ditto the server training online, which three managers had not seen prior to their depositions. [10] As just previously stated, § 31-62-E2 (c) of the Regulations of Connecticut State Agencies defines a "Service employee" as one "whose duties relate solely to the serving of food and/or beverages to patrons seated at tables or booths and to the performance of duties incidental to such service, and who customarily receive gratuities." [11] A department of labor guide provides that, for tips to be received directly, they must be "paid directly" to the employee and the employer may not exert any control over them. [12] What is "curious" is that all the plaintiffs received the same letter, thus, it would appear that variation in damages would likely be attributed to some plaintiffs having retained counsel prior to the class action having been brought. [13] Those "suggestions" consist of cleaning the restrooms, preparing food, washing dishes, showing all patrons to their seats (as opposed to showing only patrons within a server's service area), doing general set up work before the restaurant opens, general cleaning work, kitchen clean up, and waiting on takeout customers. Deposition testimony from the plaintiffs suggest that there were other staff members to perform those duties at the Newington location. [14] It is this difference between Scott v. Aetna Services, Inc., 210 F.R.D. 261 (D.Conn.2002) and the present case which distinguishes the two cases and both counsels' argument with regard to whether this is a misclassification case does not, under these circumstances, further the predominance analysis. [15] General Statutes § 1-267 defines an "`electronic signature'" as any "electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record." [16] General Statutes § 1-272 further provides in pertinent part that "[i]f a law requires a signature, an electronic signature satisfies the law." [17] Further confusing matters is that this website form, which was marked as exhibit 7 at the Scacca deposition, is what is apparently identified in Kadow's deposition as "Exhibit 2 during Mr. Scacca's testimony." [18] Other deposition testimony has referenced 3 percent of "net sales"; the Outback Steakhouse Tip Policy Version 1 document is silent on that point. [19] While it is so that the plaintiffs must establish that the defendant violated the act as to each of the class members in one or more of the ways asserted in count four of their complaint, it is not so, as the defendant frequently misstates, that the plaintiffs must also show the harm to each such member was causally related to the violation or violations. Unlike in Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 880 A.2d 106 (2005), damages here are statutorily imposed once liability is proven. See General Statutes § 31-68.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515984/	913 A.2d 494 (2007) 99 Conn.App. 233 STATE of Connecticut. v. Larry LAWSON. No. 25247. Appellate Court of Connecticut. Argued March 28, 2006. Decided January 23, 2007. 496 Richard W. Callahan, special public defender, for the appellant (defendant). Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Craig P. Nowak, assistant state's attorney, for the appellant (state). DiPENTIMA, McLACHLAN and McDONALD, Js. McDONALD, J. The defendant, Larry Lawson, appeals from the judgment of conviction, rendered after a jury trial, of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224(a) and manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a). The defendant claims that the court (1) improperly instructed the jury on the causation element of § 53a-56b (a) and the elements of evasion of responsibility in the operation of a motor vehicle under § 14-224(a), and (2) improperly precluded him from presenting evidence that the victim had a trace amount of methadone in his blood at the time of the fatal accident at issue. We disagree with the defendant and affirm the judgment of the trial court. The state presented the following evidence at the defendant's trial. On the evening of July 16, 2001, the defendant met a coworker for dinner at a restaurant after work and consumed about six beers over the course of approximately three and one-half hours before and during dinner. The defendant left the restaurant driving his pickup truck and, at approximately 10:15 p.m., approached the intersection of Boston Avenue and Mill Hill Avenue in Bridgeport at the same time that Christopher Tanych, the victim, also approached the intersection on a motorcycle from the opposite direction. As the victim's motorcycle reached the intersection, the defendant's truck turned left into its path. According to a witness, Jackie Wilson, the defendant's truck displayed no turn signals. The victim applied his brakes and swerved, leaving a fifty-six foot skid mark, but was unable to avoid colliding with the back portion of the defendant's truck. The front part of the defendant's truck was in the victim's lane at the time. The victim was thrown from the motorcycle and died as a result of the collision. Wilson, who had been driving behind the victim, testified that the truck then stopped, the defendant stepped out of the truck, looked, got back into the truck and "took off." Wilson followed the defendant, "cut him off" with Wilson's car and, when the defendant stopped his truck, confronted him about the accident. The defendant denied having hit anyone and drove away from Wilson. Wilson then saw the police driving toward him, flagged them down and pointed them toward the defendant. Upon speaking to Wilson, James Kennedy, an officer of the Bridgeport police department, began to pursue the defendant with his police cruiser's lights and siren activated. The defendant stopped only after a second cruiser arrived and forced his truck to the side of the roadway. Once the police stopped the defendant, they observed that his eyes were red and glassy, his speech was slurred and that he emitted the odor of alcohol. On the basis of these observations and the results of field sobriety tests, the defendant was placed under arrest. At the state police barracks, the defendant underwent Breathalyzer tests at 12:06 a.m. and 12:39 a.m. that showed his blood alcohol content was 0.172 and 0.167, 497 respectively.[1] At trial, the defendant testified that as he approached the intersection, the traffic light was green and he saw only an opposite approaching automobile about 100 yards away. While he was turning left, after giving a signal, he felt an impact toward the rear of his truck, saw nothing and thought someone had hit his vehicle and driven off. The defendant also offered the testimony of Michael Cei, an accident reconstruction expert, who said that the victim had been traveling westerly and uphill into the intersection at a 7 percent grade and at thirty-eight to forty-eight miles per hour. Cei also testified that at the intersection, an easterly bound driver can see down the hill. In Cei's opinion, no road defects, deficiencies or anything about the intersection contributed in any way to the accident. The defendant was charged in count one with evasion of responsibility in the operation of a motor vehicle in violation of § 14-224(a), in count two with manslaughter in the second degree with a motor vehicle in violation of § 53a-56b (a) and in count three with manslaughter in the second degree in violation of § 53a-56 (a)(1). The jury found the defendant guilty of counts one and two and not guilty of the third count. The court sentenced the defendant to an effective term of ten years incarceration, execution suspended after seven years, and five years probation. This appeal followed. Additional facts will be set forth as needed. I The defendant claims that the court improperly instructed the jury on the causation element of § 53a-56b(a) and the elements of evasion of responsibility in the operation of a motor vehicle under § 14-224(a). The defendant concedes that his claims of instructional impropriety were not properly preserved and argues that he is entitled to review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because of the constitutional magnitude of his claims[2] or under the doctrine of plain error.[3] Practice Book § 60-5. 498 We will review these claims because the record is adequate for review, and the defendant has raised claims that the jury was not instructed on essential elements of the offenses, which is of constitutional magnitude. See State v. Dubose, 75 Conn.App. 163, 174, 815 A.2d 213, cert. denied, 263 Conn. 909, 819 A.2d 841 (2003). The state does not, in arguing the issue of reviewability, raise either the failure of the defendant to file a request to charge as to intervening cause or his failure to take exception to the charge. It also does not raise the effect of the defendant's having been given a written copy of the charge prior to the delivery of the charge to the jury and his failure to request the trial judge to augment the instruction as he now argues on appeal.[4] A The defendant first claims that the court improperly instructed the jury on the causation element of § 53a-56b (a).[5] He maintains that the court failed to give a sufficient charge on proximate cause by not explaining the doctrine of intervening cause.[6] He argues that in this case, the 499 evidence warranted an intervening cause instruction because certain acts or omissions of the victim constituted an intervening cause to relieve the defendant of criminal responsibility. Our Supreme Court has stated that "whether a jury instruction is improper is gauged by considering the instruction in its entirety, and with reference to the facts and evidence in the case, so as to determine whether it fairly presented the case to the jury so that no injustice was done under established legal rules." State v. Munoz, 233 Conn. 106, 120, 659 A.2d 683 (1995). In so doing, the evidence must be viewed favorably to the defendant. Id., at 122, 659 A.2d 683. The defendant, citing State v. Kwaak, 21 Conn.App. 138, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990), argues that the causation element "requires that the state prove beyond a reasonable doubt, first that the death of a person would not have occurred `but for' the defendant's intoxication, and second, that the defendant's intoxication substantially and materially contributed to the death of a person in a natural and continuous sequence, unbroken by an efficient, intervening cause. In order to determine that the state has not met its burden of proof on this element, the jury must find either that the defendant's intoxication was not the actual `but for' cause of the victim's death or that there was an `independent and efficient cause' . . . or an intervening and efficient cause." (Citation omitted.) Id., at 146, 572 A.2d 1015. Our Supreme Court, in State v. Munoz, supra, 233 Conn. at 121, 659 A.2d 683, discussed jury instructions with respect to proximate cause and the inclusion of intervening cause language. The court stated: "[W]hen several factors contribute, in a chain of events, to cause a victim's injury, in order to be the proximate cause of that injury, the defendant's conduct must have been a cause that necessarily set in operation the factors that accomplish the injury. In short, a jury instruction with respect to proximate cause must contain, at a minimum, the following elements: (1) an indication that the defendant's conduct must contribute substantially and materially, in a direct manner, to the victim's injuries; and (2) an indication that the defendant's conduct cannot have been superseded by an efficient, intervening cause that produced the injuries." (Internal quotation marks omitted.) Id. Our Supreme Court emphasized that "the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant's conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant's guilt." (Emphasis added.) Id., at 121 n. 8, 659 A.2d 683. "The doctrine of intervening cause . . . refers to a situation in which the defendant's conduct is a but for cause, or cause in fact, of the victim's injury, but nonetheless some other circumstance subsequently occursthe source of which may be an act of the victim, the act of some other person, or some nonhuman forcethat does more than supply a concurring or contributing cause of the injury, but is unforeseeable 500 and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct. . . . Thus, the doctrine serves as a dividing line between two closely related factual situations: (1) where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim's injuries, in which case the doctrine will not relieve the defendant of criminal responsibility; and (2) where an act or force intervenes in such a way as to relieve a defendant, whose conduct contributed in fact to the victim's injuries, from responsibility, in which case the doctrine will apply." (Internal quotation marks omitted.) Id., at 124-25, 659 A.2d 683; see State v. Arrington, 81 Conn.App. 518, 522-23, 840 A.2d 1192, cert. granted on other grounds, 268 Conn. 922, 846 A.2d 881 (2004) (appeal withdrawn, judgment vacated April 21, 2005). A review of the jury instruction reveals that with regard to that part of the instruction on intervening cause, there was at least an indication that the defendant's conduct cannot have been superseded by an efficient, intervening cause that produced the injuries, thus satisfying the minimum requirement for a jury instruction on proximate cause. See State v. Arrington, supra, 81 Conn.App. at 523, 840 A.2d 1192. Even if we were to conclude, however, that an instruction on the doctrine of intervening cause was not sufficiently detailed, the instruction would not be improper considering the evidence in this case, viewed favorably to the defendant. The evidence was that the victim's motorcycle skidded at the intersection and collided with the defendant's vehicle, which was turning left into, and remained in, the path of the victim's oncoming motorcycle. The defendant argues that the actions or omissions of the victim were an efficient, intervening cause of the collision. He cites the evidence that the victim was operating the motorcycle without a license, was speeding and skidded. That conduct reasonably could only be considered concurrent causes rather than unforeseen events that occurred subsequent to the defendant's negligent act of turning left into the victim's line of travel at the intersection. See id., at 524, 840 A.2d 1192. We conclude that the evidence, viewed in favor of the defendant, did not warrant an instruction on the doctrine of intervening cause. Finally, the court's charge expressly stated that the connection between the defendant's conduct and the victim's death had to be "direct" and that the victim's death had to have been "caused" by the defendant's conduct as a "foreseeable and natural result" of that conduct. Accordingly, we conclude that the jury was not misled by the instruction as given. B The defendant next claims that the court improperly instructed the jury[7] on the 501 elements of evasion of responsibility in the operation of a motor vehicle under § 14-224(a).[8] He first argues that the court's use of the word "prevent" instead of the word "unable" misled the jury. The defendant argues that the court improperly instructed the jury that it needed to find that some outside force caused the defendant to be unable to report the information, as opposed to the defendant's being unable to report for any cause or reason. He then argues that the court's charge failed to instruct and guide the jury properly on the alternative elements of § 14-224(a) because it "should have charged the jury that if the defendant was arrested by police while trying to render such assistance as the defendant deemed reasonably 502 necessary . . . then compliance with the remaining duties of the statute are legally excused." As to the first contention, viewing the charge as a whole, we conclude that the court's use of the word "prevent" was harmless. We are not persuaded that there was any prejudice in the court's substitution of the phrase "if he was prevented [by] any cause" for "if . . . [he] was unable, for any reason or cause." The defendant fails to draw a satisfactory distinction between the two phrases. Moreover, it is unlikely that he was prejudiced if the jury believed that it needed to find that some outside force caused the defendant to be unable to report the accident. The defendant presented his theory of defense to the jury that he could not comply with the reporting requirement because he was stopped and prevented from doing so by the police, an outside force. Turning to the defendant's second argument, we can find no authority, and the defendant cites none, that requires the court to charge the jury that compliance with the remaining duties of § 14-224(a) are legally excused if the defendant was arrested by police while trying to render such assistance as the defendant deemed reasonably necessary. The defendant argues that he left the scene in order to find an ambulance or police vehicle at a nearby hospital to assist the victim. That he was stopped in this very pursuit by the police, he maintains, should excuse any remaining compliance with the statute. We disagree. We stated in State v. Rosario, 81 Conn.App. 621, 629-31, 841 A.2d 254, cert. denied, 268 Conn. 923, 848 A.2d 473 (2004), a decision that was released after this case was tried, that § 14-224 "does not leave an operator an excuse for failing to stop for any reason as it does for failing to give the required information at the scene. . . . [T]he legislative history establishes that the failure to stop immediately cannot be cured at some later time by an operator reporting the incident to the police. . . . The essence of the offense of evading responsibility is the failure of the driver to stop and render aid." The jury reasonably could have found that the defendant failed to stop immediately and render assistance, and that leaving the scene of the accident and driving away was not in compliance with the statute. Finally, "[a]n accurate jury instruction cannot be the basis for a showing that the defendant was clearly deprived . . . of a fair trial." (Internal quotation marks omitted.) State v. Sanko, 62 Conn. App. 34, 40-41, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001), quoting State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. We find no Golding violation.[9] II The defendant claims that the court improperly precluded him from presenting evidence that the victim had a trace amount of methadone in his blood at the time of the accident. We do not agree. The following additional facts are relevant to the resolution of this issue. Evidence indicated that the victim was pronounced dead moments after his arrival at a hospital, less than thirty minutes after the crash. Prior to the commencement 503 of trial, the court held a hearing on the state's motion in limine to preclude evidence that a trace amount of methadone was detected in the victim's blood at the autopsy. In support of its motion, the state presented the testimony of Sherwood Lewis, the director of toxicology for the office of the chief medical examiner, who holds advanced degrees in microbiology and molecular biology. He testified that a trace amount of methadone represents an extremely small amount, "[s]o low in fact that we do not attempt to quantify." Lewis testified that methadone is used to replace the need for the opiate heroin pharmacologically and that unlike heroin, methadone does not cause a high.[10] He arrived at no conclusion as an analytical toxicologist as to the effect methadone might have had on the reflexes or impairment of the victim. This was not his area of expertise. Lewis could offer no opinion as to what effect a trace amount of methadone would have in the operation of a motor vehicle or motorcycle in this instance. The court found that Lewis claimed to have no expertise as to the impairment effect of a trace of methadone. As to the reference in the autopsy report to a trace amount of methadone, the court required that the effects of a trace amount of methadone on motor skills or judgment must be shown by testimony from a qualified expert. The court granted the motion to preclude that evidence, but stated that it would consider any evidence that the defendant could present to show the effect of the trace amount of methadone on a driver's impairment. At this, defense counsel stated that "[t]here is no percentage whatsoever that anybody could testify to as to whether [it] did or did not impair the ability of this particular driver." Defense counsel also stated he did not "know that anybody could testify to that."[11] On 504 the first day of trial, the court asked the defendant if he had a witness "with respect to the issue of . . . methadone." The defendant responded that he did not. The matter never again was revisited. The defendant argues on appeal that the court should have allowed the jury to consider the victim's having had a trace of methadone in his blood upon autopsy without testimony as to the effect of the drug on the victim's ability to operate the motorcycle. He cites State v. Padua, 273 Conn. 138, 146, 869 A.2d 192 (2005), in support of this claim. We disagree. In Padua, our Supreme Court held that the effects of marijuana were sufficiently well known to support a finding of risk of injury to a child from exposure 505 of the drug to young children who might consume the drug in the absence of expert evidence as to the effect of consuming marijuana. Id., at 157, 869 A.2d 192. In the present case, the effect of a trace amount of methadone on the victim would be relevant only if that trace amount affected the victim's ability to operate a motorcycle. Defense counsel's concession that impairment from an unknown amount of methadone could not be determined by a witness supports the court's ruling. Also, unlike the effects of marijuana, the effects of a trace amount of methadone on driving impairment is not a matter of common knowledge, experience and common sense; therefore, expert evidence would be required.[12] Cf. State v. Scruggs, 279 Conn. 698, 715-16, 905 A.2d 24 (2006). Last, we conclude that the exclusion of the methadone evidence did not prejudice the defendant because there was no evidence that any impairment could constitute an independent and intervening cause of the collision. See parts I A and B of this opinion. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] Joel Milzoff, a toxicology expert with the department of public safety, testified that in his opinion, a person with the defendant's blood alcohol content typically experienced an impairment of visual acuity or perception, balance, reflexes, responsiveness and judgment. [2] Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "Golding's first two prongs relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." State v. Miller, 95 Conn.App. 362, 380 n. 10, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). [3] "The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." (Internal quotation marks omitted.) State v. Martinez, 95 Conn.App. 162, 170 n. 5, 896 A.2d 109, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). We conclude that plain error review is not warranted in this case. [4] We note that the trial transcript reveals that the court, after a charging conference, prepared a written draft of the charge. The parties were given a copy of the draft the next morning, and a meeting then was held with the court in which the parties agreed on a change in the written draft not pertaining to any issue in this appeal. The remaining charge was found to be acceptable to both the state and the defendant. When the court inquired on the record, the defendant, along with the state, stated that he accepted the charge as drafted. In State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006), our Supreme Court observed that parties should be encouraged to raise claims in a timely manner when it is not too late for the trial court to address the claim. In this case, the defendant's acceptance of the draft instructions under the circumstances has attributes similar to claims that the court has rejected under the doctrine of induced error, that is, "[a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. . . . This principle bars appellate review of induced nonconstitutional error and induced constitutional error." (Citation omitted; internal quotation marks omitted.) Id., at 59 n. 32, 901 A.2d 1. [5] General Statutes § 53a-56b (a) provides: "A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug." [6] The court instructed the jury on proximate cause as follows: "For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. First, that the defendant caused the death of Christopher Tanych while operating a motor vehicle. . . . The state has the burden of proving beyond a reasonable doubt that the death of Christopher Tanych was caused by the accused while operating a motor vehicle. . . . The state must prove beyond a reasonable doubt that the defendant caused the death of Christopher Tanych. Proximate cause does not necessarily mean the last act or cause or . . . the act in point of time nearest to the death of Christopher Tanych. The concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense, even though his acts were not the immediate cause of the death of Christopher Tanych. . . . [A]n act or an omission to act is a proximate cause of the death of Christopher Tanych if it substantially and materially contributes in a natural and continuous sequence unbroken by an efficient intervening cause to the death of Christopher Tanych. It is a cause without which the death of Christopher Tanych would not have occurred. And a predominating cause. A substantial factor from which the death of Christopher Tanych follows as a natural, direct and immediate consequence. It does not matter whether this particular kind of harm that results from the defendant's act was intended by the defendant. When the death of Christopher Tanych was caused by the defendant's conduct, a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible." [7] The jury instruction on the crime of evasion of responsibility in the operation of a motor vehicle was as follows: "The defendant is charged with the crime of evasion of responsibility in the operation of a motor vehicle in violation of § 14-224(a) . . . which provides as follows. Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and . . . operator license number and registration number to the person injured or to any officer or witness to the death or serious physical injury. Or if any such operator of the motor vehicle causing the death or serious injury of any person is unable to give his name, address and operator's license number and registration number to the person injured or to any witness or officer for any reason or cause, such operator shall immediately report such death or serious physical injury of any such person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstance of the accident causing the death or serious physical injury of any person and his name, address, operator's license number and registration number. "For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. That the defendant, while operating a motor vehicle, was knowingly involved in an accident. That the accident caused serious physical injury or resulted in the death of another person. The defendant failed to stop at once and rendered such assistance as may be needed and, or, failed to give his name, address or operator's number and registration number to the person injured or to any officer or witness to the death or physical injury, or if he was prevented [by] any cause from doing so, that he immediately reported such death or serious physical injury to any person or police officer, constable, state police officer or inspector of motor vehicles or at the nearest police precinct or station, and that in such report stated the location, circumstances of the accident causing the death or serious physical injury of any such person and his name, address, operator's license number and registration number. "The state has the burden of proving beyond a reasonable doubt that the accused was operating a motor vehicle which was involved in the accident and that the accused knew he was involved in an accident. With regard to the second element, the state must show beyond a reasonable doubt that the accident resulted in the death of a person or serious physical injury. With respect to the final element, the state must show beyond a reasonable doubt that the accused failed to stop and render such assistance as may be needed or to provide the injured party or an officer or witness to the accident with information concerning his identity or if he was unable to do so, that he immediately reported such death or serious physical injury to a police officer, constable, state police officer or inspector of motor vehicles or at the nearest police precinct or station. "If you find that the state has proven beyond a reasonable doubt each of these elements of the crimes of evasion of responsibilities, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any of the elements, then you must find the defendant not guilty." [8] General Statutes § 14-224(a) provides: "Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator's license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator's license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator's license number and registration number." [9] As we noted as to the charge concerning proximate cause, the defendant not only failed to submit a request to charge and took no exception as to the charge, but following a charging conference, he also accepted the charge in a written draft that was given to him prior to the charge being given to the jury. See footnote 4. [10] Medically prescribed methadone is used for treatment of heroin addicts to relieve withdrawal symptoms, reduce opiate cravings and bring about a biochemical balance in the body. See Office of National Drug Control Policy, "Fact Sheet: Methadone," (April 2000) at http://www.whitehousedrugpolicy. gov/publications/pdf/ ncj175678.pdf. [11] The following exchange occurred at the hearing on the state's motion in limine to preclude the toxicology report with respect to trace amounts of methadone in the victim's blood. "The Court: Now, the motion in limine, I think, at this point, if you're going to want the toxicology report to come in with respect to trace amounts of methadone, you're going to have to show the relevancy of that. Do you have someone who can testify as to that? . . . "[Defense Counsel]: I don't think that's my obligation, Your Honor. I do think that the jury knowing what methadone is used for, take it, and that's all, Ijust what is it used for. Then, taken in conjunction with the other factors involved in the accident will "The Court: No, it's not going to come in unless you show some relevancy. "[Defense Counsel]: Well, then under the circumstances of what occurred this morning, we will need some time to get an expert and incur an additional expense. "The Court: Well, you have a week. "[Defense Counsel]: I don't think that's enough to do this. "The Court: I'm going to grant the motion in [limine] subject, however, to your right as part of your case to demonstrate the relevance of that to the facts of this case. "[Defense Counsel]: Is the court saying that if the jury hears that methadone is used as a replacement for heroin and that under the circumstances, a man was operating a motor vehicle and the facts of the accident as they occur, the jury is not entitled to hear that? "The Court: You're absolutely right unless you can show that methadone in some amounts, and particularly in the amount found in the toxicology report, is relevant to the question of impairment. "[Defense Counsel]: Your Honor, if the state is arguing it's prejudicial to the state's case, I submit that the test is whether it's prejudicial to the defendant, not the state, because all evidence is prejudicial to one party or another. It's a question as to whether the probative value of it outweighs "The Court: No, this . . . is a question of relevancy. . . . You could bring in all kinds of things about the individual that, you know, he was suffering from AIDS or something like that. But it wouldn't be relevant to the issues of this case. . . . "[Defense Counsel]: I don't see how the court can . . . redact an official document of the state of Connecticut with respect to the findings made by its officials. "[The Prosecutor]: . . . In light of . . . the ruling on the state's motion, I would ask that until . . . the court changes its mind after [defense counsel] provides whatever further information he's going to provide, I would ask that the state report with regard to the victim, if attempted to be brought into evidence by the defendant, be redacted as to the presence of methadone . . . for the reasons stated in the state's brief. . . . "The Court: . . . I don't see how it comes in, redacted or not. . . . I don't see its relevance. I don't think it's part of your case-in-chief to show that he was not under the influence of alcohol. I don't see that it comes in at all unless and until somebody can show its relevancy. If you have an expert to that effect, I think you're going to have to notice it to the defense. . . . All right. I'm going to grant the motion in limine. If you have something that would demonstrate the relevancy of this, we'll . . . call your expert and we'll hear it outside the presence of the jury, and I'll rule on relevancy and I'll modify my ruling in this motion in limine to the extent it's warranted by the evidence you're prepared to present. "[Defense Counsel]: I would say, Your Honor, with all due respect, I just think you're precluding the ability of the defendant to present a defense and putting the burden upon him to show that not only did alcohol not cause the accident, which is our burden, but to basically take away from the jury's consideration a factor found. There is no percentage whatsoever that anybody could testify as to whether he did or did not impair the ability of this particular driver. I don't know that anybody could testify to that. I do know that to the extent of what the general effectone does not know whether it is coming up from something, coming down from something and how it affects that individual because we don't know the individual. "The Court: . . . [T]he effects of alcohol upon the operator of a motor vehicle is within the common knowledge of, I think, a jury. I think that that is something that they can take. I don't know myself, and I don't think the average juror has any notion as to whether methadone affects motor skills or judgment or anything of that nature. I surely don't know that. "[Defense Counsel]: Well, to the extent that our legislature has created a separate crime for driving under the influence of drugs without specifying, going into specificity that alcohol has "The Court: I agree. But is methadone a drug that can influence somebody? "[Defense Counsel]: Well, if heroin can, and it's an opiate, then methadone can as well. . . . "The Court: . . . I don't follow that logic at all. And I think you're going to have to show that. Maybe a physician cana pharmacologist or someone of that nature perhaps can supply that information. But I think the reasoning that because in certain instances methadone replaces heroin, it must necessarily mimic it in all respects I think is a leap that I think you're going to be inviting the court to take and the jury to take that's inappropriate. I think you're going to have to tie it in with some evidence if you want to get it before the jury. Otherwise it's irrelevant. . . . It's out until you connect it to something." [12] The differing conclusions among various medical and governmental resources further support the court's conclusion that driver impairment from a trace amount of methadone is beyond the ken of the average juror. Methadone's effect on driving, in quantities dispensed by physicians, is said not to interfere with driving a car. Office of National Drug Control Policy, "Fact Sheet: Methadone," (April 2000) at http://www.whitehousedrugpolicy.gov/publications/pdf/ ncj175678.pdf. The Physician's Desk Reference cautions generally that patients be warned that "[m]ethadone may impair the mental and/or physical abilities required for . . . driving a car. . . ." Physician's Desk Reference: Generics 2041 (1996). The National Highway Traffic Safety Administration assessed the driving risks of methadone as: "Moderate to severely impairing in nave or non-tolerant individuals, causing dose-dependent reductions in reaction time, visual acuity and information processing. Significant psychomotor impairment is not expected in tolerant individuals." (Emphasis added.) National Highway Traffic Safety Administration, "Drugs and Human Performance Fact Sheets: Methadone," at http:// www.nhtsa.dot.gov/people/injury/research/job185drugs/methadone.htm. Another medical journal indicates that "narcotic-tolerant subjects apparently can be stabilized on methadone replacement therapy with few subjective or objective effects on performance," though "[n]o experiments have been conducted that employed actual driving maneuvers." R. Baselt, Drug Effects on Psychomotor Performance 243 (2001).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515986/	913 A.2d 1076 (2007) 99 Conn.App. 315 Frank GERARDI v. CITY OF BRIDGEPORT et al. No. 27190. Appellate Court of Connecticut. Argued November 28, 2006. Decided January 23, 2007. 1078 John R. Williams, New Haven, for the appellant (plaintiff). John R. Mitola, associate city attorney, for the appellee (named defendant). FLYNN, C.J., and ROGERS and STOUGHTON, Js. FLYNN, C.J. The plaintiff, Frank Gerardi, appeals from the judgment of the trial court dismissing count one of his complaint against the defendant city of Bridgeport for lack of subject matter jurisdiction.[1] The plaintiff claims that the court improperly concluded that he had failed to exhaust his administrative remedies. We affirm the judgment of the trial court. On September 6, 2001, the plaintiff filed a complaint, which alleged, in part, that the defendant violated its charter provisions when it promoted two individuals, Leonard Bonaventura and Bruce Collins, to the positions of senior fire inspector and fire marshal, respectively, while promoting the plaintiff, who allegedly had earned the highest score on the promotional examination, to the lower ranking position of fire inspector. In response, the defendant filed a motion to dismiss count one of the complaint, asserting that the plaintiff did not exhaust his administrative remedies, and, therefore, the court lacked subject matter jurisdiction. Thereafter, the court granted the defendant's motion to dismiss, concluding that it was without jurisdiction in a matter in which the plaintiff had an available administrative remedy, and rendered judgment in the defendant's favor. This appeal followed. We first set forth the well established standard of review. "In ruling upon whether a complaint survives a motion to 1079 dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim. . . . [B]ecause [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Neiman v. Yale University, 270 Conn. 244, 250-51, 851 A.2d 1165 (2004). In its memorandum of decision dated November 7, 2005, the court concluded that the plaintiff had failed to exhaust his administrative remedies prior to bringing suit because he had not filed an appeal in accordance with § 206(a)(4) of the charter of the city of Bridgeport (charter). We agree with the court. "Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Citation omitted.) Drumm v. Brown, 245 Conn. 657, 676, 716 A.2d 50 (1998). "The exhaustion doctrine reflects the legislative intent that such issues be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief. . . . It also relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review." (Citation omitted; internal quotation marks omitted.) Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995). On appeal, the plaintiff claims that the charter fails to provide an available administrative remedy, which he was required to exhaust before filing a complaint in the court. The plaintiff first argues that the charter does not contain a provision entitling a person in the plaintiff's position to the right of appeal. Additionally, the plaintiff contends that he is not required to appeal to the civil service commission, under § 206(a)(4) of the charter, because this provision fails to set forth, in detail, the procedure for filing the appeal. We, however, find the plaintiff's arguments unpersuasive. The plain language of § 206(a)(4) empowers the civil service commission to hear appeals, in which employees seek redress for alleged violations of the charter relating to the promotion of civil service employees. Section 206(a) of the charter provides in relevant part: "The members of the civil service commission shall hold regular meetings at least once each month and may hold additional meetings as may be required in the proper discharge of their duties. Said commission shall . . . (4) hear and determine complaints or appeals respecting the administrative work of the personnel department, appeals upon the allocations of positions or concerning promotions, the rejection of an applicant for admission to an examination and such other matters as may be referred to the commission by the personnel director. . . ." (Emphasis added.) In the present case, the plaintiff failed to file an appeal with the civil service commission in accordance with § 206(a)(4) of the charter before bringing suit. As a result, pursuant to the exhaustion of administrative remedies doctrine, the court 1080 lacked subject matter jurisdiction. Contrary to the plaintiff's assertion that the charter fails to furnish a remedy for an aggrieved civil service employee, who does not receive a promotion, § 206(a)(4) of the charter specifically provides that the civil service commission shall hear "appeals . . . concerning promotions. . . ." The plaintiff, dissatisfied with his promotion to a position subordinate to the positions awarded to two other employees, had a right to appeal to the civil service commission regarding these promotions under § 206(a)(4). The plaintiff also argues that because the charter does not detail, with specificity, a procedure for filing the appeal, he is not required to appeal to the civil service commission prior to resorting to the courts. The exhaustion of administrative remedies doctrine, however, requires that an administrative forum have the capability of providing the plaintiff with a remedy through an administrative proceeding. See Drumm v. Brown, supra, 245 Conn. at 676, 716 A.2d 50. The charter need not outline a specific procedure for the filing of an appeal. It is sufficient that the civil service commission, upon receipt and consideration of the plaintiff's appeal, could furnish a remedy to the plaintiff. Because the charter did not provide a specific procedure or form, we see no impediment to the plaintiff initiating a request for an administrative remedy by a simple letter detailing his grievance. The plaintiff also claims that the charter does not mandate that an aggrieved civil service employee must appeal to the civil service commission, and, therefore, his failure to appeal did not violate the exhaustion of administrative remedies doctrine. We conclude, however, that even if the charter does not contain mandatory language, the plaintiff is not excused from exhausting his administrative remedies prior to resorting to the court. In Neiman v. Yale University, supra, 270 Conn. at 257-58, 851 A.2d 1165, our Supreme Court noted that the absence of mandatory language requiring an employee to file a grievance did not mean that the plaintiff could ignore the available administrative remedy and resort first to the court for resolution of her grievance. Instead, the lack of mandatory language meant that the plaintiff could either (1) forgo the administrative remedy and accept the defendant's decision or (2) use the available administrative remedy before resorting to the courts. Id., at 258, 851 A.2d 1165. In the present case, the plaintiff, by contesting the defendant's decision to promote two individuals to higher ranking positions, declined to forgo the appeal procedure and, therefore, was required to appeal to the civil service commission before commencing litigation in the court. Because he did not invoke the remedy set forth in § 206(a)(4) of the charter, we conclude that the plaintiff failed to exhaust his administrative remedies before bringing suit, and this failure deprived the court of subject matter jurisdiction. The plaintiff further claims that the futility exception to the exhaustion of administrative remedies doctrine is applicable in the present case. We disagree. "One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. . . . It is well established that [a]n administrative remedy is futile or inadequate if the agency is without authority to grant the requested relief. . . . It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings." (Citations omitted; internal quotation marks omitted.) Id., at 258-59, 851 A.2d 1165. 1081 The plaintiff claims that employing the appeal procedure in § 206(a)(4) would have been futile because the civil service commission would have ignored or dismissed his appeal. We have nothing in the record before us that suggests that the filing of an appeal with the civil service commission would have been futile. In the absence of any such record evidence, we conclude that the plaintiff has failed to show how the futility exception applies, and, therefore, the plaintiff was not excused from exhausting the available administrative remedies before resorting to the courts. Accordingly, we conclude that the court, lacking subject matter jurisdiction to consider the merits of the plaintiff's claim, properly granted the defendant's motion to dismiss for failure to exhaust administrative remedies. The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] In the second count of his two count complaint, the plaintiff brought a claim of intentional infliction of emotional distress against the defendants Bruce Collins and Leonard Bonaventura, but this claim was not the subject of the motion to dismiss, and, therefore, is not a part of this appeal. Accordingly, in this opinion, we refer to the city of Bridgeport as the defendant.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515989/	335 S.W.2d 732 (1960) James F. AGEE, Appellant, v. Chester HAMMONS, Appellee. Sherman WALDEN, Appellant, v. Chester HAMMONS, Appellee. Court of Appeals of Kentucky. March 25, 1960. Rehearing Denied June 17, 1960. 733 James E. Thompson, Richmond (Shackelford & Burnam, Richmond), for appellants. Chenault & Coy, Richmond, for appellee. PALMORE, Judge. The appellants, James Agee and Sherman Walden, brought separate personal injury suits against the appellee, Chester Hammons, for personal injuries sustained by them when an automobile driven by Agee and in which Walden was a passenger collided head-on with an automobile driven by Hammons. The actions were consolidated for trial and resulted in a peremptory instruction for Hammons at the conclusion of the case for plaintiffs. The question on appeal is whether the directed verdict was proper. We have decided that it was. The proceedings were begun in 1950 and, by appropriate order, have been conducted entirely under the rules of civil procedure in effect prior to July 1, 1953. Besides pleading a general denial and contributory negligence defendant asserted affirmatively a defense based on sudden emergency. Plaintiffs' general demurrer to the latter plea was overruled on the day of the trial (October 23, 1957) and counsel did not traverse it by reply. When plaintiffs rested their case defendant moved for a peremptory on the grounds not only that the evidence was insufficient to submit to the jury but also that plaintiffs had not traversed the material allegations of the sudden emergency plea. In directing a verdict accordingly the trial court at first relied on this latter technicality alone but later modified the ruling to cover the substantive ground as well. Since the plea of sudden emergency was but a way of denying negligence, covered by the general denial, it did not require a traverse. The point requires no elaboration, however, because the motion for a peremptory was properly sustained on the basis of the insufficiency of the evidence to support a verdict for plaintiffs. The accident happened at about 6:00 P.M., after dark, November 7, 1949, on the Richmond-Lancaster Pike south of Richmond in Madison County. Plaintiffs were traveling southwardly in their proper traffic lane at 35 to 40 m. p. h. Defendant, proceeding northwardly toward Richmond at about 45 m.p.h., swerved to the left to go around a truck that had just pulled in front of him out of a driveway on the east side of the road, and in so doing he collided head-on with the Agee car on the latter's side of the road. According to the occupants of defendant's car the truck backed into the highway in front of them, so as to face northwardly, Hammons cut to his left as quickly as he could to avoid it, and the accident occurred immediately. Two of 734 these witnesses testified that someone in the Hammons car yelled "Look out!" just before Hammons swerved to his left. Hammons testified that he did not have time to apply his brakes, which fact is inferentially supported by the testimony of the occupants of his car. Neither Hammons nor his passengers saw any lights on the Agee car, though they were in a position to do so if Agee's lights were on, the road being straight and the view unobstructed for some distance. Until the moment of the impact none of them saw the Agee car at all. The truck was not involved in the accident and fled the scene immediately. The plaintiff Agee said that as he was driving along the highway he saw a set of headlights in front of him, which appeared "gradually" rather than "suddenly" (the choice of one or the other of these adverbs was required by the form of his counsel's question). He never saw any other lights or any other vehicle until just about the time he "got even" with the first mentioned lights, and at that moment another light or lights flashed in front of him, and he knew no more until he revived at the hospital two hours later. He was uncertain as to the distance between him and the first set of headlights when he first noticed them, but guessed it was about the length of the courtroom. The fair import of Agee's testimony in this respect is that there was nothing to cause him to pay extraordinary attention to the on-coming lights and that he really does not know how far off they were when he first became consciously aware of them. In his deposition taken by defendant as if on cross-examination Agee had testified that his own headlights were on, but this vital question was omitted from his examination at the trial and the deposition was not introduced. Neither was his passenger, the plaintiff Walden, asked if the lights were on, and thus there was no evidence to the effect that they were. The plaintiff Walden's testimony, fairly satisfactory on direct examination, was reduced to a shambles on cross-examination. He testified that he saw the truck pull head first out of the driveway into the road when the Agee car was still some 200 feet north of the drive and that the truck had "ample time to straighten up and get in its own lane" (again, these are words put to the witness in the form of counsel's question, there being no suggestion of any reason why the truck might ever have been out of its own lane in the first place). Twice he said that the collision occurred about 100 yards, "maybe more or less," north of the driveway, which, of course, was not possible if the Agee car was within 200 feet of the drive when the truck entered the road. On November 9, 1949, two days after the accident, and while he was in the hospital, Walden signed a statement prepared by defendant's counsel, who was investigating the case, in which he said that all he remembered about the accident was that he "saw some headlights coming right at us" and he "hit the floorboards." "I vaguely remember seeing a truck somewhere thereabouts. However, my recollection of the accident is too vague to furnish any further details." On January 4, 1950, he signed another statement, prepared by an insurance adjuster, stating that when the Agee car was about 200 feet from the drive a truck pulled head first out of the drive and turned north, that the Hammons car, also proceeding northward, tried to pass the truck and struck the Agee car in the latter's lane of traffic, and that the truck did not stop. (The identity of the truck was a serious question at the time, and this statement tended to absolve Bluegrass Hardware Co., the suspected owner of the truck, being also the employer of Walden and Agee). On October 19, 1957, four days before the trial, in giving his deposition as if under cross-examination Walden testified positively that he had not seen "any truck or automobile back out of a driveway or pull out of a driveway" (answering "Absolutely not."), and: 735 "Are you positive you didn't see any automobile or other vehicle either back or pull out of an automobile, out of a driveway on Chester Hammons' side of the road, that is the opposite side of the road on which you were traveling?" "There wasn't anything backed out of a driveway." In that same deposition Walden testified categorically that at no time did he see any headlights but those of the car that collided with him and Agee, and that from his recollection "the only two motor vehicles that were on the highway at or near the scene of this accident at the time was the car of Agee and the car that collided with Agee's car" (answer: "That's right."). No witness but the plaintiff Walden fixes the accident at any point except in the proximity of the driveway from which the truck emerged. Comparison of photographs taken of the Hammons car after it had been moved to the side of the road with photographs of the general scene indicates that the car was resting near a mail box on the west side of the highway a very short distance north of the point opposite the driveway entrance. Thus Walden's testimony is contrary to the physical facts. Allowing for the long lapse of time between the accident and Walden's deposition, and disregarding whatever is unfavorable in the statement taken at the hospital, still the evidence given by Walden was in such serious conflict that in good conscience a verdict could not be allowed to rest upon it. Cf. Gohlinghorst v. Ruess, 1945, 146 Neb. 470, 20 N.W.2d 381; Bell v. Harmon, Ky. 1955, 284 S.W.2d 812. Except for placing the accident on the west side of the road Walden's testimony was too equivocal to have probative value. See Lambert v. Miller's Adm'r, 1939, 277 Ky. 64, 125 S.W.2d 1019, 1023. Even under the old rules of civil procedure we do not accept the proposition, suggested by defendant, that plaintiffs are "bound" by the uncontradicted testimony of defendant and his passengers because it was introduced by plaintiffs themselves. The question here is whether upon all the evidence heard by the jury prior to the motion for a peremptory a verdict for plaintiffs could have been sustained. Plaintiffs take the position that under KRS 189.300 it is obligatory that the driver of an automobile stay on the right side of the road unless the left side is clear of traffic and presents a clear view for a distance of 150 feet; that the left side of the road was not clear; and that defendant was guilty of negligence per se. They cite McFarland v. Bruening, 1945, 299 Ky. 267, 185 S.W.2d 247, which in turn cites H. M. Williams Motor Co. v. Howard, 1933, 251 Ky. 557, 65 S.W.2d 688, as authority for that interpretation of the statute. Neither of those cases, however, can fairly be construed as authority for a rule so fixed and immutable that the theory of sudden emergency could never apply to an accident on the wrong side of the road. In fact, a sudden emergency instruction was given in the McFarland case, and one was denied in the H. M. Williams Motor Co. case only because the emergency plainly had been created by the party who sought to invoke the theory. In such cases the rule must be one of reason. See Tate v. Collins, 1936, 266 Ky. 322, 98 S.W.2d 938, and Pennington's Adm'r v. Pure Milk Co., 1939, 279 Ky. 235, 130 S.W.2d 24, for examples in which a defendant involved in an accident on the wrong side of the road after swerving to avoid striking a child or children was held entitled to a directed verdict. One who drives to the left of the road in a sudden emergency effort to avoid an accident may not be negligent even though he makes the wrong choice. See Edmiston v. Robinson, 1943, 293 Ky. 273, 168 S.W.2d 740. In Vernon v. Gentry, Ky.1960, 334 S.W.2d 266, a res ipsa loquitur case, it was held that proof of an automobile's running off the highway and striking a tree 736 was sufficient evidence of negligence to take the case to the jury despite the driver's uncontradicted testimony that she was crowded off the road by an on-coming vehicle. The theory is that it was up to the jury to accept or reject her story (had the plaintiff corroborated the driver's story the result would, of course, have been different). However, whereas it is said in the Vernon case that according to common experience a car does not ordinarily run off the highway without negligence on the part of the operator, we do not believe the same can be said of an automobile's being involved in an accident on the wrong side of the road. If there are no explanatory circumstances in evidence, that the defendant was on the wrong side of the road would be enough to take a case to the jury by virtue of KRS 189.300; but where all of the evidence is substantially consistent and shows conclusively that the driver acted in the face of a sudden emergency the fact that he was on the wrong side is not sufficient unless there are in evidence further circumstances from which the jury might deduce that he acted negligently. In such a case there is simply no showing of negligence. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515990/	913 A.2d 306 (2006) Richard SOMBERS and Joan Sombers v. STROUD TOWNSHIP ZONING HEARING BOARD and Township of Stroud, and Dan D. Crawford Richard Sombers and Joan Sombers v. Stroud Township Zoning Hearing Board and Township of Stroud, and Dan D. Crawford. Commonwealth Court of Pennsylvania. Argued September 14, 2006. Decided November 30, 2006. Reargument Denied January 18, 2007. 307 Joseph P. McDonald, Jr., Stroudsburg, for designated appellants, Richard Sombers and Joan Sombers. 308 David J. Williamson, East Stroudsburg, for appellee, Stroud Township Zoning Hearing Board. Richard E. Deetz, Stroudsburg, for appellee, Township of Stroud. BEFORE: COLINS, President Judge, and LEADBETTER, Judge, and SIMPSON, Judge. OPINION BY President Judge COLINS. In these consolidated cross-appeals from an order of the Court of Common Pleas of Monroe County, landowners Richard and Joan Sombers (Sombers or landowners) seek review of the trial court's order reversing a decision of the Zoning Hearing Board (ZHB) of Stroud Township that had denied landowners' request for a variance that would allow them to build a residence on their property. The trial court concluded that variance relief was appropriate, but allowed the ZHB to place conditions on the terms of the variance. The Sombers object to that aspect of the trial court's order. Stroud Township and intervenor Dan D. Crawford (Township) contend that the trial court erred in reversing the ZHB's denial of the variance.[1] The facts in this case, as developed by the ZHB, and as supported by the record are as follows.[2] The Sombers own a tract of land 2.125 acres in size. Within the tract is a pond approximately .87 acres in size. Section 6.660 of the township's zoning ordinance relates to encroachments into aquatic buffers and requires a minimum buffer of 100 feet from a pond located within the watershed of a high quality stream. Because of the dimensional characteristics of the property and pond, building a residence would be impossible under the buffer provision without the grant of a variance. The Sombers submitted an initial application to the ZHB seeking approval to build a 770-square-foot residence on the property that would be located sixty-five feet from the pond. The landowners submitted an amended application at a second ZHB hearing to allow the construction of a residence 1,392-square-feet in size, including an attached garage located approximately twenty feet from the pond, with an attached deck fourteen feet from the pond. There is no dispute that the property is located in a residentially zoned area and that a single-family home is a permitted use under the ordinance. The Board also acknowledged, and also apparently accepted as fact, testimony that the building proposals do not satisfy the property or septic system setback requirements. The Board found that the parcel had previously been part of a larger tract. Finally, the Board determined that the landowners knew or should have known that the characteristics of the property would preclude development. In rendering its decision, the Board concluded that the landowners had not established the five factors necessary for the grant of a variance, and held that any hardship they experienced by virtue of the ordinance was self-inflicted, because they bought the property knowing, or they should have 309 known, that a residence could not be erected in conformity with the zoning ordinance's set-back requirements. The Township raises the following issues: (1) whether the landowners have established that they did not create the hardship or that they did not know when they purchased the property that they could not develop it without the grant of a variance; (2) whether the property has reasonable uses in its present state and has not been deprived of economic value and therefore, no hardship exists; (3) whether the landowners have failed to satisfy the requirements for a variance by requesting approval of modifications that exceed those necessary to develop the land; and (4) whether the grant of an aquatic buffer variance entitles the landowners to unconditional site specific relief. As noted by the trial court, Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10910.2, provides that a zoning hearing board may grant a variance when an applicant establishes the existence of the following elements: (1) unique physical characteristics of the property, rather than the operation of the zoning ordinance create an unnecessary hardship; (2) because of the unique physical characteristics of the property, the property cannot be developed in conformity with the provisions of the zoning ordinance and the "authorization of a variance is therefore necessary to enable the reasonable use of the property;" (3) the applicant hasn't created the hardship; (4) that the variance, if authorized, will not alter the character of the neighborhood or adversely affect possible future development of adjacent property; and (5) that the variance, if approved, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue. Our analysis will involve consideration of whether landowners would be denied the "reasonable" use of their property if they do not receive the variance they requested. Although the Township and Intervenor suggest that the pond and surrounding land can be reasonably used for recreation, we believe that the reasonable use of the land anticipates more formal uses, such as would enable a landowner to use the land for living or work. We begin by noting Article III, Section 3.223 of the Township's zoning ordinance, relating to the purpose of the R-1 district in which the landowners' tract is located, which states: R-1 Low Density Residential District The purpose of the Low Density Residential District is to permit single family residential development which will offer a living environment with opportunities for privacy and a development pattern which will preserve the open space character and the physical and environmental amenities of these sections of the Township. The lot size should permit the development of safe on-lot sewerage and water utilities. However, if it is feasible, centralized water or sewer service may be extended into portions of this District. (Emphasis added.) This provision makes clear that the drafters of the ordinance intended for residential development in the R-1 district, and accordingly, single-family residences are permitted uses in such districts. Although the ordinance clearly provides for the construction of ponds as a permitted use, See Schedule 1 Revised 4/98, Regulations Governing the Use of Land in Article IV of the zoning ordinance, we believe that the stated purpose of the zoning ordinance to permit the development of single-family dwellings indicates a legislative intent to permit the construction of a dwelling in this case, despite the fact that 310 the land is presently being used for a pond, as permitted in the ordinance. A threshold question is whether the fact that a parcel of land that consists of a use that is permitted in the particular zoning district in which it is located makes the use automatically a "reasonable use." If the permitted use is not reasonable, then variance relief is appropriate. In these circumstances, we conclude that confining the use of the property to a pond would not permit the reasonable use of the property. As noted in this case, the purpose of the R-1 district is to enable the development of single-family homes. The Township first argues that landowners are not entitled to a variance because they knew or should have known at the time of their purchase that they would not be able to develop the lot without the grant of a variance. The Township cites this Court's decision in King v. Zoning Hearing Board of Towamencin Township, 154 Pa.Cmwlth. 109, 622 A.2d 435 (1993), in which the Court affirmed the denial of a variance to a landowner who knew the lot he bought was of insufficient size to build a single-family home in conformity with the zoning ordinance. However, King includes a factual distinction not discussed by the Township: The purchaser there was aware, or should have known, that the original developer had intended to merge the sub-sized lot with an adjoining conforming lot. That case is similar to this case in that the purchaser bought the property for a price that was well below the value of a developable lot in the area, $2,500 as compared to $40,000 to $50,000. Although the Zoning Hearing Board made a finding that "[t]he parcel was previously joined with a neighboring larger parcel in the chain of title," (Finding of Fact H), that finding is insufficient for this Court to conclude that the holding in King applies. The Township points to a subdivision plan approved in 1986 (included in the supplemental record at p. 12); however, although that subdivision plan indicates that the original tract encompassed a larger tract, the plan also shows that the subdivision separated the subject parcel from land that was already divided by Beacon Hill Road. The road appears to have previously made the lot inadequate for the purpose of development, and there are no other facts we can discern from the record that would support applying the holding in King.[3] In King, the Court also referred to its earlier decision in Appeal of Grace Building Co., Inc., 39 Pa.Cmwlth. 552, 395 A.2d 1049 (1979), in which we "held that the new owner should not be denied a variance solely because he got the property at a discount and knew of its non-conformity." King, 622 A.2d at 438. In King, the Court noted that "the trial court denied the variance not solely because the landowner knew of the property's non-conformity, but because the landowner knew or should have known that Parcel A was not meant to be held in single and separate ownership, but to be part of the conforming lots." Id. at 438. While the Court recognized, based upon the facts of the case, that the "court will not grant a variance solely because of economic hardship," id. at 439, the basis of the Court's decision was that a subsequent buyer of a sub-sized lot, that the subdivider intended to merge with another conforming lot, bears the risk 311 that he will not be able to obtain variance relief. As noted above, the facts in this case do not indicate that the party that subdivided the original lot had any intention of merging the present lot to create a lot that would conform to the ordinance requirements for construction of a single-family dwelling. More significantly, the Township did not submit evidence that would support denial of a variance for a tract of land that had been physically separated by a street from the original larger tract of land. For these reasons we find King distinguishable from this case. The Township also argues that the variance the Sombers request is actually a use variance, rather than a dimensional variance. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), set forth new standards for determining when the grant of a dimensional, as compared to a use, variance is appropriate. The Court indicated that the first inquiry must be to determine what type of variance a party is seeking. Both ponds and single-family homes are permitted uses in the R-1 district; here the only impediment to development is the fact that there is insufficient land to satisfy the set back and buffer requirements. The Township asserts that, when a use variance is at issue, evidence of adverse economic impact alone is insufficient to support a finding that a hardship exists. SPC Company, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 773 A.2d 209 (Pa.Cmwlth.2001) (SPC), petition for allowance of appeal denied, 568 Pa. 689, 796 A.2d 320 (2002). SPC involved a zoning regulation that required a 600-foot buffer setback that prevented the landowner from erecting advertising signs near a bridge. Here the Township argues that the buffer requirement in this case is similar to the buffer requirement in SPC, and therefore the Sombers are really seeking a use variance, i.e., the buffer requirement is more akin to a use restriction than a dimensional restriction. Typically buffer restrictions reflect the legislative concern of a governing body to ensure that certain uses are separated from others, such as where a school is located in a residential area. The buffer restrictions help ensure that certain permitted uses are protected in some measure from an atypical permitted use (approved as either as an unconditional permitted use or special exception). Thus, in this case, the Township supports the notion that the buffer restriction at issue is related to concern for protection of one type of use from another, i.e., protecting a pond for use as a pond from the use of the connecting property as a residence. However, in this case, we conclude that the buffer requirement is less essential to the apparent overall goal of the zoning plan for the R-1 district. Because the district's primary purpose is for the development of single-family residences, it seems reasonable to conclude that the buffer restriction is less important to achieving that goal and therefore one that is not central to the zoning concerns of the governing body. Compare Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90 (Pa.Cmwlth.2001) (Request for variance to fill wetlands would constitute use rather than dimensional variance.) Accordingly, this Court concludes that we shall view the request as seeking a dimensional rather than use variance. Although the focus of the Court in Hertzberg was concern for abatement of blighted areas, the standard the Court developed is applicable to all dimensional variance requests: "To justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance is denied, the financial hardship created by 312 any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood." 554 Pa. at 264, 721 A.2d at 50. While the terms of Section 910.2 remain in effect, some legal scholars have noted that, to harmonize the breadth of Hertzberg with those factors identified in Section 910.2, courts may refer to the prefatory paragraph of that section which provides zoning hearing boards with the power to grant variances provided that the board makes findings regarding all of the factors "where relevant in a given case." See Ryan, Pennsylvania Zoning Law and Practice, Ryan, Section 6.31. The implication then is that, if a particular factor is not relevant in a particular case, the Board need not make factual findings. With regard to the first criteria, there can be no dispute that the zoning ordinance did not operate to create any hardship regarding landowners' property. The unique physical characteristics of the tract, most notably a pond located nearly dead center of the tract, preclude development of the land. Whitpain Township Board of Supervisors v. Whitpain Township Zoning Hearing Board, 121 Pa. Cmwlth. 418, 550 A.2d 1355, petition for allowance of appeal denied, 525 Pa. 639, 578 A.2d 932 (1990). Further, as the trial court noted, mere knowledge alone of an impediment to building under the terms of a zoning ordinance is insufficient to deny a variance, Marlowe v. Zoning Hearing Board of Haverford Township, 52 Pa. Cmwlth. 224, 415 A.2d 946 (1980). Also, as the Court noted in Harper v. Ridley Township Zoning Hearing Board, 21 Pa. Cmwlth. 93, 343 A.2d 381, 384 (1975), "a landowner's hardship is self-inflicted only where he has paid a high price for the property because he assumed that a variance which he anticipated would justify that [high] price." (Citing Appeal of Gro, 440 Pa. 552, 269 A.2d 876 (1970)). In this case, the Sombers did not pay a high price for the land in the hope that they would be able to use the property in a more profitable manner than the single-family home they desire to build. For the reasons stated above, we conclude that the trial court did not err in reversing the ZHB's denial of a variance. The Township finally argues that the trial court erred in permitting the Sombers to develop in accordance with the second plan submitted. The Township is correct in its assertion that the Sombers's first plan as compared with the second plan complies with the rule that, in granting variances, zoning hearing boards, and in this case, the trial court, should direct that the development of a single-family residence will require the minimal deviation from the terms of the ordinance, Section 910.2(a)(5) of the MPC, 53 P.S. § 10910.2(a)(5). As the Township notes, the first plan the Sombers submitted provided for a 770-square-foot residence that presented the lesser degree of encroachment upon the normal buffer required on the tract. Accordingly, because the trial court granted relief greater than that necessary, i.e., the larger building proposal, this Court will reverse the trial court's grant of relief and direct the trial court to remand the matter to the Zoning Hearing Board with the order to approve the variance but only for the 770-square-foot residence in the original plan the Sombers submitted. In their cross-appeal, the Sombers argue that the trial court erred in providing that the Zoning Hearing Board could attach conditions to the development of the tract. We reject the Sombers's reliance on the argument that they are entitled to site-specific and unconditional relief because the ordinance as applied precluded them from building. The case upon which the Sombers rely, Allegheny Energy Supply Co. v. Township of Blaine, 829 A.2d 1254 (2003), stands for the proposition that *313 such relief is available when an ordinance totally excludes a legitimate use throughout a municipality. This ordinance does not apply in such a manner, and accordingly, we deny their request for unconditional approval. The Municipalities Planning Code grants zoning hearing boards the specific right to place conditions on the development of property when issuing variances, Section 910.2(b), 53 P.S. § 10910.2(b), and we will not disturb that aspect of the trial court's order. Based upon the foregoing we affirm the trial court's conclusion that the landowners are entitled to variance relief. However, we reverse the grant of approval for the second submission and direct the trial court to remand the matter to the ZHB to grant the variance for the construction of a single-family residence as proposed in the landowners' initial application for a 770-square-foot residence. The ZHB may attach reasonable conditions to the variance. ORDER AND NOW, this 30th day of November 2006, the order of the Court of Common Pleas of Monroe County is affirmed insofar as it directs the Zoning Hearing Board of Stroud Township to grant a variance to the landowners. The trial court's order is reversed insofar as it granted the Sombers' request to construct in accordance with their second plan submission. The trial court is directed to remand the matter to the Zoning Hearing with an order for the Board to grant a variance to the Sombers to allow them to build the original 770-square-foot residence described in the original submission. The trial court's direction that the Zoning Hearing Board may attach reasonable conditions to the variance is affirmed. NOTES [1] This Court's standard of review when a trial court takes no additional evidence and properly confines its own review, is limited to determining whether the ZHB abused its discretion or erred as a matter of law. Diocese of Altoona-Johnstown v. Zoning Hearing Board of the Borough of State College, 899 A.2d 399 (Pa.Cmwlth.2006). [2] The ZHB failed, for example, to provide a complete description of the property, including total acreage, and other facts that although not pivotal to review are helpful to our consideration of the issues. Accordingly, where the parties have not disputed such facts, we recite as if the Board had made such facts. [3] We also conclude that the Court's rejection of an estoppel argument in King to be of no significance. (In King, the property owner asserted that the township bore responsibility for the creation of an unusable lot by approving the initial subdivision, noting that "[t]he township cannot be held responsible because it did not condition approval of the subdivision plan on the conveyance of this lot because the evidence shows that the lot was only meant as a `scrap' parcel of land." Id. at 437.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1515991/	335 S.W.2d 676 (1960) Kathy Faye ADAMS et vir, Appellants, v. Cecil Ray MESSER et al., Appellees. No. 6952. Court of Civil Appeals of Texas, Amarillo. April 18, 1960. Rehearing Denied May 23, 1960. 677 P. Z. Sullivan, Odessa, for appellants. Bruce L. Miller, Hereford, for appellees. NORTHCUTT, Justice. Kathy Faye Messer brought suit against Cecil Ray Messer for a divorce, for the care and custody of their two minor children, and for division of certain community property. In the suit Mrs. Messer prayed for title and possession of certain real estate. Mr. Messer was duly cited to appear in said divorce proceedings but wholly made default. Judgment was entered on August 27, 1958, granting Kathy Faye Messer a divorce from Cecil Ray Messer and granting her full custody, care, and control of the two minor children under the supervision of Deaf Smith County Child Welfare Board and gave her as her sole separate property certain real estate and to Mr. Messer certain personal property as his separate property. The term of court at which the divorce judgment was entered concluded on February 2, 1959. Mr. Messer testified he knew before January 2, 1959, about the divorce being granted and that the clerk sent him a copy of the decree but he didn't know Mrs. Messer was claiming the real estate as her separate property until after February 4, 1959. Mrs. Messer thereafter married Robert F. Adams and at the time of this trial they were living in Ector County, Texas. The present suit was brought by Cecil Ray Messer and Deaf Smith County Child Welfare Board as plaintiffs, hereinafter styled appellees, against Kathy Faye Adams and husband Robert F. Adams as defendants, hereinafter styled appellants, seeking to have the court to set aside that portion of the divorce judgment in Cause No. 4071 relating to the real property and to decree the real estate to be Mr. Messer's separate property. In this same action it was sought to have the judgment set aside as to child support and that Mr. Messer be granted the full custody, care, and control of the two minor children because of changed conditions. Mr. and Mrs. Adams filed their plea 678 of privilege to be sued in Ector County where they resided. This plea of privilege was controverted, and upon a hearing by the court, the plea of privilege was overruled and from this order appellants perfected this appeal. Appellees seek to hold venue of this case in Deaf Smith County upon the ground that it is a case of trespass to try title involving lands located in Deaf Smith County and because of fraud perpetrated upon the District Court of Deaf Smith County, thereby causing the court in Cause No. 4071 to hold the real estate here involved was separate property of Kathy Faye Messer, now Kathy Faye Adams. The judgment of the court in Cause No. 4071 stated that Mr. Messer was duly and legally cited to appear therein but wholly made default. Since Mr. Messer was duly and legally cited he was served with a copy of the petition in this case which showed that Mrs. Messer was claiming the property as community property and sought to recover the title and possession thereof. Rule 101, Texas Rules of Civil Procedure. The court in said Cause No. 4071 granted a divorce and in making property settlement therein gave Mrs. Messer as her sole separate property the real estate here in question. Under the holding of the Supreme Court in the case of Hailey v. Hailey, 331 S.W.2d 299, the court had the right to make such disposition. We do not think a party can fail to present his cause in due time and thereafter seek relief without showing a just cause. Appellee, Messer, testified in this hearing that the appellant, then Mrs. Messer, did not say anything about the title to the property hearing in question. The only evidence he gave as to any fraud was that Mrs. Messer agreed if Mr. Messer wouldn't fight the divorce case that she would let him come and see the children and she would live in the house. The question as to seeing the children was a matter to be determined by the court. Messer was given the right of reasonable visitation in the judgment and consequently was given all the right that Mrs. Messer promised and he was not thereby defrauded or misled. Under this record, we do not think appellees could hold venue in Deaf Smith County upon the theory that this was a suit for the recovery of land under subd. 14 of Article 1995, Texas Civil Statutes. This was an attack upon the judgment entered in Cause No. 4071. We do not believe appellees brought this case within the holding of the Supreme Court in the case of Alexander et ux. v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998, where it is stated: "Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Garcia et al. v. Ramos et al., Tex.Civ.App., 208 S.W. 2d 111, er. ref. Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments "are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted'; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964. As said by the Supreme Court of California, `Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.' Pico v. Cohn et al., 91 Cal. 129, 25 P. 970, 971, 27 P. 537, 13 L.R.A. 336, 25 Am.St.Rep. 159." So far as that part of the suit setting up the changed conditions is concerned *679 and relitigating the custody of the children, it is a new suit and would have to be brought in the county in which the children reside. Lakey v. McCarroll, 134 Tex. 191, 134 S.W. 2d 1016; Poindexter et al. v. O'Neill et vir., Tex.Civ.App., 313 S.W.2d 158. The appellants reside and have their abode in Ector County and Mrs. Adams has the full care, custody and control of the said children and the children reside with her in Ector County and we think venue herein is in Ector County. Judgment of the trial court overruling appellants' plea of privilege is hereby reversed and the case ordered transferred to the District Court of Ector County, Texas.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516071/	955 F. Supp. 167 (1997) Douglas E. KAMPFER and Barbara J. Kampfer, Plaintiffs, v. William GOKEY, Superintendent, Ernest Clapper, Elementary School Principal, Mayfield Central School, Defendants. No. 95-CV-1587 (FJS) (DNH). United States District Court, N.D. New York. March 10, 1997. 168 Douglas E. Kampfer, Barbara J. Kampfer, Mayfield, NY, Plaintiffs Pro Se. Maynard, O'Connor, Smith, Catalinotto & D'Agostino, Albany, NY (Bruce A. Bell, of counsel), for Defendants. MEMORANDUM-DECISION AND ORDER SCULLIN, District Judge. Currently before this Court are three motions relating to plaintiffs' pro se 42 U.S.C. § 1983 action against defendants William Gokey, Superintendent, and Ernest Clapper, Elementary School Principal, of the Mayfield Central School District: plaintiffs' motion for an order of recusal pursuant to 28 U.S.C. § 455, plaintiffs' motion for summary judgment pursuant to Fed.R.Civ.P. 56, and defendants' motion for dismissal pursuant to Fed. R.Civ.P. 12(h). BACKGROUND Plaintiffs' daughter, Heidi Kampfer, was absent from school on October 30, 1995.[1] When she returned to school on October 31, Nurse Henry, a nurse from an area school program, checked Heidi and found evidence of nits. While state law requires that students 169 found with nits or headlice be sent home from school to avoid the risk of contagion,[2] plaintiffs came to the school and asked that Heidi be allowed to stay through the day in order to participate in the school's Halloween festivities later that day. Defendant Ernest Clapper permitted Heidi to stay for the day's parade and party.[3] When Heidi came to school the next day, November 1, her teacher told her to go to the office of their school nurse, Nurse Linda Hand, to be re-checked for nits before being readmitted to the classroom.[4] However, Heidi apparently was upset by this and refused to go to the nurse, so plaintiffs were contacted. Plaintiff Douglas Kampfer came to the school, as well as a deputy sheriff whom Kampfer had summoned. The school offered to have Heidi inspected by the school nurse, but Mr. Kampfer refused to have Nurse Hand perform the inspection, demanding instead that the inspection be done by the school physician. Defendants refused to authorize the school physician to inspect Heidi, and thus Heidi, still uninspected, was sent home from school. Plaintiffs filed the instant pro se § 1983 action on November 7, 1995. Plaintiffs allege that the defendants violated plaintiffs' Fourteenth Amendment rights as parents to educate their child in the school of their choice. More particularly, plaintiffs allege that defendants refused on November 1 and 2 to authorize the medical inspection of plaintiffs' child by the school doctor for the purpose of certifying that she was free of any contagious disease and could return to school.[5] DISCUSSION In reviewing the submissions of a plaintiff acting pro se, the Court must "read his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (quotation omitted). I. Plaintiffs' Motion for Recusal Plaintiffs move, pursuant to 28 U.S.C. § 455, for recusal of the undersigned judge. Plaintiffs claim that "the assigned District Court Judge could not and would not be able to render any decisions in [this case] without bias," because on May 1, 1995, in a related action, plaintiffs filed a motion for an order of protection for their children before the undersigned, and on May 22, 1995, plaintiffs filed a judicial conduct complaint against the undersigned in the United States Court of Appeals for the Second Circuit, claiming that this judge's failure to decide their motion for a protective order by that date endangered the health, safety and welfare of their children. (Pls.' Aff.Supp.Mot.Recusal at 2). This Court also points to the fact that on October 11, 1996, while the instant motions were pending, plaintiffs in this action filed a suit against the undersigned in this district court requesting injunctive and other relief. Kampfer v. Scullin, No. 96-CV-1658 (RSP) (DNH). In that suit, plaintiffs complain of the undersigned's failure to promptly respond to their motion for an order of protection in their previous action, and demand review of that motion by an unbiased judge and the institution of a local rule mandating timely response to similar motions. Plaintiffs' claims of bias are serious ones, subject to careful consideration by this Court. Pursuant to section 455, a federal judge must recuse himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (emphasis added). The relevant inquiry is 170 whether "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir.1992). Section 455 serves to promote public confidence in the impartiality of the judicial process, which is fundamental to the integrity of the judiciary. See generally United States v. Brinkworth, 68 F.3d 633, 637-38 (2d Cir.1995). While this Court appreciates plaintiffs' concern for the health and safety of their children, and their fear of unjustified reprisal by the undersigned, neither the alleged untimeliness of this judge's decision on plaintiffs' motion in the previous case, the mere fact that plaintiffs filed a judicial conduct complaint against the undersigned, nor plaintiffs' subsequent suit against the undersigned, show "a deep-seated favoritism or antagonism" to plaintiffs, such that the undersigned's impartiality could reasonably be questioned in this action. Liteky v. United States, 510 U.S. 540, 556, 114 S. Ct. 1147, 1158, 127 L. Ed. 2d 474 (1994). The recusal statute was not intended "to be used as a judge shopping device." Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). The Supreme Court has held that where grounds for recusal consist of "judicial rulings [and] routine trial administration efforts" which occur "in the course of judicial proceedings," recusal will not be appropriate absent a showing that those rulings either "relied upon knowledge acquired outside such proceedings [or] displayed deep-seated and unequivocal antagonism that would render fair judgment impossible." Liteky, 510 U.S. at 556, 114 S.Ct. at 1158. Prior adverse rulings are not in themselves grounds for recusal. See id. at 554-56, 114 S.Ct. at 1157; United States v. Cooley, 1 F.3d 985, 994 (10th Cir.1993). Nor, for that matter, can litigants obtain recusal simply by filing a frivolous suit against the judge. See Cooley, 1 F.3d at 994; United States v. Pryor, 960 F.2d 1, 3 (1st Cir.1992) ("It cannot be that an automatic recusal can be obtained by the simple act of suing the judge."). "[A] judge has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require." Nichols, 71 F.3d at 351. In this case, plaintiffs have made conclusory claims of bias without adequate supporting factual allegations. The Court finds no merit to Plaintiffs' claims against the undersigned and therefore sees no basis for recusal. Thus, the motion for recusal must be denied.[6] II. Defendants' Cross-Motion for Dismissal Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(h) on the grounds that this Court lacks subject matter jurisdiction because no valid federal claim is made and plaintiffs lack standing. Fed.R.Civ.P. 12(h)(3) provides that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." In order to defeat this Court's subject matter jurisdiction, defendants must show that the federal claim underlying plaintiffs' § 1983 action is "so insubstantial, implausible, or otherwise completely devoid of merit as not to involve a federal controversy." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993); see Hagans v. Lavine, 415 U.S. 528, 537, 94 S. Ct. 1372, 1379, 39 L. Ed. 2d 577 (1974). In order to state a § 1983 claim, a plaintiff must allege facts which demonstrate deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States by a person acting under color of state law. 42 U.S.C. § 1983. Plaintiffs' complaint alleges violations of plaintiffs' Fourteenth Amendment rights to equal protection 171 and due process. This vague statement is later clarified. As plaintiffs explain in their Affidavit in support of their Motion for Summary Judgment, In our complaint, we allege that the Defendants deprived us of our right to give our child(ren) a[n] Education, in the Public School of our choosing, the Mayfield Central School, pursuant to the 14th Amendment of the Constitution of the United States, encompassing those Rights Guaranteed by the First Amendment, the right to choose the Education of a child, and the fundamental right to educate one[']s child and to give one[']s child a[n] education suitable to [] their station in life. (Pls.' Aff.Supp.Mot.Summ.J. at 1). Similarly, in support of their Motion for Recusal, they explain that they filed this action, alleging the defendants violated our rights as parents, to give our child(ren) a[n] Education in the school of our choice, and to give our child(ren) a[n] Education suitable to their station in life, all pursuant to the Fourteenth Amendment encompassing those Rights secured by the First Amendment under the Constitution of the United States. (Pls.' Aff.Supp.Mot.Recusal at 1). More specifically, plaintiffs claim that defendants failed to comply with New York education law regarding the medical inspection of their daughter Heidi after she was diagnosed with nits, and that this failure violated their Fourteenth Amendment rights as parents. Plaintiffs claim that defendants refused to authorize the school doctor to inspect Heidi, as allegedly required by N.Y.Educ.Law § 906 (McKinney 1988),[7] but rather only offered the inspection of the school nurse. Plaintiffs refused the school nurse's inspection, and demanded the inspection of a physician. This refusal by the Defendants forms the factual basis for plaintiffs' claim that their constitutional right to privacy was violated. Plaintiffs seriously misconstrue the import of Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925). Both Pierce and Meyer recognize that the right to privacy encompasses some activities of child rearing and education. However, those rights are strictly limited. In Meyer, the Supreme Court held that a state statute forbidding the teaching of foreign languages in all schools public, private, and parochial prior to the ninth grade, violated the rights of the parents "to control the education of their" children, and offered no reasonable countervailing state interest. Meyer, 262 U.S. at 397, 401, 403, 43 S.Ct. at 626, 627, 628. In Pierce, the Court held that a state law compelling children between the ages of eight and sixteen to attend public school up through the eighth grade was unconstitutional because it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U.S. at 534-35, 45 S.Ct. at 573. The Court explained: "The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id. at 535, 45 S.Ct. at 573. Plaintiffs' contention, that this limited due process right entitles them to have their daughter inspected by a school doctor rather than a school nurse before being readmitted to public school after showing symptoms of a contagious disease, is unreasonable. Such a broad reading is, in this Court's view, entirely untenable. Parents' right to educational choice for their children is triggered by substantial denials of educational choice of the Meyer and Pierce variety, not by state health and welfare concerns over who is responsible for checking children for contagious diseases. Even assuming violation of the New York *172 law, such a denial does not rise to the level of a denial of a fundamental constitutional right. This Court finds that plaintiffs' federal claim is so devoid of merit as to fail to state a justiciable federal claim. The "right" they claim does not exist as they understand it. The limited "right to educational choice" which they invoke does not give them the authority to have their daughter checked for nits by a school doctor as opposed to a school nurse. Therefore, this Court does not have jurisdiction over the subject matter of this case. Having found that this Court lacks jurisdiction to hear this case, the Court need not reach the question of plaintiffs' standing, nor plaintiffs' motion for summary judgment. CONCLUSION For the foregoing reasons, plaintiffs' motion for recusal is DENIED, plaintiffs' motion for summary judgment is DENIED, defendants' cross-motion for dismissal is GRANTED, and plaintiffs' action is DISMISSED in its entirety. IT IS SO ORDERED. NOTES [1] There is some dispute as to why Heidi was absent on October 30. Plaintiffs contend that she had a "bad cold"; defendants contend that she had been excused because of headlice or nits. [2] New York's Education Law provides that "[w]henever upon investigation a pupil in the public schools shows symptoms of any contagious or infectious disease ..., he shall be excluded from the school and sent to his home immediately." N.Y.Educ.Law § 906 (McKinney 1988). [3] Heidi's teacher was advised of the situation and instructed to minimize Heidi's contact with other children in the classroom. [4] New York law allows a student who has been found to have symptoms of a contagious disease to return to school only after having received a certificate of health from either a family physician, the town or city health officer, or the school's medical inspector. See N.Y.Educ.Law § 906. [5] Heidi did return to school on November 15, 1995, after being examined by the High School Nurse at the request of Plaintiff's oldest daughter Gretchen Kampfer. [6] This Court also notes that "recusal motions are to be made at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim." Gil Enters., Inc. v. Delvy, 79 F.3d 241, 247 (2d Cir.1996) (internal quotation omitted). Here, plaintiffs waited ten months after learning that their complaint in this action was assigned to the undersigned before requesting recusal, despite the fact that the events giving rise to this motion for recusal occurred in mid-1995. In the meantime, plaintiffs filed a motion for summary judgment and responded to a motion for dismissal, all before the same judge of whom they now request recusal. [7] Section 906 of New York's Education Law provides in relevant part: "The medical inspector shall examine each pupil returning to a school without a certificate from the health officer of the city or town, or the family physician, after absence on account of illness or from unknown cause." The Education Law provides that school districts must employ as medical inspector "a competent physician," and may also employ one or more nurses and other health care professionals to aid the medical inspector. N.Y.Educ.Law § 902(1) (McKinney 1988).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516031/	913 A.2d 654 (2006) 172 Md. App. 139 MAX'S OF CAMDEN YARDS v. A.C. BEVERAGE. No. 423, Sept. Term, 2006. Court of Special Appeals of Maryland. December 26, 2006. 656 Mark T. Mixter, Baltimore, for appellant. Christopher J. Lyon (Robert L. Hebb, Semems, Bowen & Semmers, on brief), Baltimore, for appellee. Panel JAMES R. EYLER, CHARLES E. MOYLAN, JR., (Ret., specially assigned), LAWRENCE F. RODOWSKY, (Ret., specially assigned), JJ. EYLER, JAMES R., J. Max's of Camden Yards, L.L.C. ("Max's") and Insurance Designers of Maryland, Inc., Max's liability insurer, appellants, filed a complaint, later amended, in the Circuit Court for Baltimore City against A.C. Beverage, Inc. ("A.C. Beverage"), Selective Insurance Company of America ("Selective"), A.C. Beverage's liability insurer, appellees, and Chad Burger ("Burger").[1] Prior to the filing of the complaint in this case, Burger had sued Max's and A.C. Beverage, alleging that they negligently had caused Burger to sustain personal injuries, and appellees had settled Burger's claims against both Max's and A.C. Beverage, without any contribution 657 from appellants. In this case, appellants seek to be indemnified for attorney's fees and costs incurred in the defense of the Burger suit. Appellants also seek a declaration that appellees must indemnify them in any future actions brought by parties alleging injuries sustained in the same manner as Burger. Overview Generally, if more than one tortfeasor is found liable to a plaintiff, and one of them is found to be passively negligent, the passively negligent tortfeasor has a right of implied indemnity against an actively negligent tortfeasor. Usually, the issue of implied indemnity is addressed either after findings of fact have been made in the underlying case or as a preliminary matter when later fact findings are contemplated in the underlying case. In the case before us, the issue of implied indemnity arose after the tort plaintiff's claims were settled and, therefore, in the absence of findings of fact, or contemplated findings of fact, in the underlying case. Stated briefly, Burger, the tort plaintiff, sued two alleged tortfeasors, Max's and A.C. Beverage, claiming compensation for personal injuries allegedly caused by the tortfeasors' negligence. Prior to trial, one of the tortfeasors, A.C. Beverage, settled all of the plaintiff's claims and obtained a release of itself and the other tortfeasor. The non-settling tortfeasor, Max's, then filed a separate indemnity action against the settling tortfeasor, A.C. Beverage, alleging that the settling tortfeasor was actively negligent and that it, the non-settling tortfeasor, was only passively negligent. The non-settling tortfeasor claimed that it was entitled to be indemnified for the attorney's fees and costs incurred in defending the tort plaintiff's claims, and for the attorney's fees and costs it was incurring in pursuing its indemnity claim. The two insurance carriers, parties on this appeal, are parties only by virtue of being liability carriers for the two alleged tortfeasors. An implied indemnity action between alleged or actual tortfeasors based on the active-passive negligence distinction is recognized under Maryland law. It is unclear, however, whether and, if so, under what circumstances attorney's fees and costs, as distinguished from losses or damages, may be recovered in such an implied indemnity action. The primary issue before us is whether, on the facts of this case, the non-settling tortfeasor has a valid indemnity claim for attorney's fees and costs against the settling tortfeasor. The answer ultimately turns on: (1) whether Maryland recognizes a right to recover attorney's fees and costs as an element of recovery if an implied indemnity action otherwise lies; and, if so, (2) whether the right to indemnity is controlled by the tort plaintiff's allegations against each tortfeasor, i.e., whether active or passive negligence was alleged, or by the facts as found after a trial; and (3) if both active and passive acts of negligence were alleged against the non-settling tortfeasor, regardless of whether indemnity is controlled by the allegations or the facts as found, whether the attorney's fees and costs the non-settling tortfeasor seeks to recover should be apportioned between defense of the active negligence claims and defense of the passive negligence claims. To our knowledge, there are no Maryland cases squarely on point. We expressly do not answer the above questions generally, confining our holding to the facts of this case. We do so because we have determined that it is virtually impossible to anticipate the various factual situations that may arise and fashion rules governing each. 658 We hold that when: (1) the tort plaintiff sues more than one alleged tortfeasor and alleges active negligence against the tortfeasor seeking indemnity, and (2) the tort plaintiff's suit is dismissed as to the alleged tortfeasor seeking indemnity and the alleged tortfeasor from whom indemnity is sought prior to adjudication of tortfeasor status, then (3) the alleged tortfeasor seeking indemnity is not entitled to fees and costs incurred in defending the tort plaintiff's claims or fees and costs incurred in pursuing the indemnity action. Factual and Procedural Background According to appellants' amended complaint, Max's owned and operated a restaurant and bar. Pursuant to an agreement between Max's and A.C. Beverage, A.C. Beverage was responsible for inspecting and cleaning the beer lines in Max's establishment. Several patrons at Max's restaurant and bar became ill after allegedly consuming tainted beer. One such patron, Burger, brought a claim for damages against Max's and A.C. Beverage, who had serviced the lines that carried the beer from the keg to the beer tap. As an exhibit to the amended complaint, appellants attached a copy of the complaint filed by Burger. In his complaint, Burger alleged that he became violently ill and suffered severe injuries after consuming beer at Max's due to (1) Max's negligence in failing to properly inspect, maintain and clean its facilities; in negligently hiring incompetent and negligent contractors to inspect, maintain, and clean its facilities; in negligently supervising the contractors that it hired, and (2) A.C. Beverage's negligence in failing to properly inspect, maintain and clean the beer lines. Burger's action never reached trial as Burger settled all of his claims in exchange for money paid by Selective, A.C. Beverage's insurer. Appellants did not contribute to the settlement. Burger executed a general release, which released both alleged tortfeasors, and dismissed his complaint with prejudice. Appellants' amended complaint contained four counts. Count I was styled "declaratory judgment-the Burger action" and requested a declaration that appellees were required to indemnify appellants for the fees and costs incurred in defending the Burger action. Count II was styled "breach of contract." The count is vague, but at oral argument appellants asserted that the contract referred to was the contract between Max's and A.C. Beverage. Count III was styled "indemnification" and sought a judgment for the fees and costs incurred in defending the Burger action and in pursuing the action against appellees. Count IV was styled "declaratory judgment-subsequent claims" and requested a declaration that appellees shall indemnify appellants, for both costs of defense and damages, in any other claims filed by patrons of Max's, alleging injuries as a result of drinking tainted beer. Appellees filed a motion to dismiss the amended complaint on the ground that no indemnification was owed by either Selective or A.C. Beverage and, specifically, that Selective had no contractual relationship with appellants. Following oral argument, the circuit court granted appellees' motion to dismiss by order, incorporating the reasons stated on the record at oral argument. With respect to the indemnity claim, it appears the court relied heavily on this Court's decision in Boatel Industries, Inc. v. Hester, 77 Md.App. 284, 550 A.2d 389 (1988). With respect to the request for declaratory relief as to any future claims by persons claiming personal injury as a result of ingesting tainted beer, the court found 659 that appellants had not presented a justiciable controversy. Contentions Appellants sought indemnification for fees and costs incurred (1) in defense of the Burger action, and (2) in pursuing this action. Appellants also requested a declaration of the indemnification rights of the parties with respect to any future claims. We shall examine the contentions in the order listed. There is no need to address other contentions except to state that there was no contract or tort relationship between appellants and Selective, A.C. Beverage's insurer, and appellants have no valid direct claim against Selective. Additionally, while Count I was styled a request for declaratory relief, it related to the Burger action. Resolution of the indemnity claim in Count III effectively declared the rights of the parties in that regard. There was nothing to add. Finally, Count II, breach of contract, requires no discussion because, as confirmed at oral argument, the contract was alleged solely to provide a basis for imposing a tort duty on A.C. Beverage. Appellants do not claim that appellees expressly agreed to indemnify appellants. For the reasons set forth below, we shall affirm the judgment entered by the circuit court. Indemnification for the Burger Action Passive/Active Negligence A claim for indemnification may be based on an express contract or may be implied by law. In this case, we are not concerned with express indemnity. Indemnity between tortfeasors or alleged tortfeasors, the situation before us, falls within the concept of implied indemnity. Implied indemnity between tortfeasors "arose in an era when contribution among joint tortfeasors was not permitted." Franklin v. Morrison, 350 Md. 144, 154, 711 A.2d 177 (1998). The right to contribution is now available pursuant to the Uniform Contribution Among Tortfeasors Act ("UCATA"), see Maryland Code (2002 Repl.Vol., 2006 Cum.Supp.) §§ 3-1401 to 3-1409 of the Courts and Judicial Proceedings Article ("C.J."). UCATA did "not impair any right of indemnity under existing law." Id. at 3-1406. Indemnity between tortfeasors continues to be developed by case law. For a thorough discussion of implied indemnity, and its application, see Franklin, 350 Md. at 154-58, 711 A.2d 177. See also Restatement of Torts (Second) § 886B (identifying the situations in which indemnity is generally appropriate between tortfeasors) and Restatement (First) of Restitution §§ 89-98 (same). The basis for implied indemnity is the concept "that one person is unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay." Franklin, 350 Md. at 154, 711 A.2d 177 (quoting Restatement (Second) of Torts § 886B cmt. c). The Restatement lists are not exclusive. Id. at 160, 711 A.2d 177. Indeed, it would be difficult, if not impossible, to synthesize all of the cases and develop a cohesive explanation for the results. Generally, implied indemnity is dependent on the relationship between the alleged tortfeasors or the nature of their respective acts. Frequently occurring situations in which a right to implied indemnity between tortfeasors has been recognized include a tortfeasor liable (1) vicariously for the conduct of another, (2) for failing to discover a defect in a chattel supplied by another, (3) for failing to discover a defect in work performed by another, and (4) for failing to discover a dangerous condition on land created by another. 660 Of the various bases for indemnification, the basis relied on in this case is the distinction between active and passive negligence.[2] This right to implied indemnity exists when there is a disparity between the levels of fault of each tortfeasor that produces an unjust result, and the less culpable tortfeasor, said to be passively or secondarily negligent, pays or is held liable for damages which are properly attributable to the conduct of the more culpable co-defendant, who is primarily or actively negligent. Hanscome v. Perry, 75 Md.App. 605, 615, 542 A.2d 421 (1988) (citations omitted); Gardenvillage Realty Corp. v. Russo, 34 Md.App. 25, 40-41, 366 A.2d 101 (1976). This concept is based on the distinction between "active" and "passive," however, not on relative degrees of fault. Any other approach would be inconsistent with the UCATA because it apportions liability among tortfeasors on a pro rata basis, see C.J. § 3-1402, not on a relative fault basis. Maryland does not recognize comparative negligence. See Franklin, 350 Md. at 168, 711 A.2d 177. We note that "[i]t is well established under Maryland law that one who is guilty of active negligence cannot obtain tort indemnification," regardless of whether the alleged tortfeasor from whom indemnity is being sought was actively negligent. Franklin, 350 Md. at 163, 711 A.2d 177. The general rule is that, if an implied indemnity action lies, fees and costs are includible, particularly when the indemnitor was on notice of the underlying claim and was offered the opportunity to defend the indemnitee in the underlying claim. See 42 C.J.S. Indemnity § 42; 41 Am.Jur.2d Indemnity § 30. Regardless of what the general rule may be in other jurisdictions it is very doubtful, under Maryland law, whether and, if so, when attorney's fees and costs are recoverable in an implied indemnity action. It is highly doubtful, under Maryland law, whether fees and costs are recoverable as part of an indemnity claim based on the active-passive negligence distinction, under any circumstances that may exist in that context. In most of the Maryland cases addressing the active-passive negligence distinction, the Courts either concluded that there was no right to indemnity on the facts before it, see Franklin, 350 Md. 144, 711 A.2d 177, or the issue of recovery for attorney's fees and costs, as distinguished from damages, was not presented. See Gardenvillage Realty Corp., 34 Md.App. 25, 366 A.2d 101. The recovery of defense fees and costs was permitted in Chesapeake & Ohio Canal Co. v. Allegany County Comm'rs, 57 Md. 201 (1881) (noting that counsel fees should be available in indemnity cases as it would place an unfair hardship for a defendant to pay its own fees where it is answering essentially for the negligence of a co-defendant). The viability or extent of this holding is in question. It may be limited to those situations in which, by virtue of the particular relationship of the parties, the law imposes a duty to defend, as well as to indemnify. A duty to defend is separate from a duty to indemnify. Generally, an alleged tortfeasor has no duty to defend another alleged tortfeasor. In order to maintain an action for contribution, the tortfeasor seeking indemnity must be liable to a plaintiff, in addition to the tortfeasor from whom indemnity is being sought. Similarly, an action for indemnity based on the active-passive distinction generally requires 661 shared liability. There are circumstances in which implied indemnity has been held to be available without a showing of liability by the indemnitee, but ordinarily, that result requires facts different from those in this case. For example, circumstances, particularly the relationship of the parties, may give rise to a duty by one entity to defend another entity. Another example is when a statute establishes a duty to defend. It may be that, in Maryland, recovery of defense fees and costs is limited to those situations. Maryland does recognize that, when an innocent party is forced into litigation with a third party by the wrongful conduct of another, the innocent party can recover fees and costs incurred in defending itself from the culpable party. See Chang v. Brethren Mut. Ins. Co., 168 Md.App. 534, 553, 897 A.2d 854 (2006). In contrast to the above situations in which recovery of attorney's fees has been permitted, there are many Maryland appellate decisions stating that, generally, attorney's fees are not recoverable unless by contract, statute, or rule. See Bresnahan v. Bresnahan, 115 Md.App. 226, 243-47, 693 A.2d 1 (1997). The statements, however, are usually in the context of discussing the availability of attorney's fees as part of compensatory damages, and not in the context of identifying the extent of recovery in an implied indemnity action. We conclude that it is very doubtful whether Maryland recognizes the right to recover defense fees and costs under any variation in circumstances discussed in this opinion, as an element of recovery, in an implied indemnity action based on the active-passive distinction. This includes a situation in which the tortfeasor seeking indemnity was found to be passively negligent and the tortfeasor from whom indemnity is being sought was found to be actively negligent, at least absent some special relationship, beyond a contractual obligation by one to maintain facilities owned by another. Nevertheless, we shall assume, without deciding, for purposes of the remainder of the discussion, that attorney's fees and costs incurred in defense of the underlying tort claim may be available as an element of recovery under certain circumstances. The Burger Case Appellants seek indemnification for attorney's fees and costs incurred in defending the Burger action.[3] Appellants pursue indemnification based on their assertion that Max's was only passively negligent, while A.C. Beverage was actively negligent. Appellees respond that because Burger's complaint alleged active negligence on the part of both parties, no indemnification is owed. The underlying complaint alleged active or primary affirmative acts of negligence by Max's (negligent inspection, hiring and supervision). The complaint did not assert liability based on mere nonfeasance, i.e., the mere sale of a defective product. Nevertheless, we recognize that, if Burger's claims were tried, it is possible, looking at the factual allegations in Burger's complaint and not just the theories, for Max's 662 liability to be premised only on passive acts. Because the question of indemnity comes to us without the underlying issues having been tried, we must decide whether (1) the right to indemnity is determined by the allegations in the underlying complaint, or (2) determined by findings of fact and remand for a trial of the issues that would have been tried had Burger's claims not settled. In either event, we must decide whether the cost of defense is available and, if so, whether it should be apportioned between the defense of active negligence claims and the defense of passive negligence claims. The two sub-questions have been addressed by a few courts in other jurisdictions. The sub-questions may arise in many, if not all, forms of indemnity actions. Thus, they may arise in situations in which indemnity is being sought on a basis other than the basis in this case. We shall refer to a few decisions from other jurisdictions, acknowledging that we have made no effort to identify and categorize all such cases. Some of the cases are reconcilable on their facts, but all are not. We hold that when the implied indemnity claim is for counsel fees and costs, fees are unrecoverable when the tort plaintiff's complaint alleged primary or active negligence, in whole or in part, against the alleged tortfeasor seeking indemnity, and the underlying case was dismissed prior to any factual findings. We wish to emphasize that our holding is narrow. For example, we express no opinion as to whether an implied indemnity claim for counsel fees and costs would be available in the situation before us, had the allegations been solely against Max's. Nor do we decide whether an implied indemnity claim for counsel fees and costs, alone, or in addition to all or a portion of the tort plaintiff's damages, for which the tortfeasor seeking indemnity has been held liable or has paid (pursuant to settlement or judgment), is available when the tort plaintiff alleged active negligence, passive negligence, or both, against the alleged tortfeasor seeking indemnity, but after a factual hearing involving the tort plaintiff, the tortfeasor seeking indemnity was determined to have been only passively negligent. There is support for the proposition that the nature of each party's negligence, active versus passive, is determined based on the pleadings by the tort plaintiff. In Chesapeake & Ohio Canal Co., 57 Md. 201, the Court quoted with approval from Inhabitants of Westfield v. Mayo, 122 Mass. 100, 109 (1877). The discussion by the Massachusetts court suggested that, if a defendant is compelled to defend an action based solely on the misfeasance of another, the defendant may be able to recover the cost of defense. 122 Mass. at 105-09. In Chesapeake & Ohio Canal Co., the canal company, while performing maintenance, cut a bridge over the canal, which serviced a public road, and then repaired the bridge. The tort plaintiff was injured because of a defect in the bridge. The canal company was held liable, but the County Commissioners were also held liable, based on their responsibility to maintain public roads. The Court held that the Commissioners were entitled to indemnity from the canal company, including attorney's fees incurred in defense of the claim, because their liability was based on the canal company's wrongdoing. The claim against the Commissioners was based entirely on their responsibility for the actions of others and not on their own misfeasance. The case is not on point, however, because the issues of tortfeasor status had been determined at the time the indemnity issue was presented. 663 Pyramid Condo. Assoc. v. Morgan, 606 F. Supp. 592 (D.Md.1985), is helpful. In that case, the court granted a motion to dismiss a third party complaint seeking indemnity based on the active-passive negligence distinction. The court observed that the claims by the tort plaintiff against the third party plaintiff were based on facts which, if proved, would constitute active acts of negligence and intentional torts. Id. at 596. Thus, the court reasoned that the third party plaintiff could not be entitled to indemnity because its liability, if any, would be based on active negligence. Id. As we observed in Bd. of Trustees of Baltimore County Cmty. Colleges v. RTKL Assocs., Inc., 80 Md.App. 45, 56-57, 559 A.2d 805 (1989), the court in Pyramid did not hold that, in order for indemnity to lie, passive negligence must be alleged in the underlying plaintiff's complaint. Rather, the basis of the court's ruling was that it was clear from the alleged underlying facts, regardless of the theories alleged, that the third party plaintiff could not possibly be held liable on any passive negligence theory. Having mentioned Bd. of Trs. of Balt. County Cmty. Colls., we shall discuss it a bit further. In that case, we suggested that an indemnity claim might lie, after factual findings in the tort plaintiff's case, even though the allegations against the tortfeasor seeking indemnity were not limited to passive acts. Id. at 56-57, 559 A.2d 805. The issue before the Court was the effect of a jury verdict pursuant to which the jury found the defendants liable but then attempted to apportion the damages based on a finding of relative fault of the defendants. The jury could not do this under Maryland law, which does not recognize comparative negligence. We observed that, because the complaint by the tort plaintiff alleged active and passive acts, a jury could have determined that the tortfeasor seeking indemnity was passively negligent only. Id. at 56, 559 A.2d 805. In that situation, indemnity could not be ruled in or out as a matter of law. We held that the verdict could not be saved, and reversed and remanded for a new trial. Id. at 56-57, 559 A.2d 805. In that context, we suggested that indemnity might be available, dependent on the findings at the new trial. As noted above, in the case before us, the circuit court placed great emphasis on Boatel Indus., Inc. v. Hester, 77 Md.App. 284, 550 A.2d 389. In Boatel, the tort plaintiff buyer sued the retail seller and the manufacturer of a boat, for breach of warranty and negligent misrepresentation. In a cross claim, the retail seller sought indemnity because any liability was due solely to the acts, omissions, conduct and negligence of the cross defendant manufacturer. At trial, at the conclusion of the evidence, the court granted the dealer's motion for judgment on the cross claim, stating that any judgment entered against the dealer would be passed on to the manufacturer. The jury returned a verdict against the manufacturer only. On the cross claim, the court entered judgment against the manufacturer for the dealer's fees and costs incurred in defending the claims against it. On appeal, this Court reversed. We observed that the cross claim requested contribution or indemnification, in the alternative, on the ground that the parties were joint tortfeasors, whereas on appeal, the dealer relied on a different theory. 77 Md.App. at 309, 550 A.2d 389. In addition, we pointed out that the dealer had been found not to be liable. Generally, liability is required for indemnity between active and passive tortfeasors. Id. Finally, we observed that the allegations in the suit against the dealer were that it engaged in 664 wrongdoing, and the dealer defended those allegations of its own wrongdoing. Id. at 310, 550 A.2d 389. We saw no applicable exception to the general rule that legal fees incurred by a successful party are not recoverable. Id. While the Boatel Court's conclusion that indemnity was unavailable rested upon several bases, it is supportive of our resolution of this case to the extent that it held indemnity inappropriate when a party incurs fees in successfully rebutting claims of its own active negligence, and when a fact finder has not determined it to be a tortfeasor. There are several cases in other jurisdictions, addressing the question of indemnification for attorney's fees as between alleged tortfeasors, in which the courts have discussed the effect of allegations versus facts as found and the question of apportionment between acts subject to indemnity versus those that are not. We have not identified and categorized all of those cases. While some cases are undoubtedly reconcilable on their facts, our review indicates that all are not. Some cases suggest that the right to indemnity is determined by the underlying plaintiff's allegations. See, e.g., Safeway Stores v. Chamberlain, 451 A.2d 66, 70-72 (D.C.1982) (indemnity is dependent on allegations); Rauch v. Senecal, 253 Iowa 487, 112 N.W.2d 886, 888 (Iowa 1962) (indemnity is dependent on allegations); but see Peters v. Lyons, 168 N.W.2d 759, 770-71 (Iowa 1969) (suggesting indemnity should depend on factual findings); Unisys Corp. v. Frank H. Poe, Inc., 576 So. 2d 874, 875 (Fla.Dist.Ct.App.1991) (indemnity is dependent on allegations). There is authority supporting the contrary view, i.e., the right to indemnification should be determined by findings of fact. See INA Ins. Co. of N. Am. v. Valley Forge Ins. Co., 150 Ariz. 248, 722 P.2d 975, 980 (1986) (noting that "an obligation [to indemnify] . . . cannot be imposed solely by a third party's unproven allegations against the indemnity parties, but requires factual determinations"); Ins. Co. of N. Am. v. King, 340 So. 2d 1175, 1176 (Fla. Dist.Ct.App.1976) (noting that it "is an indemnitee's actual wrongdoing or lack of it, rather than allegations of wrongdoing, which determine the indemnitee's rights"). The court, in INA Ins. Co. of N. Am., discussed the question of apportionment in situations in which the tort plaintiff pursues claims subject to indemnity and claims not subject to indemnity. The court stated that recovery of defense costs should be available but limited to costs attributable to claims for which the indemnitee was entitled to receive indemnity. 722 P.2d at 982. In contrast, in Blueberry Place Homeowners Assoc. v. Northward Homes, Inc., 126 Wash.App. 352, 110 P.3d 1145, 1151 (2005), the court concluded that, because the alleged tortfeasor defended active negligence claims, in addition to other claims, attorney's fees would not be apportioned, and would not be recoverable. It is interesting to note that, in Blueberry Place, the alleged tortfeasor seeking indemnity settled with the tort plaintiff and then sought to recover attorney's fees from other alleged tortfeasors. A determination of whether appellants are entitled to indemnification, based on findings of fact, in the context in which the issue comes before us, would require a factual resolution of Burger's claims. On remand, appellants would have the burden of demonstrating A.C. Beverage's primary negligence while proving Max's mere secondary negligence. This would be a difficult burden but, more important, presents artificial issues in a setting in which it would be difficult to duplicate the trial, had Burger not settled. We decline to reach this result. 665 Indemnification for the Present Action Appellants' seek indemnification for fees and costs incurred in bringing this action for indemnification. Although we have found no Maryland authority directly on point, a large number of decisions in other jurisdictions conclude that, even when indemnification for the expense of defending the underlying claim is available, counsel fees expended in establishing the right to indemnification will not be awarded. See, e.g., 42 C.J.S. Indemnity § 42 ("While the right of indemnity under general indemnity principles includes the right to attorneys' fees incurred in defending the underlying claim, it does not include the right to fees incurred in establishing the right of indemnity."); INA Ins. Co. of N. Am., 722 P.2d at 983 ("Under general indemnity principles . . . the right of indemnity . . . does not include the right to fees incurred in establishing the right of indemnity."); Saks Intern., Inc. v. M/V "Export Champion", 817 F.2d 1011, 1014 (2d Cir.1987) (quoting Peter Fabrics, Inc. v. S.S. "Hermes", 765 F.2d 306, 315-16 (2d Cir.1985) (Friendly, J.)) ("This obligation to indemnify the primary defendant for his litigation expenses does not, however, extend to the expenses incurred in establishing the [defendant's] indemnity obligations, since such expenses `fall within the ordinary rule requiring a party to bear its own expenses of litigation.'"); Gen. Elec. Co. v. Mason & Dixon Lines, Inc., 186 F. Supp. 761, 766 (D.Va.1960) ("The allowance of attorneys' fees should be limited to the defense of the claim indemnified against and does not extend to services rendered in establishing the right of indemnity . . . there should be no recovery for attorneys' services and expenses incurred in establishing the right of indemnity."). Thus, even if attorney's fees and costs incurred in defending the Burger action were available to appellants, and they are not, appellants still could not recover the fees and costs incurred in seeking indemnification. Declaratory Judgment for Future Claims In dismissing appellants' amended complaint, the circuit judge specifically noted that "I don't believe that this court has a crystal ball. We can't anticipate. We don't know what the underlying causes of action will be or what is primary negligence or not." We agree that Count IV did not present an actual and justiciable controversy. As this Court has stated, "One thing is clear, however: `In a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may never happen, but will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision.'" Anne Arundel County v. Ebersberger, 62 Md. App. 360, 368, 489 A.2d 96 (1985) (quoting Tanner v. McKeldin, 202 Md. 569, 579, 97 A.2d 449 (1953)). It is entirely unclear whether any other person will bring suit against appellants. Moreover, it is impossible to determine whether the facts in those cases would be the same as or similar to the facts in the Burger case. Appellants allege that, even if this count fails to present an actual controversy, because any other claims brought by patrons injured at the time Mr. Burger was injured will likely settle, this case should be treated like cases which are heard, because of mootness, to prevent the issue contained within the case from evading review. See Stevenson v. Lanham, 127 Md.App. 597, 612, 736 A.2d 363 (1999) (noting that a "case that is moot will be dismissed without a decision on the merits of the controversy unless it presents unresolved issues in matters of important public *666 concern that, if decided, will establish a rule for future conduct") (internal quotation marks and citations omitted). We have not determined that appellants' claim was moot. Instead, we have concluded that the claim lacked ripeness. Determining how injuries were caused and who was responsible for those injuries, in claims which may never be brought, for an uncertain number of plaintiffs, some of whom may not yet be identified, would simply be unworkable. The circuit court was justified in determining that Count IV failed to present an actual and justiciable controversy. JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANTS. NOTES [1] Burger is not a party on appeal. [2] The parties have referred to the distinction between the levels of tort liability as active/passive or primary/secondary. We likewise will use these terms interchangeably. [3] Generally, a claim for contribution and/or indemnity can be made in the underlying plaintiff's action, either by motion or cross claim. See Md. Rule 2-614. In that situation, the status of the alleged tortfeasors was determined before the motion was made, or in the event of a cross claim, tortfeasor status, for purposes of the cross claim as well as the plaintiff's claims, was determined as part of the same proceeding. Procedurally, a cross claim is not required, however, and a separate action can be maintained for contribution or indemnity. See Lerman v. Heeman, 347 Md. 439, 444-45, 701 A.2d 426 (1997). That is the situation before us.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516036/	913 A.2d 832 (2007) 389 N.J. Super. 493 Phyllis SINCLAIR and Joseph Murray, Individually and For All Others Similarly Situated, Plaintiffs-Appellants, v. MERCK & CO., INC., Defendant-Respondent. Superior Court of New Jersey, Appellate Division. Argued September 26, 2006. Decided January 16, 2007. 833 Esther Berezofsky, argued the cause for appellants (Williams Cuker Berezofsky, attorneys, Cherry Hill; Ms. Berezofsky, Elizabeth Cabraser (Lieff Cabraser Heimann & Bernstein) of the California bar, admitted pro hac vice, San Francisco, CA, Wendy Fleishman (Lieff Cabraser Heimann & Bernstein) of the N.Y. bar, admitted pro hac vice, New York City, Richard Lewis (Cohen Milstein Hausfeld & Toll) of the DC bar, admitted pro hac vice, and Daniel Sigelman (Cohen Milstein Hausfeld & Toll) of the DC bar, admitted pro hac vice, Washington, DC, on the brief). Jonathan Hacker (O'Melveny & Myers) of the DC bar, admitted pro hac vice, Washington, DC, argued the cause for respondent (Dechert, L.L.P., Lawrenceville and Mr. Hacker, John Beisner (O'Melveny & Myers) of the DC bar, admitted pro hac vice, and Jeffrey Judd (O'Melveny & Myers) of the DC bar, admitted pro hac vice, attorneys, Washington, DC; Diane P. Sullivan, Lawrenceville and Richard Jasaitis III, Princeton, on the brief). Porzio, Bromberg & Newman, Brick, for amicus curiae Product Liability Advisory Council, Inc. (Anita Hotchkiss and John T. Chester, on the brief). Britcher, Leone & Roth, Glen Rock, for amicus curiae ATLA-NJ (E. Drew Britcher and Jessica E. Choper, on the brief). Begley & Bookbinder, Moorestown, for amicus curiae AARP (Thomas D. Begley, Jr., on the brief). Before Judges WEISSBARD, PAYNE and GRAVES. The opinion of the court was delivered by PAYNE, J.A.D. An order of May 19, 2005 dismissed on the pleadings a proposed class action complaint against Merck & Co. Inc., initially filed by plaintiffs Phyllis Sinclair and Joseph Murray[1] on behalf of themselves and others resident in New Jersey or, alternatively, in the United States, who had taken the drug Vioxx in any dose for at least six consecutive weeks at any time between May 20, 1999 and September 30, 2004. In their complaint (predicated on negligence, breach of the Product Liability Act[2] and the Consumer Fraud Act,[3] breach of warranty and an alleged entitlement to punitive damages) plaintiffs claimed that as a result of their direct and prolonged exposure to Vioxx, they have an enhanced risk of sustaining serious, undiagnosed and unrecognized myocardial infarctions 834 (UMIs) that, in turn, would subject them to the risk of further, significant, long-term cardiovascular harm. As a consequence, they sought as relief the establishment of a court-administered medical screening program, funded by Merck, "to provide for and/or reimburse medical and diagnostic tests for each member of the Class to detect [UMIs] and other latent or unrecognized injuries and, if such injuries are detected and diagnosed, to educate Plaintiffs about available treatment strategies." They also sought to compel a Merck-funded follow-up epidemiological study of former Vioxx users as compared to nonusers to further evaluate post-cessation risk, as well as the retention of jurisdiction by the court to enable it to decide whether the findings of the study justified screening for "unrecognized or latent injuries" other than UMIs. Although plaintiffs claimed no present physical injury, they alleged that the cost of diagnostic testing represented an ascertainable economic loss for which they were entitled to compensation. The viability of plaintiffs' medical monitoring claim was the sole focus of Merck's motion to dismiss and the trial court's opinion, and it is the sole issue on appeal. The judge's order dismissing plaintiffs' complaint as failing to state a cause of action for such monitoring was premised in large measure on the decisions by the New Jersey Supreme Court in Mauro v. Owens-Corning Fiberglas Corp., 225 N.J.Super. 196, 542 A.2d 16 (App. Div.1988), aff'd sub. nom., Mauro v. Raymark Indus., Inc., 116 N.J. 126, 561 A.2d 257 (1989) and Theer v. Philip Carey Co., 259 N.J.Super. 40, 611 A.2d 148 (App.Div. 1992), rev'd, 133 N.J. 610, 628 A.2d 724 (1993). In a carefully reasoned opinion, the judge concluded that plaintiffs' "pure" products liability cause of action differed significantly from those toxic tort actions in which a medical monitoring remedy had been recognized, and after noting that the remedy was "not easily invoked," she declined as a matter of law "to find the New Jersey Supreme Court would extend medical monitoring to the proposed class in this particular action." Further, the judge found the existence of a manifest injury to be a necessary prerequisite to the relief that plaintiffs sought under all the legal theories alleged. She thus dismissed plaintiffs' suit in its entirety. Plaintiffs have appealed; we reverse and remand the matter for further proceedings. In doing so, we express no opinion as to the ultimate viability of plaintiffs' action. However, as we will explain, we find the dismissal to have prematurely terminated plaintiffs' opportunity to establish the existence of a legally cognizable claim. I. A difficulty in this case arises from the relative paucity of New Jersey precedent, which consists in published form of three principal cases: Ayers v. Twp. of Jackson, 202 N.J.Super. 106, 493 A.2d 1314 (App. Div.1985), aff'd in part and rev'd in part, 106 N.J. 557, 525 A.2d 287 (1987), Mauro, and Theer. As the motion judge recognized, the present case little resembles any of these three. Ayers was an environmental, toxic tort, nuisance action instituted pursuant to the Tort Claims Act by three hundred residents against a public entity, Jackson Township, alleging damages arising from contamination of local wells by toxic pollutants leaching into the aquifer from a township landfill. The case was tried, and substantial damage awards were entered for emotional distress occasioned by plaintiffs' realization that they had ingested contaminated water for a period of up to six years, for deterioration of plaintiffs' quality of life during the twenty months that they were deprived of running water, 835 and for the future cost of annual medical surveillance that plaintiffs' expert found necessary as the result of plaintiffs' increased susceptibility to cancer and other diseases. A pre-trial order of summary judgment dismissing claims for damages as the result of an unquantified enhanced risk of disease was affirmed on appeal on the ground that such a novel claim was not cognizable under the Tort Claims Act. Ayers, supra, 106 N.J. at 598-99, 525 A.2d 287. On appeal, we had set aside the jury's award for medical surveillance expenses, determining that it was "impossible to say that defendant has so significantly increased the `reasonable probability' that any of the plaintiffs will develop cancer so as to justify imposing upon defendant the financial burden of lifetime medical surveillance for early clinical signs of cancer." 202 N.J.Super. at 122, 493 A.2d 1314 (citation omitted). However, the Supreme Court reversed our determination as "unduly imped[ing] the ability of courts to recognize that medical science may necessarily and properly intervene where there is a significant but unquantified risk of serious disease." 106 N.J. at 600, 525 A.2d 287. In doing so, the Court discussed the difficulty of proving causation upon eventual manifestation of disease in such environmental exposure cases as the result of the long latency period prior to manifestation of injury and the existence of other intervening exposures. 106 N.J. at 585-87, 525 A.2d 287. The Court then held in language that we find significant to our decision here: the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. [Id. at 606, 525 A.2d 287.] The Court found that recognition of the availability of such relief, when warranted, advanced the public interest in early detection and treatment of disease, served to deter polluters by exposing them to liability when proof of the causal connection between their tortious conduct and plaintiffs' exposure to toxic chemicals was most readily available, reduced the overall cost for treatment to be borne by the responsible parties, and served to equitably allocate a reasonable and necessary medical expense. Id. at 603-05, 525 A.2d 287. The Court's decision in Mauro, supra, 116 N.J. 126, 561 A.2d 257, represented an extension of Ayers from the context of an environmental tort action against a public entity instituted pursuant to the Tort Claims Act to that of a product liability action instituted against multiple private manufacturers of asbestos-containing products. There, plaintiff, employed by Ancora State Hospital as an installer of plumbing, water and steam lines, and alleging exposure to asbestos covering and asbestos cement, brought suit claiming damages for bodily injury, enhanced risk of cancer, emotional distress, and medical monitoring. Prior to suit, New Jersey Department of Health testing had revealed injuries to plaintiff, consisting of bilateral thickening of both chest walls and calcification of the diaphragm. However, the results of plaintiff's physical examination and lung function test were "normal." Id. at 129, 561 A.2d 257. Following dismissal of plaintiff's enhanced risk claim at the conclusion of his case, plaintiff received an 836 undifferentiated jury award of $7,500[4] on his remaining claims. Plaintiff appealed to us, arguing that the Court's holding in Ayers declining to recognize a claim for damages premised upon an unquantified, enhanced risk of cancer was restricted to cases against public entities; a claim that we rejected. 225 N.J.Super. at 201-03, 542 A.2d 16. Plaintiff argued further that the rejection by Ayers of an unquantified enhanced risk claim was not controlling because, unlike plaintiff Mauro, the plaintiffs in Ayers were not suffering from a present disease. We rejected that claim as well, finding that it was the indefinite nature of the claim and the difficulties inherent in its adjudication, rather than the absence of present disease or injury, that formed the basis of the Court's decision. Id. at 204, 542 A.2d 16. Moreover, we noted that although plaintiff Mauro suffered from a present disease, his enhanced-risk-of-cancer claim was based on a separate and distinct disease process, the occurrence of which was speculative. Id. at 205, 542 A.2d 16 (citing Devlin v. Johns-Manville Corp., 202 N.J.Super. 556, 568, 495 A.2d 495 (Law Div.1985)). Defendants cross-appealed from the award of damages for emotional distress, claiming that plaintiff could recover only upon proof of substantial bodily injury or sickness resulting from the distress. We found such proof unnecessary when the plaintiff demonstrated that he presently suffered from pleural thickening attributable to defendants' tortious conduct. Id. at 210-11, 542 A.2d 495 The claim for damages arising from medical monitoring, arguably subsumed within the jury's verdict, was not the subject of appeal, but for a claim by defendants that the trial judge erred when he failed to instruct that any such award must be reduced to present value (a claim that we rejected as not meeting the plain error standard), id. at 211, 542 A.2d 16, and a claim that plaintiff was not entitled to recover medical surveillance expenses as a matter of public policy (a claim that we declined to address pursuant to R. 2:11-3(e)(1)(E)). Id. at 212, 542 A.2d 16. Our decision was affirmed on further appeal to the Supreme Court. 116 N.J. at 145, 561 A.2d 257. In its decision, the focus of the Court was principally on plaintiff's appeal from the dismissal of his enhanced risk claim, id. at 132-36, 137-45, 561 A.2d 257, and to a lesser extent on defendants' appeal from the recognition of his cause of action for emotional distress. Id. at 137, 561 A.2d 257. During the course of its opinion, the Court noted that, in Ayers, it had upheld the right of plaintiffs with unquantified enhanced risks of disease as the result of exposure to toxic chemicals to recover medical surveillance expenses. Id. at 136-37, 561 A.2d 257. It additionally affirmed that, in an asbestos-exposure context, "[e]xposure to toxic chemicals may sustain a claim for medical surveillance damages under the criteria set forth in Ayers." Id. at 138, 561 A.2d 257 (citing Ayers, supra, 106 N.J. at 606, 525 A.2d 287). The Court thus extended the remedy of medical monitoring to a product liability claim where exposure was confirmed and neither causation nor the prospect of ultimate recovery of damages, should compensable disease become manifest, posed the same difficulties foreseen in connection with the environmental pollution claims in Ayers. In asbestos litigation, common-law remedies abound, and damage recovery is demonstrably common. 837 Nonetheless, the Mauro Court's extension of a medical monitoring remedy to plaintiffs directly exposed to asbestos does not appear to have directly addressed an issue on appeal in that case, but merely to have bolstered the Court's affirmance of the dismissal of plaintiff's enhanced risk claim, since, at the conclusion of the opinion, the Court observed that: Recognition of present claims for medical surveillance and emotional distress realistically addresses significant aspects of the present injuries sustained by toxic-tort plaintiffs, and serves as an added deterrent to polluters and others responsible for the wrongful use of toxic chemicals. In our view, these developments in New Jersey law affecting toxic-tort plaintiffs argue persuasively against modification of the reasonable-probability standard in such cases. We therefore will not disturb the trial court's refusal to submit to the jury plaintiff's damage claim based on his enhanced risk of cancer. [Id. at 145, 561 A.2d 257.] Theer, supra, 133 N.J. 610, 628 A.2d 724, is the third New Jersey Supreme Court decision that is relevant to the present appeal. The Court framed the issue of significance there as follows: "whether, in the asbestos context, a plaintiff, in the absence of any manifest asbestos-related condition, can recover as compensatory damages the cost of future medical surveillance to monitor his or her health necessitated by the indirect exposure to asbestos" occasioned by the plaintiff wife's washing the allegedly asbestos-laden clothing of her husband, an asbestos worker whose wrongful death was also a subject of the suit. Id. at 614-15, 628 A.2d 724. At trial, evidence was offered that the wife, a long-term, one pack-per-day smoker, had undergone surgery in 1970 for repair to a mitral heart valve, had been treated in 1981 for pneumonia of the right lung, and had undergone further surgery to remove a rounded atelectasis (an area of collapsed lung tissue) from her right lung. Her experts testified that exposure to asbestos on her husband's clothing had caused the wife's lung mass and increased her risk of developing lung cancer. Medical surveillance was recommended. Defendant's experts were of the opinion that the mass was the result of pleural thickening from the pneumonia. Id. at 615-16, 628 A.2d 724. In response to special interrogatories, the jury found that the wife did not have an asbestos-related injury. As a result, the court did not permit the jury to reach the wife's medical surveillance claim. Id. at 616, 628 A.2d 724. On appeal, we determined that, in light of Ayers, the trial court had incorrectly held that the wife had to prove that she had contracted an asbestos-related injury in order to recover damages for medical surveillance, and we remanded the matter for a determination of the medical surveillance claim. 259 N.J.Super. at 49-50, 611 A.2d 148. The Supreme Court disagreed, and reversed. In doing so, it acknowledged that, in Ayers, it had "specifically recognized plaintiffs' right to recover the cost of periodic medical examinations `notwithstanding the fact that the extent of plaintiffs' impaired health [was] unquantified.'" 133 N.J. at 626, 628 A.2d 724 (quoting Ayers, supra, 106 N.J. at 606, 525 A.2d 287). It also recognized that in Mauro it had concluded that a worker who experienced pleural thickening attributable to exposure to asbestos could, if he met the standards set forth in Ayers, recover the cost of medical surveillance necessitated by the increased risk of cancer, noting that "`[e]xposure to toxic chemicals may sustain a claim for medical surveillance damages under the criteria set forth in Ayers.'" Ibid. (quoting Mauro, supra, 116 838 N.J. at 138, 561 A.2d 257). As to Mauro himself, the Theer Court observed that he "had been directly and extensively exposed to asbestos. As a consequence, he suffered a condition that was directly caused by asbestos, and the risk to his health from cancer was distinctively attributable to the exposure to asbestos." Ibid. Medical surveillance damages were thus recognized in Mauro as available. However, the Theer Court then stated that medical surveillance damages constituted a special compensatory remedy designed to address the unique harm entailed in an increased risk of future injury arising from the exposure to toxic chemicals. It is not easily invoked. The remedy in Ayers was fashioned to help a class of person who had been victimized by a public entity. The feasibility of developing a fund to provide limited compensation was a relevant consideration. Because persons may often be exposed to toxic chemicals in a product-liability context, we recognize the soundness of Mauro, which, in a limited context, extends the Ayers cause of action to plaintiffs who have suffered increased risk of cancer when directly exposed to a defective or hazardous product like asbestos, when they have already suffered a manifest injury or condition caused by that exposure, and whose risk of cancer is attributable to the exposure. [Id. at 627, 628 A.2d 724.] Because Mrs. Theer was only indirectly exposed to asbestos, the Court found that it was "impossible to approximate or to quantify the extent to which she may have encountered the substance." Ibid. She "did not suffer from any injury or condition clearly related to asbestos exposure." Ibid. Further, the Court observed that she was a heavy smoker. "Thus," it concluded, "there may be multiple factors that contribute to any future injuries that she may have. . . . Plaintiff's indirect and hence less tangible exposure to asbestos, when coupled with her chronic smoking, make it difficult to determine if there is a direct correlation between the asbestos exposure and future medical costs." Id. at 627-28, 628 A.2d 724. On this basis, the Court determined that medical surveillance damages "are not available for plaintiffs [such as Theer] who have not experienced direct and hence discrete exposure to a toxic substance and who have not suffered an injury or condition resulting from that exposure and whose risk of cancer cannot be limited and related specifically and tangibly to that exposure." Id. at 627-28, 628 A.2d 724. To what extent Theer modifies Ayers is a significant issue in the present appeal. In her opinion explaining the basis for her dismissal of plaintiffs' claims, the motion judge observed: It is important to note that if only the Ayers test were to be applied here, the [defendant's] motion would have to be denied. Accepting the pleadings as true, every element of the Ayers test would be satisfied and thus the claim would be appropriate. In determining that medical monitoring is not available in this particular case, the court is ruling that Ayers, as clarified by Theer, was not meant to extend to all products liability actions and should be limited rather than expanded. Although evidence may prove the judge to be correct that a medical monitoring remedy should not be recognized in connection with Vioxx exposure, we do not read Theer as dictating that result without analysis of the scientific and other evidence relevant to plaintiffs' claims. II. On appeal from the dismissal of plaintiffs' complaint in the present matter, 839 the parties focus much of their argument on the significance of the fact that neither of the named plaintiffs has alleged a presently cognizable injury. Plaintiffs claim that the absence of physical manifestations of their exposure to Vioxx is immaterial, since that exposure by ingestion is otherwise fully documented through prescription and other medical records. Merck claims that the absence is fatal to plaintiffs' claims, not only because Mauro and Theer demand that evidence, but also because it is required as a condition to suit under the Product Liability Act. N.J.S.A. 2A:58C-2. It is uncontestable that evidence of "an injury or condition," Theer, supra, 133 N.J. at 628, 628 A.2d 724, resulting from the exposure to the toxin at issue, is required in an action by a plaintiff, exposed to other confounding toxins, who is seeking medical surveillance damages as the result of secondary exposure to the toxin at issue. However, despite the language of Theer, it is far less clear to us that the Supreme Court would necessarily require such evidence in a direct exposure case when, as here, the existence of exposure, dose and duration can be determined otherwise. In analyzing this issue, we find certain facts to be significant. We note that the "injury" to plaintiff in Mauro consisted of pleural thickening that did not affect his physical condition or lung function. We note further that the $7,500 awarded to Mauro was not allocated between his three causes of action. For that reason, any conclusion by us that the physical "injury" suffered by Roger Mauro was deemed by the jury to be compensable would constitute sheer speculation.[5] Moreover, we note our conclusion in Mauro that "[w]hile plaintiff here suffers from a present disease, his enhanced risk of cancer claim . . . is based on a `separate and distinct disease process.'" Mauro, supra, 225 N.J.Super. at 205, 542 A.2d 16 (quoting Devlin, supra, 202 N.J.Super. at 568, 495 A.2d 495). Thus, it is not clear what the significance of Mauro's pleural thickening was to the jury's undifferentiated award of compensation in his case or to the Theer Court's discussion of the necessity of a manifested injury or condition for recovery by plaintiff there on her claim of secondary exposure. Plaintiffs have argued that the fact of injury to Mauro was significant only to the Court's analysis of his claims for emotional distress and to its conclusion that "although we need not and do not reach the question whether exposure to toxic chemicals without physical injury would sustain a claim for emotional-distress damages based on a reasonable fear of future disease, such a damage claim is clearly cognizable where, as here, plaintiff's exposure to asbestos has resulted in physical injury." Mauro, supra, 116 N.J. at 137, 561 A.2d 257. Support for plaintiffs' view can be derived from the fact of the Court's brief mention of the medical monitoring issue, which was limited to a recitation of the Court's holding in Ayers on that issue. Mauro, supra, 116 N.J. at 136-37, 561 A.2d 257 (quoting Ayers, supra, 106 N.J. at 606, 525 A.2d 287) and 138, 561 A.2d 257. Indeed, as we have previously observed, it does not appear that an issue relating to compensation for medical monitoring was raised before the Mauro Court. It is certainly possible that Mauro's pleural thickening was viewed by the Theer Court only as a "marker"[6] of asbestos 840 exposure, providing assurance to it of a reasonably close association between exposure to the toxin and the enhanced risk of contracting an asbestos-related type of cancer or other disease. It is noteworthy in this connection that the Theer Court did not describe Mauro as "injured," but instead stated that as a consequence of his direct and extensive exposure to asbestos, Mauro suffered "a condition" that was "directly caused by asbestos," and then concluded from that fact that "the risk to his health from cancer was distinctively attributable to the exposure to asbestos." 133 N.J. at 626, 628 A.2d 724. If the Court viewed Mauro's pleural thickening as a marker for asbestos exposure, then it is reasonable to assume that other evidence demonstrating exposure can be substituted for the "injury or condition" (id. at 627, 628 A.2d 724) evidenced in Mauro. The Court's rationale for denying compensation to Theer's secondarily-exposed wife for medical monitoring expense turned on the absence of a clear causal relationship between any prospective injury and her alleged asbestos exposure and on the existence of confounding causal agents of future disease. Id. at 627-28, 628 A.2d 724. As the Court observed: "If a plaintiff is exposed to a product in an indirect manner, and, further, has not suffered from any injury or condition relating to that exposure, it becomes increasingly difficult for courts and juries to determine the direct correlation between the indirect exposure and any future risk of injury." Id. at 627, 628 A.2d 724. If a causal relationship can be established by means other than physical evidence of exposure, it appears that the Court's concerns would be met. We recognize as well that asbestos may be relatively unusual, in that exposure to the toxin has been scientifically associated with pleural changes that are identifiable upon x-ray prior to the manifestation of any otherwise demonstrable injury. We do not know at this stage of the litigation whether the UMIs at issue here are, similarly, markers of Vioxx exposure. If that is the case, then it can be argued, in light of Mauro, that plaintiffs' medical monitoring claim is premature, and that it must await the manifestation of the marker. On the other hand, it is equally possible that UMIs cannot be classified as analogous to the pleural plaques that are indicative of asbestos exposure, and that physical evidence of Vioxx exposure is simply nondetectable by reasonably available and affordable scientific means. We assume such a circumstance exists in connection with a myriad of toxic substances, and therefore hesitate to adopt a bright-line test that would make the availability of medical monitoring dependent on the existence of a manifested disease or condition, alone. "[A]t what stage in the evolution of a toxic injury should tort law intercede by requiring the responsible party to pay damages," Ayers, supra, 106 N.J. at 579, 525 A.2d 287; Mauro, supra, 116 N.J. at 132, 561 A.2d 257, is a public policy issue that can be resolved only by consideration of multiple factors. Our view is bolstered by the fact that the plaintiffs in Ayers did not assert claims 841 for present illnesses that they posited were caused by their exposure to toxins in their well water, 106 N.J. at 577, 587, 525 A.2d 287, and their case was deemed a "presymptom" one.[7]Id. at 604, 525 A.2d 287. The legal differences between the environmental tort actions asserted in that case are insufficiently distinguishable from the product liability claims asserted in Mauro to provide a foundation for the argument that the existence of an illness or condition, alone, should dictate the viability of a medical monitoring cause of action when presented in a product liability context. Further, we do not accept the argument that actions arising from exposure to asbestos, as "environmental tort actions" exempt from the Product Liability Act, N.J.S.A. 2A:58C-6 (see Ripa v. Owens-Corning Fiberglas Corp., 282 N.J.Super. 373, 399, 660 A.2d 521 (App.Div.) certif. denied, 142 N.J. 518, 665 A.2d 1111 (1995); Stevenson v. Keene Corp., 254 N.J.Super. 310, 312, 603 A.2d 521 (App.Div.1992), aff'd, 131 N.J. 393, 620 A.2d 1047 (1993)), are closely akin to plaintiffs' actions in Ayers, and that the Court intended that compensation for medical monitoring be limited to such actions. The Court's unqualified categorization in Theer of plaintiff's asbestos exposure claim as a product liability action, 133 N.J. at 627, 628 A.2d 724, and its manifest difference from the pollution claims of the Ayers plaintiffs refute this overly formulaic position. Nor do we find that "toxic chemicals" can be meaningfully distinguished as a matter of law from other injurious products, including allegedly harmful drugs. Further, although cancer may be a more likely result of exposure to the substances at issue in Ayers and the asbestos at issue in Mauro, whereas cardiac injury may be the more likely consequence of ingestion of Vioxx, without medical evidence to explain the significance of that difference, we are unwilling to find it dispositive. In her opinion, the motion judge declined to expand Ayers' recognition of a cause of action for medical monitoring to Vioxx, noting that in Ayers, the remedy was justified by the difficulty of establishing causation and the likelihood that other compensation would not be forthcoming. Additionally, the judge noted that "the need to deter polluters and provide relief to victims who have no legislative remedy isn't present here." Although those factors were discussed in Ayers, the Court did not limit its consideration to them. We decline to do so, as well. Moreover, the relative insignificance of those factors in Mauro suggests that they do not constitute the touchstone of the Court's decisions. The Court observed in Ayers that the availability of compensation for medical monitoring expense was dependent upon the significance and extent of plaintiffs' exposure to the toxins, their toxicity, the seriousness of the diseases for which the exposed plaintiffs were at risk, the level of increased risk presented, and the value of early diagnosis. 106 N.J. at 606, 525 A.2d 287. We are unwilling to sacrifice a consideration of these additional factors to a bright-line test. The Court surely did not intend that ease of application supplant a measured consideration of the merits of a particular claim in light of relevant facts, science and policy. Because the trial court had all the facts before it, the court in Ayers was able to balance the factors that we have listed and to determine that medical surveillance at the expense of Jackson Township 842 was both reasonable and necessary. A trial had occurred that included testimony by medical and other scientific experts, as was also the case in both Mauro and Theer. The Supreme Court in Ayers specifically made its decision on the compensability of medical monitoring expenses dependent on the existence of "reliable expert testimony" that addressed the factors the Court had identified as relevant. 106 N.J. at 606, 525 A.2d 287; see also Theer, supra, 133 N.J. at 626, 628 A.2d 724. Here, we are faced with bare pleadings, and having rejected the bright-line basis for decision advocated by Merck, we lack a factual foundation for making a determination as to what, if any, relief is reasonable and necessary in the circumstances, bearing in mind that the remedy sought be plaintiffs cannot be "easily invoked." Theer, supra, 133 N.J. at 627, 628 A.2d 724. We thus decline to affirm the trial court at this stage and remand the matter for discovery and an evidentiary hearing that can supply a foundation for a determination, as a matter of law, as to the availability of compensation for medical surveillance. A sufficient evidential foundation must be developed so that the factors deemed significant in Ayers, together with other factors specifically relevant to plaintiffs' claims, can be reasonably evaluated.[8] We are cognizant of the Product Liability Act's requirement of "harm," which is defined in relevant part as "personal physical illness, injury or death." N.J.S.A. 2A:58C-1. That requirement, alone, may prove fatal to plaintiffs' claims founded upon the Act.[9] Nonetheless, plaintiffs' pleadings, which we must view indulgently, Smith v. SBC Commc'ns Inc., 178 N.J. 265, 282, 839 A.2d 850 (2004); Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989), do not allege the non-existence of injury, but instead allege that the two named plaintiffs have not filed claims for personal injury from exposure to Vioxx and have not had a diagnostic EKG since commencing to take the drug. Plaintiffs thus must be accorded an opportunity to demonstrate "harm" cognizable under the Product Liability Act before the portions of their suit premised on that Act can be dismissed as legally insufficient. Reversed and remanded. We do not retain jurisdiction. NOTES [1] In an amended complaint Robbie L. Traylor was substituted for Phyllis Sinclair. However, an order modifying the caption has not been entered. [2] N.J.S.A. 2A:58C-1 to -11. [3] N.J.S.A. 56:8-1 to -135. [4] We held that the trial judge had improperly failed to use a special verdict form. 225 N.J.Super. at 211-12 n. 3, 542 A.2d 16. [5] However, the trial court instructed that the jury could award damages to Mauro for emotional distress only if it found that he had sustained an asbestos-related injury. 116 N.J. at 131, 561 A.2d 257. [6] In a number of cases, it has been observed that the association between pleural thickening and asbestos exposure is sufficient to render the condition a marker for exposure. See, e.g., Cimino v. Raymark Indus., Inc., 151 F.3d 297, 303 n. 12 (5th Cir.1998); Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1428 (9th Cir.1991) (pleural plaques); Herber v. Johns-Manville Corp., 785 F.2d 79, 88-89 (3d Cir. 1986); In re Hawaii Fed. Asbestos Cases, 734 F.Supp. 1563, 1566 (D.Hawai'i 1990); Waterman S.S. Corp. v. Aguiar, 200 B.R. 770, 772 (Bankr.S.D.N.Y.1996); Austin v. Abney Mills, 824 So.2d 1137, 1161 (La.2002); Verbryke v. Owens-Corning Fiberglas Corp., 84 Ohio App.3d 388, 616 N.E.2d 1162, 1163 (1992); Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 266 (Tex.App.2006). Courts differ as to whether such conditions are compensable. [7] There was, however, expert testimony suggesting subcellular injury had occurred. Id. at 589 and n. 8, 525 A.2d 287. [8] The Theer Court's requirement that the course of medical monitoring must be "independent of any other that the plaintiff would otherwise have to undergo," 133 N.J. at 627, 628 A.2d 724, is arguably such a factor. [9] In contrast, the Consumer Fraud Act permits recovery only of economic damages, N.J.S.A. 56:8-19; Gennari v. Weichert Co. Realtors, 148 N.J. 582, 612-13, 691 A.2d 350 (1997). A claim for medical monitoring has been characterized as a claim for such damage. Ayers, supra, 106 N.J. at 591, 525 A.2d 287. We do not presently express an opinion as to the viability of plaintiffs' consumer fraud claims.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516095/	913 A.2d 737 (2006) Frederick J. MURRAY v. NEW HAMPSHIRE DIVISION OF STATE POLICE, SPECIAL INVESTIGATION UNIT and another. No. 2006-113. Supreme Court of New Hampshire. Argued: November 14, 2006. Opinion Issued: December 20, 2006. 738 Gallant & Ervin, LLC, of Chelmsford, MA (Timothy J. Ervin, on the brief and orally), for the petitioner. Kelly A. Ayotte, attorney general (Daniel J. Mullen, associate attorney general, on the brief, and Nancy J. Smith, senior assistant attorney general, orally), for the respondents. GALWAY, J. The petitioner, Frederick J. Murray, appeals an order of the Superior Court (Vaughan, J.) denying his request for injunctive and other relief relative to the decisions of the respondents, the New Hampshire Division of State Police, Special 739 Investigation Unit and several other law enforcement agencies and officials, not to disclose records relating to the disappearance of his daughter, Maura Murray. We vacate and remand. The following facts were either found by the trial court or appear in the record and are not disputed by the parties on appeal. On February 9, 2004, Maura Murray's vehicle was reported to have been involved in a single-car accident along Route 112 in Haverhill, New Hampshire. When the North Haverhill police arrived at the scene, they found no trace of Maura. In the nearly three years since her disappearance, numerous agencies and individuals have attempted to locate her without success. After the accident, and through approximately October 2005, the petitioner sent requests to numerous agencies, pursuant to New Hampshire's Right-to-Know Law, RSA ch. 91-A (2001 & Supp. 2006), and the federal Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 (2002) et seq., requesting records and information pertaining to those agencies' investigations into Maura's disappearance. All of the investigatory material is now under the control of the attorney general's office. With a single, minor exception, the attorney general's office has denied all of the petitioner's requests on the grounds that the records are exempt from disclosure because they are investigatory and because disclosure would constitute an unwarranted invasion of privacy. In December 2005, the petitioner filed a petition in superior court requesting, among other things, a declaration that the respondents' denials violated the Right-to-Know Law and FOIA, and an injunction requiring the respondents to release the requested documents. In January 2006, the trial court ruled that the requested records were investigatory in nature and that disclosure could interfere with law enforcement proceedings. It therefore denied the petitioner's requests. Additionally, the trial court did not find either an in camera review or the compilation of a Vaughn index necessary. See Union Leader Corp. v. N.H. Housing Fin. Auth., 142 N.H. 540, 548-551, 705 A.2d 725 (1997) (explaining the attributes of a Vaughn index). The trial court did not address the petitioner's contention that disclosing the documents would not constitute an invasion of privacy. On appeal, the petitioner contends that the trial court erred in finding that the requested records were investigatory in nature and that disclosure could interfere with law enforcement proceedings. The petitioner also contends that disclosing the records would not constitute an invasion of privacy. Finally, the petitioner argues that the trial court erred in denying his request for in camera review or the compilation of a Vaughn index. "The interpretation of a statute, including the Right-to-Know Law, is to be decided ultimately by this court." N.H. Challenge v. Commissioner, N.H. Dep't of Educ., 142 N.H. 246, 249, 698 A.2d 1252 (1997) (quotation omitted). "The superior court's legal conclusions and its application of law to fact are ultimately questions for this court." Id. Thus, in the absence of disputed facts, we review the trial court's ruling de novo. Union Leader Corp. v. City of Nashua, 141 N.H. 473, 476, 686 A.2d 310 (1996). "The purpose of the Right-to-Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 438, 821 A.2d 1014 (2003) (quotation omitted). Thus, the 740 Right-to-Know Law helps further our state constitutional requirement that the public's right of access to governmental proceedings and records shall not be unreasonably restricted. Id.; see also N.H. CONST. pt. I, art. 8. While the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right-to-Know Law with a view to providing the utmost information in order to best effectuate the statutory and constitutional objective of facilitating access to all public documents. Id. Therefore, we construe provisions favoring disclosure broadly, while construing exemptions narrowly. Id. "We also look to the decisions of other jurisdictions, since other similar acts, because they are in pari materia, are interpretatively helpful, especially in understanding the necessary accommodation of the competing interests involved." N.H. Housing Fin. Auth., 142 N.H. at 546, 705 A.2d 725 (quotation omitted). Finally, when a public entity seeks to avoid disclosure of material under the Right-to-Know Law, that entity bears a heavy burden to shift the balance toward nondisclosure. City of Nashua, 141 N.H. at 476, 686 A.2d 310. Because the respondents make no argument to the contrary, we presume for purposes of this appeal that all respondents are subject to the disclosure requirements of the Right-to-Know Law. Our Right-to-Know Law does not explicitly address requests for police investigative files, such as those at issue here. Id. at 475, 686 A.2d 310. In Lodge v. Knowlton, 118 N.H. 574, 391 A.2d 893 (1978), therefore, we adopted the six-prong test under FOIA for evaluating requests for access to police investigative files. Under FOIA, an agency may exempt from disclosure: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. . . . 5 U.S.C. § 552(b)(7). Because the trial court based its decision upon exemption (A) above, regarding interference with enforcement proceedings, we first consider the application of that exemption. The entity resisting disclosure under exemption (A) must initially show that the requested documents are: (1) investigatory; and (2) compiled for law enforcement purposes. Lodge, 118 N.H. at 576-77, 391 A.2d 893. The petitioner does not challenge the trial court's findings that the requested documents are investigatory in nature and that they were complied for law enforcement purposes. Accordingly, we conclude that the respondents have met their initial burden. 741 We next consider whether exemption (A) in fact applies. As noted, we construe provisions favoring disclosure broadly, while construing exemptions narrowly. N.H. Civil Liberties Union, 149 N.H. at 438, 821 A.2d 1014. The key question in the analysis is whether revelation of the documents could reasonably be expected to interfere with enforcement proceedings. Curran v. Dept. of Justice, 813 F.2d 473, 474 (1st. Cir.1987). While an agency must show that enforcement proceedings are pending or reasonably anticipated, see Mapother v. Dept. of Justice, 3 F.3d 1533, 1540 (D.C.Cir.1993); see also NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 232, 98 S. Ct. 2311, 57 L. Ed. 2d 159 (1978), we need not determine whether the respondents have made such a showing here. Assuming, without deciding, that enforcement proceedings are reasonably anticipated, we hold that the respondents have not met their burden to demonstrate that disclosure of the requested documents could reasonably be expected to interfere with those proceedings. Exemption (A) was designed to eliminate "blanket exemptions" for government records simply because they were found in investigatory files compiled for law enforcement purposes. Curran, 813 F.2d at 475. "Put another way, merely because a piece of paper has wended its way into an investigative dossier created in anticipation of enforcement action, an agency . . . cannot automatically disdain to disclose it." Id. Since an agency may not rely on a blanket exemption, it must meet a minimum threshold of disclosure in order to justify its refusal to disclose. Id. The agency is not required, however, to justify its refusal on a document-by-document basis. Id. While an in camera review or the preparation of a Vaughn index may be sufficient to justify an agency's refusal to disclose, such measures are also not necessarily required. See id. (noting that use of a Vaughn index is not practicable in cases involving exemption (A)). In cases such as this one, generic determinations of likely interference often will suffice. Id.; see also Robbins Tire, 437 U.S. at 236, 98 S. Ct. 2311. When generic determinations are used, the withholding "should be justified category-of-document by category-of-document not file-by-file." Curran, 813 F.2d at 475 (quotation and ellipses omitted); see also Crooker v. Bureau of Alcohol, Tobacco & Firearms, 789 F.2d 64, 66-67 (D.C.Cir.1986). The categorization should be clear enough to permit a court to ascertain how each category of documents, if disclosed, could interfere with the investigation. Curran, 813 F.2d at 475. The categories must be distinct enough to allow meaningful judicial review, yet not so distinct as to reveal the nature and scope of the investigation. Id. In order to provide some guidance to trial courts attempting to apply this standard, we emphasize two points made in the Curran decision. First, the Curran Court provided some examples of types of categories which, because coupled with careful explanation to the trial court as to how interference with enforcement proceedings could occur, satisfied the aforementioned principles. These categories included: "details regarding initial allegations giving rise to th[e] investigation; interviews with witnesses and subjects; investigative reports furnished to the prosecuting attorneys; contacts with prosecutive attorneys regarding allegations, subsequent progress of investigations, and prosecutive opinions. . . ." Curran, 813 F.2d at 476. Second, in the case of one-of-a-kind records, Curran would not preclude application of the exemption if an enforcement agency made limited use of a "miscellaneous" category to avoid having to set forth a precise *742 and potentially compromising description of the record(s). See id. Prior to the hearing on this matter, the respondents disclosed a one-page document delineating twenty categories of information contained within their investigative files. The record reveals that the trial court made no findings or rulings regarding the sufficiency of these categories. Based upon our review, we hold that the respondents' categories do not meet the requirements of the Right-to-Know Law. The respondents' categories include, for example, the broad terms "photographs," "correspondence (letters and e-mails)," "maps and diagrams" and "tax records," without any annotations or explanations. While additional explanation might have allowed the respondents to meet their burden, see, e.g., Curran, 813 F.2d at 476 (government's categorization was sufficient because it was accompanied by a declaration carefully explaining how the release of documents in the various categories would interfere with enforcement proceedings), the respondents offered no affidavits, testimony, or other evidence which, for example: (1) defined these categories more precisely; (2) explained how disclosure of the information within these categories could interfere with any investigation or enforcement; or (3) explained why "there was no reasonably segregable portion of any of the withheld material suitable for release. . . ." Curran, 813 F.2d at 476 (quotation omitted). Accordingly, we conclude that the respondents have not met their burden to demonstrate how disclosure of the requested documents could reasonably be expected to interfere with any investigation or enforcement proceedings. The respondents point out that during the hearing in the superior court, it supplied witnesses who could have been, but were not, cross-examined by the petitioner. The fact that witnesses could have testified to certain things on cross-examination would not, however, have fulfilled the respondents' obligation. Under the Right-to-Know Law, the respondents bear the burden of demonstrating why the requested information should not be disclosed. See City of Nashua, 141 N.H. at 476, 686 A.2d 310; cf. Curran, 813 F.2d at 473-74. It is not the petitioner's responsibility to clarify the respondents' vague categorizations, nor should the petitioner be penalized for failing to do so. Accordingly, because the respondents have not met their burden to justify withholding the requested documents, we remand the matter for a new hearing. On remand, if the respondents continue to resist disclosure, they must make a presentation that will allow the superior court to determine how disclosure of the requested information could interfere with an ongoing investigation or enforcement proceedings. Crooker, 789 F.2d at 67. Given the disposition of this appeal, we need not consider the petitioner's privacy argument. Vacated and remanded. BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516094/	335 S.W.2d 46 (1960) Jesse Elbert HOOVER, Appellant, v. Edward Vincent DENTON, Respondent. No. 47539. Supreme Court of Missouri, Division No. 2. May 9, 1960. Thaine Q. Blumer, Kansas City, and Alan B. Slayton, Independence, for appellant. Reed O. Gentry, Gene C. Morris, Kansas City, Rogers, Field, Gentry & Jackson, Kansas City, of counsel, for respondent, Edward Vincent Denton. EAGER, Judge. This case comes here upon a much abbreviated record and on one point of law. The lawyers are to be commended for their forthrightness. We shall refer to the parties as they appeared below. The suit 47 was for personal injuries sustained by plaintiff when his car and defendant's truck collided on Highway 24 in Jackson County, about 8:00 p. m. on January 27,1957. Plaintiff was going east, defendant west. While various claims of negligence were pleaded, pro and con, the ultimate issue of fact in the trial was: Who was partially on the wrong side of the road? Plaintiff was immediately approaching a curve to his left, going downhill, and defendant was coming, or had just come, out of the curve. The evidence here indicates that both plaintiff and defendant were traveling at approximately 40-45 miles per hour, that there was a drizzle, and that the pavement was "damp" or wet. The detailed circumstances are unimportant here. The instructions both on defendant's primary negligence and plaintiff's contributory negligence essentially submitted the issue as to whether the party thus charged with negligence had turned or driven across the center line. On the cross-examination of plaintiff that issue was thoroughly explored. The verdict was for the defendant and, after a motion for new trial which adequately preserved the point raised here, plaintiff appealed. At the end of plaintiff's cross-examination he was asked if he was not charged and convicted in "the Magistrate Court with careless driving, and driving on the wrong side of the road * ." The question was objected to and the objection was overruled, but the point is not preserved here. Plaintiff's answer (after the question was repeated, in substance) was : "Convicted me of careless driving." In defendant's case counsel offered the record of the Magistrate. This was objected to and considerable colloquy ensued. The result was that certain parts of the charge were omitted in the reading of the record, the objection was overruled, and the following was admitted and read: "State of Missouri vs Jesse Elbert Hoover, 804 East Pacific, Independence, Missouri. Before Joseph J. Brady, Sixth Magistrate District, Jackson County, Missouri. The charge is that on or about the 27th day of January, 1957, at the County of Jackson and State of aforesaid, one Jesse Elbert Hoover did then and there unlawfully operate a certain motor vehicle in a careless, imprudent and negligent manner, driving on the wrong side of the road, colliding with another vehicle. On this 20th day of February, 1957, the defendant was brought into court, the information is read in the presence of the defendant and he enters a plea of not guilty. Upon examination on said charge, the witnesses being produced, sworn and examined, and the case submitted, it is adjudged by the Magistrate that the defendant be found guilty." Counsel stated that the record was offered "in impeachment of plaintiff with respect to the credibility of the plaintiff" and as concerning the "nature of the charge." The objections were that the record was unnecessary and prejudicial, plaintiff having already admitted the conviction of careless driving, and particularly so in that it showed a conviction arising out of the very accident in question. The sole question briefed here is the error of the court in admitting the Magistrate's record. The grounds briefed are: that since the record was admissible solely on credibility it was "prejudicial" when used to prove negligence; that the record was "repetitious," and its admission was contrary to the statute. The statute involved is section 491.050 RSMo 1949, V.A. M.S., which is as follows: "Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness ; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer." This statute has been in force for many years. It is held, beyond all question, that convictions for misdemeanors may be shown, as well as those for felonies. Fisher v. Gunn, Mo., 270 S.W.2d 869; Myles v. St. Louis Public Service Co., Mo.App., 52 S.W.2d 595; State v. 48 Blitz, 171 Mo. 530, 71 S.W. 1027. And while initially it seems to have been doubted whether the nature of the offense might be inquired into (State v. Spivey, 191 Mo. 87, 90 S.W. 81), the later cases clearly permit an inquiry sufficient to show the nature of the offense of which the witness has been convicted. Fisher v. Gunn, Mo., 270 S.W.2d 869, 875-876; State v. Gentry, Mo., 212 S.W.2d 63, 64; State v. Ransom, 340 Mo. 165, 100 S.W.2d 294. The logic of that holding is explained in Gentry, supra. We might question the wisdom of permitting the showing of any and all misdemeanor convictions to affect one's credibility, as indeed others have done (State v. Blitz, 171 Mo. 530, 71 S.W. 1027; Fisher v. Gunn, Mo., 270 S.W.2d 869, 876), but the legislature has spoken and we may not rewrite the statute. Essentially, what the plaintiff urges here is that he had admitted the conviction, that the statute permits the impeachment either by cross-examination or by the record but not by both, and that in these circumstances the record of a conviction arising out of this particular accident was inadmissible and highly prejudicial. He cites Fisher, supra, and also, Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89, and Myles v. St. Louis Public Service Co., Mo. App., 52 S.W.2d 595. We cannot see that Fisher, supra, aids plaintiff in this particular. In Stack, supra, the court held that when the witness admitted that he had been convicted of selling liquor on Sunday, the admission made the record inadmissible. The trial court had excluded that record, and others. In Myles, supra, the defendant had admitted a conviction for "fighting" or disturbance of the peace, but denied having been convicted of petit larceny; the State offered the record of such a conviction of a person having a similar name. The court held that it was properly excluded because not sufficiently connected up with the defendant. In the course of the opinion, however, the court said, 52 S.W.2d loc. cit. 598: "If the record had been otherwise admissible in evidence, it would have been so for the very reason that plaintiff did deny the conviction shown therein. Where the witness admits the conviction regarding which he is interrogated, the record of that conviction becomes inadmissible, for there is then no longer any occasion for an impeachment of his testimony. Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89. Rather it is where the witness denies the previous conviction that the record thereof becomes admissible, for under the statute his denial is not binding on the party making the inquiry, and resort may then be had to the best evidence of the conviction of the witness, which is the record of the court itself. State v. Sovern, 225 Mo. 580, 591, 125 S.W. 769, 773." There are cases which use language so broad as to indicate that possibly both means of impeachment might be used. State v. Kennedy, 207 Mo. 528, 106 S.W. 57; State v. Spivey, 191 Mo. 87, 90 S.W. 81. The statute is worded in the alternative, although this is not necessarily conclusive. We hold that if the witness (defendant or otherwise) fully and unqualifiedly admits the conviction, including the nature thereof if inquired about, then the record becomes inadmissible. This is true, if for no other reason, because the record has then become surplusage and it is repetitious. The witness' credibility has already been impeached. If the witness evades or equivocates (State v. Brown, Mo., 165 S.W.2d 420; State v. Barnholtz, Mo., 287 S.W.2d 808) the record should be received. If he denies the conviction, the record should be received. And, in the first instance, the party opposing the witness may elect which route he will take,cross-examination or proof by the record. We must consider now the nature of plaintiff's answer. He admitted a conviction of "careless driving"; he did not admit being convicted of driving on the wrong side of the road. The next inquiry must be: Is the latter any material part of the charge here? Plaintiff says it is not and that it is mere surplusage. So 49 far as the issues in this case were concerned it was a highly material matter, in fact. The statute from which the "careless and reckless" charges are derived is section 304.010 RSMo 1949, V.A.M.S. It provides in part: "Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, * ." It states nothing about the right or wrong side of the road. But section 304.015, subd. 2 (Laws 1953, p. 587, 1957 Cum.Sup.) provides that a vehicle shall be driven on the right half of the roadway, with certain exceptions not applicable here. The penalty section (section 304.570) applies to violations of any and all provisions of Chapter 304 for which no specific punishment is provided. It thus appears that driving on the wrong side of the road may either be considered as a specific violation of § 304.015, subd. 2, or it may be considered as a factual allegation to support a careless driving charge under § 304.010. In State v. Ball, Mo.App., 171 S.W.2d 787, 789, the allegations in an information charged that the defendant drove in a careless and reckless manner by failing to keep his car "as close to the right-hand side of said highway as practicable * * and by weaving said motor vehicle back and forth on said highway, * * ." It was held that these factual allegations constituted a part of the careless and imprudent driving charge (§ 8383 RS 1939, which has now been replaced by section 304.010, supra) and that they also alleged a violation of the then section 8385(b) RS 1939, known as the Rules of the Road. The latter section (later section 304.020 RS 1949, V.A.M.S.) has now been repealed (Laws 1953, p. 587), and replaced generally by section 304.015 (Cum.Sup.1957, and Laws 1953, p. 587), which requires that vehicles shall be driven on the right half of a highway, with exceptions not applicable here. Thus a charge that plaintiff was "driving on the wrong side of the road, colliding with another vehicle" was actually a specification under the "careful and prudent" section (304.010) and the charge of a violation under section 304.015, supra. See, also, State v. Reynolds, Mo.App., 274 S.W.2d 514, 516, where it was held that an information charging generally that the defendant drove "in a careless, reckless and imprudent manner * *" was bad for failure to state the facts constituting the offense, because it did not show defendant what he was required to answer. The court there said in part, loc. cit. 516: "If the information had said that defendant operated his car in a careless and imprudent manner in that he was driving at a high rate of speed or was operating it on the wrong side of the road or that he was failing to keep it as near the right-hand side of the road as practicable or any of the other requirements of the statute, and, by so doing, he endangered the property of another or the life or limb of any person, the information would have charged an offense under the law. As the information stands it merely pleads conclusions of law." We conclude here that the allegation that plaintiff was driving on the wrong side of the road was a material part of the charge, and that, to this extent, plaintiff failed to admit the conviction; perhaps, to be more specific, we should say that he did not admit fully the nature of the charge and the conviction. Under these circumstances, we hold that the record was properly admitted. In view of the foregoing, we need not consider the asserted curative effect of Instruction 4 which limited the scope of this evidence to the question of credibility; nor need we consider whether the admission of this record actually added any prejudice to what had already transpired. This we doubt, but do not rule. Finding no error, the judgment is affirmed. LEEDY, P. J., STORCKMAN, J., and ELMO B. HUNTER, Special Judge, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516191/	913 A.2d 428 (2007) 281 Conn. 147 STATE of Connecticut v. Tarrance LAWRENCE. No. 17598. Supreme Court of Connecticut. Argued November 21, 2006. Decided January 30, 2007. 430 Donald D. Dakers, special public defender, for the appellant (defendant). Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state). BORDEN, NORCOTT, KATZ, PALMER and ZARELLA, Js. KATZ, J. The defendant, Tarrance Lawrence, appeals, following our grant of certification,[1] from the judgment of the Appellate Court affirming the judgment of the trial court dismissing his motion to correct an illegal sentence, filed pursuant to Practice Book § 43-22,[2] based on the Appellate Court's determination that the trial court lacked jurisdiction to consider the motion. State v. Lawrence, 91 Conn.App. 765, 766-67, 882 A.2d 689 (2005). The issue before us is whether § 43-22 is an appropriate procedural vehicle by which to challenge an allegedly improper conviction or whether, as a result of the finality of the defendant's conviction, the trial court is without jurisdiction to entertain his claim. We conclude that the Appellate Court properly determined that, because the defendant's claim did not fall within the purview of § 43-22, the trial court lacked jurisdiction. Accordingly, we affirm the judgment of the Appellate Court. The Appellate Court opinion sets forth the following undisputed facts. "The defendant was charged with one count each of murder in violation of General Statutes § 53a-54a(a), carrying a pistol without a permit in violation of General Statutes [Rev. to 1995] § 29-35 and tampering with evidence in violation of General Statutes § 53a-155(a)(1). The murder charge alleged that the defendant caused the death of a person by use of a firearm. At trial, the defendant presented a defense of extreme emotional disturbance with respect to the murder charge. The court instructed the jury regarding that defense with the following instruction as the defendant had requested: `If you unanimously find that the state has proven each of said elements of the crime of murder beyond a reasonable doubt, and if you also unanimously find that the defendant has proven by the preponderance of the evidence each of the elements of the affirmative defense of extreme emotional disturbance, you shall find the defendant guilty of manslaughter in the first degree with a firearm by reason of extreme emotional disturbance and not guilty of murder.' The jury subsequently found the defendant guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a) as well as guilty on the other two counts with which he had been charged. The court rendered judgment in accordance with the verdict and sentenced 431 the defendant to thirty-five years on the count of manslaughter in the first degree with a firearm, two years on the count of carrying a pistol without a permit and three years on the count of tampering with evidence. All sentences were to run concurrently, resulting in a total effective sentence of thirty-five years incarceration. The defendant appealed from his conviction on grounds unrelated to his present claim,[3] and [the Appellate Court] affirmed the judgment. State v. Lawrence, 67 Conn.App. 284, 786 A.2d 1227 (2001), cert. denied, 259 Conn. 919, 791 A.2d 567 (2002). "The defendant subsequently filed in the trial court a motion to correct an illegal sentence pursuant to Practice Book § 43-22, in which he claimed that his conviction for manslaughter in the first degree with a firearm was improper; he asserted that because the jury had acquitted him of murder on the basis of the affirmative defense of extreme emotional disturbance, the proper conviction should have been of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(2). The maximum sentence for manslaughter in the first degree is twenty years incarceration; see General Statutes § 53a-35a(5); and, therefore, the defendant, in his motion, requested that the court refer the matter to the sentencing judge. The court, after considering the defendant's claims and the relief requested, dismissed the defendant's motion for lack of jurisdiction." State v. Lawrence, supra, 91 Conn. App. at 767-68, 882 A.2d 689. In his appeal to the Appellate Court from the judgment of dismissal, the defendant claimed that he improperly had been convicted of manslaughter in the first degree with a firearm, and that, had he properly been convicted of manslaughter in the first degree, his sentence of imprisonment could not have exceeded twenty years. According to the defendant, because he was sentenced to thirty-five years imprisonment, his sentence exceeded the statutory maximum permitted under the sentencing statute and he properly invoked the jurisdiction of the court, pursuant to § 43-22; see footnote 2 of this opinion; to correct that illegal sentence. Thus, the defendant's claim in essence challenged the propriety of the underlying conviction. The question the Appellate Court resolved, therefore, was whether "§ 43-22 is an appropriate procedural vehicle by which to challenge an allegedly improper conviction or whether the finality of the defendant's conviction, subject to any collateral challenges the defendant may raise via a petition for a writ of habeas corpus, has left the court without jurisdiction to entertain his claim." State v. Lawrence, supra, 91 Conn.App. at 769, 882 A.2d 689. The Appellate Court determined that the trial court properly had concluded that it did not have jurisdiction pursuant to § 43-22 and, accordingly, affirmed the trial court's judgment dismissing the defendant's motion to correct an illegal sentence.[4] Id., at 776, 882 A.2d 689. This certified appeal followed. 432 The defendant claims before this court that, because his conviction is illegal, his sentence is necessarily illegal and, therefore, his claim falls within the purview of § 43-22. The state responds that, because the defendant is challenging what transpired at trial, his claim does not fall within § 43-22. We agree with the state. We again rely on the Appellate Court's opinion for its discussion of the well established principles of jurisdiction guiding our resolution of this issue. "Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created. Connecticut State Employees Assn., Inc. v. Connecticut Personnel Policy Board, 165 Conn. 448, 456, 334 A.2d 909 (1973); see Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 73, 540 A.2d 59 (1988) (Shea, J., concurring). Article fifth, § 1 of the Connecticut constitution proclaims that [t]he powers and jurisdiction of the courts shall be defined by law, and General Statutes § 51-164s provides that [t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. . . . State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). The Superior Court is a constitutional court of general jurisdiction. . . . In the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. . . . State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 85 (1994). "It is well established that under the common law a trial court has the discretionary power to modify or vacate a criminal judgment before the sentence has been executed. . . . This is so because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence. . . . Id., at 431-32, 646 A.2d 85. There are a limited number of circumstances in which the legislature has conferred on the trial courts continuing jurisdiction to act on their judgments after the commencement of sentence. . . . See, e.g., General Statutes §§ 53a-29 through 53a-34 (permitting trial court to modify terms of probation after sentence is imposed); General Statutes § 52-270 (granting jurisdiction to trial court to hear petition for a new trial after execution of original sentence has commenced); General Statutes § 53a-39 (allowing trial court to modify sentences of less than three years provided hearing is held and good cause shown). . . . State v. Boulier, 49 Conn.App. 702, 705, 716 A.2d 134 (1998). Without a legislative or constitutional grant of continuing jurisdiction, however, the trial court lacks jurisdiction to modify its judgment. State v. Luzietti, supra, 230 Conn. at 431, 646 A.2d 85." (Internal quotation marks omitted.) State v. Lawrence, supra, 91 Conn.App. at 769-71, 882 A.2d 689. The defendant does not dispute that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun and that a court may not take action affecting a defendant's sentence unless it expressly has been authorized to act. See State v. Reid, 277 Conn. 764, 775, 894 A.2d 433 963 (2006) ("In a criminal case the imposition of sentence is the judgment of the court. . . . When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates." [Internal quotation marks omitted.]); Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001) ("[t]his court has held that the jurisdiction of the sentencing court terminates once a defendant's sentence has begun, and, therefore, that court may no longer take any action affecting a defendant's sentence unless it expressly has been authorized to act"). The defendant further acknowledges that there is no legislative or constitutional grant of continuing jurisdiction to give the trial court power to consider the defendant's claim in the present case. He therefore relies on a common-law exception to this rule, embodied in § 43-22, allowing the trial court to correct an illegal sentence. See State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 ("[b]oth the trial court and [the Supreme Court], on appeal, have the power, at any time, to correct a sentence that is illegal"), after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). We reject the defendant's claim. "Practice Book rules do not ordinarily define subject matter jurisdiction. General Statutes § 51-14(a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings. . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts." (Internal quotation marks omitted.) State v. Carey, supra, 222 Conn. at 307, 610 A.2d 1147. Because the judiciary cannot confer jurisdiction on itself through its own rule-making power, § 43-22 is limited by the common-law rule that a trial court may not modify a sentence if the sentence was valid and its execution has begun. See Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). Therefore, for the trial court to have jurisdiction to consider the defendant's claim of an illegal sentence, the claim must fall into one of the categories of claims that, under the common law, the court has jurisdiction to review. See State v. Luzietti, supra, 230 Conn. at 431, 646 A.2d 85 ("In the absence of statutory or constitutional provisions, the limits of [the trial court's] jurisdiction are delineated by the common law. Cichy v. Kostyk, 143 Conn. 688, 690, 125 A.2d 483 [1956]."). Accordingly, we examine the categories previously recognized under the common law, beginning with State v. McNellis, 15 Conn.App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), wherein an articulation of the meaning of the term "illegal sentence" first appeared.[5]McNellis explained, summarizing our jurisprudence on this issue, that "[a]n `illegal sentence' is essentially one 434 which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory. See 8A J. Moore, Federal Practice [(2d Ed.1984)] para. 35.03[2], pp. 35-35 through 35-36." State v. McNellis, supra, at 443-44, 546 A.2d 292. In accordance with this summary, Connecticut courts have considered four categories of claims pursuant to § 43-22. The first category has addressed whether the sentence "was within the permissible range for the crimes charged." State v. Davis, 190 Conn. 327, 335, 461 A.2d 947, cert. denied, 464 U.S. 938, 104 S. Ct. 350, 78 L. Ed. 2d 315 (1983); see State v. Shipp, 79 Conn.App. 427, 434, 830 A.2d 368 (fine imposed for improper use of license plate or marker exceeded statutory limit for monetary fine pursuant to General Statutes § 14-147[c]), cert. denied, 267 Conn. 902, 838 A.2d 212 (2003). The second category has considered violations of the prohibition against double jeopardy. See State v. Cator, 256 Conn. 785, 804, 781 A.2d 285 (2001) (motion to correct proper when defendant is sentenced for murder and felony murder); State v. Mitchell, 37 Conn.App. 228, 231-33, 655 A.2d 282 (1995) (on direct appeal, sentence illegal when defendant sentenced to multiple punishments for same offense contrary to General Statutes § 53a-40 [h]). The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. See State v. Banks, 59 Conn.App. 145, 147-50, 763 A.2d 1046 (2000) (considering motion to correct claiming that General Statutes § 53a-37 did not authorize trial court to impose concurrent sentences for criminal contempt and criminal offense). The fourth category has involved questions as to which sentencing statute was applicable. See State v. Barksdale, 79 Conn.App. 126, 138, 829 A.2d 911 (2003) (defendant imprisoned for twenty years was "sentenced illegally under [General Statutes] § 53a-71 [a][1] because at the time he committed the assault [in 1998], the violation of § 53a-71 [a][1] was a class C felony for which the maximum period of incarceration was ten years"). Although our courts previously have considered on several occasions the merits of a decision on a motion to correct an illegal sentence, the specific issue of whether a particular claim fell within the purview of an illegal sentence, and, accordingly, whether the trial court had jurisdiction to rule on a motion to correct an illegal sentence, has arisen in only a few cases. In State v. Cator, supra, 256 Conn. at 803, 781 A.2d 285, after the defendant had been convicted and sentenced for murder and felony murder, upon the state's motion to correct the sentence, the trial court concluded that the original sentence violated the defendant's double jeopardy rights and, accordingly, pursuant to § 43-22, corrected the sentence, merging the convictions and vacating one of the sentences pursuant to State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). On appeal, the defendant sought review of his double jeopardy claim and contended that the trial court did not have jurisdiction to correct his sentence because he had begun serving the sentence. State v. Cator, supra, at 803, 781 A.2d 285. This court held that "the trial court had jurisdiction to [correct] the sentence pursuant to Practice Book § 43-22, because otherwise the constitutional prohibition against double jeopardy would have been violated."[6] Id., at 804-805, 781 A.2d 285. 435 In State v. Mollo, 63 Conn.App. 487, 488-89, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001), the defendant claimed that the trial court improperly had dismissed for lack of subject matter jurisdiction his motion to correct his sentence, asserting that his sentence was illegal because of a defect in the factual basis of his plea. The Appellate Court rejected the defendant's claim, reasoning that the sentence imposed was valid on its face and did not fall within any of the four categories of claims that the courts have recognized under § 43-22. Id., at 491, 776 A.2d 1176. The court held that it "view[s] the relief allowed by . . . § 43-22 to require, as a precondition, a valid conviction. The purpose of . . . § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition, or one imposed or made in an illegal manner." Id. Accordingly, the Appellate Court concluded that the trial court properly had determined that it lacked jurisdiction over the defendant's motion. Id., at 492, 776 A.2d 1176. Reading these cases together, it is clear that a challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack. In the present case, the defendant's claim, by its very nature, presupposes an invalid conviction. The defendant does not claim, nor could he, that the sentence he received exceeded the maximum statutory limits prescribed for the crime for which he was convicted; rather, he claims that he should have been convicted of a crime that has a lesser maximum statutory limit. He also does not claim that he was denied due process at his sentencing hearing[7] or that his sentence is ambiguous or internally contradictory. See Cobham v. Commissioner of Correction, supra, 258 Conn. at 38, 779 A.2d 80. If the defendant's claim were to fall into any of those categories, § 43-22 would be the proper vehicle by which he could invoke the trial court's jurisdiction. Because the defendant's claim falls outside that set of narrow circumstances in which the court retains jurisdiction over a defendant once that defendant has been transferred into the custody of the commissioner of correction to begin serving his sentence, the court lacks jurisdiction to consider the claim pursuant to a motion to correct an illegal sentence under § 43-22. Accordingly, we conclude that the Appellate Court properly decided that the trial court's determinations that the defendant's sentence was not subject to review pursuant to a § 43-22 motion to correct an illegal sentence and that it lacked the jurisdiction to review the defendant's attack on the underlying conviction were correct. The judgment of the Appellate Court is affirmed. In this opinion the other justices concurred. NOTES [1] We granted the defendant's petition for certification to appeal from the judgment of the Appellate Court, limited to the following issue: "Did the Appellate Court properly conclude that the trial court lacked subject matter jurisdiction to consider the defendant's motion to correct an illegal sentence?" State v. Lawrence, 277 Conn. 901, 891 A.2d 4 (2006). [2] Practice Book § 43-22 provides: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner." [3] Although we conclude that § 43-22 was not the proper procedural vehicle for the defendant to assert a claim that he should have been convicted of manslaughter in the first degree, rather than manslaughter in the first degree with a firearm, we note that a direct appeal from the judgment of conviction generally would be the proper vehicle for asserting such claims. [4] Initially, the defendant's appeal was heard by a three judge panel of the Appellate Court, which, in a split decision, reversed the trial court's judgment of dismissal, concluding that the trial court had jurisdiction to consider the defendant's claim, but that, as a matter of law, the sentence was not illegal. State v. Lawrence, 86 Conn.App. 784, 786, 863 A.2d 235 (2005). The panel therefore remanded the case to the trial court with direction to render judgment denying, rather than dismissing, the motion. Id. Thereafter, the Appellate Court granted the parties' motions for reconsideration en banc, and the en banc court subsequently concluded that the trial court's judgment of dismissal had to be affirmed because that court properly had concluded that it lacked jurisdiction. State v. Lawrence, supra, 91 Conn.App. at 766-67 and n. 1, 882 A.2d 689. [5] State v. McNellis, supra, 15 Conn.App. at 444, 546 A.2d 292, also discussed the meaning of sentences imposed in an illegal manner, defining them "as being `within the relevant statutory limits but . . . imposed in a way which violates [the] defendant's right . . . to be addressed personally at sentencing and to speak in mitigation of punishment . . . or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises. . . .' 8A J. Moore, [Federal Practice (2d Ed.1984) para. 35.03[2], pp. 35-36 through 35-37]." The defendant does not rely on the portion of § 43-22 that deals with a sentence that is imposed in an illegal manner. [6] The court in Cator did not, however, reach the merits of the defendant's double jeopardy claim because, as a consequence of the trial court's action merging the convictions for murder and felony murder, the defendant's claim had become moot. See State v. Cator, supra, 256 Conn. at 805, 781 A.2d 285. [7] See footnote 5 of this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1498790/	498 S.W.2d 469 (1973) Maude L. ANSLEY et al., Appellants, v. TARRANT COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. ONE, Appellee. No. 649. Court of Civil Appeals of Texas, Tyler. June 28, 1973. Rehearing Denied July 26, 1973. 470 Ivan Irwin, Jr., Shank, Irwin, Conant, Williamson & Grevelle, Dallas, for appellants. William Brown, Brown, Herman, Scott, Dean & Miles, Fort Worth, for appellee. MOORE, Justice. Appellants, Maude L. Ansley, Wesco Materials Corporation, and Bruce Smith, instituted this suit against appellee, Tarrant County Water Control and Improvement District No. One, to recover permanent damages to land alleged to have been caused by the repeated flooding thereof by a dam and spillway constructed by appellee. Appellant Maude Ansley is the surface owner of the 820-acre tract alleged to have been damaged. Appellant Wesco Materials Corporation is the owner of certain sand and gravel rights in the tract and appellant Bruce Smith is the lessee of the grazing and hunting rights thereon. Appellee is a political subdivision of the State of Texas created under the provisions of Article 7880 et seq., Vernon's Ann.Texas Statutes. As grounds for a cause of action appellants alleged that the land alleged to have been damaged by flooding is situated in Henderson County and lies between the Trinity River and Cedar Creek; that in 1966 appellee constructed a dam on Cedar Creek and in connection therewith constructed a long drainage channel and spillway so that the overflow from the reservoir would drain into the Trinity River near appellants' land; and that prior to the construction of the dam and spillway the waters of Cedar Creek flowed into the Trinity River approximately twenty-three miles downstream from appellants' property, but that after the construction of the dam and spillway the overflow of Cedar Creek Reservoir was diverted into the Trinity River at a point in close proximity to appellants' property. Appellants alleged that at the point where the water from Cedar Creek was discharged into the Trinity, the channel of the river was inadequate to accommodate such water in addition to the natural overflow of the Trinity River and as a result appellants' land was subjected to recurring flooding. Appellants alleged that the conduct of the appellee amounts to a taking or damaging of their lands for public use without compensation in violation of Section 17, Article I of the Constitution, Vernon's Ann.St., of this State. Appellants' claim for damages is not based on negligence. Appellee denied generally the allegations of the petition and specially alleged that the Ansley land was situated in the floodplain of the Trinity River and had been historically subject to floods from the Trinity River prior to the time of the construction of Cedar Creek dam and spillway; that historically such floods had occurred at least once a year and frequently more often and that the construction of the dam and spillway actually caused no damages to the land because the land had always 471 been, and always would be, subject to flooding by the Trinity River; that by reason of this condition appellants, in fact, sustained no damages as a result of the construction and operation of the Cedar Creek dam and spillway. In the alternative, appellee alleged that any damage which may have been caused was temporary, sporadic and recurring in nature and did not constitute permanent damage to said land. Trial was had before a jury. The cause was submitted to the jury by five special issues. In response to Special Issue No. 1, the jury found that "the Ansley property or portions thereof has become subjected to repeated increased flooding as a result of the construction, maintenance and operation of the Cedar Creek reservoir, dam, and spillway and discharge channel." By Special Issue No. 2 the jury was requested to find from a preponderance of the evidence whether "the market value of the Ansley property has been decreased by reason of the construction, maintenance and operation of the Cedar Creek reservoir, dam, spillway and drainage channel." The jury answered this issue: "We do not." Special Issue No. 3 requested a finding of whether or not the decrease in market value was "permanent." The jury did not answer this issue since it was conditionally submitted on an affirmative finding to Special Issue No. 2. In response to Special Issues 4 and 5 the jury found that the market value of the Ansley tract immediately prior to the construction of Cedar Creek reservoir, dam, spillway and discharge channel was $743,155.00 and had the same market value of $743,155.00 immediately after the construction thereof. Based upon the jury verdict, the trial court rendered a take-nothing judgment against appellants. From such Judgment and Order overruling their Motion for New Trial, appellants perfected this appeal. Article I, Sec. 17 of the Constitution of the State of Texas provides in part as follows: "Sec. 17. No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * ." Since compensation must be paid when property is taken, destroyed or damaged, the distinction between an appropriation and damage without any appropriation is no longer important on the question of liability to pay compensation. McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247 (1911). It is therefore immaterial with respect to liability for payment of compensation whether the injury to the land is classified as a complete "taking" or as a "damaging" of the land. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575 (1889); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (Tex.1961). The record shows Tarrant County Water Control and Improvement District No. One was created for the purpose of supplying water to the City of Fort Worth. The Reservoir was constructed under a permit issued by the State Board of Water Engineers, authorizing the impounding of 678,900 acre feet of water by the construction of a dam on Cedar Creek approximately 1 9/10 miles northeast of Trinidad, Texas. After construction of the dam and spillway, the reservoir reached its full storage capacity on or about December 22, 1967, impounding water to an elevation of 322 feet above sea level; however, appellee first commenced discharging water in the river in 1966. In connection with the operation of the dam and reservoir, the District constructed a spillway outlet channel approximately 250' wide, approximately two miles in length in a southwesterly direction so as to empty into the Trinity River. The spillway constitutes the only method of discharging floodwaters from the reservoir. The 820-acre Ansley tract of land is located approximately one mile up-river from the confluence of appellee's spillway and the Trinity River. The land in question 472 does not border on the Trinity but lies about one mile east thereof, being situated between the river and Cedar Creek. It is mostly woodland and contains no improvements except fences. It is without dispute that the land lies within the floodplain of the Trinity River. The elevation of the land for the most part is below that of the river while in banks, so that it has historically been subjected to flooding when the Trinity River overflowed. By their first four points of error, appellants seek a reversal of the take-nothing judgment rendered against them because they contend the judgment amounts to a taking or damaging of their property for public purposes without compensation in violation of Article 1, Sec. 17 of the Constitution. Appellants argue that since the jury found that the land, or a portion thereof, was subjected to "repeated increased flooding" by reason of the conduct of appellee, it follows, as a matter of law, that their property was permanently "injured" or "damaged." Therefore, they contend that even though their land had always been subject to flooding, the jury's finding that appellee's improvement caused at least some degree of additional flooding, entitles them to damages, as a matter of law. Consequently, they say that the trial court erred in entering judgment on the verdict and erred in refusing to grant them a new trial. Since we do not agree with the foregoing proposition or any of the other propositions hereinafter asserted by appellants, we accordingly affirm the judgment of the trial court. A statement of the evidence will be necessary. Rosswell L. Finlay, a consulting engineer, employed by the firm of Forrest and Cotton, Inc., who was called as an expert witness by appellants, testified that he was employed to determine whether the releases of water from the Cedar Creek Reservoir into the Trinity would cause recurring and increased flooding onto the Ansley land, which would not have otherwise occurred prior to the construction of the same. He testified that in making a study of the situation he assembled the basic flow records of both the Trinity River and Cedar Creek from 1940 to 1965 and established a crest gauge on the Ansley property in order to determine the maximum stage achieved by any one flood; that by the use of historical data accumulated from 1940 to 1965, he prepared hydrographs showing historical flooding of the Ansley property caused by the Trinity and that by the use of the hydrographs and a detailed contour map of the Ansley property he was able to determine the amount of historical flooding caused by the river. He then determined what the flood discharges would have been historically from Cedar Creek had the Cedar Creek Reservoir been in existence from 1940 to 1965 and had the same been at its maximum level of elevation of 322 feet at the time of each flood. He testified that he then placed these computations in a computer and developed a new hydrograph showing the incremental flooding on the Ansley property after appellee's improvements were constructed. According to his interpretation of the hydrograph produced by the computer, the historical flooding from the Trinity River on the Ansley property before construction of the improvements would have amounted to only 65,730-acre days. Had the Cedar Creek Reservoir been in existence during the same twenty-five-year period, the flooding would have been 130,530-acre days. He, therefore, concluded that had appellee's improvements been in existence from 1940 to 1965 and had appellee discharged water into the Trinity at the same rate as they had since 1965, there would have been an increase of the flooding on the Ansley tract by 100% prior to 1965. He testified it could be assumed from this that the incremental flooding on the Ansley tract in the future would also be double what it would have been had Cedar Creek water not been diverted into the Trinity. He testified that the discharge of the water from Cedar Creek caused the level of the river to raise for several miles upstream 473 depending on the amount discharged into the river and that this was what caused the river to overflow its banks and the flooding of the Ansley land. He testified that on one occasion in 1969, he observed the river while the spillway was being discharged; that the spillway water had the effect of backing up the flow of the Trinity and causing overflow on the Ansley property even though the Trinity was not out of banks at the time. He admitted his estimate of the additional flooding from 1940 to 1965 was a professional opinion based upon statistics accumulated prior to 1965. He also admitted that none of the calculations were based on any statistics showing the various floodings of the Trinity River after 1965 or after the dam and spillway had been constructed and placed in operation in 1966. Engineering testimony directly conflicting with that of Mr. Finlay was given by appellee's witness Robert Gooch of the Engineering Firm of Freese, Nichols and Endress of Fort Worth. Mr. Gooch testified that he had made studies to determine the effect on the Ansley tract of the historical conditions of flooding on the Trinity River during the period from 1914 to 1965. He testified that he had prepared a study of the actual conditions of overflow on the Ansley property for the period 1965 to 1970, after the dam and spillway had been placed in operation. Gooch testified that during the fifty-year period prior to 1965 a riverflow of 13,500 cubic feet per second occurred on an average of every 7.4 months and that at such rate of flow, water is caused to rise to an elevation of 285 feet on the Ansley tract flooding 342 acres of the land. He testified that 15,000 cfs. floods occurred on the average of every nine months resulting in the overflow of 689 acres of the Ansley tract and that flows of 21,000 cfs. occurred historically about every fifteen months inundating 749 acres and that every two years, on the average, a flood of 29,500 cfs. had inundated 771 acres. Gooch testified that he had studied the flooding of the Maude Ansley property since 1965 as affected by Cedar Creek discharges. He testified there had been eight periods of flood since May 3, 1966, and found that the average additional rise in the elevation of flooding on the Ansley property contributed by the spillway discharges from Cedar Creek during this period was about 3½%, in terms of the depth of flooding. He estimated that the percentage of increase in acres flooded attributable to Cedar Creek spillway discharges was approximately one-half of 1% during the eight periods of floods since May 3, 1966. He testified further that he had prepared a study of "acre-days of flooding" for the period 1940 through 1965 to correspond with the study made by Mr. Finlay, but that he calculated that the number of acre-days of flooding of the Ansley property caused by historical Trinity River floods during the twenty-five-year period before appellee constructed its improvements was actually 449,318-acre days rather than 65,730 as testified to by Mr. Finlay. As we understand the engineering testimony, both engineers testified that any flooding of the Ansley property attributable to appellee's improvements was caused by the fact that the waters discharged from the spillway had the effect of impeding the flow of the river thereby causing the water to "stack up" for some distance up the river causing it to flow over its banks and eventually reach the Ansley property. Appellant, Bruce Smith, testified that he had observed the river at times when appellee was discharging water from the spillway and observed that when the river was within banks, the discharge seemed to go up-river thereby causing it to overflow on the Ansley land and that the water remained on the land longer than it did before. 474 All witnesses agree that anytime a flood occurred on the Trinity, both before and after appellee constructed its improvements, the Ansley property always became flooded. Appellants offered other testimony showing that the Ansley land contained substantial gravel deposits. They testified that based upon the opinion of appellants' expert witness, Finlay, that appellee's improvements were calculated to cause a 100% increased flooding and would cause a substantial decrease in the market value of the land and the gravel deposits. Appellants also introduced testimony showing increased flooding would substantially reduce the market value of the land for grazing purposes. Mrs. Ansley testified that for many years prior to the construction of appellee's improvements she had received $500.00 per year for a grazing and hunting lease and $2,500.00 per year as advance royalty for the gravel rights and that she received the same amounts after the improvement had been constructed, although no gravel had been mined for several years prior to the improvements. It will not be necessary to delineate the testimony of each expert witness relating to the decrease in market value of the land and gravel deposits. Suffice it to say that their testimony as to the market value "before" and "after" the appellee's improvements shows that they were of the opinion that the land suffered a substantial decrease in market value. Appellee offered no evidence as to market value. Where damages for permanent injury to land is claimed, as here, the amount thereof is determined by the decrease in market value as measured by the difference in market value just prior to the time the improvements were constructed and the market value immediately subsequent to such construction. Trinity & S. Ry. Co. v. Schofield, supra; State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (Tex. Com.App.1936); Carter v. City of Tyler, 454 S.W.2d 771 (Tex.Civ.App., Tyler, 1970, ref., n. r. e.). In Special Issue No. 1, the jury was requested to determine whether appellee's improvements caused injury to appellants' land. While the jury found that appellee's improvements caused "repeated increased" flooding thereof, the finding gives no indication of the size of the area flooded or the frequency of the "repetition." Moreover, in view of the fact that the land had always been subject to repeated overflows prior to the construction of the improvements, it is not clear as to whether the finding means that the jury found that the flooding occurred more frequently after the construction of the improvements or whether the finding merely means that there was some increased flooding as measured by the magnitude of water thereon. Nevertheless, we think the finding is sufficient to constitute a finding that appellee's improvements amounted to at least some interference with appellants' property rights. We do not believe, however, that this finding, standing alone, would be sufficient, as a matter of law, to establish appellants' right to recover damages. Ingram v. County of Nueces, 365 S.W.2d 838 (Tex.Civ.App., San Antonio, 1963, n. r. e.). Under the record before us, the question naturally arises as to whether appellee's improvements caused permanent damage to the land or whether the flooding by the Trinity, regardless and independently of appellee's improvements, caused the land to be permanently damaged. In Owens v. Navarro County Levee Improvement Dist., 281 S.W. 577 (Tex.Civ. App., Waco, 1926), (115 Tex. 263, 280 S.W. 532, Tex.Com.App.), the Court of Civil Appeals said: "* * * Appellee is not liable for the damages that would have been occasioned by the floods independent of and 475 regardless of the construction of the levee in controversy, and, if there were no additional damages occasioned by the construction of the levee, appellant should not recover. S. A. & A. P. Ry. Co. v. Kiersey, 98 Tex. 590, 86 S.W. 744; I. & G. N. Ry. Co. v. Walker (Tex.Civ.App.) 97 S.W. 1081; I. & G. N. Ry. Co. v. Fickey, 59 Tex. Civ. App. 133, 125 S.W. 327. " * * The trial court should instruct the jury that, in the event they find plaintiff has suffered damage by reason of the construction of the levee improvements, in determining the amount thereof they can take into consideration such damage only as plaintiff is shown by the evidence to have suffered by reason of such construction, as distinguished from the damage, if any, he would have suffered as a result of the overflow, regardless of, and independent of, the construction of said improvements, * * . Scott v. Northern Traction Co. (Tex.Civ.App.) 190 S.W. 209; Baker v. Beatty (Tex.Civ.App.) 235 S.W. 971; Fugitt v. Farrell (Tex. Civ.App.) 250 S.W. 1108; G. C. & S. F. Ry. Co. v. Baker (Tex.Civ.App.) 218 S.W. 7; Jenkins v. Pennsylvania Ry. Co., 67 N.J.Law, 331, 51 A. 704, 57 L.R.A. 309; Mark v. Hudson River Bridge Co., 103 N.Y. 28, 8 N.E. 243." In Nichols on Eminent Domain, 3rd Ed., Vol. 5, sec. 16.105(1), it is stated: "If the land was previously subject to inundation, and after the construction of a levee was still subject to inundation, it has been held that the owner was not entitled to recover for the damages caused thereby, unless the inundation after erection of the flood-control structures was greater in extent than it previously had been. * " (Citing Owens v. Navarro County Levee Improvement Dist., supra; Stone v. Los Angeles County Flood Control Dist. 81 Cal. App. 2d 902, 185 P.2d 396.) In the case of City of Amarillo v. Tutor, 267 S.W. 697 (Tex.Com.App.1924), the court held that compensation for interference with the legal rights of enjoyment of property by the owner thereby is guaranteed by the Constitution, "if by reason of such interference the property as such is lessened in value." (Emphasis supplied.) By Special Issue No. 2, the jury was requested to find whether or not appellee's improvements caused appellants to suffer any damages. It will be noted that the issue does not inquire as to whether the increased flooding, as found by the jury in response to Special Issue No. 1, caused a decrease in the market value of the land. The inquiry here is simply whether appellee's improvement caused any damages to the land. In response thereto, the jury refused to find that appellee's improvements caused a decrease in market value. The issue was submitted without objection. Therefore, appellants had the burden of proving by a preponderance of the evidence that their damages were caused by appellee's improvements. Since the jury answered the issue in the negative, this means that appellants failed to establish their burden of proving that it was appellee's improvements that caused their land to be "lessened in value." Appellee alleged in its answer that it did not cause the lands of appellants to become overflow lands because such lands have always been and always will be subject to overflow from the Trinity River and therefore appellants have, in fact, sustained no damages as a result of any act or omission of appellee. Where the evidence shows, as here, that injury to the land was caused by not only the conduct of appellee but also by another agency, an issue is presented upon the question of whether the defendant's conduct, in fact, caused a decrease in the market value thereof. Scott v. Northern Texas Traction Co., 190 S.W. 209 (Tex. Civ.App., Dallas, 1916, n. w. h.); Isbell v. 476 Lennox, 224 S.W. 524 (Tex.Civ.App., Texarkana, 1920), affirmed 116 Tex. 522, 295 S.W. 920; Owens v. Navarro County Levee Impr. Dis., supra; Walker v. Texas Mexican Ry. Co., 27 S.W.2d 574 (Tex.Civ. App., San Antonio, 1930, dismissed); Benavides v. Gonzalez, 396 S.W.2d 512 (Tex. Civ.App., San Antonio, 1965, n. w. h.); Naylor v. J. N. Eagle, 227 Tex. 1012, 303 S.W.2d 239 (1957). Appellee was liable for the full amount of damages caused by it, but was not liable for the damages caused by the Trinity River. Powell Salt Water Co. v. Bigham, 69 S.W.2d 788 (Tex.Civ.App., Waco, 1934). "It many times happens that the damage arising from an actionable injury, chargeable to the defendant is, in the nature of things or from the circumstances of the case, indistinguishable from other damage occurring at the same time, attributable to the acts of an independent tort-feasor or to natural causes. In such cases, since the injured party cannot supply the materials necessary to enable the jury to make an exact computation of the damages in suit, the approved practice is to leave it to the good sense of the jury, as reasonable men, to form from the evidence the best estimate that can be made under the circumstances, as a basis of compensatory damages for the actionable injury." Jenkins v. Pennsylvania R. Co., 67 N.J.L. 331, 51 A. 704; California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App. 522, 195 P. 694 (1920). The jury's negative answer to Special Issue No. 2 amounts to a failure or refusal by the jury to find from a preponderance of the evidence that appellee's improvements caused appellants' land to decrease in market value and means, in law, that appellants failed to discharge their burden of proof. In other words, it means that the jury was not persuaded by a preponderance of the evidence that appellee's improvements caused a decrease in market value. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Smith v. Safeway Stores, Inc., 433 S.W.2d 217 (Tex.Civ.App., Tyler, 1968, ref., n. r. e.). Applying the foregoing principles to the facts, we cannot agree with appellants' contention that their proof, as a matter of law, shows that appellee's improvements caused a decrease in the market value of appellants' property. Appellants' failure to establish that appellee's conduct caused their property to decrease in value is therefore fatal to their cause of action. But we need not rest our holding on this conclusion alone. Even though Special Issue No. 2 could, in some manner, be considered superfluous, we nevertheless believe appellants' failure to discharge their burden of securing a favorable finding on Special Issue No. 5, establishing a decrease in market value, would prevent a recovery. The jury in response to Issues 4 and 5 found, as a matter of fact, that the market value of appellants' land was the same after the construction of the improvements as it was before. Thus, the jury, in effect, found that there had been no decrease in market value, and in law, this means that appellants sustained no damages. Appellants, however, urge by their remaining points of error that the jury's findings on Special Issue No. 5, as well as their findings on Special Issue No. 2, is not only contrary to the undisputed testimony of the expert witnesses who testified that the property suffered a depreciation in market value, but also that such findings are contrary to the overwhelming weight and preponderance of the evidence. Appellants argue that since the jury found that the land or a portion thereof had been subjected to repeated increased flooding, and since the undisputed testimony shows a decrease in value, it follows, as a matter of law, that their property had been damaged. They maintain that the Constitution guarantees them something for their injury and the judgment is therefore erroneous. We *477 do not agree. The basic error in this argument is that it assumes that property which had been floodlands from times immemorial automatically suffers a decrease in market value as a matter of law, if the conduct of appellee contributed in the slightest degree to additional floodings. If this assumption were valid, then in every case of this type, the trial court, in the submission of the damage issues to the jury, would be compelled to instruct the jury that in answering the issues the jury must find the after-value of the affected property to be less than the before-value. The inquiry in every case is whether the property has, in fact, suffered a decrease in market value by reason of the alleged unlawful interference. The determination of market value is usually a question of fact for the jury. We have found no case and have been cited none which would require the trial court to instruct the jury that in the event they found an interference with the legal rights of the enjoyment of the property, the jury would be compelled to find the market value immediately after the interference was less than it was before. Since substantially all of the testimony tendered as to value was opinion testimony, the character of such testimony is but evidentiary and for that reason is not binding on the trier of the facts. The jury is still bound to decide the issue from all of the evidence upon their own fair judgment. Thompson v. State, 311 S.W.2d 927 (Tex.Civ.App., Waco, 1958, ref., n. r. e.). Opinion testimony does not establish any material fact as a matter of law. Hood v. Texas Indemnity Ins. Company, 146 Tex. 522, 209 S.W.2d 345 (Tex.1948). In McCarthy v. City of Amarillo, 307 S.W.2d 595 (Tex.Civ.App., Austin, 1957), a condemnation case, the court said: "Opinion evidence, in matters of this kind, is not conclusive. A jury may weigh, consider and accept or reject such opinions or it may form its own opinion from the evidence and by utilizing its own experiences and matters of common knowledge. See Coxson v. Atlantic Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943; Scott v. Liberty Mutual Ins. Co., Tex. Civ.App., Austin, 204 S.W.2d 16, writ ref., N. R. E." It is well settled that upon appeal the appellate courts must consider the evidence and inferences properly to be drawn therefrom in the light most favorable to the party obtaining the verdict, and in considering controverted issues of fact, we must consider only that evidence favorable to the verdict and disregard that which is contrary thereto. Thompson v. State, supra. In view of the fact that the land had always been subject to flooding from the Trinity River, we think the jury was authorized to find there was no difference in the "before" and "after" market value of the land and that under the record the jury was justified in leaving the parties where they found them. Appellants' points 5 through 7 are overruled. The judgment of the trial court is affirmed. ON MOTION FOR REHEARING Appellants interpret us as stating in our original opinion that in overruling their "insufficient" evidence points Nos. 5 and 6, we considered only that evidence which was favorable to the verdict and disregarded that which was contrary thereto. If the language used be subject to such interpretation, we did not so intend. At any rate, in order to clarify the matter we might add that we have again reviewed the record and after considering and weighing all of the evidence, both that in favor of as well as that against the verdict, we are of the opinion that the jury findings attacked by the appellants are not so against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. The motion for rehearing is overruled.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516325/	359 Pa. Super. 433 (1986) 519 A.2d 427 COMMONWEALTH of Pennsylvania v. Jerry JACKSON, Appellant. Supreme Court of Pennsylvania. Submitted May 5, 1986. Filed December 15, 1986. 434 Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant. Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee. Before MONTEMURO, HOFFMAN and HESTER, JJ. 435 HOFFMAN, Judge: This is an appeal from the denial of a petition for writ of certiorari filed with the Court of Common Pleas of Philadelphia County. Appellant was convicted in the Municipal Court of Philadelphia of carrying a firearm without a license, 18 Pa.C.S.A. § 6106, and carrying a firearm on a public street or place in Philadelphia, 18 Pa.C.S.A. § 6108. Appellant contends that certain physical evidence should have been suppressed because the police lacked either probable cause or reasonable suspicion sufficient to justify the seizure of this evidence. For the following reasons, we vacate the judgment of sentence and remand for a new trial. On May 12, 1984, two Philadelphia police officers responded to a radio call ordering them to investigate a burglary at 317 N. 63rd St. in Philadelphia. These officers met with the complainant, who stated that at 3:20 p.m. two males had tried to kick in his front door, and that one of them, a black male wearing a gray sweatsuit, ran east on Vine St. N.T. July 13, 1984 at 4; id. April 19, 1985 at 4. Within two or three minutes of responding to the radio call, and approximately two blocks from the complainant's home, the officers spotted appellant, a black male wearing a gray sweatsuit and carrying a blue gym bag, running west on Vine St. towards the scene of the crime. Id. July 13, 1984 at 4-7. The officers stopped appellant, who did not attempt to flee. Without questioning appellant, they patted him down and then searched his opaque, zippered gym bag, within which was found a .32 caliber revolver loaded with one live round of ammunition.[1]Id. April 19, 1985 at 5-7. 436 During a subsequent on-site identification, the complainant did not identify appellant as one of the perpetrators.[2] Appellant was then arrested and charged with the instant offenses. Appellant filed a motion to suppress the revolver, which was denied by the Municipal Court. In a Municipal Court bench trial, appellant was found guilty of the weapons offenses. Appellant subsequently filed a petition for writ of certiorari with the Court of Common Pleas, seeking suppression of the seized evidence. The court denied the petition, prompting this appeal. The standard for reviewing the propriety of a suppression ruling is well-established: Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Cavalieri, 336 Pa.Superior Ct. 252, 254-55, 485 A.2d 790, 791 (1984). The threshold for a finding of probable cause to arrest exceeds that for justification of a stop and frisk: "[e]ven in the absence of probable cause, an individual may be stopped and briefly detained." Commonwealth v. Prengle, 293 Pa.Superior Ct. 64, 68, 437 A.2d 992, 994 (1981). Because appellant contends that the evidence should have been suppressed under either standard, we must first determine whether the record supports the lower court's factual findings and legal conclusions that the search of appellant was justified under the stop and frisk 437 doctrine. If the frisk or search of appellant was not justified under the standard first established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), then it follows that this evidence could not properly have been admitted as the fruit of a search incident to a lawful arrest predicated upon probable cause. We must examine the investigating officers' actions at two levels of inquiry: the legality of the initial stop, and the propriety of the officers' actions subsequent to the stop. See Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 460-61, 495 A.2d 554, 555 (1985). "If [the] police have a reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest." Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 141, 489 A.2d 879, 881 (1985) (citation omitted). The initial stop of a person is legitimate if the investigating officers "[c]an point to specific and articulable facts which in conjunction with rational inferences deriving therefrom reasonably warrant the intrusion." Commonwealth v. Prengle, supra. Such a stop facilitates the acquisition of information useful to the investigating officers: Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972) (citation omitted). The search or frisk of a suspect incident to such a stop, however, must meet a higher threshold of justification The police officer may legitimately sieze a person . . . and conduct a limited search of the individual's clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others if the police officer observes unusual and suspicious conduct on the part of the individual seized which 438 leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). A police officer need not personally observe unusual or suspicious conduct reasonably leading to the conclusion that criminal activity is afoot and that a person is armed and dangerous; this Court has recognized that ". . . a police officer may rely upon information which is broadcast over a police radio in order to justify an investigatory stop." Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 68, 437 A.2d at 994. In such cases, the factors that must be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 50 n. 4, 465 A.2d 1043, 1049 n. 4 (1983). Although specificity of description is only one of the factors examined in justifying a stop and frisk, it is of great importance in situations where the investigating officers have not personally observed suspicious behavior; the police need to have identification information specific enough to reasonably conclude that the party they are stopping is actually the person for whom they are searching. See Commonwealth v. Whelton, 319 Pa.Superior Ct. 42, 465 A.2d 1043 (stop and frisk of robbery suspect justified where defendant matches description as to race, height, weight, age, hair, coat, footwear, and facial characteristics); Commonwealth v. Capers, 340 Pa.Superior Ct. 136, 489 A.2d 879 (stop and frisk justified where defendant matches description of assailant as to face, height, build, skin tone and jacket, acts suspiciously, approaches from scene of crime, is known to be armed, and has bloody hand). Our Supreme Court has held, however, that an overly general description 439 will not support a Terry stop and frisk in the absence of suspicious behavior observed by the investigating officer. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). In Berrios, the frisk of the defendant was found improper where police, seeking two blacks in dark clothing and one hispanic in light clothing moving east on a particular street after a shooting, seized a gun from an hispanic man in light clothing, who was accompanied by a black man dressed in dark clothing and was walking east on the specified street within twenty minutes and three blocks of the shooting. Our Supreme Court noted that not only was the defendant acting in a normal manner, but also that the description of the perpetrator was too vague to justify searches of all "[hispanics] wearing light clothing and walking with a negro in this area." Id., 437 Pa. at 342, 263 A.2d at 344. Close spatial and temporal proximity of a suspect to the scene of a crime can also heighten a police officer's reasonable suspicion that a suspect is the perpetrator for whom the police are searching. Moreover, the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985) cert. denied Cortez v. Pennsylvania, ___ U.S. ___, 106 S. Ct. 349, 88 L. Ed. 2d 297 (1985); Commonwealth v. Carter, 334 Pa. Super. 369, 483 A.2d 495 (1984). To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating that the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase "for our own protection," a phrase invoked by the investigating officers in the instant case, becomes meaningless. An expectation of danger may arise under several different circumstances. The police may reasonably believe themselves to be in danger when the crime reported to have been committed is a violent crime, see Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 69, 437 A.2d at 995, 440 when a perpetrator is reported to possess or have used a weapon, see Commonwealth v. Capers, supra, 340 Pa.Superior Ct. at 141, 489 A.2d at 881; Commonwealth v. Sheridan, 292 Pa.Superior Ct. 278, 437 A.2d 44 (1981), aff'd 502 Pa. 612, 467 A.2d 1126 (1983), when the police observe suspicious behavior such as sudden or threatening moves, or the presence of suspicious bulges in a suspect's clothing, see Commonwealth v. Carter, supra, 334 Pa.Superior Ct. at 369, 483 A.2d at 497, or when the hour is late or the location is desolate, see Commonwealth v. Cortez, supra, 507 Pa. at 533, 491 A.2d at 112; Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 70 n. 5, 437 A.2d at 995 n. 5. A frisk might also be implemented to protect innocent bystanders within the vicinity of an encounter. See Commonwealth v. Whelton, supra, 319 Pa.Superior Ct. at 53, 465 A.2d at 1049. In the instant case, the search of appellant's bag was improper. Here, the police initially responded to a radio call reporting a burglary in progress.[3] The police officers subsequently acquired first-hand information through their interview with the complainant, who stated that one of the perpetrators, a black male wearing a gray sweatsuit, ran east on Vine St. The police were thus certain that criminal activity was afoot. This vague description, however, was no more comprehensive than that which the police acted upon in Berrios, and was insufficient in itself to justify a stop and frisk. 441 Moreover, the investigating officers' interview with the complainant yielded little evidence that appellant might be armed and dangerous. While the police may have had some expectation of danger based on the nature of the crime reported over the police radio, the complainant made no mention of the use or presence of weapons, leaving the investigating officer with few, if any, specific or articulable facts suggesting that appellant was armed and dangerous. The specific facts and circumstances of the encounter between appellant and the police also yield little evidence that the investigating officers' observations justified the immediate frisk of appellant and search of his sealed bag. Appellant was spotted within several minutes and within a few blocks of the crime. He matched the description supplied by the complainant in that he was a black male wearing a gray sweatsuit, and also in that he was running, albeit towards rather than away from the scene of the crime. In light of appellant's proximity and conformance with the limited description, the police acted diligently in stopping him. Our difficulty lies in the immediate frisk of appellant and search of his bag without first implementing an intermediate investigatory response that could supply the investigating officers with sufficient articulable facts to justify a frisk or search. The investigating officers had insufficient information to conclude that appellant was the perpetrator of the crime. He was wearing a gray sweatsuit and running on a city street during an afternoon in May. This is not unusual or suspicious behavior; any number of men in the area might have fit this description.[4] Furthermore, appellant was running towards the scene of the crime, rather than in the direction stated by the complainant and dictated by logic. 442 Additionally, there is no evidence that the investigating officers, prior to frisking appellant, had observed any behavior or circumstances suggesting that appellant might be armed and dangerous. He willingly approached the investigating officers, and there is no evidence that he acted suspiciously or had suspicious bulges in his clothing. The encounter took place during the afternoon on a city street, rather than in an unusual or desolate setting that might put the officers in particular fear of danger. Nor did the investigating officers indicate that there was any need to protect innocent bystanders from possible harm. Moreover, appellant was confronted by two officers; this was not a situation where an immediate frisk would be justified to maintain the status quo between suspects and easily overwhelmed patrolmen. In light of the foregoing, we conclude that although the police justifiably stopped appellant, the immediate frisk of his person and search of his bag were improper. We are not holding that the police must always question a suspect before frisking him; we merely conclude that based on the particular facts of this case, the police should have attempted to elicit some clarifying information from appellant before frisking him and searching his closed bag. We are mindful that courts should not indulge in unrealistic second-guessing, and that "the fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, in itself, render [a] search unreasonable." U.S. v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605 (1985) (quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S. Ct. 2523, 2531, 37 L. Ed. 2d 706 (1973)). However, as Justice Rehnquist points out in Sharpe, "[t]he question is not simply whether some alternative was available, but whether the police acted unreasonably in failing to recognize or pursue it." Id., 105 S.Ct. at 1576. In the instant case, where there was a lack of specific and articulable facts indicating that appellant was armed and dangerous, the use of even minimal investigative questioning would have enabled the police to evaluate 443 whether appellant was the individual they were looking for and whether he should be frisked. The use and results of such investigative questioning have consistently aided our courts in justifying Terry stop and frisk procedures or finding probable cause. See Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111; Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 495 A.2d 554; Commonwealth v. Sheridan, supra; Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977). Furthermore, as this court recently stated "[i]n today's complex society police are `charged with the protection of constitutional rights, the maintenance of order, [and other community caretaking functions].'" Commonwealth v. Rehmeyer, 349 Pa.Superior Ct. 176, 183, 502 A.2d 1332, 1336 (1985) (quoting La Fave, Street Encounters and the Constitution; Terry, Sibron, Peters and Beyond, 67 Michigan L.Rev. 40, 61-62 (1968)). Selecting the best means to achieve these goals is often difficult. As Justice Harlan stated in his concurrence to Terry v. Ohio: "[t]here is no reason why an officer rightfully but forcefully confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet." Terry v. Ohio, supra, 392 U.S. at 36, 88 S.Ct. at 1887 (HARLAN, J., concurring). However, the majority stated: [in assessing] the reasonableness of a particular search or seizure in light of the particular circumstances . . . it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate? Id. at 21-22, 88 S.Ct. at 1880. In the instant case, reasonable caution applies not only to the need of the officers to protect themselves, but also to the degree of certainty that appellant was the perpetrator and that he was armed and dangerous. Given "our own Supreme Court's expressed policy `of scrupulously adhering to the narrow scope of the [Terry] exception,'" Commonwealth v. Cavalieri, supra, 336 Pa.Superior Ct. at 260-61, 485 A.2d at 794 (quoting *444 Commonwealth v. Lovette, 498 Pa. 665, 676, 450 A.2d 975, 980 (1982)), and considering the numerous uncertainties inherent in appellant's encounter with the police, some intermediate investigatory response would have been reasonable and proper in developing a level of suspicion sufficient to justify the search of appellant. For the foregoing reasons, we vacate the judgment of sentence and remand for a new trial. Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished. HESTER, J., files a dissenting statement. HESTER, Judge, dissenting: I respectfully dissent. I would affirm on the opinion of Judge Hirsh of the trial court. NOTES [1] The record contains no evidence of any communication between appellant and the investigating officers between the time he was stopped and the time he was patted down. The record is explicit regarding the lack of investigative questioning subsequent to the pat-down: Q. And when you discovered the gun did [appellant] offer you an explanation what he was doing with it at the time or subsequently? A. No, ma'am. Q. No, he did not say anything to you whatsoever? A. No, I didn't ask him any questions. N.T. April 19, 1985 at 7. [2] Later that evening, the complainant identified another black male wearing a gray sweatsuit as one of the perpetrators. N.T. July 13, 1984 at 9-10. [3] The lower court's opinion upholding the denial of the motion to suppress states that the police responded to a "flash radio information," a higher-priority transmission than a regular radio call. Lower Court Opinion at 2. This assertion is unsupported by the record. See also Brief for Appellee at 2. A flash information is based on a report from the initial officers to investigate the scene of a crime and is broadcast to other police units in the district. Despite the urgency connoted by its title, a flash information is of lesser priority than a city-wide "J-band transmission," such as the broadcast that served as the source of information for the arresting officer in Commonwealth v. Prengle, supra, 293 Pa.Superior Ct. at 66 n. 2, 70 n. 5, 431 A.2d at 993 n. 2, 995 n. 5. [4] Both the brief for appellee and the Lower Court Opinion state that there was no one else in the vicinity of the encounter who fit the description supplied by the complainant. Brief for Appellee at 4; Lower Court Opinion at 5. There is no evidence in the record to support this assertion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516281/	955 F. Supp. 315 (1996) Margaret Kelly MICHAELS, Plaintiff, v. STATE OF NEW JERSEY, Attorney General's Office, County of Essex, Essex County Prosecutor's Office, George L. Schneider, Esq., Herbert Tate, Esq., John Mastroangelo, John Noonan, Glenn Goldberg, Esq., Sarah Sencer-McArdle, Eileen C. Treacy, M.A., Essex County Police Department, Newark Police Department, Division of Youth and Family Services, Louis Fonnelaras, Susan Esquillan, et al., Defendants. Civil Action No. 96-3557 (MTB). United States District Court, D. New Jersey. November 8, 1996. 316 317 Louis J. Santore, Santore & Kenny, Secaucus, NJ, for Margaret Kelly Michaels. Paul E. Stevenson, Division of Law, Newark, NJ, for State of New Jersey, Attorney General's Office. Michael R. Griffinger, Crummy Deldeo Dolan Griffinger & Vecchione, Newark, NJ, for County of Essex. David N. Samson, Wolff & Samson, P.C., Roseland, NJ, for Essex County Prosecutor, George L. Schneider, Herbert Tate, Sarah Spencer-McArdle, Div. of Youth and Family Services, Louis Fonnelaras. Gage Andretta, Wolff & Samson, PC, Roseland, NJ, for Glenn Goldberg. John R. Gonzo, Harwood Lloyd, Hackensack, NJ, for Eileen C. Treacy, M.A. Steven C. Mannion, Michelle Hollar-Gregory, Corporation Counsel, Newark, NJ, for Newark Police Department. OPINION BARRY, District Judge. The City of Newark, on behalf of defendant Newark Police Department ("Newark"),[1] moves to remand this action to state court or, alternatively, to dismiss the complaint of plaintiff Margaret Kelly Michaels as time-barred under the applicable statutes of limitations, for failure to comply with certain provisions of the New Jersey Tort Claims Act, and for failure to state a claim upon which relief can be granted. For the reasons that follow, Newark's motion will be granted in part and denied in part, and the complaint will be dismissed as to Newark. I. Introduction This litigation arises out of the alleged unconstitutional prosecution and conviction of a nursery school teacher for bizarre acts of sexual abuse against many of the children for whom she was responsible.[2] In September 1984, the Wee Care Nursery School ("Wee Care") hired Michaels ("Michaels" or "plaintiff"), then a twenty-two year old college student, as a teachers' aide for preschoolers. Approximately one month later, Michaels became 318 a teacher at Wee Care, a position she held until April 26, 1985. Located in Maplewood, New Jersey, Wee Care served approximately fifty families, with enrollment of about sixty children, ages three to five. During the eight-month period that Michaels worked at Wee Care, parents began to observe behavioral changes in their children. Michaels, 136 N.J. at 304, 642 A.2d 1372. One such parent, after hearing from her son about certain incidents regarding Michaels, alerted the New Jersey Division of Youth and Family Services ("DYFS"). Id. at 304-05, 642 A.2d 1372. Having been apprised by DYFS on May 1, 1985 of the information the mother had relayed, the Essex County Prosecutor's Office commenced an investigation of possible sexual abuse at Wee Care. Id. at 305, 642 A.2d 1372. As a result of its investigation, the Essex County Prosecutor's Office arrested Michaels on June 12, 1985, on charges of what plaintiff describes as "child molestation." Complaint, Count One at ¶ 22. After a trial in the Superior Court of New Jersey, which commenced on June 22, 1987 and concluded on April 15, 1988, a jury convicted Michaels of 115 counts of aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats. Michaels, 136 N.J. at 305-06, 642 A.2d 1372. On August 2, 1988, the trial court sentenced Michaels to an aggregate term of forty-seven years imprisonment with fourteen years of parole eligibility. Id. at 306, 642 A.2d 1372. On March 26, 1993, the Appellate Division of the Superior Court reversed the conviction and remanded the criminal proceedings for a new trial, concluding that the prosecution's interviews and interrogations of the allegedly abused children were highly improper. Michaels, 264 N.J.Super. at 629-32, 625 A.2d 489. The Appellate Division ordered that, in the event the prosecution decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of those children should be excluded from evidence as untrustworthy. Id. at 631-32, 625 A.2d 489. On June 23, 1994, after granting certification on the limited issue of the pretrial hearing, the Supreme Court of New Jersey affirmed the Appellate Division's reversal and remand, and required the prosecution, in the event of a retrial, to prove the reliability of the children's statements by "clear and convincing" evidence: [W]e find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable. We therefore hold that in the event the State seeks to re-prosecute this defendant, a pretrial hearing must be held in which the State must prove by clear and convincing evidence that the statements and testimony elicited by the improper interview techniques nonetheless retains a sufficient degree of reliability to warrant admission at trial. Given the egregious prosecutorial abuses evidenced in this record, the challenge that the State faces is formidable. If the statements and proffered testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and probative worth of such testimony in light of all the surrounding circumstances. Michaels, 136 N.J. at 324, 642 A.2d 1372. The decision was subsequently made not to retry Michaels and, on December 1, 1994, all criminal charges against her were formally dismissed. Complaint, Count One at ¶ 25. On February 27, 1995, Michaels filed a notice of tort claim with each of the named defendants in this case pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 et seq. Certification of Steven C. Mannion ("Mannion Cere."), ¶ 5 and Exhibit B. Michaels filed the instant complaint in the Superior Court on June 13, 1996, and served defendants on June 25, 1996. On July 25, 1996, defendants the Essex County Prosecutor's Office, Glenn Goldberg, Herbert Tate, George L. Schneider, Sarah Sencer-McArdle, and John Mastroangelo, apparently with the "consent" of all the other defendants with the exception of Newark, removed the action to this court. Newark now moves to remand because it did not join in the removal petition as required by 28 U.S.C. § 1446 and because the allegedly consenting defendants did not properly 319 join in the removal by way of a writing. Alternatively, Newark moves to dismiss the complaint as time-barred pursuant to the applicable statutes of limitations, for failure to comply with certain mandatory provisions of the New Jersey Tort Claims Act, and for failure to state a claim upon which relief can be granted. II. Discussion A. Newark's Motion to Remand The federal removal statute provides that a "defendant or defendants" desiring to remove a state court action to federal court shall file in the federal district court a notice of removal within thirty days after receipt by the removing defendant of the initial pleading or service of summons. 28 U.S.C. § 1446(a) and (b). Notwithstanding the ambiguity of the requirements a "defendant or defendants" must satisfy under this statute, it is a well-settled rule of law commonly known as the "rule of unanimity" that all defendants must join in or consent to the removal petition. Gableman v. Peoria, Decatur and Evansville Railway Co., 179 U.S. 335, 337, 21 S. Ct. 171, 172, 45 L. Ed. 220 (1900); Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S. Ct. 854, 855, 44 L. Ed. 1055 (1900); Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir.1995) (citations omitted); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985) (citing Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir.1982)); Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D.Pa. 1994) (removal perfected when all defendants join in or otherwise consent to the removal petition); Stangard Dickerson Corp. v. United Electrical, Radio & Machine Workers of America, Local 1218, 33 F. Supp. 449, 451 (D.N.J.1940) (removal valid when one defendant signed removal petition and remaining defendants filed separate paper consenting to the petition). The two principal issues raised in Newark's motion to remand are: (1) whether an exception to the "rule of unanimity" exists that would excuse a defendant's failure to join in or consent to the removal petition; and (2) whether the removing defendants in a multiple-defendant case must memorialize or evidence their joinder or consent in writing. 1. "Nominal Party" Exception To The "Rule Of Unanimity" The Court of Appeals for the Third Circuit has held that the "unanimity rule" may be disregarded where: (1) a non-joining defendant is an unknown or nominal party; (2) a defendant has been fraudulently joined; or (3) a non-resident defendant has not been served at the time the removing defendants filed their petition. Balazik, 44 F.3d at 213, n. 4 (citations omitted). At least as currently pled, Newark is a nominal party to this lawsuit. The claims asserted, and the facts alleged, in the complaint are limited to the investigation and prosecution of Michaels by the Essex County Prosecutor's Office for her alleged involvement in the sexual abuse of children while working at Wee Care. The complaint contains no allegations, nor can it reasonably be inferred, that this investigation and prosecution was conducted by or had any connection with Newark. Indeed, not a single individual defendant named in the complaint not even one of the one-hundred fictitious defendants is alleged to have had any such connection. The only allegation in the entire complaint having anything to do with Newark is contained in Count Three, which provides, in pertinent part, as follows: 2. The defendants State of New Jersey, Attorney General, Newark Police Department, County of Essex, Essex County Prosecutor and Division of Youth and Family Services were responsible for the training and supervision of employees and other personnel in the use of proper investigative techniques, involving children and other witnesses or victims. 4. The defendants and each of them were negligent in that they failed to adequately and properly train and supervise employees and other personnel involved in the investigation and prosecution of Margaret Kelly Michaels. Complaint, Count Three, ¶¶ 2 and 4. While certainly Newark is responsible for training its own employees, there is no allegation 320 that any employee of Newark participated in the investigation or prosecution of plaintiff or that Newark trained or supervised anyone who was so involved. Because no allegation links Newark with any activities that form the basis of plaintiff's claims for relief, there is no reasonable basis for predicting that Newark will be held liable to plaintiff. Consequently, and separate and apart from plaintiff's failure to state a claim against Newark, see Point B. 3. infra, Newark must be deemed a nominal party for removal purposes. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir.1993) (a defendant having "no connection" to tortious conduct alleged in complaint, and "engag[ing] in no independent alleged wrongdoing," held to be a nominal party for removal purposes); Farias v. Bexar County Board of Trustees, 925 F.2d 866, 872 (5th Cir.) (non-removing defendants deemed nominal parties where "plaintiff could in no way establish a cause of action" against them), cere. denied, 502 U.S. 866, 112 S. Ct. 193, 116 L. Ed. 2d 153 (1991). 2. Writing Required to Memorialize Joinder in or Consent to the Removal Petition The removal petition, which was signed only by counsel representing the Essex County Prosecutor's Office, Glenn Goldberg, Herbert Tate, George L. Schneider, Sarah Sencer-McArdle, and John Mastroangelo (referred to collectively as either the "signing defendants" or, along with the "non-signing defendants,"[3] as the "removing defendants") stated as follows: 5. Defendants the State of New Jersey, the Attorney General's Office, the Division of Youth and Family Services, the County of Essex, and the Essex County Police Department have consented to the removal of the State Court Action to this Court. Removal Petition, ¶ 5 (emphasis supplied). Newark contends that the reference in the petition to the non-signing defendants' consent, without more, is insufficient to satisfy the "rule of unanimity" under 28 U.S.C. § 1446(a). The removing defendants disagree, arguing that such a representation of consent satisfies their statutory obligation. Although no case in this district has addressed this precise issue, there is some limited support for the removing defendants' position. See, e.g., Chrysler First Financial Services Corp. v. Greenfield, 753 F. Supp. 939, 941 (S.D.Fla.1991) (remanding the action because "[t]he other defendants ... have not joined in the United States' petition for removal, nor has the United States indicated on the face of the removal petition whether the remaining defendants agree to removal"); Jasper v. Wal-Mart Stores, Inc., 732 F. Supp. 104, 105 (M.D.Fla.1990) (holding that "the petition must be signed by all defendants or the signer must allege consent of all defendants"); Mechanical Rubber & Supply Co. v. American Saw & Manufacturing Co., 810 F. Supp. 986, 990 (C.D.Ill.1990) (denying remand motion where one defendant represented in the removal petition that the other defendant "joined in the removal," but required the signing defendant to obtain an affidavit from the non-signing defendant manifesting its assent to removal). Most courts, however, have held that it is not enough for defendants who have not signed the removal petition to merely advise the removing defendant that they consent thereto, or for a removing defendant to represent such consent to the court on behalf of the other defendants. Rather, most courts require all defendants to voice their consent directly to the court. Martin Oil Co. v. Philadelphia Life Insurance Co., 827 F. Supp. 1236, 1239 (N.D.W.Va.1993). See also Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262, n. 11 (5th Cir.1988) ("[W]hile it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself"); Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (E.D.Pa.1995) ("Unfortunately for both, one defendant's attempt to speak on behalf of another will not suffice") (citations omitted); Creekmore v. Food Lion, 321 Inc., 797 F. Supp. 505, 509 (E.D.Va.1992) (although defendants "never objected to removal, proper removal does not depend on the absence of such objection"); Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1447-48 (N.D.Ill.1987) (requiring all defendants to "communicate their consent to the court not to one another"); Mason v. International Business Machines, Inc., 543 F. Supp. 444, 445 (M.D.N.C.1982) (same). While courts generally do not require all defendants to sign the removal petition itself, most courts have required some form of unambiguous written evidence of consent to the court in timely fashion. See, e.g., Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir.1994) ("To `join' a motion means to support it in writing") (citations omitted); Getty, 841 F.2d at 1262, n. 11 ("This does not mean that each defendant must sign the original petition for removal, but there must be some timely filed written indication from each served defendant ... that it actually consented to such action"). Moreover, although relatively few courts have permitted defendants to voice their consent orally, even these courts have required that the oral consent be directed to the court, not merely among the defendants themselves. See, e.g., Clyde v. National Data Corp., 609 F. Supp. 216, 218 (N.D.Ga. 1985); Colin K. v. Schmidt, 528 F. Supp. 355, 358 (D.R.I.1981). The majority view reflects sound judicial policy. While requiring all defendants in a multiple-defendant case to sign the removal petition itself would be a senseless formalism, timely written evidence of joinder or consent from each defendant such as by filing its own notice of removal, an affidavit of joinder or consent, or even a letter provides the court with a written entry that would unequivocally bind the allegedly consenting defendants. On the other hand, "[t]o allow one party, through counsel, to bind or represent the position of other parties without their express consent to be so bound would have serious adverse repercussions, not only in removal situations, but in any incident of litigation." Creekmore, 797 F.Supp. at 509. Furthermore, as explained by the court in Martin Oil, there is nothing unfair about this requirement. Such a policy, while ensuring the unanimity of removal, does not prevent any defendant from taking full advantage of the removal statute, and it is not a requirement which could be manipulated by plaintiffs to overcome the rights of defendants to remove. 827 F.Supp. at 1238-39. Accordingly, this court agrees with the majority position, and finds that the nonsigning defendants did not properly join in or consent to the removal petition. While they may have communicated their consent to the signing defendants, they did not communicate their consent in any writing directed to the court. Their alleged consent is, therefore, legally insufficient. The removing defendants argue that, notwithstanding this conclusion, they should be permitted to amend the removal petition and thereby cure the defect. It is uniformly recognized that a defect such as is seen here "is not deemed to be jurisdictional." Balazik, 44 F.3d at 213 (citing Johnson v. Helmerich & Payne, Inc., 892 F.2d 422, 423 (5th Cir.1990) (holding that the "failure to join all the defendants in a removal petition is not a jurisdictional defect"); In re Amoco Petroleum Additives Co., 964 F.2d 706, 713 (7th Cir.1992); McGlinchey v. Hartford Accident and Indem. Co., 866 F.2d 651, 653 (3d Cir. 1989)). Rather, such defects are modal or formal, and can be waived. Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.), reh'g denied, 968 F.2d 18 (5th Cir.), cert. denied, 506 U.S. 999, 113 S. Ct. 600, 121 L. Ed. 2d 536 (1992). A limited number of courts have exercised their discretion to permit defendants to cure technical defects in removal petitions.[4]See, e.g., Shaw, 994 F.2d at 369 (because the defect "was justified," the court was "not willing to punish Dow Brands for what [was], after all, a technicality that [did not] go to the heart of jurisdiction"); Eltman v. Pioneer Communications of America, Inc., 151 322 F.R.D. 311, 316 (N.D.Ill.1993) (even though the removal petition was "defective as a result of [defendant's] failure to join in," the defendant's "formal consent, untimely as it was, cure[d] the defect"); Glover v. W.R. Grace & Co., Inc., 773 F. Supp. 964, 965 (E.D.Tex.1991) (denying motion to remand on ground that consent was four days late); Hernandez v. Six Flags Magic Mountain, Inc., 688 F. Supp. 560, 562 (C.D.Cal.1988) (denying motion to remand on ground that consent was one day late). Sicinski v. Reliance Funding Corp., 461 F. Supp. 649, 652 (S.D.N.Y.1978) (holding that affidavit submitted to the court after the plaintiff's motion to remand was sufficient to cure the defect in the removal petition). Barring extraordinary circumstances, this court is not inclined to expand the thirty-day time limitation or permit amendments to a notice of removal after the thirty days have run. It is clear to the court, however, that extraordinary circumstances exist in this case. There is no published opinion by any court in this district that addresses the issue of whether a formal writing is necessary to satisfy removing defendants' joinder obligations under 28 U.S.C. § 1446 and the caselaw elsewhere and the statute itself do not provide unambiguous guidance. More importantly, the only party challenging the propriety of the removal is Newark, which, as a nominal party, lacks standing to do so. Logic dictates that if a nominal party lacks the power to object to its own failure to join in or consent to the removal, it similarly lacks the power to impugn the other defendants' failure to formally do so. Moreover, no other party, including plaintiff, has complained of any defect in the removal petition, and were any party to do so now, any such complaint would be treated as having been waived. Allbritton Communications Co. v. National Labor Relations Board, 766 F.2d 812, 820 (3d Cir.1985) (holding that "removal proceedings are in the nature of process, and defects in the removal procedures are waivable"), cert. denied, 474 U.S. 1081, 106 S. Ct. 850, 88 L. Ed. 2d 891 (1986). As a result of Newark's status as a nominal party and the lack of any objection to the defect in the removal petition by any other party, this court does not believe that it is in the interest of justice to remand this matter to state court. Accordingly, the court will, in this limited instance, permit the non-signing defendants to cure the defect in the removal petition by filing a written document with the court consistent with this opinion. B. Newark's Motion To Dismiss Having determined that remand is inappropriate, numerous issues remain for decision. Given the disposition that will ultimately be reached herein, i.e., that the complaint fails to state a claim against Newark, all of the remaining issues need not be addressed. Those issues will be addressed and resolved, however, because resolving them now rather than later at the behest of another defendant will expedite this litigation as to the remaining parties. Moreover, if plaintiff were to amend her complaint to state a claim against Newark, see note 16, infra, and this court has no great confidence that she can, those issues would have to be reached at that point. The court, therefore, will press on. 1. Dismissal of Plaintiff's § 1983 Claim on Statute of Limitations Grounds Count Four alleges that the unconstitutional investigation, arrest, conviction, and incarceration of plaintiff violated 42 U.S.C. § 1983. Newark contends that this claim should be dismissed for various reasons, among them for the reason that it is time-barred. A district court must apply the state limitations period applicable to personal injury actions in all matters brought pursuant to 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 280, 105 S. Ct. 1938, 1949, 85 L. Ed. 2d 254 (1985). Where a state has a statute of limitations for certain enumerated intentional torts as well as a residual statute for all other personal injury actions, the residual statute should be applied to § 1983 claims. Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 581-82, 102 L. Ed. 2d 594 (1989). After analyzing New Jersey's statutes of limitations under the teachings of Wilson and Owens, the Court of Appeals for the Third Circuit held that § 1983 claims are governed by New 323 Jersey's two-year statute of limitations for personal injuries, N.J.S.A. 2A:14-2. Cito v. Bridgewater Tp. Police Dept., 892 F.2d 23, 25 (3d Cir.1989). It is not as clear, however, when the two-year statute of limitations begins to run, i.e., when a cause of action under 42 U.S.C. § 1983 accrues under facts such as are now before the court. Did that cause of action accrue on (1) June 12, 1985, the date of plaintiff's arrest and the date plaintiff likely learned of the allegedly unconstitutional conduct, (2) March 26, 1993, the date of the Appellate Division's reversal and remand, (3) June 23, 1994, the date of the Supreme Court's affirmance of the reversal and remand, or (4) December 1, 1994, the date on which the charges against plaintiff were dismissed? It is axiomatic, of course, that a statute of limitations begins to run when the cause of action accrues. Although the state limitations period must be applied, accrual of a cause of action under § 1983 is a question of federal law. Albright v. Oliver, 510 U.S. 266, 280, n. 6, 114 S. Ct. 807, 816 n. 6, 127 L. Ed. 2d 114 (1994) (Ginsburg, J. concurring); Board of Regents v. Tomanio, 446 U.S. 478, 483-86, 100 S. Ct. 1790, 1794-96, 64 L. Ed. 2d 440 (1980). Without any analysis of or reliance upon federal caselaw, plaintiff argues that her cause of action accrued on December 1, 1994,[5] the date on which the criminal charges against her were dismissed. In an argument equally bereft of analysis or legal support, Newark posits that plaintiff's § 1983 claim accrued on March 26, 1993, the date of the Appellate Division's decision.[6] Both the Supreme Court of the United States and Court of Appeals for the Third Circuit have recently addressed the issue of when a § 1983 claim for an unconstitutional conviction or sentence accrues. Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994); Smith v. Holtz, 87 F.3d 108 (3d Cir.1996). After noting that the common law of torts "provide[s] the appropriate starting point for the inquiry," the Supreme Court observed that a § 1983 action for an unconstitutional conviction or sentence was most analogous to the common law tort of malicious prosecution. Heck, 512 U.S. at 482-85, 114 S.Ct. at 2370-71. A necessary element of a malicious prosecution claim, the court continued, is the termination of the criminal proceedings in favor of the accused: This requirement `avoids parallel litigation over the issues of probable cause and guilt ... and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.' Furthermore, `to permit a convicted criminal to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit.' Id. at 484, 114 S.Ct. at 2371. (internal citations omitted). Based on the similarity between a common law malicious prosecution claim and a § 1983 claim for an unconstitutional conviction or sentence, the Court held that the termination of the criminal proceeding in favor of the 324 accused is a prerequisite to maintaining such a § 1983 claim. [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. at 486-87, 114 S.Ct. at 2372. The Court also concluded: Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. Id. at 489-90, 114 S.Ct. at 2374 (internal citations omitted). Because the precise holding of Heck is limited to outstanding convictions, however, it is not dispositive here. What is at issue here is not an outstanding conviction but the potential for a future conviction following a retrial. The Third Circuit in Smith, however, dealt with that precise issue. In Smith, the Third Circuit observed that the concerns expressed and rules announced in Heck "apply equally to claims that, if successful, would necessarily imply the invalidity of a future conviction on a pending charge." Smith, 87 F.3d at 113 (emphasis supplied). As a result, the court held that "so long as success on [a § 1983] claim would imply the invalidity of a conviction in a pending criminal prosecution, such a claim does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist." Id. (emphasis supplied). In the underlying criminal proceeding in Smith, the Supreme Court of Pennsylvania, on direct appeal, reversed the conviction and remanded for a new trial. Id. at 110. Before the retrial, however, the court ordered the dismissal of all charges against the defendant based on newly discovered evidence of prosecutorial misconduct. Id. In the civil proceeding, the plaintiff defendant in the criminal case sought monetary damages under § 1983 for his allegedly unconstitutional conviction and imprisonment. Id. The Third Circuit rejected the defendants' argument that the § 1983 claim accrued when the conviction was initially reversed and remanded. Id. at 110 & 113. The court reasoned that if the plaintiff had brought his § 1983 claim before the criminal charges were dismissed, success on that claim would have necessarily implied the invalidity of a future conviction on the still pending criminal charges. Id. at 112-13. As a result, the court held that the plaintiff's § 1983 claim did not accrue until the Supreme Court of Pennsylvania ordered the dismissal of all criminal charges. Id. at 113.[7] Based on the foregoing, it is clear to this court that in order to maintain a § 1983 claim for an unconstitutional conviction or imprisonment where success on such a claim would necessarily imply the invalidity of an outstanding or potential conviction, there must first be a "final" termination of the criminal proceeding in favor of the plaintiff. Without such finality, the potential for inconsistent determinations in the civil and criminal cases will continue to exist, thereby contravening the spirit, if not the holdings, of Heck and Smith. Moreover, if a plaintiff is 325 permitted to maintain a § 1983 claim in federal court in a case in which, based on the same evidence, he or she may ultimately be convicted in state court, unnecessary litigation with, perhaps, inconsistent results, harassment, and duplication would eventuate, all of which conflict with the most basic principles of comity and federalism. Furthermore, to require finality is entirely consistent with Heck despite the language therein suggesting that a "reversal" serves as a favorable termination. 512 U.S. at 485-87, 114 S.Ct. at 2372. By using the term "reversal," the Supreme Court could not have intended to establish a bright-line rule whereby any reversal of a criminal conviction acts as a favorable determination. Clearly, some "reversals" connote "finality," while others do not.[8] The Third Circuit agreed when it held in Smith that a reversal of a conviction on evidential grounds and remand of the criminal proceedings the precise factual scenario here did not represent a favorable termination within the spirit of Heck. 87 F.3d at 113. The Eleventh Circuit in Kelly v. Serna, 87 F.3d 1235 (11th Cir.1996), was similarly explicit: Traditionally, setting aside a conviction and remanding for retrial or dismissal was termed a `vacation' of the conviction; `reversal' of a conviction meant no retrial was permitted. In this context, the Supreme Court's use of the term `reversal' is appropriate to signify the termination of criminal proceedings. As courts have come to use these terms without regard to this distinction, however, we take this opportunity to make clear that by `reversal' we mean without the possibility for retrial. When retrial is not an option, reversal is a termination of the prosecution. Id. at 1240, n. 3 (internal citations omitted). Consequently, this court rejects Newark's argument that a final termination of the criminal proceedings in favor of Michaels occurred on March 26, 1993, the date of the Appellate Division's "reversal." Because the Appellate Division remanded the criminal case for a retrial, and because the prosecution still had the right to appeal the decision to the state's highest court, and did so, "the potential for a judgment in the pending criminal prosecution continue[d] to exist." Smith, 87 F.3d at 113. The Appellate Division's reversal, therefore, was not a "final" termination within the spirit of Heck and Smith. Similarly, because the Supreme Court of New Jersey affirmed the Appellate Division's order remanding the case for a retrial, plaintiff's § 1983 claim could not have accrued on June 23, 1994, the date of the affirmance, unless success on plaintiff's § 1983 claim would not have implicated the invalidity of a conviction in the still-pending criminal prosecution. It would have. It was still possible for the prosecution to present the testimony of the allegedly abused children at a criminal retrial by proving at a hearing, albeit by clear and convincing evidence, that such testimony would be trustworthy. The possibility also existed that the civil and criminal proceedings would provide inconsistent results based on the same evidence, thereby implying the invalidity of a conviction in the still-pending criminal proceeding. For the foregoing reasons, this court finds that plaintiff's § 1983 claim did not accrue until December 1, 1994, the date upon which the criminal charges against her were dismissed. It was not until this date that there was a "final" termination of the criminal proceedings in her favor. Thus, the complaint, which was served on June 13, 1996, was timely with respect to plaintiff's § 1983 claim. 2. State Law Claims Under The New Jersey Tort Claims Act In addition to her § 1983 claim, Michaels alleges state law claims for malicious prosecution, intentional infliction of emotional distress, negligent training and supervision, abuse of process, and negligent and malicious 326 prosecutorial misconduct. Complaint, Counts One, Two, Three, Five, and Six. Newark contends that these claims should be dismissed because plaintiff has not complied with the following provisions of the New Jersey Tort Claims Act:[9] 1. N.J.S.A. 59:8-8(b), requiring that the claims against a public entity be filed within two years of accrual; 2. N.J.S.A. 59:8-8(a), requiring a plaintiff to provide a notice of claim to the public entity within ninety days of accrual; 3. N.J.S.A. 59:8-4, setting forth formal requirements of the notice of claim form; and 4. N.J.S.A. 59:8-6, authorizing a public entity to adopt its own personalized notice of claim form. a. Statute of Limitations, N.J.S.A. 59:8-8(b) Michaels contends, erroneously, that her state law claims, with the exception of her malicious prosecution claim, are subject to New Jersey's two-year statute of limitations for personal injuries, N.J.S.A. 2A:14-2. Michaels further contends, also erroneously, that New Jersey's six-year statute of limitations, N.J.S.A. 2A:14-1, applies to her malicious prosecution claim. Because the City of Newark is a public entity within the meaning of the New Jersey Tort Claims Act, however, all of plaintiff's state law claims asserted against it, including plaintiff's malicious prosecution claim, are subject to the Act's two-year statute of limitations, N.J.S.A. 59:8-8(b). Once again, however, the more problematic question is when the state law causes of action accrued. Michaels maintains that all of her claims accrued on December 1, 1994, the date on which the criminal charges were dismissed. Newark, on the other hand, argues that plaintiff's state law causes of action, with the exception of her malicious prosecution claim, accrued when plaintiff should have discovered by due diligence that she had causes of action, a point in time prior to the Appellate Division's reversal on March 26, 1993. Moreover, consistent with its position regarding the § 1983 claim, Newark maintains that plaintiff's malicious prosecution claim accrued on March 26, 1993. "Ordinarily, a statute of limitations begins to run when all elements of a cause of action are present or, more plainly, `from the moment of the wrong.'" See Amland Properties Corp. v. Aluminum Co. of America, 808 F. Supp. 1187, 1190 (D.N.J.1992) (quoting Lopez v. Swyer, 62 N.J. 267, 274, 300 A.2d 563 (1973)). If equity dictates, however, New Jersey will apply the "discovery rule" which will delay the accrual of a cause of action until the injured party discovers, or by the exercise of reasonable diligence should discover, that the elements of a claim exist. Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426, 527 A.2d 66 (1987); Terrace Condominium Ass'n v. Midlantic National Bank, 268 N.J.Super. 488, 502, 633 A.2d 1060 (Law Div.1993). Only plaintiff's malicious prosecution claim includes the element of a termination in favor of the accused. Her other claims, therefore, accrued at the very latest, when plaintiff had reason to know that the elements of the claims existed. This occurred at or about the time of plaintiff's arrest on July 12, 1985. See, e.g., Rose v. Bartle, 871 F.2d 331, 350-51 (3d Cir.1989) (discussing the distinction between malicious prosecution and abuse of process, and holding that an abuse of process claim accrues on the date of arrest); Deary v. Three Un-Named Police Officers, 746 F.2d 185, 193-94 (3d Cir.1984) (holding that only malicious prosecution requires a favorable termination of the criminal proceedings, and that claims for intentional infliction of emotional distress and abuse of process accrue on the date of arrest); Earl v. Winne, 14 N.J. 119, 128-29, 101 A.2d 535 (1953) (quoting Ash v. Cohn, 119 N.J.L. 54, 58, 194 A. 174 (E. & A. 1937)) (discussing the distinction between a malicious prosecution claim, which requires a favorable termination of the criminal proceedings, and abuse of process, which does not); Pisano v. City of Union City, 198 N.J.Super. 327 588, 593, 487 A.2d 1296 (Law Div.1984) (holding that, unlike malicious prosecution claim, false arrest claim accrues on the date of the arrest). Consequently, because Michaels did not file her complaint until June 13, 1996, her state law claims, with the exception of her malicious prosecution claim, are time-barred under N.J.S.A. 59:8-8(b).[10] Counts Two, Three, Five, and Six of the complaint are hereby dismissed as to Newark. As with the § 1983 claim discussed above, the accrual of the malicious prosecution claim depends on when the criminal proceedings terminated favorably to plaintiff.[11] This determination, unlike the accrual of the § 1983 claim, however, must be based on New Jersey substantive law. Newark, in support of its position that the malicious prosecution claim accrued on the date of the Appellate Division's reversal,[12] relies on Muller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J.Super. 564, 232 A.2d 168 (App.Div.1967), which held as follows: The tortious act [of malicious prosecution] is committed ordinarily by the filing of a criminal complaint with malice and without probable cause.... Often, as here, the accused is arrested, required to post bail to secure his liberty pending trial, and his reputation is adversely affected. Thus, damage flows immediately from the tortious act. But the accused may not sue for any damage sustained unless and until the criminal proceeding has terminated in his favor. In addition to the proof of the termination in his favor, `the plaintiff must adduce affirmative proof ... tending to show the falsity of or want of probable cause for the charge laid against him, or that the defendant did not honestly believe in his guilt.' Thus, although a favorable 328 termination of the criminal proceeding is a condition precedent to institution of the action, the `essence' of the tort is the wrongful conduct in making the criminal charge. Since a suit for malicious prosecution must await a favorable termination of the criminal proceeding, the statute of limitations does not begin until such termination. Id. at 576-77, 232 A.2d 168 (internal citations omitted). Other New Jersey courts similarly hold that a favorable termination is elemental to a cause of action for malicious prosecution. See, e.g., Penwag Property Co., Inc. v. Landau, 76 N.J. 595, 599, 388 A.2d 1265 (1978); Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365 (1975); Fleming v. United Parcel Service, Inc., 273 N.J.Super. 526, 530, 642 A.2d 1029 (App.Div.1994); Mondrow v. Selwyn, 172 N.J.Super. 379, 384, 412 A.2d 447 (App. Div.1980). When a favorable termination occurs is, again, the question. New Jersey courts have framed the inquiry as "whether the termination was or was not dispositive as to the accused's innocence of the crime." Fleming v. United Parcel Service, Inc., 255 N.J.Super. 108, 150, 604 A.2d 657 (Law Div.1992) (emphasis supplied) (quoting Rubin v. Nowak, 248 N.J.Super. 80, 83, 590 A.2d 249 (App.Div.1991)). Other than the requirement that the termination be dispositive, however, New Jersey caselaw provides little guidance. The Restatement (Second) of Torts (the "Restatement"), on the other hand, is instructive. Section 659[13] of the Restatement provides that "[c]riminal proceedings are terminated in favor of the accused by ... (c) the formal abandonment of the proceedings by the public prosecutor, or ... (f) a final order in favor of the accused by a trial or appellate court." Commentary to this section makes clear that a "final order" by an appellate court refers to an order "that precludes the bringing of further proceedings against the accused." Restatement (Second) of Torts § 659, comment g (1977). Other commentary makes clear that an order will not be considered final when the possibility of an appeal or retrial exists: Ordinarily a verdict of not guilty rendered by a jury or court after trial constitutes a final determination of criminal proceedings in favor of the accused. If, however, a statute gives to the state a right of appeal under which a new trial may be granted, a verdict of not guilty is not such a termination of the proceedings as will support an action [for malicious prosecution] until the final disposition of the appeal and such further processes as it may entail. Restatement (Second) of Torts § 659, comment g (emphasis supplied). The Restatement and New Jersey's requirement of a "dispositive termination" are generally consistent with the previous discussion of federal law under Heck and Smith. Moreover, the majority of state courts that have analyzed this and similar issues, both with respect to criminal and civil proceedings, concur that a reversal of a conviction by an appellate court must be "final."[14] 329 Other courts, albeit a distinct minority, have decided otherwise. See cases collected in Annotation, 41 A.L.R. 2d 863, and Annotation, 87 A.L.R. 2d 1047. See also Barrett Mobile Home Transport, 530 So.2d at 732-33; Cazares v. Church of Scientology of California, Inc., 444 So. 2d 442, 446-47 (Fla.Dist. Ct.App.1983); Parisi v. Michigan Townships Association, 123 Mich.App. 512, 332 N.W.2d 587, 589-91 (1983). In this court's view, the only somewhat sensible suggestion coming out of these cases is to commence the running of the statute of limitations upon the initial entry of a favorable judgment and then, in the event of an appeal, stay the action and toll the statute of limitations until a final appellate determination. See generally, Toff & Paul v. Superior Court, 239 Cal. Rptr. 799, 800-01 (Cal.Ct.App.1987); Levering v. National Bank of Morrow County, 87 Ohio St. 117, 100 N.E. 322 (1912). To the extent that they have not done so already, New Jersey courts would opt for the majority view requiring "finality" of the proceedings for all of the reasons noted in this court's discussion of the accrual of the § 1983 claim. Moreover, the minority view lacks merit in situations in which the appellate court remands for a retrial. Additionally, even in cases in which the appellate court does not remand, the minority view would engender confusion and, perhaps, unfairness under the New Jersey Tort Claims Act. If, for example, a malicious prosecution claim accrued upon a favorable, albeit not final, decision by an intermediate appellate court, even if the action were stayed and the statute of limitations were tolled, a malicious prosecution plaintiff would still have to file a notice of claim within ninety days of accrual because the Act does not have a tolling provision. Thus, this court finds that, under New Jersey substantive law, a malicious prosecution claim does not accrue until there is a "final" and "dispositive" termination of the criminal proceedings in favor of the accused, such that it is no longer possible for an appeal or for a retrial of the criminal proceedings. This did not occur until December 1, 1994, the date posited by plaintiff. Thus, the complaint, which was filed on June 13, 1996, was timely with respect to plaintiff's malicious prosecution claim. b. Timeliness Of Notice Of Claim, N.J.S.A. 59:8-8(a) The New Jersey Tort Claims Act, N.J.S.A. 59:8-8(a), provides that, in order to maintain a cause of action against a public entity, a claimant must file a notice of claim with the public entity within ninety days of accrual of the cause of action. A claimant's failure to satisfy this precondition mandates dismissal. See Madej v. Doe, 194 N.J.Super. 580, 588-89, 477 A.2d 439 (Law Div.1984) (citing Pinckney v. Jersey City, 140 N.J.Super. 96, 98, 355 A.2d 214 (Law Div.1976)); Marley v. Borough of Palmyra, 193 N.J.Super. 271, 299, 473 A.2d 554 (Law Div.1983) (citing Speer v. Armstrong, 168 N.J.Super. 251, 255, 402 A.2d 963 (App.Div.1979); N.J.S.A. 59:8-3). Thus, as with the statute of limitations issue discussed above, the timeliness of plaintiff's notice of claim depends on when her claims accrued. As discussed in the preceding section, Counts Two, Three, Five, and Six accrued on or about June 12, 1985, and Count One accrued on December 1, 1994. Plaintiff filed her notice of claim on February 27, 1995. Consequently, her notice of claim was timely as to Count One, and untimely with respect to Counts Two, Three, Five, and Six. Accordingly, even had Counts Two, Three, Five, and Six of plaintiff's complaint not already been dismissed on statute of limitations grounds, they would be dismissed for failing to comply with N.J.S.A. 59:8-8(a). Plaintiff's malicious prosecution claim will survive as long as plaintiff's notice of claim was otherwise in compliance with N.J.S.A. 59:8-4 and -6 although, as will become clear, that survival will be short-lived.[15] 330 3. Rule 12(b)(6) Motion Newark further contends that, in the event the complaint is not dismissed on any of the foregoing grounds, it should be dismissed for failure to state a claim upon which relief can be granted, pursuant to Fed. R.Civ.P. 12(b)(6). The only two claims that this court must consider for this purpose are the ones that have not already been dismissed, i.e., the § 1983 and malicious prosecution claims. Generally speaking, Rule 12(b)(6) motions are disfavored, Panek v. Bogucz, 718 F. Supp. 1228, 1229 (D.N.J.1989), and the standard for entitlement to relief is relatively high. In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). See also D.P. Enterprises v. Bucks County Community College, 725 F.2d 943 (3d Cir.1984). The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1973). In making this determination, a court must assume the truth of the factual allegations in the complaint and draw all reasonable inferences that can be drawn therefrom in favor of the nonmoving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.1990). A plaintiff generally must set forth sufficient information to outline the elements of his or her claim or to permit inferences to be drawn that said elements exist. Wright and Miller, 5A Federal Practice and Procedure § 1357 (2d ed. 1990). Where the pleaded facts and reasonable inferences fail to even arguably state a claim, however, this court is compelled to dismiss the claim or the complaint. Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,' a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. What 12(b)(6) does not countenance are dismissals based on a judge's disbelief of the complaint's factual allegations. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S. Ct. 1827, 1832, 104 L. Ed. 2d 338 (1989) (internal citations omitted). For the same reasons that Newark has been deemed a nominal party, the complaint against it will be dismissed, pursuant to Fed. R.Civ.P. 12(b)(6). The claims asserted, and the facts alleged, in the complaint are limited to the investigation and prosecution of Michaels for her alleged involvement in the sexual abuse of children while working at Wee Care. Because the complaint is bereft of allegations linking Newark to such activities, plaintiff fails to state a claim upon which relief can be granted.[16] 331 C. Sua Sponte Dismissal As To Non-Moving Defendants It is well established that, even if a party does not make a formal motion to dismiss, the court may, sua sponte, dismiss the complaint where the inadequacy of the complaint is clear. See, e.g., Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir.1980); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 316 (D.N.J.1995); Wheeler v. Nieves, 762 F. Supp. 617, 627 (D.N.J.1991); Pittman v. LaFontaine, 756 F. Supp. 834, 847 (D.N.J.1991). Because the court's ruling regarding the accrual of plaintiff's causes of action applies equally to the non-moving defendants, this court on its own motion will decide this issue as to those defendants. Based on the foregoing rulings that the § 1983 and malicious prosecution claims accrued on December 1, 1994, these claims were filed timely on June 13, 1996. Likewise, plaintiff's notice of claim as to plaintiff's malicious prosecution claim was filed timely on February 27, 1995. Conversely, plaintiff failed to comply with the New Jersey Tort Claims Act's limitations and notice provisions as to the remaining state law claims and those claims, therefore, must fail as against the non-moving defendants. Accordingly, the court will, sua sponte, dismiss Counts Two, Three, Five, and Six of the complaint in their entirety. III. Conclusion For the reasons discussed above, Newark's motion to remand is hereby denied, Counts One and Four of the complaint are hereby dismissed without prejudice (see footnote 16) as to Newark, and Counts Two, Three, Five, and Six of the complaint are hereby dismissed with prejudice as to all defendants. An appropriate order will issue. NOTES [1] Plaintiff has improperly designated the Newark Police Department as a defendant in this case. The Newark Police Department is no more than a department within the City of Newark, and lacks a separate legal existence. Because plaintiff may cure this improper designation by amending her complaint to name the City of Newark as the proper party, the court will entertain the motion made by the City of Newark, and will treat the City of Newark as the proper party for purposes of this motion. [2] For a summary of the criminal proceedings, see State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994) and State v. Michaels, 264 N.J.Super. 579, 625 A.2d 489 (App.Div.1993). [3] The State of New Jersey, the Attorney General's Office, the Division of Youth and Family Services, the County of Essex, and the Essex County Police Department are otherwise referred to herein as the "non-signing defendants" or, along with the "signing defendants," as the "removing defendants." [4] The Third Circuit expressly declined to decide whether a defective removal petition can be cured by an amendment more than thirty days after service. Lewis, 757 F.2d at 69, n. 2. [5] In support of her argument that her federal and state claims accrued on December 1, 1994, Michaels relies solely on Piper v. Scher, 221 N.J.Super. 54, 59, 533 A.2d 974 (App.Div.1987), a case that is wholly inapposite to the issue at hand. Piper stands for the proposition that a plaintiff may properly maintain a malicious prosecution claim in New Jersey where the prosecution unilaterally withdraws criminal charges, prior to trial, without any compromise agreement with the accused. Id. at 59-60, 533 A.2d 974. In such a case, the cause of action may accrue on the date of the unilateral withdrawal of the charges. Id. The court distinguished this situation from that in which the prosecution and the accused entered into a compromise agreement, which would preclude a malicious prosecution claim. Id. at 58-59, 533 A.2d 974. [6] In support of its argument that plaintiff's § 1983 claim accrued on March 26, 1993, Newark relies on Smith v. Wambaugh, 887 F. Supp. 752 (M.D.Pa.1995), aff'd, Smith v. Holtz, 87 F.3d 108 (3d Cir.1996). Neither opinion supports a finding that plaintiff's § 1983 claim accrued when the Appellate Division reversed the conviction and remanded for a retrial. To the contrary, these cases support plaintiff's argument that her § 1983 claim accrued when the criminal charges against her were dismissed. [7] See also Girdler v. Dale, 859 F. Supp. 1279, 1282, n. 3 (D.Ariz.1994) (holding that § 1983 claims accrued when all charges were dismissed rather than a previous date on which the conviction was vacated on the theory that the charges remained pending until the dismissal). [8] For example, a reversal by a state's highest court along with an order to dismiss all criminal charges, such as in Smith, would represent a final termination of the criminal proceeding. Conversely, where an appellate court "reverses" the conviction and remands for a new trial, termination would logically await a verdict in the criminal proceedings, a dismissal of the charges, or the like. [9] The New Jersey Tort Claims Act requirements do not apply to the § 1983 claim set forth in Count Four of plaintiff's complaint. Fuchilla v. Layman, 109 N.J. 319, 330-31, 537 A.2d 652 (1988). [10] On the date of plaintiff's arrest, N.J.S.A. 59:5-3 (repealed July 8, 1988) was still in effect. This statute prohibited prisoners from suing public entities while in institutional confinement, and suspended the accrual of a prisoner's cause of action until release from confinement. N.J.S.A. 59:5-3. On July 9, 1982, this court in Holman v. Hilton, 542 F. Supp. 913 (D.N.J.1982), aff'd, 712 F.2d 854 (3d Cir.1983), declared N.J.S.A. 59:5-3 unconstitutional. Id. at 922. Because this statute was not repealed until July 8, 1988, however, it remained in effect until that date. Small v. Department of Corrections, 243 N.J.Super. 439, 449, 579 A.2d 1263 (App.Div.1990) (holding that the plaintiff's cause of action accrued on the date of the repealer statute, not on the date the wrong occurred, despite the federal court's ruling as to the statute's unconstitutionality). Although it is not entirely clear from the record, it does not appear that plaintiff was in prison pending trial. If she was not, this statute would not have applied to her, see Pisano, 198 N.J.Super. at 591-93, 487 A.2d 1296, and her state law causes of action, with the exception of her malicious prosecution claim, would have accrued on July 12, 1985. If, however, plaintiff was imprisoned pending trial, these claims may not have accrued until as late as July 8, 1988. In either case, because plaintiff did not file her complaint until June 13, 1996, her state law claims, with the exception of her malicious prosecution claim, are time-barred. [11] When the relevant facts are undisputed, as here, "the existence of ... favorable termination of proceedings is a question of law for the court." Williams v. Page, 160 N.J.Super. 354, 361, 389 A.2d 1012 (App.Div.1978). When making such a decision in a case where there has been "a judicial determination with respect to the criminal proceeding," the judge before whom the malicious prosecution action is being tried must "analyze what occurred before the criminal court and the effect thereof." Id. [12] Prior to the amendment to the New Jersey Tort Claims Act on June 23, 1994, the Act did not apply to employees of public entities. Chatman v. Hall, 128 N.J. 394, 403, 608 A.2d 263 (1992); Morgan v. Union County Board of Chosen Freeholders, 268 N.J.Super. 337, 356-57, 633 A.2d 985 (App.Div.1993). Thus, if Newark is correct that plaintiff's malicious prosecution claim accrued on March 26, 1993, then the individual defendants could be held liable even if plaintiff failed to comply with the Act's limitations and notice provisions. In other words, the Act's two-year statute of limitations and notice requirements would not apply to the individual defendants if the cause of action accrued prior to the amendment and the six-year statute of limitations would apply to plaintiff's malicious prosecution claim. Earl v. Winne, 14 N.J. at 132, 101 A.2d 535. On the other hand, a finding that plaintiff's claim accrued on June 23, 1994 (which is, ironically, the date of both the New Jersey Tort Claims Act amendment and the Supreme Court's affirmance in State v. Michaels), would serve to bar plaintiff's claim against these defendants unless plaintiff filed within the limitations period and satisfied the notice provision. Because plaintiff did not file her notice of claim until February 27, 1995, it would be untimely under this scenario. The court is puzzled as to why the individual defendants in opposing Newark's motion to remand or to dismiss did not flag this issue. [13] New Jersey courts have relied on this section of the Restatement in other contexts. See, e.g., Rubin v. Nowak, 248 N.J.Super. 80, 83, 590 A.2d 249 (App.Div.1991). [14] With respect to criminal proceedings, see, e.g., Day v. Zubel, 112 Nev. 972, 922 P.2d 536, 539 (1996) (holding that "the final termination of the criminal proceedings occurred when criminal charges ... were dismissed with prejudice" rather than when the accused was released from prison pending a retrial); Greenberg v. Wolfberg, 890 P.2d 895, 904, n. 36 (Okla.1994) ("A proceeding is not terminated until all appeals concerning the cause are concluded.") (citing Restatement (Second) of Torts § 659, comment f and § 674, comment j). As to civil proceedings, see, e.g., Barrett Mobile Home Transport, Inc. v. McGugin, 530 So. 2d 730, 733 (Ala.1988) ("We hold that a malicious prosecution action does not accrue until the time for filing a notice of appeal in the underlying case has expired; and, if an appeal is taken, the action for malicious prosecution will not accrue until the appeal is finally decided."); Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 701 P.2d 977, 979 (1985) ("An action for malicious prosecution cannot be brought if the underlying action is still pending and undetermined."); Moran v. Klatzke, 140 Ariz. 489, 682 P.2d 1156, 1158-59 (Ct.App. 1984) ("The majority rule prevents repetitive and unnecessary litigation. It would be a waste of judicial resources to allow the plaintiff in a malicious prosecution action to prosecute his claim only to have it rendered meaningless if later the appeal of the underlying action is decided against him."); Restatement (Second) of Torts § 674, comment j (1977) ("If an appeal is taken, the proceedings are not terminated until the final disposition of the appeal and of any further proceedings that it may entail."). [15] Without articulating any reasons for its position, Newark contends that the complaint should be dismissed because the notice of claim was "grossly deficient" under N.J.S.A. 59:8-4. Newark's Brief at 6. This court disagrees. An examination of the notice of claim reveals that it substantially comports with the requirements set forth in N.J.S.A. 59:8-4. Newark further contends that the complaint should be dismissed because plaintiff did not return Newark's "personalized" form, pursuant to N.J.S.A. 59:8-6, thus depriving Newark of information it deemed to be essential. Newark's Brief at 6. Newark has not provided this court with a copy of its personalized form or suggested what "essential" information was missing. Newark's motion to dismiss plaintiff's complaint for failure to comply with N.J.S.A. 59:8-4 or -6 is, therefore, denied. [16] Final judgment, by way of a dismissal with prejudice, is appropriately rendered under Rule 12(b)(6) when it is "plain that the plaintiff has no claim to state." When a plaintiff has imperfectly stated what may arguably be a valid claim, however, "leave to amend is ordinarily in order." Alley v. Resolution Trust Corp., 984 F.2d 1201, 1207 (D.C.Cir.1993) (J. Ginsburg) (citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02 (other citations omitted)). The dismissal of plaintiff's complaint as to Newark will initially be without prejudice, and plaintiff will be given thirty days to amend her complaint to assert a valid § 1983 or malicious prosecution claim against Newark if she can do so consistent with the requirements of Fed. R.Civ.P. 11. If plaintiff fails to do so, her complaint against Newark will be dismissed with prejudice.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2200074/	114 Ill. App. 3d 546 (1983) 449 N.E.2d 216 ROBERT M. WOLTERS et al., Plaintiffs-Appellants, v. J. THOMAS JOHNSON, Director of Revenue, et al., Defendants-Appellees. No. 82-0199. Illinois Appellate Court First District (5th Division). Opinion filed May 6, 1983. 547 Robert M. Wolters, of Chicago, for appellants, pro se. Tyrone C. Fahner, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellees. Order affirmed. PRESIDING JUSTICE WILSON delivered the opinion of the court: Plaintiffs, Robert M. and Eleanor Lee Wolters, husband and wife, filed a complaint in the circuit court of Cook County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) to obtain judicial review of a decision rendered by the Illinois Department of Revenue (Department), affirming the denial of refunds to plaintiffs as joint taxpayers for State income tax paid on money disbursed as alimony in tax years commencing after December 31, 1973, through December 31, 1976. The circuit court affirmed the Department's decision. Plaintiffs' timely appeal followed. On appeal, plaintiffs contend that: (1) the money disbursed as alimony was received by them as a nontaxable trust; (2) inclusion of alimony in both payor's (ex-husband) and payee's (ex-wife) taxable incomes constitutes double taxation; and (3) payment of State income tax on those earnings used to meet alimony obligations is inequitable. For the reasons that follow, we affirm the circuit court's decision. Pursuant to the divorce settlement agreement entered into by and between plaintiff-husband and his former wife, Alice G. Wolters, dated May 15, 1973, plaintiff-husband agreed to make bimonthly payments of alimony and child support to his former wife. In tax years commencing after December 31, 1973, through December 31, 1976, plaintiffs 548 deducted alimony paid to Alice Wolters from their joint State income tax returns. Each year, the Department refused to process the returns as filed and treated plaintiffs' alimony deduction as a mathematical error. As a result, plaintiffs filed claims for refund contending that, pursuant to section 2-203(a)(2)(I)[1] of the Illinois Income Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 1-101 et seq.) (the Income Tax Act), and article IX, section 3(a) of the Illinois Constitution, they had a right to deduct the husband's alimony payments from Illinois base income. The Department denied the claims for refund and plaintiffs' timely protests followed. OPINION The first issue before this court is whether the money disbursed as alimony was received by plaintiffs as trustees of a nontaxable trust or whether it was received by them as taxable income. In support of their position that the money paid as alimony was actually the res of a nontaxable trust, plaintiffs cite Hanley v. Kusper (1975), 61 Ill. 2d 452, 337 N.E.2d 1, for the proposition that the creation of a trust to avoid income taxes is sanctioned by the Illinois Supreme Court. By relying on Hanley, plaintiffs have overlooked the fact that the existence of the trust itself must be established before the purpose of the trust becomes relevant. It is our opinion that plaintiffs have failed to establish this prerequisite. 1 It is unclear from the record whether plaintiffs were pleading the existence of an express trust[2] or an implied trust. Thus, we will address the requirements of each to the extent necessary. An express oral trust of personal property is valid if the acts or words relied on to create the trust are so unequivocal as to lead but to one conclusion. If the evidence is doubtful or capable of reasonable explanation upon any other theory, it is not sufficient to establish an express oral trust. (Price v. State (1979), 79 Ill. App. 3d 143, 148-49, 398 N.E.2d 365.) In the pending case, plaintiffs present the following argument for the existence of an express oral trust: "The decree of divorce between taxpayer, Robert M. Wolters, and his ex-wife required taxpayer to pay stated sums to his ex-wife 549 from money that taxpayer was to receive in the future. Such money was earmarked for the ex-wife by the court, and taxpayer had no beneficial interest whatsoever in it. It was therefore a trust fund, and not properly taxed as income by the Department of Revenue." It is our opinion that the aforementioned argument consists of nothing more than a series of unsubstantiated conclusory statements and that the terms of the settlement agreement are readily capable of an alternative explanation. Although plaintiff-husband has a legal obligation to pay stated sums to his former wife as alimony and support, the agreement does not mandate that this obligation be met by future income. In fact, plaintiffs admit that the obligation to pay exists whether or not plaintiff-husband is receiving any income at all. Thus, the obligation can reasonably be met by drawing on accumulated savings, selling stock or other valuable property, procuring loans, or even by drawing on the income or savings of plaintiff-husband's current wife. Moreover, neither the divorce court nor plaintiffs established separate bank accounts or took any other action to "earmark" particular funds for payment as alimony. Thus, we find that the acts and words relied on by plaintiffs to create a trust do not unequivocally demonstrate the requisite intent. 2 Similarly, plaintiffs have also failed to establish the existence of an implied trust, either as a resulting trust or a constructive trust. By definition, a resulting trust is imposed by operation of law to effectuate the intent of the parties. (In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 943, 441 N.E.2d 158.) As discussed, plaintiffs have not demonstrated that the requisite intent existed. Finally, a constructive trust arises when there is a breach of a fiduciary relationship or when fraud is proved. (Williams v. Teachers Insurance & Annuity Association (1973), 15 Ill. App. 3d 542, 546, 304 N.E.2d 656.) Clearly, neither element is at issue in the pending case.[3] 550 3 Furthermore, even if all elements necessary to create a trust had been established by plaintiffs, the corpus of the trust would not have escaped taxation as income to plaintiffs. The rule that income is not taxable until realized has never meant that a taxpayer who has fully enjoyed the benefit of the economic gain represented by his right to receive income, can escape taxation because he did not actually receive the money himself. (United States v. Kirby Lumber Co. (1931), 284 U.S. 1, 76 L. Ed. 131, 52 S. Ct. 4 (taxpayer liable for income tax on earnings paid directly to his creditors); Corliss v. Bowers (1930), 281 U.S. 376, 74 L. Ed. 916, 50 S. Ct. 336 (taxpayer-settlor liable for income earned by a revocable trust even though income was paid directly to the beneficiaries).) In the landmark decision, Helvering v. Horst (1940), 311 U.S. 112, 85 L. Ed. 75, 61 S. Ct. 144, the United States Supreme Court expressed the underlying rationale behind Kirby and Corliss: "The taxpayer has equally enjoyed the fruits of his labor or investment and obtained the satisfaction of his desires whether he collects and uses the income to procure those satisfactions, or whether he disposes of his right to collect it as the means of procuring them. * * * The power to dispose of income is the equivalent of ownership of it." 311 U.S. 112, 117-18, 85 L. Ed. 75, 78-79, 61 S. Ct. 144, 147. 4 Thus, the key factors in the determination of income tax liability on earnings are control over the money and readily realizable economic benefit derived from that control. (Rutkin v. United States (1952), 343 U.S. 130, 137, 96 L. Ed. 833, 838, 72 S. Ct. 571, 575.) In the case at bar, plaintiffs clearly had control over the distribution of their earnings. Under their direction, a portion of their earnings was paid to Alice Wolters. Although plaintiff-husband was legally obligated to make those payments, the choice was still his. He alone exercised control over his earnings and derived the immediate benefit of not being penalized for failure to meet that obligation. In that respect, the alimony obligation is no different than any other contractual obligation. For example, when a mortgage payment is automatically paid to the mortgagor every month out of funds in the mortgagee's bank account, those earnings used to pay the mortgage do not escape income tax liability to the mortgagee. The mortgagee may not have actually seen the funds, he may not even have written the mortgage check, but he does have ultimate control over the funds and could stop making mortgage payments any time. Accordingly, we conclude that because 551 plaintiffs had control over their earnings and derived an economic benefit from that control, their earnings were taxable as realized income. 5 In the alternative, plaintiffs argue that if the money paid by them as alimony is considered to be income, it is not properly taxable as income to both plaintiff-husband and his former wife because to do so would result in double taxation, which is expressly prohibited by article IX, section 3(a) of the Illinois Constitution.[4] In particular, plaintiffs focus on the word "individuals" as it appears in section 3(a) and argue that it refers to plaintiff-husband and his former wife collectively, not singly. Therefore, imposition of an income tax on each of them for the selfsame income (alimony) is double taxation on individuals. It is a well-established rule of construction that words in a statute may be defined by common usage, by previous judicial construction, and by legislative intent. (People v. Williams (1967), 79 Ill. App. 2d 56, 59-60, 222 N.E.2d 915.) However, the controlling element must be the meaning intended by the lawmakers. (Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489, 494, 140 N.E.2d 687.) Further, once the Illinois Supreme Court has construed an act of the legislature, that construction becomes, in effect, a part of that law and any change in the construction is a matter for the legislature. Mitchell v. Mahin (1972), 51 Ill. 2d 452, 456, 283 N.E.2d 465. In the pending case, we find evidence of legislative intent as well as prior judicial construction determinative of the meaning of "individuals" as it appears in article IX, section 3(a) of the Illinois Constitution. In Lake Shore Auto Parts Co. v. Korzen (1971), 49 Ill. 2d 137, 273 N.E.2d 592, rev'd on other grounds sub. nom Lehnhausen v. Lake Shore Auto Parts Co. (1973), 410 U.S. 356, 35 L. Ed. 2d 351, 93 S. Ct. 1001, the Illinois Supreme Court addressed the issues of construction and validity of article IX-A of the constitution, which abolished the personal property tax by valuation levied against individuals. In construing the phrase "as to individuals," the supreme court adopted the meaning set forth in Senate Joint Resolution No. 67, which stated: "SENATE JOINT RESOLUTION NO. 67 RESOLVED BY THE SENATE OF THE SEVENTY-SIXTH GENERAL ASSEMBLY 552 OF THE STATE OF ILLINOIS, THE HOUSE OF REPRESENTATIVES CONCURRING HEREIN, that, in adopting Joint Resolution No. 30, which submits to the electors of this State a constitutional amendment prohibiting the taxation of personal property by valuation as to individuals, it was the intention of this General Assembly to abolish the ad valorem taxation of personal property owned by a natural person or by two or more natural persons, and that, by the use of the phrase `as to individuals,' this General Assembly intended to mean a natural person, or two or more natural persons as joint tenants or tenants in common." 49 Ill. 2d 137, 140. While we recognize that article IX-A concerned ad valorem taxation of personal property instead of income tax, we find the legislature's intent that "individuals" refers to one natural person or two or more natural persons with joint legal interests and liabilities applicable to the construction of the term in article IX, section 3(a). Under the law, there are certain transactions by which the obligations and privileges of two or more single persons merge into one collective whole, resulting in joint interests and liabilities. Joint tenancy is, of course, one such transaction and joint tax returns are another. In both, the individuals comprising the joint relationship take on the liabilities of the whole. By contrast, two or more natural persons who have not been legally "joined" remain singly obligated. In the case at bar, plaintiff-husband and his former wife severed their joint relationship through divorce, and, therefore, are to be treated as individual natural persons, with separate and distinct obligations under the law. They are no longer a collective unit as plaintiffs would have us believe. In making our determination to adopt the Lake Shore court's construction of "individuals," we rely on several presumptions which historically have been used by the judiciary as aids in construction: (1) the legislature intended all provisions of a particular law to be construed as a whole (see Highcrest Management Co. v. Village of Woodridge (1978), 60 Ill. App. 3d 763, 766-67, 377 N.E.2d 315); (2) the several provisions of a law are to be consistent and harmonious (People ex rel. Community High School District No. 231 v. Hupe (1954), 2 Ill. 2d 434, 448, 118 N.E.2d 328); (3) the legislature intended to enact an effective body of law (Lopez v. Fitzgerald (1979), 76 Ill. 2d 107, 117, 390 N.E.2d 835); and (4) the legislature did not intend to enact a law which has unjust or absurd consequences (People v. Bournes (1977), 55 Ill. App. 3d 237, 240, 370 N.E.2d 1230). First, presuming that the legislature intended the constitution to 553 be read as a whole and that all parts thereof are to be harmonious, we find that the legislature's expressly stated meaning for the commonly used term, "individuals" as it appeared in article IX-A must be applied to all provisions of the constitution. Thus, the term logically and appropriately means a single natural person or two or more natural persons with joint interests and liabilities. 6 Second, presuming that the legislature intended to enact an effective law, it would not have intended plaintiffs' literal meaning of "individuals" as it appears in the constitutional provision which serves as the Income Tax Act's enabling clause. For example, section 2-201(a) of the Income Tax Act states, in part, "A tax measured by net income is hereby imposed on every individual * * for each taxable year * * * on the privilege of earning or receiving income in or as a resident of this State." (Ill. Rev. Stat. 1979, ch. 120, par. 2-201(a).) Pursuant to the definition of "income" set forth by the United States Supreme Court in Helvering v. Horst (1940), 311 U.S. 112, 117-18, 85 L. Ed. 75, 79, 61 S. Ct. 144, 147, the money received by plaintiff-husband and then paid to his former wife as alimony was income to both recipients, individually. Once alimony is classified as income, it falls within the scope of section 2-201(a) of the Income Tax Act and is taxable to "every individual" who receives it. The same dollars that are received as income to one individual and taxed as income do not escape further taxation when those same dollars again represent income to a subsequent individual. (See Welch v. Henry (1938), 305 U.S. 134, 83 L. Ed. 87, 59 S. Ct. 121 (the receipt of dividends by a corporation is an event which may constitutionally be taxed even though the corporate income which is their source has also been taxed).) As the foregoing illustrates, plaintiffs' interpretation of "individuals" as used in the constitution's enabling clause would create gross ambiguity and uncertainty in the Income Tax Act. Moreover, plaintiffs' literal interpretation is directly contradictory to the general definitional provisions of the Income Tax Act, creating even further ambiguity. For example, section 15-1501(b)(1)(B) of the Income Tax Act states, in pertinent part: "(b) Other definitions. (1) Words denoting number, gender, and so forth, when used in this Act, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof: * * * (B) Words importing the plural include the singular; * * ." Ill. Rev. Stat. 1979, ch. 120, par. 15-1501(b)(1)(B). Finally, we presume that the legislature did not intend to enact a 554 law which had unjust or absurd consequences. In this regard, we firmly believe that to adopt plaintiffs' interpretation would result in an absurd and inequitable construction. For example, the sentence upon which plaintiffs focus also refers to corporations (plural in the statute). Thus, adopting plaintiffs' rationale, if corporation A uses its taxable income to pay a debt owed to corporation B, the money received by corporation B cannot be taxed as income because it was already taxed as income to corporation A. Or, considered that the money paid to an individual's doctor, lawyer, etc., from that individual's income is not taxable to those recipients because it has already been taxed as income to the payor. Without question, such consequences can be characterized as unjust and absurd. Accordingly, we hold that the amount paid by plaintiff-husband and received by his former wife as alimony was properly taxable as income to each individual. 7 We next address plaintiffs' contention that it is unfair to assess an income tax on money that simply passes through their hands. In this regard, plaintiffs further argue that money paid as alimony is not now taxed as income on State income tax forms and never should have been. Plaintiffs admit, however, that this change had nothing to do with a change in Illinois tax law. Rather, the mainstay of plaintiffs' argument is the 1977 amendment to the Federal income tax forms (Pub. L. 94-455), which altered the computation of adjusted gross income for Federal tax purposes. Prior to 1977, alimony was an itemized deduction from adjusted gross income on Federal tax forms. For tax years commencing after December 31, 1976, alimony is a deduction from gross income. This change in Federal tax computation directly affected the State tax liability of Illinois taxpayers for two reasons: (1) adjusted gross income as it appears on Federal tax forms is the starting point upon which Illinois tax liability is computed, and (2) the Income Tax Act does not contain a deduction for alimony payments. Thus, prior to 1977, alimony was included in taxable income for Illinois income tax purposes even though it was not so included for Federal income tax purposes. It is axiomatic that deductions and exemptions are privileges created by statute as a matter of legislative grace (Balla v. Department of Revenue (1981), 96 Ill. App. 3d 293, 295, 421 N.E.2d 236), and taxpayers are not entitled to deductions unless clearly allowed by statute. (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502, 513, 410 N.E.2d 828.) Moreover, to the extent that federally allowed deductions enter into the computation of State tax liability, they are relevant under the Income Tax Act. However, this interrelationship does not create a 555 parallel set of Illinois deductions. 81 Ill. 2d 502, 510. For these reasons, we concur with the often-cited legal principle that whether or not an exemption is to be permitted is a matter for legislative consideration, not judicial determination. (Kawitt v. Mahin (1971), 49 Ill. 2d 73, 77, 271 N.E.2d 35.) Accordingly, because the Income Tax Act did not provide for a deduction of alimony payments from income during the years in question, we affirm the order of the circuit court of Cook County. Affirmed. LORENZ and MEJDA, JJ., concur. NOTES [1] Section 2-203(a)(2)(I) (Ill. Rev. Stat. 1979, ch. 120, par. 2-203(a)(2)(I)) provides for the following modification in adjusted gross income: "(I) An amount equal to all amounts included in such total which are exempt from taxation by this State either by reason of its Constitution or by reason of the Constitution, treaties or statutes of the United States." [2] Because we do not find any evidence of a written trust agreement, we will confine our discussion to an express oral trust. [3] We find plaintiffs' attempt to support their trust agreement by distinguishing between permanent alimony and temporary alimony ineffective. First, plaintiffs conclude, without legal support, that they are obligated to pay "permanent alimony." Second, because permanent alimony has been defined as a portion of a husband's estate (Walter v. Walter (1914), 189 Ill. App. 345, 348), plaintiffs conclude that it is not taxable because "[s]urely an estate is not taxable as current income." Again, plaintiffs offer no legal support for yet another legal conclusion. Finally, after informing the court that "income" and "estate" impose differing degrees of tax liability, plaintiffs state that "the `estate' from which the ex-wife was to be paid could be nothing more than future `income' to be received by the ex-husband." Thus, plaintiffs argue, future income should not be taxed as income because it is, in reality, part of the husband's estate which, in our case, has been put in trust. [4] Article IX, section 3(a) of the Illinois Constitution states in pertinent part: "A tax on or measured by income shall be at a non-graduated rate. At any one time there may be no more than one such tax imposed by the State for State purposes on individuals * *."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2200093/	114 Ill. App. 3d 680 (1983) 449 N.E.2d 258 JOSEPH MIRABELLA et al., Plaintiffs-Appellees, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant. No. 82-552. Illinois Appellate Court Second District. Opinion filed May 11, 1983. Paul Parker, of Parrillo, Weiss & Moss, of Chicago, for appellant. 681 A.F. Mannina, of Marco & Mannina, of Downers Grove, for appellees. Reversed in part and modified in part. JUSTICE REINHARD delivered the opinion of the court: Defendant, Safeway Insurance Company, appeals from a judgment of the circuit court of Du Page County, which awarded $400 each to plaintiffs, Joseph Mirabella and Lester Munson. Judgment was entered after a bench trial in which the court found defendant liable to plaintiffs for arbitrators' fees incurred when plaintiffs, along with David Weiss, served as arbitrators in a dispute involving the uninsured motorist coverage of an insurance policy issued by defendant. The only issue defendant raises on appeal is whether plaintiffs have waived any right to recover their fees from defendant. The insurance policy was admitted into evidence at trial. It provides, in part, as follows: "Arbitration. If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount payable hereunder, then each party shall, upon written demand of either, select a competent and disinterested arbitrator. The two arbitrators so named shall select a third arbitrator, or if unable to agree thereon within 30 days, then upon request of the insured or the company such third arbitrator shall be selected by a judge of a court of record in the county and state in which such arbitration is pending. The arbitrators shall then hear and determine the question or questions so in dispute, and the decision in writing of any two arbitrators shall be binding upon the insured and the company, each of whom shall pay his or its chosen arbitrator and shall bear equally the expense of the third arbitrator and all other expenses of the arbitration." Plaintiffs testified on their own behalf at trial. Mirabella testified that he was an attorney and that he was selected by the insured to act as an arbitrator under the above policy provisions. He stated that he served as an arbitrator in this matter and that he submitted a bill for his services in the amount of $600 to Munson, with the understanding that the bill would be forwarded to defendant for payment. Munson testified that he was an attorney appointed by the circuit court of Du Page County to act as the third arbitrator in this matter. David Weiss was selected as an arbitrator by the defendant. Munson testified that he served as an arbitrator and that he submitted a bill for his services in the amount of $600, along with the bill for $600 682 submitted by Mirabella, to defendant within 30 days of the arbitration award. He also testified that he drafted the arbitration award and submitted it to Mirabella and Weiss for their concurrence. The letter of award signed only by Mirabella and Munson awarded $6,600 to the insured and members of his family. No provision for arbitrators' fees was in the award. Both plaintiffs acknowledged that they had no contractual relationship with defendant. No other witnesses testified for either party. The trial court, relying on Nickla v. Industrial Fire & Casualty Insurance Co. (1976), 38 Ill. App. 3d 927, 349 N.E.2d 644, held the portion of the policy arbitration clause which required the insured to pay part of the arbitrators' fees to be invalid, and awarded plaintiffs $400 each, the amount claimed in their complaint. Defendant maintains that the contract of insurance provided that the insured pay the fee of the arbitrator he selected, that defendant pay the fee of the arbitrator it selected, and that they each pay one-half of the fee of the third arbitrator. Thus, defendant contends that the circuit court's judgment, which required defendant to pay all of the arbitrators' fees, was improper. 1 Generally, if the provisions of an insurance policy are clear and unambiguous, they will be applied as written. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203.) The provisions of this policy clearly provide that the insured and defendant must each bear the cost of his own arbitrator and that they must bear equally the cost of the third arbitrator. Thus, under the language of the policy, Mirabella, the arbitrator chosen by the insured, is not entitled to recover any portion of his fee from defendant, while Munson, the arbitrator chosen by the court, is only entitled to recover one-half of his fee from defendant. Plaintiffs, however, contend that each of them is entitled to recover his entire fee from defendant because the provisions of the insurance policy requiring the insured to pay a portion of the arbitrators' fees are invalid under the holding in Nickla v. Industrial Fire & Casualty Insurance Co. (1976), 38 Ill. App. 3d 927, 349 N.E.2d 644. In Nickla, the court held that such provisions dilute the mandatory uninsured motorist coverage required by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 755a) and, therefore, are invalid. (38 Ill. App. 3d 927, 931, 349 N.E.2d 644.) However, even applying the Nickla holding to this case, plaintiffs would not be entitled to recover their fees from defendant. Section 10 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 110) states that: 683 "Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including attorney's fees, incurred in the conduct of the arbitration, shall be paid as provided in the award." 2, 3 In construing a statute, the intent of the legislature should be determined and given effect. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492.) The best means of ascertaining the legislature's intent is to examine the statutory language, with the words of the statute being given their plain and ordinary meaning. Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211-12, 443 N.E.2d 563. 4 The plain and ordinary meaning of the language of section 10 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 110), is that arbitrators' expenses and fees, together with other expenses incurred in the conduct of the arbitration, must be paid either as provided in the agreement to arbitrate or as provided in the arbitrators' award. Thus, we believe the legislature intended that provision for payment of arbitrators' fees must be made in either the agreement or the award. Therefore, we hold that where, under Nickla, the provisions of the agreement providing for the payment of arbitrators' fees are invalid, provision for payment of the arbitrators' fees must be made in the arbitrators' award, in order for the arbitrators to recover their fees. 5 If, as plaintiffs argue, the policy provisions dealing with the payment of arbitrators' fees here are invalid, then, in order for plaintiffs to recover, the arbitrators' award must have made provision for the payment of arbitrators' fees. The arbitrators' award in this case did not provide for the payment of arbitrators' fees. Thus, the plaintiffs are not entitled to recover their fees from defendant. Plaintiffs make several arguments contending that the policy provisions remove the issue of arbitrators' fees from the statute. However, the statutory requirement that provision for arbitrators' fees be made in the award controls when, as plaintiffs argue, the policy provisions are invalid. Plaintiffs also argue that the bill for arbitrators' fees that Munson submitted to defendant after the award had been made was sufficient to entitle them to recover their fees from defendant, since no time was fixed, pursuant to section 8 of the Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 108), within which the award was required to be made. We do not consider this bill to meet the statutory requirement of section 10 (Ill. Rev. Stat. 1981, ch. 10, par. 110) that provision for arbitrators' fees must be made in the arbitrators' award. 684 No application to modify or correct the award was made. (See Ill. Rev. Stat. 1981, ch. 10, par. 109.) Therefore, this bill does not provide plaintiffs a basis for recovery. For the foregoing reasons the portion of the judgment of the circuit court of Du Page County in favor of Joseph Mirabella is reversed, and the portion of the judgment in favor of Lester Munson is modified to the amount of $200, as suggested in defendant's prayer at the conclusion of its appellate brief. Reversed in part and modified in part. LINDBERG and VAN DEUSEN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516088/	335 S.W.2d 83 (1960) Michael D. KICKHAM, Plaintiff-Appellant, v. Kenneth CARTER, Defendant-Respondent, Royal Papers, Inc., a Corporation, Defendant-Respondent, Royal Crown Bottling Corporation of St. Louis, a Corporation, Defendant-Respondent. No. 47677. Supreme Court of Missouri, Division No. 1. April 11, 1960. Motion for Rehearing or to Transfer Denied May 9, 1960. 84 James W. Jeans, Gray & Jeans, St. Louis, for plaintiff-appellant. William H. Tombrink, Strubinger, Tudor, Tombrink & Wion, St. Louis, for defendant Kenneth Carter. Heneghan, Roberts & Cole, George E. Heneghan, St. Louis, for defendant-respondent, Royal Papers, Inc. Hocker, Goodwin & MacGreevy, John M. Goodwin, Donald J. Stohr, St. Louis, for defendant-respondent, Royal Crown Bottling Corp. of St. Louis. Motion for Rehearing or to Transfer to Court en Banc Denied May 9, 1960. HOLMAN, Commissioner. In this action plaintiff sought to recover damages in the sum of $60,000 for personal injuries alleged to have been sustained by him in an intersectional collision between his car and one driven by defendant Kenneth Carter. Carter was a salesman for Royal Papers, Inc. (hereinafter referred to as "Royal Papers") which corporation was also made a defendant. The third defendant was Royal Crown Bottling Corporation of St. Louis (hereinafter referred to as "Royal Crown"). At the conclusion of plaintiff's evidence the court sustained the motion for a directed verdict filed by defendant Royal Papers. The jury returned a verdict for plaintiff against defendant Carter in the sum of $12,500 and found in favor of defendants Royal Crown and (as directed) Royal Papers. Plaintiff has appealed and here contends that the trial court erred (1) in directing a verdict in 85 favor of Royal Papers, (2) in giving Instruction No. 5 at the request of defendant Royal Crown, and (3) in the admission and exclusion of evidence relating to plaintiff's damages and in giving Instruction No. 12 upon that issue. He seeks a new trial as to defendants Royal Papers and Royal Crown and a new trial on the issue of damages as to defendant Carter. This is the second appeal in this case. See Kickham v. Carter, Mo.Sup., 314 S.W.2d 902. In the first appeal there were contentions that plaintiff failed to make a submissible case and also was guilty of contributory negligence as a matter of law, and hence it was necessary, in that opinion, for us to set out in detail the facts relating to the manner in which the collision occurred. Those issues are not presented upon this appeal and hence a brief statement of the facts will suffice. We refer readers to our first opinion for a complete factual statement. Plaintiff's case was submitted against Carter upon his hypothesized humanitarian negligence in failing to stop his automobile and thus to have avoided the collision. Carter was a salesman for Royal Papers and the alleged liability of Carter's said employer was predicated upon the doctrine of respondeat superior. In our first opinion we expressed the view that the evidence at the first trial had not been sufficient to support the submission of the issue as to the liability of Royal Papers, but since we were of the opinion that the evidence had not been fully developed on that issue we held that the case should be retried as to said defendant in order to afford plaintiff the opportunity of presenting additional evidence in an effort to prove that Royal Papers was responsible for Carter's actions on the occasion in question. As indicated, on the second trial, the trial court was of the opinion that the evidence was not sufficient to support a submission of that issue and accordingly directed a verdict for said defendant. The alleged liability of defendant Royal Crown was based upon the violation of certain ordinances of the City of St. Louis in that the route salesman had parked one of said defendant's trucks either in the intersection or "on a cross walk" at the southeast corner of the intersection. The causal connection of said negligence is evidently based upon the contention that, as so parked, the truck obstructed the view of plaintiff as his vehicle approached the intersection. The collision occurred on March 16, 1956, at about 10:30 a. m. at the intersection of Ninth, a north-south street, and Destrehan, an east-west street, in St. Louis, Missouri. Plaintiff was driving northwardly on Ninth at a speed of 25 m. p. h. As he neared the intersection his view of westbound traffic was obscured by the parked Royal Crown truck. Carter, driving west on Destrehan, stopped at a stop sign before starting to cross Ninth. Plaintiff first saw Carter's car when it was seven or eight feet into Ninth "edging out" into the intersection at a speed of three to five m. p. h. Plaintiff, then 30 feet away, did not apply his brakes but sought to avoid a collision by honking his horn and swerving to the left. He swerved to the left of the center line and the front of his car "got past" but his right rear fender was caught by the right front bumper guard of the Carter car and plaintiff was "wrenched around in the car." Carter testified that he had stopped his car before the collision. He also stated that plaintiff's car was moving at a speed of 40 m. p. h. Plaintiff did not think he had been injured in the collision. Each driver gave the other his name and address and plaintiff went on to work. Later in the day his back "felt a little funny" and the next day, Saturday, he developed "tremendous pain" in his low back radiating down his left leg. His condition did not respond to treatment and he underwent an operation on July 21, 1956, for the removal of a ruptured disc at the L-3, L-4 level. He lost 28 weeks' work during the year following the collision. His work as a stereotyper ordinarily required him to lift lead plates weighing about 45 pounds. Since his operation he has been 86 unable to lift those plates. He has been able to continue working because fellow employees have been doing the lifting for him. According to favorable medical testimony he has sustained permanent partial disability as a result of injuries sustained in the collision. We will first consider the contention of plaintiff that the court erred in directing a verdict for defendant Royal Papers. In our determination of the question concerning the sufficiency of the evidence to support the submission of the issue as to said defendant's responsibility under the doctrine of respondeat superior we will consider the evidence in the light most favorable to plaintiff. The evidence on that issue was given by defendant Carter and Dennis Aubuchon, a vice-president of Royal Papers, both of whom were called by plaintiff. There is no conflict in that evidence and our task, as stated, is to determine the legal sufficiency thereof. Kenneth Carter, on the dates mentioned, was living with his stepfather, Joseph Aubuchon, president of Royal Papers. In May 1955, when about 23 years of age, he went to work for Royal Papers in the warehouse. Six months later he became an "outside salesman" for the company. The company sells all types of paper products such as cups, napkins, towels, etc. No territory is assigned to a salesman. The only restriction is that if a salesman is calling on an account regularly, another salesman is not supposed to call on that account without his consent. Carter's stepfather gave him some instructions and he also learned the work by going with other salesmen to make calls. He owned the car he was driving at the time of the collision, although salesmen for Royal Papers were not required to have a car and the company does not pay any of the expense of operating the same. They are at liberty to walk or use public transportation in calling upon their customers. Mr. Aubuchon testified that salesmen were asked to telephone the office of the company about four times a day in order to receive messages and other information helpful in their work. He stated that if a customer calls the office and wants to talk with a salesman the switchboard operator would give the message to the first salesman who called thereafter and then it was up to the particular salesman as to whether he would accept or reject the call. He also stated that sales meetings were held on an average of twice a month, generally for the purpose of introducing new products, but that salesmen were not required to attend these meetings. He said that the only expense allowed the salesmen was that if a salesman took a customer out for an evening's entertainment the company would pay one half of that expense. Carter testified that he was paid strictly on a commission basis and that the company did not deduct any withholding tax or social security from his earnings. He stated that he was not required to work any particular hours or to call on any particular customers; that he usually went to the office once each day to get mail and receive any messages that might be left for him; that he had a desk in the office and stenographic services were available; that he ordinarily went to the office late in the afternoon when it was too late to make calls; however, on the morning of the collision he had made some calls at Baden and was intending to work around Kirkwood in the afternoon and, since that was near his home, he would not return to the office on that Friday afternoon. Consequently he decided to call at the office before noon and intended to receive his mail and messages and then go to lunch with someone in the office before proceeding to Kirkwood. He was on his way from Baden to the office at the time of the collision. In regard to the operation of his car Carter testified as follows: "Q. Now, on the use of your automobile you testified you were not required to have it; was there any restriction indicated to you, or anything, by anybody connected 87 with Royal Papers as to the operation of your automobile? A. No, sir. "Q. That was your business alone, was it? A. Yes, sir. "Q. In other words, you could use the automobile, or not, or you could go anywhere you wanted to, is that right? A. That's right. * * * "Q. I will ask you this: On that March 16, 1956, had you received any instructions from anybody connected with the management of Royal Papers Company about where you were to go and where you were not to go? A. No, sir." Defendant Carter testified further that the company furnished him with Dun & Bradstreet credit information, personal business cards, order blanks, price lists, and samples of the products. He stated that when he made a sale he ordinarily telephoned the order into the office and the office would then deliver the products and bill the customer for the price thereof. There was evidence that if a customer failed to pay his bill the salesman might be asked to call upon him and "see why it had not been paid." No written contract was entered into between the company and its salesmen. Plaintiff alleged that in the operation of the automobile at the time of the collision Carter was acting as the "agent and servant for defendant Royal Papers." In Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 256, 116 A.L.R. 1381, we stated that "There should be a clear distinction between an agent who is employed and authorized to bring about only contractual relations between his principal and others on his own initiative and by his own methods, and a servant or employee who is employed to perform physical service within the time and in the manner his employer might direct. The American Law Institute's discussion of this rule states: ` * * Those rendering service but retaining control over the manner of doing it are not servants. * * * An agent who is not subject to control as to the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results.' 1 Restatement of Agency § 485." In the instant case it would seem that the basic question is whether Royal Papers controlled or had the right to control the manner in which Carter conducted the business of selling its products and the means he used in traveling over the area in which he worked and his means of transportation in going to and from the office of the company. In Restatement, Agency 2d, § 220, will be found a definition of "servant" and certain suggested facts to be considered in determining whether one acting for another is a servant or an independent contractor. The following is one of the illustrations thereunder: "P employs a salesman who agrees to give full time to the work but furnishes his own car, is paid by commission and can call on those whom he pleases. It is inferred that the salesman is not P's servant." Also, in 60 C.J.S. Motor Vehicles § 451, p. 1156, it is said that "A salesman who works entirely on a commission basis, the employer reserving only general control over him, as, for example, with respect to the territory and the price at which he may sell, he being otherwise in control of the methods and means which he will employ to do his work, as a general rule, is held to be an independent contractor." We have concluded that the plaintiff failed to present evidence which would tend to prove that Royal Papers had the right to control the actions of Carter and hence it follows that the trial court ruled correctly in directing a verdict for said defendant. In arriving at that conclusion we think it is especially significant that (1) Carter owned the car and paid the expenses of its operation. (2) He could choose any mode of transportation he desired. (3) He could use his own methods in effecting 88 a sale and could call on any prospective customer he chose except the established customer of another salesman. (4) He could fix his own hours of work, choose his own territory, and the employer could not direct that he call on any particular customer. Our ruling is supported by the following authorities: Vert v. Metropolitan Life Ins. Co., supra, Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1, Stokes v. Four-States Broadcasters, Inc., Mo.Sup., 300 S.W.2d 426, Glynn v. M. F. A. Mut. Ins. Co., 363 Mo. 896, 254 S.W.2d 623, 36 A.L.R. 2d 256, Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58, Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, Pfeifer v. United Bakers Supply Co., Mo.App., 160 S.W.2d 795, and 5A Am.Jur., Automobiles and Highway Traffic, § 648, p. 645. The cases cited by plaintiff in support of his contention that he made a submissible case against Royal Papers are all distinguishable upon the facts. In Burgess v. Garvin, 219 Mo.App. 162, 272 S.W. 108, the evidence was held sufficient to warrant a finding that the employer had the right of control over its salesman primarily because the salesman was directed in the manner of taking security payable to the employer for the unpaid purchase price of products sold. Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557, was a case wherein it appeared that the employer had the right to direct the salesman in the manner of endeavoring to make a sale, to direct him in regard to where he should canvass, and to designate persons to whom he should demonstrate the product. In Hammonds v. Haven, Mo.Sup., 280 S.W.2d 814, 815, 53 A.L.R. 2d 992, we ruled that the evidence justified the inference that the employer had the right to control a sales manager who was returning home from a "meeting of the salesmen" which he had called upon the order of his employer. We will next consider the contention of plaintiff that the court erred in giving Instruction No. 5 at the request of Royal Crown. That instruction reads as follows: "The court instructs the jury that if you find from the evidence that on the occasion mentioned in evidence plaintiff, Michael D. Kickham, drove his automobile northwardly on Ninth Street toward and into the intersection of Ninth and Destrehan at a speed of 25 miles per hour, at a time when he could not see whether there was traffic proceeding into said intersection on Destrehan, and that in so doing he failed to exercise the highest degree of care for his own safety, and, if you further find that by slackening his speed and stopping his automobile before entering said intersection, plaintiff, Michael D. Kickham, could have avoided the collision with the automobile driven by defendant, Kenneth Carter, then you are instructed that plaintiff was negligent, and, if you further find that such negligence of plaintiff, Michael D. Kickham, if any, caused or contributed to cause the automobile collision between plaintiff, Michael D. Kickham, and defendant, Kenneth Carter, then you are instructed that plaintiff cannot recover against the Royal Crown Bottling Company, and your verdict should be in favor of the defendant, Royal Crown Bottling Company of St. Louis, under Instruction No. 4, and this is so even though you may also find that the defendants, Kenneth Carter and/or Royal Crown Bottling Company of St. Louis, were also guilty of some negligence as submitted to you in other instructions." It will be noted that the facts hypothesized in the instruction are admitted by plaintiff. Plaintiff testified that he approached and entered the intersection at a speed of 25 miles per hour and that as he approached the intersection he could not see traffic approaching from the east on Destrehan because of the position of the parked truck. He also concedes that his brakes were in good condition and that he could have avoided the collision by "slackening his speed and stopping his automobile before entering the said intersection." However, the fact that plaintiff had admitted all of the hypothesized facts did not cause the instruction to be the equivalent of 89 a directed verdict for defendant Royal Crown because the jury was required to find that the manner in which plaintiff admittedly operated his car constituted negligent operation, that is to say, the jury was required to find (1) that plaintiff's hypothesized manner of approaching and entering the intersection constituted a failure "to exercise the highest degree of care," i. e., negligence, and (2) that such negligence "caused or contributed to cause the collision" as a predicate to a verdict for such defendant. In his brief plaintiff states: "It is plaintiff's contention that any instruction which seeks to impose the guilt of negligence upon the plaintiff must incorporate in it a finding by the jury that plaintiff could have seen and realized that the parked truck obscured his vision and that thereafter he could have taken some preventative measure to have avoided the collision." Stated somewhat differently, it would seem that the specific question presented is whether the instruction was reversibly erroneous in failing to contain the additional hypothesis that at the time plaintiff saw or should have seen that the truck obscured his vision of traffic entering the intersection from Destrehan there remained time in which he could have taken preventative action to avoid the collision. Plaintiff cites the case of Stakelback v. Neff, Mo.App., 13 S.W.2d 575, and cases following it. Those cases are not specifically applicable here because they deal with an instruction which required action to avoid a collision with a car which defendant saw or should have seen and the instruction was held erroneous because it did not require a finding that there was apparent danger of a collision unless action was taken. But, as indicated, plaintiff seeks to apply the Stakelback rule to the instant instruction, by analogy, in regard to the situation concerning his discovery of the parked truck. We do not agree with plaintiff's contention. The instruction submitted whether plaintiff was negligent in driving "toward and into the intersection * * * at a speed of 25 m. p. h. at a time when he could not see whether there was traffic proceeding into said intersection on Destrehan." It seems clear to us that the instruction's hypothesis included plaintiff's inability to see for any reason, including the fact of the presence and the effect of the Royal Crown truck. There was no dispute about the fact that the parked truck was visible during plaintiff's approach to the intersection. Moreover, there was no dispute about the physical surroundings and very little conflict concerning any of the facts relating to the collision. The issue pertaining to plaintiff's contributory negligence was relatively simple. Therefore, under the circumstances here presented, it was sufficient that the instruction hypothesize, as it did, the ultimate facts essential to a finding that plaintiff was negligent, and there is no requirement that it hypothesize all evidentiary facts that might have had some relation to the situation. Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972. In determining whether the hypothesized essential facts constituted negligence, and, if so, whether such negligence contributed to cause the collision, the jury no doubt considered various relevant evidentiary facts in evidence which were not specifically hypothesized in the instruction. The additional facts which plaintiff contends the instruction should have hypothesized were evidentiary facts and it was not essential that they be specifically hypothesized in the instruction under review. Moreover, if those facts, as plaintiff contends, would have warranted a jury finding that plaintiff was not negligent, he should have offered an instruction which would have submitted that theory. On direct examination plaintiff testified that his hospital bills amounted to about $400. On cross-examination, over objection of plaintiff, counsel was permitted to ask plaintiff if he had Blue Cross, and if any of his bills were paid by Blue Cross. In answer to those questions plaintiff testified that all of his hospital bills had been paid by Blue Cross. Plaintiff contends that 90 the trial court erred in admitting that evidence. No Missouri case has been cited which deals with the specific question presented, but the courts of this state have followed the general rule that insurance payments received by the plaintiff cannot ordinarily be set up by the wrongdoer in mitigation of damages. Baker v. Fortney, Mo. App., 299 S.W.2d 563; Wells v. Thomas W. Garland, Inc., Mo.App., 39 S.W.2d 409. It is our view that plaintiff was entitled to recover reasonable hospital expenses incurred as a result of injuries resulting from the negligence of defendant even though such expenses were actually paid by the Blue Cross organization in response to its contract with plaintiff and hence evidence of such payment was wholly immaterial in this action. Upon principle there would appear to be no logical reason for defendant to receive the benefit of hospitalization payments (in the nature of insurance) made by an organization such as Blue Cross to which plaintiff had no doubt made contributions in accordance with a membership agreement. While there is some division of opinion, we think our view is in accord with the weight of authority generally. See 15 Am.Jur. Damages, § 201, p. 617; 25 C.J.S. Damages § 99, p. 647; Clough v. Schwartz, 94 N.H. 138, 48 A.2d 921; Roth v. Chatlos, 97 Conn. 282, 116 A. 332, 22 A.L.R. 1554; Capital Products, Inc. v. Romer, 102 U.S.App.D.C. 279, 252 F.2d 843; and Grayson v. Williams, 10 Cir., 256 F.2d 61 Defendant Carter in his brief does not contend that the evidence was admissible but is content to briefly assert that the plaintiff was not prejudiced by the evidence as indicated by the fact that he received a substantial verdict. We do not agree. Errors of that nature are presumed to be prejudicial. Moreover, as a result of that evidence, plaintiff likely was prevented from recovering a $400 item and may have been prejudiced generally, in the eyes of the jury, because he attempted to recover an item which he later admitted he had not paid. We accordingly rule that the error was prejudicial to plaintiff. Since this case will be remanded for a new trial we will briefly consider certain other contentions of error relating to the issue of damages that are likely to recur upon another trial. One such contention is that "the court erred in sustaining defendant's objection to plaintiff's offer of proof to the effect that William Wieseman, plaintiff's foreman, would testify that by reason of plaintiff's physical impairment he would be the first stereotyper employed at World Color Printing Company to be discharged in the event of a reduction of force." In the absence of any indication that plaintiff's discharge for the reason stated would result from anything other than the personal feeling or view of the foreman, we are of the opinion that the proffered testimony is too speculative and conjectural to be admissible. The court ruled correctly in excluding that testimony. On direct examination plaintiff testified as follows: "Q. Have you been to any other doctor since then for examination or treatment? A. Yes, that was Dr. Funsch. "Q. You were sent out there by the defendant to be examined, is that right? A. Yes." During the argument of plaintiff's counsel the following occurred: "Another thing, about this medical situation, Mr. Kickham was examined by Dr. Funsch on behalf of the defendant, and Dr. Funsch wasn't here to testify, for the reason that he would probably say the same thing as Dr. Schaerer in regard to Mike Kickham____ "Mr. Tombrink (interrupting): Just a minute, I will object to that as to why Dr. Funsch did not testify. "The court: Sustained. 91 "Mr. Jeans: Now, your honor, I believe the jury can infer that if Dr. Funsch "The court (interrupting) : I am sorry." Plaintiff contends that the court erred in preventing his counsel from commenting on the failure of defendants to produce Dr. Funsch and from presenting the argument that such failure would warrant an inference that his testimony would not aid the defendants. We agree with that contention. The argument that the failure of defendants to produce their examining physician would warrant an inference adverse to them would have been proper. Hamilton v. Ross, Mo.Sup., 304 S.W.2d 812. While the court interrupted plaintiff's counsel before he had made his position clear, it nevertheless is apparent that the nature of the argument he intended to make was similar to the argument discussed in Hamilton v. Ross, supra. The ruling complained of was error. The next contention of plaintiff is that the court erred in giving Instruction No. 12, at the request of defendant Carter, which told the jury that the plaintiff was not entitled to recover for any impaired condition he may have had prior to the accident mentioned in evidence. Plaintiff says there was no evidence to support the giving of that instruction. In view of the fact that plaintiff experienced low "back trouble" in 1952 and 1954 and had undergone treatment therefor, we are of the opinion that the trial court did not abuse its discretion in giving a cautionary instruction such as the one complained of. Plaintiff's counsel sought to prove by William Wieseman, plaintiff's foreman, that plaintiff had complained of pain in his back after the collision. An objection that the testimony involved a self-serving declaration was sustained. Plaintiff's final contention is that said ruling was erroneous. Plaintiff is supported by the case of Jones v. Central States Oil Co., Mo.App., 170 S.W.2d 153, wherein the court ruled that such statements, although made to lay witnesses, are admissible. In so ruling the court pointed out that the statements must be complaints of pain being suffered at the time the statement is made and quotes from Greenleaf on Evidence wherein it is stated that such declarations are entitled to greater weight if made to a medical attendant but are not to be rejected if made to any other person. We accordingly rule that the testimony was admissible. In conclusion plaintiff points out that two juries have found that defendant Carter was negligent and that the only complaints on this appeal which concern Carter relate to the issue of damages. He requests that the new trial as to that defendant be limited to that issue. Carter did not appeal from the judgment and, in his brief as a respondent, had not objected to plaintiff's request for a limited new trial. Section 512.160, subd. 3 RSMo 1949, V.A. M.S., provides that "no new trial shall be ordered as to issues in which no error appears." In the situation presented we can see no reason for denying plaintiff's request. The judgment is affirmed as to defendants Royal Papers and Royal Crown. It is reversed and remanded for a new trial as to defendant Carter with the direction, however, that plaintiff's verdict against said defendant on the issue of liability be held in abeyance and the new trial be limited to the issue of damages. COIL and HOUSER, CC., concur. PER CURIAM. The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516097/	335 S.W.2d 38 (1960) Earl F. KITCHEN, Respondent, v. John Warren WILSON, Appellant. No. 47425. Supreme Court of Missouri, Division No. 2. May 9, 1960. 40 James & Jenkins, A. Lamkin James, Darold W. Jenkins, Marshall, for appellant. Robert W. Berrey, III, Kansas City, Johnson & Rawlings, Robert D. Johnson, Marshall, for respondent. STORCKMAN, Judge. This is an action to recover damages for personal injuries sustained in a collision between motor vehicles. A jury found for the plaintiff and assessed his damages in the sum of $15,000. The defendant appealed and assigns error in admission in evidence of the office records of an optometrist, the manner of offering other records, and the giving of three instructions; 41 he also contends that the damages awarded are excessive. The collision occurred on Missouri Highway No. 240 in Saline County near the Orearville intersection on or about December 5, 1956, at about 7:15 a. m. At the place in question Highway 240 runs generally north and south, is of concrete construction 18 feet in width and the shoulders are 6 to 8 feet wide. The highway is generally winding and rolling in that vicinity. A gravel road running to the Orearville School joins the highway on the east. The plaintiff, a plumber whose home was in Kansas City, was driving a panel truck northwardly on Highway 240 and was about 300 feet south of the intersection when he saw a pickup truck driven by Kenneth Hurd slowly approach the intersection from the north with its signal light indicating the driver's intention to make a left turn onto the gravel road. The defendant Wilson, also driving south some distance behind Mr. Hurd, was about 300 feet north of the intersection when the plaintiff first saw him. The defendant applied his brakes when he saw the Hurd truck stopped or nearly so at the intersection but was unable to stop and the right front of his car struck the right rear of the Hurd truck. The defendant's automobile then caromed into the northbound lane and collided with the left side of plaintiff's truck which was partially off the pavement on the east shoulder, the plaintiff having turned it to the right when a collision appeared imminent. The plaintiff's truck spun around out of control and traveled 75 to 100 feet before coming to rest but did not turn over. The plaintiff claims injuries in the cervical region and shoulders and impairment of vision. The defendant, a young man who was in the United States Military Service at the time of the trial, testified by deposition that he was "doing about 60 miles an hour, * * * give or take a few miles" when he came up to the curve north of the inter-section. When he got to the crest of the hill, according to his testimony, he saw the Hurd vehicle about 120 or 130 feet away; its red brake lights were on and it appeared to be stopped. The defendant applied his brakes and had moved partially in the northbound lane a short distance behind the Hurd vehicle before he saw the plaintiff's truck approaching from the south. He admitted colliding first with the Hurd truck and then with the plaintiff's vehicle. The pavement was dry, but there was some moisture on the shoulders from a rain the night before. The testimony of a highway patrolman tended to prove that the defendant's car skidded 138 feet to the place where it collided with the Hurd truck in the southbound lane; that the skidmarks continued another 27 feet to the place where the defendant's car collided with the plaintiff's truck in the northbound lane; and that the defendant's car came to rest 30 feet south of where the second collision occurred. To the extent necessary, other evidence will be referred to in the course of the opinion. The defendant first complains of the admission in evidence of plaintiff's Exhibits 17 and 18 which purport to be the office records of an ocular examination made of the plaintiff by Dr. Homer Vance, an optometrist of Marshall, Missouri, on August 16, 1958, about twenty months after the collision and shortly before the case was set for trial. Dr. Vance's secretary who had been employed by him for twelve years testified that Dr. Vance was physically unable to be in court at the time of the trial; that the exhibits were the records of Dr. Vance's examination on August 16, 1958; that she did the visual screening herself; that she wrote some of the record herself and some of it was in Dr. Vance's handwriting; that Dr. Vance dictated the report, Exhibit 18, and that she typed it; and that the records were obtained in the usual course of business and were in her custody as secretary. Exhibit 17 consists of four sheets of forms apparently designed to record the results of an optometrical examination. The forms are filled in with marks, figures, 42 and handwriting, but the photographic copy of Exhibit 17 furnished to this court is largely unintelligible because of its blurred condition and the handwritten notes are generally illegible. The defendant's objection to Exhibit 17 on the ground that "it is hearsay from this witness" and denied him the right of cross-examination was overruled. There was no objection to any particular portion of the exhibit on the ground of relevancy. The transcript shows that, in addition to the name of the patient, the date of the examination, the fact that plaintiff was referred to the optometrist by counsel for the plaintiff, these findings were read to the jury: "`Pupil response: Pupil of eye response is weak for age. Muscle suppression of both eyes. Left eye is lower than eye pupil.' `Astigmatism in both eyes, against the rule by the left eye. Ability to focus is, at near is only fifty per cent normal for left eye. Blurred vision in left eye.'" The records of an optometrist made in the regular course of business are within the purview of "The Uniform Business Records as Evidence Law" which includes every kind of business, profession or occupation. Section 490.670 RSMo 1949, V.A.M.S., Fisher v. Gunn, Mo., 270 S.W.2d 869, 878. Dr. Vance's secretary was competent to identify the business record and the presence of Dr. Vance was not necessary to qualify it for admission in evidence. Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677, 681-682. The defendant's objection on the ground of hearsay and the lack of opportunity to cross-examine the doctor was properly overruled, especially in view of the limited use made of the exhibit. Exhibit 18, however, is in a different category. It is a statement in narrative form consisting of three typewritten pages on the business stationery of Dr. Vance. The middle portion of the exhibit has sections entitled Objective Findings and Subjective Findings which evidently were dictated from Exhibit 17. These findings are sprinkled with comment and its form and context demonstrate that the document was not made in the regular course of business for the usual purposes of the business of optometry. Omitting the findings, the exhibit reads as follows: "Visual examination of Mr. Earl Kitchen, age 34 of Kansas City, Missouri was conducted in my office the afternoon of August 16, 1958. Case History revealed normal childhood diseases and a tonsillectomy at age 5 or 6, but no other major illness or injuries until patient was in car wreck on December 7, 1956, which snapped the head forward and bumped the left side of the head above the left ear. "Major visual complaint was that in reading blue prints the patient experiences difficulty keeping lines in focus after which they begin to appear `rippled'. The eyes have tired more easily the past 1½years. * * * * * "Conclusion "1. The cervical sympathetic ganglia which affect the focusing of the vision was injured in a car wreck December 7, 1956. "2. The pupil response to light is weak for a person of his age. "3. There is more astigmatism in the left eye. It was the left side of the head which was bumped in the car accident. "4. The ability to focus the eyes is decreased to ½of what it should be for a person of this age. "Therefore: It is my considered opinion that this loss of ability to focus the eyes and the resultant `blurred vision', together with the other three above listed observations verify the existence of a whiplash injury as the etiologic factor in the damage inflicted on this patients visual nerves and visual abilities." (Italics added.) The only evidence in the transcript as to what happened to plaintiff at the time of the collision is this question and answer 43 from plaintiff's testimony during his direct examination: "Q. Do you have any idea what happened to you physically at the time of that impact ? Did you strike anything in the car, your head hit anything? A. I evidently did; I don't remember, it was real fast." Thus, it appears that this exhibit puts in evidence a self-serving statement more favorable to the plaintiff than his own testimony and also contains factual statements and expressions of opinion foreign to the dominant purpose of the business and some of which would have been objectionable if made by the optometrist testifying in person. See Ryan v. Campbell "66" Express, Inc., Mo., 304 S.W.2d 825, 828 [4]. Exhibit 18 has the appearance of a report prepared for the information of plaintiff's counsel if not for offering in evidence at the trial. It was read to the jury in its entirety. Although the purpose of The Uniform Business Records as Evidence Law is to enlarge the operation of the common law rule providing for the admission of business records as an exception to the hearsay rule, the Law does not make relevant that which is not otherwise relevant, nor make all business and professional records competent evidence regardless of by whom, in what manner, or for what purpose they were compiled or offered, and when the business record is not of the character comprehended by the Uniform Law, it is relegated to the status of hearsay and as such is not admissible in evidence. Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663, 669-670; Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577, 580; Hancock v. Crouch, Mo.App., 267 S.W.2d 36, 40 [1]. Assuming that Exhibit 18 was made at or near the time of the examination, yet it does not appear to have been made "in the regular course of business" as required by § 490.680. The term "regular course of business" as used in the Uniform Law "must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of the business as a business." Palmer v. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 481 [5], 87 L. Ed. 645, 144 A.L.R. 719, affirming 2 Cir., 129 F.2d 976. See also New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297, 303 [15] ; Higgins v. Loup River Public Power Dist., 159 Neb. 549, 68 N.W.2d 170, 174 [7]; and Knudsen v. Duffee-Freeman, Inc., 95 Ga.App. 872, 99 S.E.2d 370, 374 [4]. In the Palmer case, a written statement of an engineer, who was dead at the time of trial, made in the presence of representatives of the company and the state utilities commission, pursuant to a railroad regulation and filed with the company's other records, was held not to have been made "in the regular course of business" because such records were not for the systematic conduct of the enterprise as a railroad business and the "primary utility" of such statements was "in litigating, not in railroading." 63 S.Ct. at page 481. Paraphrasing, we might properly say that the primary utility of Exhibit 18 was in litigating, not in the practice of optometry. Possible abuses under a contrary construction are readily apparent; they are discussed in Palmer and the other cases cited and will not be repeated here. Section 336.010 in defining the practice of optometry stresses the "examination of the human eye" for the discovery of defects which can be corrected "by the use of lenses, prisms or ocular exercises" and the prescription of corrective glasses or exercises all "without the use of drugs, medicines or surgery". We find nothing in the law or the transcript of the record which qualifies the doctor of optometry to give an expert opinion that the plaintiff suffered "a whiplash injury" and that his cervical sympathetic ganglia "was injured in a car wreck December 7, 1956." Even when given by a doctor of medicine, such opinions are usually predicated on a reasonable medical certainty. The limitations on the practice of optometry further mitigate 44 against the exhibit being a business record of an optometrist made in the regular course of business. Defendant urges also that the records were not admissible because they were prepared in contemplation of the trial of the lawsuit rather than for the purpose of diagnosis and treatment. The respondent points out that there was evidence that the optometrist prescribed glasses for plaintiff's use in reading blueprints, but the plaintiff was a resident of Kansas City and it seems unlikely that his dominant purpose in traveling to Marshall for the examination was to be fitted with glasses. However, in view of our other conclusions, we need not determine if the circumstances under which the records were made affect their qualification as business records within the meaning of the Uniform Law. "Of course, if it should appear that such records have been made and kept solely for a selfserving purpose of the party offering them in evidence, it would be the duty of a trial court to refuse to admit them." Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245, 251, 169 A.L.R. 668. "The probability of trustworthiness of records because they were routine reflections of the day to day operations of a business" seems to be the justification for the admission of business records in evidence. 63 S.Ct. at page 480. Exhibit 18 is a narrative statement apparently based in part on original business entries but with embellishments, conclusions and opinions added which are not necessary or helpful to the observation, diagnosis and treatment of the patient; it does not qualify as a business record made in the regular course of business. Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 254 S.W.2d 577, 580; Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 667 [6], 55 A.L.R. 2d 1022. The permissible limits of similar business entries are generally indicated in the Allen case and as stated in Gray, 254 S.W.2d at page 580: "And the fact that the entry in question was a part of a `narrative summary' apparently prepared from other data (not a part of the exhibit) negatives the idea that the entry was in fact a business entry." Since Exhibit 18 is not a business entry "made in the regular course of business" within the meaning of the Uniform Law, it is relegated to the status of hearsay and is inadmissible under the hearsay rule. The admission of Exhibit 18 in evidence was prejudicial error. We find nothing in other cases cited by the respondent to justify a contrary conclusion. In Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677, cited by plaintiff, medical records were identified by the doctor's secretary and admitted without the doctor appearing, but the purpose of the offer was to show that the plaintiff was still being treated for previous injuries at a time much later than he had admitted on the stand. If the offerer of such business records were encouraged to indicate the purpose for which the records are offered and their relevancy, a better understanding of the purpose and proper limits of The Uniform Business Records as Evidence Law might result and there would be less likelihood of error. In rebuttal plaintiff offered in evidence his Exhibit 30 with the assertion in the presence and hearing of the jury that it was the record of convictions of the defendant for excessive speed. The court sustained defendant's objection to the admission of the exhibit and overruled his motion for a mistrial but instructed the jury "that the remark of counsel in offering this exhibit in evidence will be stricken, and the jury will not consider it in their deliberations in this case." Exhibit 30 was a certified copy of a single conviction of driving "a motor vehicle on a highway of this state at a rate of speed so as to endanger the property of others and the lives and limbs of other persons lawfully using said highway". The prosecution and conviction grew out of the same occurrence involved in the damage suit on trial. While the remarks of plaintiff's counsel 45 in offering the exhibits were improper, the trial court acted promptly and adequately in order to remove any prejudicial effect of the incident. The court did not abuse its discretion in refusing to discharge the jury. Rockenstein v. Rogers, 326 Mo. 468, 31 S.W.2d 792, 800 [11, 12]. Since the cause must be remanded for a new trial, it would serve no useful purpose to consider the claim that the damages awarded are excessive; but some discussion of the instructions complained of may be helpful in the event of a retrial. Plaintiff's Instruction P-3 submitted the theory that the defendant "failed to pass to the right of plaintiff Kitchen's motor vehicle and to give plaintiff Kitchen at least one-half of the travelling portion of said highway". The language of this submission follows subparagraph (5) of § 304.015, subd. 5 which applies to a roadway which has been divided into three or more clearly marked lanes for traffic. Section 304.015, subd. 2, providing that a vehicle shall be driven on the right half of the roadway (with certain exceptions), would be more nearly applicable, but under the undisputed evidence, the essential negligence could not properly be based on the duty imposed by either statutory provision. All of the evidence was to the effect that the defendant skidded into collision with the Hurd truck and "bounced" immediately into collision with the plaintiff's vehicle in the northbound lane. There was no contention that the defendant could have done anything to avoid the collision after striking the Hurd truck. The essential negligence was in defendant's antecedent operation of his automobile so as to permit it to come into collision with the Hurd truck. This instruction tended to inject a false issue into the case and failed to hypothesize the essential facts. Evans v. Colombo, Mo., 319 S.W.2d 549, 552. On the record before us the instruction should not have been given. The plaintiff's Instruction P-2 submitted the operation of the defendant's automobile at a high, dangerous and excessive rate of speed, and P-4, submitted defendant's failure to keep a reasonable, careful and vigilant lookout. The defendant contends there was no evidence whatever on which to base either of these instructions. We cannot agree. From the undisputed evidence in the case, the jury could reasonably find that the defendant was driving his automobile "a few miles" in excess of 60 miles per hour on winding roads in rolling country. His basic duty was to exercise the highest degree of care and drive his automobile at a rate of speed so as not to endanger the property or the life or limb of another person, and the speed limits provided by law are not lawful in a situation where the basic duty would be violated. See § 304.010, subd. 4. The skidmarks of defendant's automobile began 138 feet north of the place where he collided with the Hurd vehicle, but according to the evidence he could have seen the Hurd vehicle at the intersection when he was 300 feet or more north of it. The jury might reasonably infer that he failed to keep a vigilant lookout. This and other evidence justified the submission of both excessive speed and failure to keep a proper lookout, either separately or in combination. In addition to the cases cited, see Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 25 [11, 12]. The defendant further contends that plaintiff's entire case was submitted by his Instruction P-5 which embodied the theory that the defendant did not have his automobile under such control that he could stop or turn it aside and thereby avoid the collision with the Hurd truck. This type of instruction has been frequently criticized. As stated in Myers v. Buchanan, Mo., 333 S.W.2d 18, 21: "Lack or loss of control is usually the result of some antecedent negligent act or omission which is the essential fact that should be hypothesized." See also Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872, 876. By his submission of excessive speed and failure to keep a vigilant watch, the plaintiff 46 obtained the submission of the essential negligent acts constituent of lack of control and Instruction P-5 should not have been given. These and the other objections made should be considered in redrafting the instructions. The judgment is reversed and the cause remanded. EAGER, J., LEEDY, P. J., and JAMES W. BROADDUS, Special Judge, concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516121/	335 S.W.2d 176 (1960) W. A. BROOKSHIRE, Appellant, v. Glenn POWELL, Ralph L. Alexander and Don C. Carter, Respondents. No. 47337. Supreme Court of Missouri, Division No. 2. April 11, 1960. Motion for Rehearing or to Transfer Denied May 9, 1960. 177 W. A. Brookshire, Columbia, for appellant. Warren Welliver, Columbia, for respondents, Ralph L. Alexander, Columbia, and Don C. Carter, Sturgeon, of counsel. Motion for Rehearing or to Transfer to Court en Banc Denied May 9, 1960. LEEDY, Presiding Judge. Action to set aside a sheriff's sale of plaintiff's farm under execution and also the deed made by that officer conveying the premises to the purchasers pursuant to the sale. The defendants are the sheriff, Powell, and the purchasers, Alexander and Carter. The court first entered an interlocutory decree granting, conditionally, the relief sought; but plaintiff declined to comply with the conditions thus imposed, and, in this contingency, as the alternative provided by such interlocutory decree, a final decree was entered which found the issues in favor of defendants, and dismissed plaintiff's petition. From this final decree the latter appeals. We will continue to refer to the parties as styled in the trial court, or, in some instances, by name. The transcript execution under the authority of which the sale in question purports to have been held was issued out of the office of the Circuit Clerk of Laclede County on March 23, 1957. It was based on a judgment of the magistrate court of that county, rendered June 28, 1956, in favor of Raymond York and against Brookshire in the sum of $611.85 and costs. York's action was one to establish and enforce an agistor's lien upon 24 head of Hereford bulls belonging to Brookshire. It was filed in the Magistrate Court of Pulaski County and went on change of venue to Laclede County, where, upon a trial before the magistrate of the latter county, that official, sitting as a jury, rendered judgment against Brookshire for the amount just mentioned, but further found that York had not established his right to the lien prayed for. On the same day, Brookshire filed both a "notice of," and an "application for" an appeal to the circuit court. The magistrate ordered that the 178 application be sustained, and granted an appeal, ordering the cause transferred. On July 10, defendant filed his appeal bond in the sum of $700, which was approved by the magistrate on that date. The transcript of the proceedings before the magistrate were transmitted to, and lodged with the Circuit Court of Laclede County on July 9, 1956, and on July 14 a "Supersedeas Bond on Appeal from Magistrate Court" was filed in said cause in the circuit court. On November 20, York filed a motion in the latter court to set aside the magistrate's approval of the appeal bond on the grounds that it had not been timely filed, and that in violation of a certain stipulation filed in said cause, such bond was signed by only one surety (whose solvency had not been established), whereas the stipulation specifically provided that certain named persons were to become sureties thereon. On February 4, 1957, the circuit court sustained York's motion, and set aside the magistrate's order approving the appeal bond. Thereafter, on March 23, 1957, the transcript execution was issued, and in due time was received by the defendant sheriff, who levied upon plaintiff's 322-acre Boone County farm, filed the required notice thereof, and gave the prescribed notice by advertisement for the public sale at auction of such real estate to be held May 6, 1957. At the appointed time the sheriff proceeded to conduct the sale but over Brookshire's protest which he read aloud to the sheriff and other persons assembled for the sale. The grounds of such protest were, in substance and effect: That the underlying judgment was not final because appealed from and a supersedeas given; the disparity between the value of the property to be offered for sale (allegedly in excess of $50,000) and the amount of the judgment ($611.85); the fact that he, Brookshire, had personal property consisting of livestock, machinery, library, furniture, and corporate stock of a value in excess of $50,000, which fact was allegedly known to the sheriff and York, and "that a levy upon less than One Thousand Dollars ($1,000) of this personal property would be amply sufficient to satisfy the judgment and all costs." After several bids had been made (amounts undisclosed), Brookshire bid the sum of $10,000, and no further bids having been made, the property was knocked off and sold to him at that price and sum. At the time of the sale the sheriff had in his hands three other transcript executions against Brookshire (together with a distress warrant for Federal taxes, $3,516.46). All of the executions, including that in the York case, aggregated approximately $2,300. Under such executions he had previously levied upon the same lands as those now in question. Immediately after the sale, plaintiff and defendants herein retired to the sheriff's office, where, according to the plaintiff, he stated that the only amount he would be required to pay was the judgment, together with interest and costs, and that it was there agreed "that that was the amount;" that the sheriff figured up the entire amount of the costs and gave the figure (something over $700) to the plaintiff, who asked that the sheriff meet him at the Boone County National Bank, where he would give him a draft; that plaintiff went to the bank and shortly after he arrived the sheriff came, but the sheriff declined to accept the amount of the judgment together with interest and all costs. On the other hand, the sheriff testified that the first he heard anything said by Brookshire that he wanted to pay only the York judgment and costs was at the bank; that the witness informed Brookshire at that time that he would be required to pay the amount of his bid, $10,000; that he further advised plaintiff of the other executions which he held against him, and the distress warrant for Federal taxes. Brookshire then told the witness that he was not going to pay the $10,000, but did offer to pay the amount of the York judgment together with interest and costs. The sheriff then advised him that "I was going to come back up here and sell it over." The witness then returned to the court 179 house immediately and again sold the farm, and at such sale the respondents were the purchasers for $2,300. It is inferable from plaintiff's testimony that the second sale was held while he was communicating by telephone with a lawyer in St. Louis, and that he did not know until May 8 that the second sale had been held. The proceeds arising from the second sale were applied by the sheriff to the payment of the York and other executions then in his hands (but not the distress warrant for Federal taxes), leaving a surplus of $72, which sum Brookshire refused to accept when tendered by the sheriff. Other facts, if pertinent, will be stated in connection with the points to which they relate. The first point urged against the validity of the second sale and the deed to defendants is that the York judgment (to satisfy which the farm was sold) is void on its face because rendered in an amount in excess of the monetary jurisdiction of the magistrate court as fixed by § 482.090(2), RSMo 1949 and V.A.M.S. (All statutory references are to these sources, unless otherwise expressly noted.) It is true that in the ordinary action that section does limit the monetary jurisdiction of magistrate courts in counties having a population such as that of Laclede County to the sum of $500, and the York judgment was in excess of that sum. But, as previously pointed out, York's action was one to establish and enforce an agistor's lien. Such lien is created by § 430.150, and the method of enforcing it is prescribed by § 430.160 (insofar as here pertinent), as follows: "The lien provided for in section 430.150 shall be enforced as follows: The person claiming the lien shall file with a magistrate of the county in which he resides, a statement duly verified * * setting forth his account and a description of the property on which the lien is claimed, and thereupon the magistrate shall issue a summons, as in ordinary civil actions, returnable forthwith; * * . When the defendant shall have been summoned or notified as aforesaid, the cause shall, on the day fixed for trial, be tried as any ordinary case in a magistrate's court. If the judgment be for the plaintiff, the magistrate shall order the property upon which the lien shall have been found to exist to be sold to satisfy the same. * * If the defendant shall have been summoned, or shall have appeared to the action, and the plaintiff shall have established an indebtedness on the account sued on, but shall have failed to establish the lien claimed, the judgment shall be for the plaintiff for such indebtedness, but the cost of suit, or any part thereof, may be taxed against him." This section was construed in Coates v. Acheson, 23 Mo.App. 255, a case involving a hotel and boarding house keeper's lien upon baggage. It was there held that the lien claimed was purely the creature of the statute; that a complete and adequate remedy for its enforcement was provided by this very section (then known as § 3197, R.S.Mo. 1879, which has since been amended in certain respects not here pertinent), and that such remedy was exclusive, and consequently the circuit court which had established the lien and ordered enforcement against the property had no jurisdiction of the case as a court of equity or otherwise. Insofar as we are able to discover, the rule thus announced has remained unchallenged nearly 75 years; nor is it here directly challenged. Although defendants cite and rely upon it, curiously, plaintiff does not mention or discuss it. Institution of the action in the magistrate court, and the proceedings therein taken were in conformity with the requirements of § 430.160, including the provision that if defendant "shall have appeared to the action, and the plaintiff shall have established an indebtedness on the account sued on, but shall have failed to establish the lien claimed, the judgment shall be for the plaintiff for such indebtedness, * * ." As both forum and procedure were authorized and directed by the express terms of the statute, it follows that the judgment of 180 the magistrate in the York case is impervious to the attack that it is void on its face. Plaintiff urges that York was estopped from suing out the transcript execution because a stipulation of the parties had been filed in his case in the circuit court reciting the fact that an appeal bond had been given in such case, by the terms of which still another case against Brookshire was to be held in abeyance pending the disposition of the York case. The court out of which the execution issued was the proper forum in which to have had determined the question thus raised, either by motion to quash the execution or to recall the same. We do not mean to imply that the Boone Circuit Court could not in any event give relief on this ground, but we take the obvious view that primarily the Laclede Circuit Court was the forum to which resort should have been made for relief on this ground, and this was not done. The contention thus made is not entitled to consideration here because it overlooks the subsequent action of the circuit court in setting aside the magistrate's approval of the appeal bond, thus rendering the bond nugatory as a supersedeas, and subjecting the judgment to compulsory payment by means of the writ of execution. Plaintiff next contends that his tender was sufficient, and that it extinguished the lien of the execution so that there was nothing upon which the validity of the second sale could be based, and it was therefore void. Blalock v. Wells, 141 Ga. 623, 81 S.E. 853; Tiffany v. St. John, 65 N.Y. 314; Reed v. Shepperd, 38 Mo. 463; Freeman on Judgments, 5th Ed., 2086, § 998; Haile v. Smith, 113 Cal. 656, 45 P. 872; 21 Am.Jur., Executions, § 504, § 507; 33 C.J.S. Executions, § 331. Defendants counter with the proposition that the tender was insufficient in amount and the sheriff was not authorized to accept it because it was his duty to apply the surplus arising from the (first) sale to the payment and satisfaction of the other executions against Brookshire which the sheriff then had in his hands. Dierks & Sons Lumber Co. v. Taylor, 226 Mo.App. 746, 46 S.W.2d 244; Hall v. Giesing, 178 Mo.App. 233, 165 S.W. 1181; Strawbridge v. Clark, 52 Mo. 21. We find none of the authorities cited to be precisely in point on these particular questions. Without lengthening this opinion by attempting to demonstrate the correctness of this statement by an analysis of each case, it may be said that they either do not make the rulings attributed to them, or else the facts are so different as to render them not even persuasive. We have no doubt that it is a sheriff's duty to accept tender by the debtor of the amount due under an execution, if seasonably made, i. e., prior to the sale, and his refusal so to do would entitle the debtor to relief from the consequences of any subsequent sale of his property. But no one would contend for the application of this principle if the tender be not made until after a sale at which a stranger (instead of the execution debtor) had become the purchaser. Of course, neither of these hypotheses fit our facts, for here the tender was made after the sale, but the debtor had himself become the purchaser of the property. Ordinarily, when a bidder refuses to pay the amount of his bid, it is the duty of the sheriff to resell the property, and this may be done "at the same term, or he may resell it on a subsequent day, as though no previous sale had been made" (§ 513.240). Here we are dealing with an obviously good faith attempt on the part of the sheriff to subject, legitimately, the surplus arising from the sale to the payment of the other executions. The officer's reception of a second writ of execution while the first is in his hands operates as a constructive levy on all property in his possession by virtue of the first writ. State, to Use of McMurray v. Doan, 39 Mo. 44. Brookshire knew of the existence of the other liens when he made his bid (and, as a lawyer, he knew of the rule of law just mentioned), so that his refusal to pay or tender an amount sufficient to satisfy them, in addition to the York judgment and costs, 181 was at least provocative and, in effect, an invitation to the sheriff to proceed under the statute and resell. We hold his belated and untimely offer did not terminate the power of the sheriff so to proceed, but the question of whether it should have been exercised under the existing circumstances is another matter. The view we take of another feature of the case makes it unnecessary to inquire into and pass upon the latter question. For our purposes, it will be assumed that the sheriff had the authority to resell at the time and place the second sale was conducted. Looking further into the facts surrounding such second sale, we find the purchasers were the attorneys for the sheriff. They were present, and advising him as such. As indicated, Brookshire, too, is a licensed attorney. There was but a single bid made at the second sale, to-wit, $2,300, at which sum the land was struck off and sold. There were liens of record against the land aggregating approximately $40,000. However, it is not seriously disputed that all of the indebtedness whereon those liens were based (except a balance of Five or Six Thousand Dollars on a deed of trust, the three other executions here involved, and certain ad valorem taxes) had been adjusted or discharged, but not released of record. These facts were known, substantially, to the purchasers in formulating their bid. They admit the reasonable market value of the farm was from Forty to Forty-five Thousand Dollars. Plaintiff's evidence puts that figure at Seventy Thousand Dollars. The trial court was of the opinion, and correctly so, that this great disparity between the market value and the $2,300 bid at which the property sold rendered the consideration so inadequate as to shock the conscience of the court, and thus constitute a constructive fraud. Such is the tenor of the later cases. Wieser v. Linhardt, Mo., 257 S.W.2d 689, and cases therein cited. However, the proceeds of defendants' bid having gone to satisfy the other execution liens on plaintiff's lands, the court required him (as the condition upon which the sale and deed would be set aside) to do equity by reimbursing the purchasers for their outlay (with interest) of $2,300, and that if the money remaining in the sheriff's hands be insufficient to pay all costs of the first sale, including statutory sheriff's commissions on the sale price of $10,000, that plaintiff pay such deficiency. As stated, plaintiff, declined to comply with the conditions just mentioned, and, in consequence of such default, suffered final judgment to be rendered against him. Then, long out of time, he came into court and made tender of the amount thus required for the benefit of the purchasers, but appended the condition that it "shall remain in the registry of this court subject to a final judgment of this court as directed by an appellate court." While the "tail" affixed to his tender was wholly unauthorized, and at variance with the conditions on which the court had offered relief, this second of his belated and untimely tenders (for making which plaintiff seems to have developed a penchant) does seem to evince a delayed willingness on his part to do equity. He would not be entitled as a matter of right to consideration in this court of this last so-called tender, but we have nevertheless concluded that his rebelliousness and obstinacy in persistently spurning the trial court's offer of relief should not, under the circumstances disclosed by the whole record, be a perpetual bar to the restoration of his property which we find was sacrificed. In this situation, and because none of the other grounds urged by plaintiff, even if found in his favor, would in equity entitle him to relief on more favorable terms than those imposed by the interlocutory decree, there is no necessity for examining into plaintiff's other attacks upon the validity of the sale and deed. Accordingly, if plaintiff will, within 15 days, deposit in this court, for the use and benefit of those entitled thereto, the sums specified in the interlocutory decree, the decree appealed from will be reversed and the cause remanded with directions to cancel the sheriff's sale and the 182 sheriff's deed to defendants made pursuant thereto; otherwise, the decree will stand affirmed. In either event, costs are to be borne by plaintiff. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516145/	420 S.W.2d 735 (1967) TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Floyd HAMILTON, Appellee. No. 14624. Court of Civil Appeals of Texas, San Antonio. November 1, 1967. 736 Clements, Knight, Weiss & Spencer, San Antonio, for appellant. Carter, Callender, Onion & Branton, Frank C. Rodgers, (Trial Court only) San Antonio, for appellee. BARROW, Chief Justice. Appellee recovered judgment for total and permanent disability benefits under the Texas Workmen's Compensation Act, based upon a jury verdict. Appellant carrier has perfected this appeal wherein it asserts that this judgment should be reversed and the cause remanded for a new trial because of prejudicial statements made on two occasions by one of the attorneys for appellee, and because of the trial court's refusal to admit certain evidence to impeach appellee and his medical witness as to who referred appellee to said doctor. Under the undisputed evidence, appellee sustained an accidental injury in the scope of his employment as a gutter for Roegelein Provision Company on February 4, 1965, when he slipped and fell on his back. The nature of the injury and extent of the disability was the principal issue in dispute in the trial court. Appellee never resumed work for Roegelein, for whom he had worked about five years prior to the accident, and was employed by another employer, doing light work, for only a few days between the accident and trial on January 9, 1967. Four medical witnesses testified and their testimony constitutes 257 of the 407 pages in the statement of facts. In addition, a lay witness corroborated appellee's complaints of back pain subsequent to the accident. Shortly after the fall, appellee was taken to the Roegelein company doctor, Dr. Beach, for treatment. On February 15, 1965, Dr. Beach referred appellee to Dr. Williamson, a specialist in orthopedic surgery. Dr. Williamson found no evidence of nerve root involvement in appellee's back at that time and prescribed treatment by a physical therapist. Appellee continued to complain of pain in his back. He tried on one occasion, about a month after the accident, to secure light duties from Roegelein, but it had no work of this nature. Dr. Williamson examined appellee again on November 8, 1965, and at that time suspected a herniated disc on the left side at about the L-4 level. Appellee was hospitalized by Dr. Williamson from November 29 to December 6, 1965, and on December 1, a myelogram was performed to confirm this preliminary diagnosis and to specifically locate the herniated disc. A myelogram is performed by injection of an opaque substance called "dye" into the spinal canal with a needle, and by means of a fluoroscopic screen the various interspaces of the spine are viewed. This procedure is a widely recognized diagnostic procedure used to aid in confirming and locating a herniated disc, and the evidence shows it is from 75% to 90% accurate. This myelogram was performed by Dr. Williamson in collaboration with Dr. Elmendorf, a radiological specialist. Each of these doctors testified on behalf of appellant 737 that the myelogram did not demonstrate any abnormality and that the X-ray films of this procedure were essentially negative. Appellee experienced great pain during this procedure and because of his reaction some of the dye was left in his spinal canal. He testified that he even tried to pull the needle from his back. Under the record in this case, it is not unusual to leave a little dye in the canal although it can cause archnoiditis, which condition produces some symptoms similar to those caused by a herniated disc. Dr. Price, a specialist in neurological surgery, examined appellee at the hospital on December 4, 1965, at the request of Dr. Williamson. Dr. Price testified on behalf of appellant that this neurological examination was essentially normal and that he could find no physical basis for appellee's continued complaints of back pain and limited motion in his back and legs. Dr. Gregorio Canales, a specialist in orthopedic surgery, testified an behalf of appellant that he had examined appellee on December 17, 1965, and again on March 2, 1966. On each occasion, appellee was complaining of back pain and had a number of subjective symptoms of a herniated disc in the area of L-4, L-5 and S-1 of his spine. On March 2, 1966, these subjective findings were corroborated in part by objective findings. Dr. Canales testified that appellee was totally disabled at the time of these examinations. Insofar as permanency of this condition was concerned, Dr. Canales expressed the opinion on direct evidence that he recommended removal of the dye from appellee's spinal canal and if the symptoms persisted, he would suspect a herniated disc and recommend exploratory surgery. His direct testimony clearly recommended removal of the dye and any subsequent opinion would have to be based on appellee's condition after this was accomplished. On cross-examination he testified that he made such a recommendation to appellee and hospitalized him for that purpose on March 30, 1966. However, just prior to commencing the procedure, appellee refused to permit Dr. Canales to insert the needle and the procedure was cancelled. Dr. Canales had not seen appellee since this occurrence. On redirect examination, appellee's attorney inquired as to the cost of surgery and after appellant objected to the materiality of such question, appellee's attorney stated in the presence of the jury that appellant had injected this issue into the case despite appellee's motion in limine to prohibit appellant from showing benefits of surgery. Appellee's attorney further stated that he was withdrawing his motion in limine and in the presence of the jury demanded that appellant's attorney answer "Yes" or "No" as to whether appellant would pay all the necessary expenses of any operation. The trial court promptly sustained appellant's objection to such demand. Shortly thereafter, the examination of Dr. Canales was completed and in chambers appellant moved for mistrial, and by this appeal complains of the trial court's failure to grant same. After appellant's motion was overruled, appellee also moved for mistrial, based upon his erroneous assumption that appellant had injected the issue of surgery into the case. His motion was denied by the trial court. The demand of appellee's attorney in the presence of the jury was clearly improper. It is now settled law, as was pointed out by him in his motion for limine at the beginning of the trial, that the trial court has no power to order or supervise an operation. Houston Fire & Cas. Ins. Co. v. Dieter, 409 S.W.2d 838 (Tex.Sup. 1966); Garcia v. Travelers Ins. Co., 365 S.W.2d 916 (Tex.Sup.1965); Truck Ins. Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960). It is our opinion, however, from an examination of the entire record, that reversible error is not shown by this improper statement of appellee's attorney. *738 It is seen that the trial court promptly sustained appellant's objection to this conduct. Furthermore, the record clearly demonstrates that the reason the dye was not removed by Dr. Canales was not a lack of funds, but rather appellee's refusal to permit Dr. Canales to do so, although he had gone to the X-ray room of the hospital for that specific purpose. The dye was not all removed at the time of the original myelogram procedure because of appellee's severe reaction to the pain. The need for surgery could not be determined until Dr. Canales had observed appellee's reaction to removal of the dye. There is nothing in the record to indicate any reluctance on the part of appellant to furnish necessary medical assistance at any time to appellee. Although we certainly do not condone this improper action, we cannot say from an examination of the entire record that such action was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. This point is therefore overruled. Rule 434, Texas Rules of Civil Procedure. Both appellee and Dr. Canales testified that appellee had been referred to this doctor by the Vocational Rehabilitation Agency connected with the Industrial Accident Board. To impeach this testimony, appellant offered evidence that at the time of taking his deposition appellee testified that he went to see Dr. Canales after he got a letter from Austin in response to his request for social security, and that the social security people recommended that he see Dr. Canales. Appellant also offered appellee's testimony that he received $255.00 a month from the government for disability benefits. While recognizing that the "collateral source" rule generally prohibits evidence of collateral payments from sources other than the defendant,[1] appellant urges that such rule has no application here because it permitted appellee to establish his case upon a false and misleading factual basis. It urges the jury should have been informed that appellee's purpose in going to Dr. Canales was not to be rehabilitated, but rather to obtain a monthly disability pension. The trial court did not err in sustaining appellee's objection to this evidence. There was considerable other evidence admitted without objection, relating to appellee's action in trying to be rehabilitated by the Vocational Rehabilitation Agency. Also, whether appellee went to Dr. Canales at the request of the Social Security Agency or the Vocational Rehabilitation Agency is really immaterial, in that in either event appellee's attorney would be able to argue, as he did, that Dr. Canales was an impartial, neutral witness. Appellant's final point relates to the statement of appellee's attorney during final argument, and verified by him at that time by writing on the blackboard that compensation benefits were limited to a period of 401 weeks. No such pleading was read to the jury and there was no evidence or instruction to this effect; therefore, the statement was clearly outside the record and improper. Although appellant's objections to same were promptly sustained, the attorney persisted in repeating same again and in inferring it a third time. Such disregard of the court's rulings is highly improper. Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 (1947). We cannot say from an examination of this record that reversible error is shown by this improper statement of the law by counsel. In Highlands Ins. Co. v. Daniel, 410 S.W.2d 491 (Tex.Civ.App.-Tyler 1967, writ ref's n. r. e.), the cases on this subject are fully reviewed. It is there pointed out that none of the numerous cases dealing with such actions held that such error constituted reversible error. We cannot say that it is shown by the record before us. The judgment of the trial court is affirmed. NOTES [1] Traders & General Ins. Co. v. Reed, 376 S.W.2d 591, 593 (Tex.Civ.App.-Corpus Christi 1964, writ ref'd n. r. e.); 25A C.J.S. Damages § 160; 7 A.L.R. 3d 519.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516146/	913 A.2d 351 (2006) Dewey S. DOWNEY, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent. Commonwealth Court of Pennsylvania. Submitted on Briefs November 17, 2006. Decided December 19, 2006. Richard H. Bergeman, III, Fleetwood, for petitioner. Carol J. Mowery, Asst. Counsel and Gerard M. Mackarevich, Deputy Chief Counsel, Harrisburg, for respondent. 352 BEFORE: COLINS, President Judge, SIMPSON, Judge, and LEAVITT, Judge. OPINION BY President Judge COLINS. Dewey Downey petitions for review of orders of the Unemployment Compensation Board of Review 1) that affirmed a referee's denial of benefits after concluding that he was ineligible for benefits pursuant to Sections 402(e) of the Unemployment Compensation Law (Law),[1] 43 P.S. §§ 802(e), which renders a claimant ineligible for compensation for any week in which his unemployment is due to his discharge from work for willful misconduct in connection with his work; and 2) that affirmed a referee's determination that a fault overpayment of $5,137.00 was established pursuant to Section 804(a) of the Law, 43 P.S. § 874(a), based on Downey having received benefits based on false information regarding his separation from employment. By notice of removal dated June 28, 2005, Downey was discharged from employment with the U.S. Postal Service based on the charge that he engaged in activity inconsistent with his claimed physical limitations. Downey applied for and was denied unemployment compensation benefits. At a hearing before a referee, Downey appeared pro se and testified on his own behalf. The Postal Service presented the testimony and investigation report of postal inspector Mike Brennan, and the testimony of distribution operations manager Drue Egner. The facts as found by the referee are summarized as follows. Downey sustained a May 2002 work injury, returned to sedentary work in November 2003, and stopped working in December 2003 because the light-duty worked aggravated his symptoms. In June 2004, Downey requested a monthly allowance for the care and maintenance of his house; he stated that his physical limitations rendered him unable to do painting, plumbing, landscaping or carpentry work and that he was at risk of losing the house. In August 2004, based on anonymous information that Downey had been observed performing heavy work around his house (i.e., stripping the exterior of his house, climbing ladders, digging post holes, using a sledge hammer, and operating a gas-powered trimmer), the Postal Service initiated an investigation; surveillance revealed that even though he was out of work because of a claimed physical disability. Shown the postal inspector's surveillance of Downey performing the work at his home, Downey's physicians cleared him to return to work. Downey returned to light duty on May 4, 2005. He was discharged effective July 29, 2005. Downey testified that he thought his physical restrictions applied only to work activities and not to home. The referee concluded that the Postal Service met its burden of proving that Downey engaged in activity that was inconsistent with his claimed physical restrictions. The referee rejected Downey's testimony and concluded that he failed to prove good cause or justification for his actions. On appeal, the Board adopted the referee's findings and conclusions and affirmed. The Board further credited the Postal Service's evidence and the testimony that the delay between the surveillance and discharge was attributable to the completion of the postal inspector's investigation, obtaining updated medical opinions based on the surveillance, and "pursuing discipline through proper channels." Downey argues here that the Board erred in concluding that his actions 353 constituted willful misconduct in that the record contains no evidence that he deliberately violated a rule, duty, or obligation toward the employer. He also argues that the Board capriciously disregarded the fact that he was discharged from employment after the employer permitted him to return to work in June 2005 with work restrictions; he contends that if the employer deemed his actions to be willful misconduct it would not have permitted him to return.[2] Willful misconduct within the meaning of Section 402(e) includes behavior that evidences a willful disregard of the employer's interests, the deliberate violation of the employer's work rules, the disregard of standards of behavior that the employer can rightfully expect from its employees, or negligence indicating an intentional disregard for the employer's interest or the employee's duties or obligations. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 827 A.2d 422 (2003). The employer bears the burden of proving that a claimant engaged in willful misconduct for purposes of determining the claimant's eligibility for unemployment compensation. Burger v. Unemployment Compensation Board of Review, 569 Pa. 139, 801 A.2d 487 (2002). Once the employer establishes a prima facie case of willful misconduct, the burden shifts to the claimant to prove that his actions were justified or reasonable under the circumstances. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa.Cmwlth.2000). Whether a claimant's actions rise to the level of willful misconduct is a question of law fully reviewable on appeal. Burger. Although we have found no case that specifically addresses willful misconduct in the context of an employee's acceptance of total disability benefits based on a physical inability to work when the employee was in fact physically able to work, the courts of this Commonwealth have held that an employee's dishonesty or misrepresentation can exhibit a disregard of the employer's interests and disregard of standards of behavior that the employer can rightfully expect from its employees. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253 (Pa.Cmwlth.2004). Similarly, theft from an employer, such as filing false claims, failing to return mistaken overpayment, and receiving benefits based on misrepresented employment status, is a wrongful act exhibiting disregard for the employer's interests and standards of behavior that disqualifies an employee from receiving unemployment benefits. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 772 A.2d 416 (2001) (citing Dept. of Navy v. Unemployment Compensation Board of Review, 158 Pa.Cmwlth. 605, 632 A.2d 622 (1993); Spencer v. Unemployment Compensation Board of Review, 145 Pa.Cmwlth. 134, 602 A.2d 484 (1992); Abbey v. Unemployment Compensation Board of Review, 50 Pa.Cmwlth. 323, 413 A.2d 3 (1980)); see also Suchter v. Unemployment Compensation Board of Review, 46 Pa.Cmwlth. 1, 405 A.2d 1075 (1979) (employee's falsifying a reason for his absence and improperly reporting his absence was willful misconduct). In the present case, the uncontradicted evidence presented by the Postal Service supports the Board's conclusion that Downey's actions constituted willful misconduct. The employer's credited evidence establishes that while collecting total disability benefits and claiming a physical *354 inability to perform even sedentary work for the Postal Service, Downey engaged in heavy physical work at his home. The evidence demonstrates that Downey was informed and aware that he was expected to return to work when he was no longer totally disabled. The referee discredited Downey's testimony that he thought his medical restrictions applied to his work activities, but not to his home activities. The Postal Service met its burden of establishing a prima facie case of willful misconduct with evidence that Downey accepted total disability benefits and remained out of work at a time when he was engaging in activities inconsistent with his claim of physical limitations attributable to his work injury. As a matter of law, we conclude that Downey's actions exhibited a disregard of the employer's interests and disregard of standards of behavior that an employer can rightfully expect from its employees such that his conduct rises to the level of willful misconduct. Downey's second argument is that the Board capriciously disregarded the fact that he was discharged from employment after the employer permitted him to return to work in June 2005 with work restrictions. The fact that Downey returned to light-duty work with the Postal Service in May 2005 while the postal inspector was completing his investigation is not relevant to whether he was subsequently discharged for willful misconduct in connection with his work. To the extent that Downey inartfully attempts to argue the remoteness doctrine, the credited evidence adequately explains the delay between the Postal Service's surveillance and Downey's discharge. Only an unexplained, substantial delay between an employee's misconduct and the date of discharge precludes an employer from opposing a grant of benefits under the remoteness doctrine. Raimondi v. Unemployment Compensation Board of Review, 863 A.2d 1242 (Pa. Cmwlth.2004). Accordingly, the order of the Board is affirmed. ORDER AND NOW, this 19th day of December 2006, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. NOTES [1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended. [2] Issues raised in the petition for review, but not briefed, are waived. Downey's brief does not address any issues related to the Board's decision ordering recoupment of the fault overpayment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516132/	335 S.W.2d 690 (1960) Bob SITZES, Plaintiff-Respondent, v. Carl B. RAIDT, Defendant-Appellant. No. 7805. Springfield Court of Appeals, Missouri. May 13, 1960. 691 Dwight Crader, Sikeston, for appellant. G. W. Gilmore, Sikeston, Thomas L. Arnold, Benton, for respondent. McDOWELL, Judge. This appeal is from a judgment in favor of plaintiff, Bob Sitzes, and against defendant, Carl B. Raidt, in an action for accounting for rents and profits and for cancellation of farm lease. The petition, filed in the Circuit Court of Scott County, Missouri, February 7, 1958, alleged inter alia, that plaintiff and the defendant entered into a five-year, written lease dated March 24, 1953, whereby plaintiff leased to defendant his 306-acre farm reserving as rents a certain share of the crops and profits on livestock produced during the lease term. (The lease is attached to the petition and made a part thereof.) It states that subsequent to the execution of the lease the parties agreed to produce livestock (cattle and hogs) and the defendant has failed and refused to account to plaintiff for the profits due under the lease. It alleged that plaintiff made demand upon defendant for accounting for crop rents and profits on livestock and that defendant has refused to account for such rents and profits and has concealed from plaintiff information concerning such profits and crop rents and is indebted to plaintiff for such profits on livestock and crops so produced, including seed and other property, and pleads that by reason of the wrongful conduct of the defendant in the non-payment of rents as agreed, the lease has been breached and forfeited and that plaintiff is entitled to the return of said land. Defendant filed answer and counterclaim. The answer admits the execution of the written lease and denies all of the allegations of the petition. The counterclaim pleads that on June 28, 1958, the barn on the farm was totally destroyed by fire; that demand had been made on plaintiff to rebuild the same and such demand refused; 692 that by reason of such wrongful refusal to rebuild said barn, defendant has been damaged and in the future will be damaged $1,000 per year. There is no reply to the counterclaim. The cause was referred to a referee who heard the evidence and filed his report stating findings of fact and conclusions of law February 10, 1959. Written exceptions to this report were filed by defendant, which exceptions were heard by the trial court and overruled March 12, 1959, and judgment entered affirming the findings of the referee. The judgment was in favor of plaintiff on the petition for $1,978.19 less credits found in favor of the defendant for $606.80, leaving defendant indebted to plaintiff in the sum of $1,371.39, and it was further the judgment of the court that defendant had violated the conditions and spirit of the lease and had fraudulently withheld portions of the money derived from crops and livestock and wrongfully refused to account for same and that some crops were converted by defendant and no true account rendered for same and that said violations of the contract continued during the life of said lease and that by reason of such conduct the lease is declared void. The court made certain divisions of crops raised in 1958 which we will not set out because such findings are not in dispute. Seven allegations of error are assigned by defendant-appellant as grounds for reversal of the findings of the trial court. Alleged error numbered II complains of the court's finding for plaintiff in the sum of $260.47 for profits on cattle and hogs instead of $161.73 because the court twice allowed respondent profits on cattle sold in 1958. Error numbered III complains of the court's finding of $1 damages for rent on farm house because of lack of evidence. Error numbered IV complains of the finding of $120 pasture rent and alleges that the finding should have been for $30, being rent for 1958. Error numbered V complains of the court's action in allowing $542.84 for 1958 corn crop, alleging that respondent received all of the rent due for such corn. Error numbered VI complains of the action of the trial court in cancelling the lease because appellant had fraudulently withheld from respondent portions of money, crops and livestock; (b) because he wrongfully refused to account for the same; (c) because he converted crops, and, (d) because he failed to make a true account. Error numbered VII complains of the finding of the trial court cancelling the lease and ordering possession delivered to respondent because the court had no authority under the evidence to make such finding where there was no forfeiture clause in the lease. Error numbered VIII complains of the action of the trial court in assessing all the costs against appellant contending that such costs should be equally assessed to each of the parties. The record in the cause contains more than 800 pages of evidence, including the findings of fact and conclusions of law of the referee. Much of this evidence has no relation to the issues in the cause and will be by us disregarded. We here state briefly such facts as we believe bear upon the issues to be decided. On March 24, 1953, plaintiff leased to the defendant his 306-acre farm in Scott County, Missouri, for a period of five years, possession to be delivered on the date of the lease and the lease to terminate December 31, 1957. It contained an extension clause for an additional term of five years at the option of the second party or until December 693 31, 1962, upon the same terms and conditions; provided that second party notify the lessor of his intention to exercise the option on or before November 1, 1957. We hereby set out the provisions of the lease we think pertinent to the issues: "4. Such crops shall be planted by second party as he desires, except that, weather permitting, he will plant the full amount of cotton which may be allotted by the government. "5. As rent second party agrees to deliver to gin one-fourth of all cotton raised and deliver to elevator or nearest market one-third of all corn, beans, wheat, hay, lespedeza or other crops; second party shall pay cash rent of $10 per acre for pasture, which shall not exceed five acres; should the parties hereto decide to produce livestock, cattle or hogs, then first party shall receive one-third of the gain or pay one-third of the loss, and furnish one-third of the feed, cost of livestock and veterinary service. "6. In order to produce livestock, it may be necessary to allocate a certain portion of the farm to permanent pasture, and first party agrees to furnish one-third of the seed and fertilizer therefor; and it is agreed that the first party shall furnish one-fourth commercial fertilizer required for cotton and one-third for other crops. "9. First party agrees to replace any buildings which may be destroyed by storm or fire during the term of this lease. "11. It is further understood that second party will not assign this lease or sublet any part of the property without the consent of first party." In conformity to the terms of the lease, the parties agreed in 1954 to go into the cattle business. Plaintiff failed to pay his part of the purchase price but agreed with defendant that he would pay defendant interest on his one-third of the purchase price (defendant to pay the entire amount). The trial court found there was no agreement to go into the hog business. The evidence showed that after the filing of the suit defendant tendered to plaintiff certain amounts of rents and profits admittedly due him under the lease and at the same time made a written demand for certain amounts defendant claimed plaintiff owed him. At the beginning of the trial defendant made a written tender, which is in evidence as Document No. 13, set out on page 70 of the original abstract. This tender is in words and figures as follows: "Settlements Due Plaintiffs "1. Seed Beans (Sold by Deft. & used by Deft.) 199.37 2. 1957 Cattle, since 4-19-57 86.00 3. 1958 Wheat, sold to Embro Seed House 664.50 4. 1958 Corn, Sold to S. C. M. C. 963.50 5. 1958 Beans, sold to S. C. M. C. 1,986.35 Paid 6. 1958 Milo Marge: (a) 22,980 lbs. to Mikeo Grain Co., Cairo (unsettled for) $1.75 cwt. to be applied on rent. (b) Stored on Raidt farm, 55,150 lbs. (weighed at Semo Gin Co.) Deft. will pay Deft. in money on Milo he has. 7. 6 bales of 1958 cotton at Semo Gin Co., unsettled for. Bal. of 1958 crop paid to Plaintiff and Defendant by separate checks. 8. Approximately 7800 lbs. lespedeza seed unsettled for at Embro Seed House. 9. 1958 cash pasture rent $30.00." 694 We will not set out claims made by the defendant for sums due him from plaintiff, under the contract, for the reason that the court found that plaintiff owed the defendant $606.80 and neither side has made any exceptions to such finding. In the court's judgment he itemized the findings for plaintiff which made a total judgment of $1,978.19. These items are as follows: "1. For failure to properly account to plaintiff on the cattle and hog account---------------- $260.47 2. For failure to properly account to plaintiff on the 1957 Milo maize crop------------------- 100.00 3. For failure to properly account to plaintiff for the 1958 corn crop ----------------------- 542.85 4. For failure to properly account to plaintiff for the 1956 seed beans----------------------- 199.37 5. For failure to properly account to plaintiff for pasture rent------------------------------ 120.00 6. For damages and failure to account for improper rental of farm house (Nominal damages)------------------ 1.00 7. For failure to properly account to plaintiff for 1958 wheat crop--------------------------- 664.50 8. For failure to properly account to plaintiff for anhydrous ammonia for 1956, by way of overcharge-------- 90.00 _________ $1,978.19" Likewise, the court, in its judgment, sets out the items found that constitute the credits due defendant in the amount of $606.80, which are as follows: "1. On account claimed by defendant against plaintiff in the stated amount of $581.80 ------------------------ $581.80 2. On account claimed by defendant for cotton seed and other items------------------------------------------ 25.00 ________ $606.80." The evidence offered to sustain item No. 1, to wit: $260.47, profits due plaintiff on cattle, is as follows: The referee, in his report to the court, as shown in the record at pages 25 and 26, sets out the items that combine to make his finding of $260.47, as follows: "Defdt. owes Plaintiff a/c (Defendant's testimony) 1957 error $75.93 Defdt. owes Plaintiff a/c 1957 (Doc. #13, P. 82 of deposition 86.00 " " " a/c 1958 cattle (Defendant's Testimony) 98.74." The item of $86 is admitted by defendant and was tendered to plaintiff in document 13 of the record. Item of $98.74 for 1958 cattle is denied by the defendant and we find from the record that this item is a duplication of the figure of $86 allowed 695 above. The only testimony on these items is that of the defendant. In his deposition he gave this testimony: "Q. On the reverse side of this sheet, it's also marked 12-27-57, accounts since April 19, 1957, Accounts I owe Bob, you've got cattle, then you say sold $1729.44 and cost $1406.21. You get a difference of $323.23 and you have hauling $27.00, feed $4.50, interest $32.72, a total of $65.22, which you subtract from $323.23 and arrive at a sum of $258.01. A. That's right. "Q. You divide that by three and get $86.00? A. * * That's right." We will not quote all of the evidence but defendant states the number of head bought, the date they were bought, 7-20-57, and the date they were sold, 10-3-57, and from whom the cattle were purchased and to whom they were sold. The item of $98.74, allowed by the court was arrived at from this same sale of cattle by subtracting the cost of hauling, to wit $27. If the entire $65.22, being total cost of the transaction, had been, by the court, subtracted, he would have found it would have left $86. It is unnecessary to set out all of the evidence touching this matter but it is clear to this court that the item of $98.74 should not have been allowed, it being the same item as $86, which was properly allowed. The judgment for this item should have been for $161.73 instead of $260.47. This court further finds from the evidence that there was no concealment by the tenant or any attempt to convert to his own use profits due plaintiff for the record shows that this was actually a settlement in 1958 after the filing of the lawsuit. The first item of $75.73 was an error in adding the profits and the costs. There isn't the slightest evidence in the record that there was ever any wrongful conduct on the part of defendant so far as the cattle business between the parties was concerned. In item No. 2, failure to account to plaintiff on the 1957 Milo maize crop of $100, we agree with the referee and the findings of the trial court that there was due plaintiff $100. The evidence is that in the year 1957 there was a great amount of rain and Milo, being a long maturing crop, could not be harvested as usual and defendant testified that in order to save the crop in January, 1958, he and the plaintiff agreed that if defendant would employ outside help, to wit, two combines to harvest the crop, plaintiff would pay one-third of the cost of the outside help. Defendant employed two outside combines at $150 each, a total cost of $300, and charged as expense, against plaintiff's share, $100, being one-third of employed labor. Plaintiff denied this agreement and the court found for plaintiff in the sum of $100. The third item, to wit, failure to account for the 1958 corn is an issue in this case. The evidence was that plaintiff's share of the 1958 corn crop, to wit, 1,192.85 bushels was delivered to the Scott County Milling Company in compliance with the lease. The Scott County Milling Company had no storage space by which this corn could be put in the government loan and would only accept it for sale and defendant sold the corn, which brought $963.50. A check was drawn by the Scott County Milling Company in favor of plaintiff for that amount and mailed to him but he refused, and still refuses, to accept it. The plaintiff contends that the loan price was $1.41 per bushel and that the Scott County Milling Company only paid .97 cents per bushel; that defendant had no right to sell the corn, and, therefore, is indebted to plaintiff in the sum of $542.85, for which amount the court rendered judgment for plaintiff. There is no contention that defendant did not deliver the full amount of the rent corn for 1958. The only contention was that he wrongfully sold the corn. Item numbered 4 is for failure to properly account for 1956 seed beans in the amount of $199.37. The evidence supporting this finding is as shown in defendant's account sheet, (exhibit 32). This exhibit shows that 59 bags of 1½ bushels each were sold to 696 A. L. Smith for $3.25 per bushel or........... $288.63; that defendant kept 69 bags for seed in 1957 at $3.00 per bushel, or..... 309.50 __________ $598.13 total; that one-third of this amount or $199.37 was due plaintiff. The defendant testified that the above beans accounted for were the remains of the 1956 crop that were stored on the farm; that plaintiff sold the beans to A. L. Smith but that Smith paid for the same in July, 1957, to him (defendant). Defendant gave this testimony: "Q. Would you tell us why Bob's money is still in your possession? A. Well, Bob owes me some money. "Q. Tell us whether or not there has ever been a settlement between you and Bob since this money came into your possession? A. No, sir. He has been rather hard to settle with. He has been preparing a law suit for over a year." Item 5 is for failure to account for pasture rent of $120. The evidence supporting this item of the judgment is that under the terms of the lease defendant fenced off three acres of land in the latter part of 1953 and sowed it in permanent pasture for which he was to pay cash rent of $10 per acre. Plaintiff admits that the first year, 1954, the rent was paid but states that was all he ever collected. The defendant testifies that for the year 1955 he paid plaintiff three $10 bills, cash, and that for the year 1956 he gave plaintiff his check for the rent, which plaintiff accepted in defendant's home, and has never cashed. The rent for the year 1957 had not terminated when the suit was filed. Plaintiff denied ever receiving any cash payments of rent. Under this testimony the court found for plaintiff for the years 1955, 56, 57 and 58, or $120. Item numbered 6 is for $1 rent allowed for improper rental of a farm house. The only evidence supporting this finding was given by plaintiff, as set out on transcript, page 40, which is as follows: "Q. Mr. Sitzes, do you know whether or not there has been any subletting of any part of that farm since Mr. Raidt has been on it? A. Well, there has been a house rented down there I understand. "Q. Do you know to whom it has been rented? A. To a boy named LaRue. "Q. Do you know how long it has been rented to him? A. No, sir, I don't. It was this summer or spring some time. "Q. Have you ever had an accounting of any of the rents from that renting? A. No, sir." Item numbered 7 is for failure to properly account for 1958 wheat crop in the amount of $664.50. The defendant testified that the 1958 wheat crop was delivered and sold to Embro Seed House for $1.65 per bushel (as shown by defendant's exhibits 128 to 134 and 135). He testified that the crop was sold for $1,989.91 and that plaintiff's part was $660.66. In his offer of settlement, document 13, offered in evidence, he admits he owes plaintiff $664.50 for such wheat. Defendant's exhibit 135 shows that the number of pounds of wheat sold was 71,820 or 1,197 bushels; that the market price was $1.65, which amounts to $1,975.05. Plaintiff's one-third thereof would be $658.35. Defendant's exhibits 128 to 134 are carbon copies of the weight tickets issued by Ed. F. Mangelsdorf & Bros. Inc., of St. Louis, Missouri; exhibit 128 being dated June 23, 1958, and the others dated June 24, 1958, all issued to the defendant. The evidence shows that the Embro Seed House was operated by defendant's brother-in-law; that defendant purchased the wheat himself, had it certified for seed and sold it to the Embro Seed House for $2 per bushel. Defendant testified that he has always been willing to pay plaintiff his one-third of the income from the wheat. He testified that he approached plaintiff about 697 having the wheat certified for seed and plaintiff refused to pay his part of the cost; that defendant had to pay all of the certification costs, which expenses were as follows: cost of cleaning .20 cents per bushel, $239.40; cost of bags $117; inspection, certification and tags $78.11, total $434.51. Witness testified there were 1,197 bushels of the crop which sold for $2 per bushel, making a net of $1,989.91 and that plaintiff's part was $660.66, assuming that plaintiff would take his part of the wheat certified for seed, which he refused to do. The evidence showed that Scott County Milling Company offered to buy the wheat at $1.50 per bushel for commercial purposes and that defendant had offered to pay plaintiff $1.65 per bushel for his part. Defendant testified plaintiff would have gotten $6 more if he had paid his part of the certification expense. The court stated that defendant had offered in his settlement $664.50 for the wheat, which was a somewhat higher figure than is obtained from the testimony. No testimony was offered by plaintiff from seed dealers as to the value of this wheat and the court recommended that plaintiff have judgment in the sum of $664.50. Item numbered 8 was allowed by the court for failure to account for anhydrous ammonia for 1956 by way of overcharge in the sum of $90. The evidence is that defendant employed others to put down the anhydrous ammonia. It is common knowledge that this fertilizer must be put down by a special machine and sealed in the ground. Under the contract the court found that all labor must be furnished by the defendant and that just the fluid used should be charged against plaintiff. It is unnecessary to set out the testimony concerning the division of the other crops raised in 1958 for the reason that such crops were undivided at the time of the trial and were not even planted at the date of the filing of the lawsuit. The court made an equitable division of such crops between the parties and the same is true of the one steer left on the farm from the cattle transactions. We possibly will refer to some other facts from the record in our opinion. We will refer to the parties in this opinion as plaintiff and defendant, the position they occupied in the lower court. Under § 510.310, subd. 4 RSMo 1949, V.A.M.S., it is provided that the appellate court "shall review the case upon both the law and the evidence as in suits of an equitable nature." It, therefore, becomes the duty of this court to review the evidence, determine its value and weight, and with due deference to the finding of the trial court reach our own decision on the merits. Ellis v. Farmer, Mo. Sup., 287 S.W.2d 840, 843(1); Hudspeth v. Zorn, Mo.Sup., 292 S.W.2d 271, 272 [1, 2]; Murray v. Murray, Mo.Sup., 293 S.W.2d 436, 439 [1, 2]; Mitchell v. McClelland, Mo.App., 306 S.W.2d 75, 79 [4]. It is first contended by defendant that the trial court erred in finding for plaintiff in the sum of $260.47 for cattle and hogs instead of $161.73 because the court twice allowed plaintiff profit on cattle sold in 1958. With this contention we agree. The referee found that defendant was indebted to plaintiff in the sum of $75.73 because of an error in a settlement made in 1957 and that defendant was indebted to plaintiff for $86, as shown by document 13, page 82 of the transcript, and that defendant owes plaintiff $98.74, as shown by cattle settlement in 1958. These three items constituted the sum of $260.47. An examination of the evidence, (as shown by document 13, offered), shows that the item of $86 was profit made on the purchase of cattle from the Charleston Auction Company which cost $1,400.21 and sold for $1,729.44, leaving a profit of $323.23; that the cost of hauling was $27, feed $4.50, interest $32.72, making a total cost of $65.23, 698 which subtracted from $323.23, leaves a profit of $258.01, one-third of which makes $86 due plaintiff. The evidence shows that these cattle were purchased 7-20-57, 23 head, and were sold 10-3-57, one extra calf which was owned by the parties was added in the sale. The item of $98.74 was arrived at from the same sale of cattle but deducting only $27, cost of hauling, instead of deducting the entire cost (set out above) which amounted to $65.23, leaving due plaintiff $98.74. This is a duplication and should not have been allowed. We find for defendant on this alleged error and order that the judgment be modified to show indebtedness to plaintiff of $161.73 instead of $260.47. Under alleged error numbered III defendant claimed that the $1 damages allowed plaintiff for failure to account for rental of house on farm is not supported by the evidence. With this contention we agree. The only evidence offered as to the subletting of a house on the premises was that of the plaintiff. We have set out his testimony in our statement of facts. When plaintiff was asked if he knew if the house had been rented, he gave this answer: "Well, there has been a house rented down there I understand." When asked to whom it had been rented, he said, "To a boy named LaRue." He did not give the source of his information as to such rental and he had no knowledge of any of the terms of the rental. We think this evidence is wholly insufficient to support any judgment for rentals of property on the farm. Under error numbered IV, defendant complains of the judgment of $120 for pasture rent claiming that all pasture rent had been paid except $30 for the year 1958. The testimony as to this issue on the part of plaintiff was that he received $30 in the first part of 1955 for 1954 rental. He stated there was no rent for 1953 because the land was in crops. Plaintiff then denied he received any payment for pasture rent for XXXX-XX-XX and 1958. Of course at the time of the filing of the lawsuit in December, 1957, there would have been no rent for 1958. However, there is no contention that the 1958 rent had been paid at the time of the trial. Defendant testified that in the year 1956 he paid to plaintiff three ten dollar bills in payment for the 1955 rent; that at the first of 1957, in a settlement with plaintiff, he gave him a check for $30 which has never been cashed. Under the conflicting evidence we think that the trial court should be affirmed on this alleged error and judgment should be for plaintiff. Under alleged error V, defendant complains of the allowance of $542.84 damages in favor of plaintiff on the 1958 corn crop claiming that defendant complied with the lease agreement and delivered the full amount of the corn to plaintiff. It is plaintiff's contention that the lease contract gave defendant no right to sell the rent corn and that he violated the lease agreement to plaintiff's damage in the sum of 50 or 60 cents per bushel. The referee and the trial court found the damages to be $542.84, being the difference between the sale price that the corn brought at the market and what the corn would have brought if placed in the Commodity Credit Corporation. The lease contract provides that defendant shall "deliver to elevator or nearest market one-third of all corn". There is no dispute but that defendant did deliver to the Scott County Milling Company, one-third of all corn raised in 1958 as rent; that this corn was sold at the fair market price. The sole contention of plaintiff is that the provision "delivering to elevator or nearest market" does not include the right to sell. In determining the rights of the parties under the lease, we must determine what the meaning of the word market, as used in the lease contract, is. 699 We are cited to no Missouri authority defining the word market as used in lease contracts and we find none. "Market" is defined in Ballentine's Law Dictionary as follows: "At common law, a franchise, conferring a right to hold a concourse of buyers and sellers. The word is derived from the Latin word `mercatus,' which signifies trade or traffic, or buying and selling. See Matter of City of New York, 127 N.W. Misc.Rep. 710, 723, 217 N.W.Supp. 544 [127 Misc. 710, 723, 217 N.Y.S. 544]." In 55 C.J.S. Market pp. 784, 785, the law is stated: "The word `market,' in some connections, may be a technical term, but it also may be used without any technical meaning since it is not a term of fixed legal significance. In ordinary language it is a common word of the most general import having many meanings, and varying in its significance with the particular objects to which the language is directed and covering a variety of possible forms. It is derived from the Latin `mercatus,' which signifies trade or traffic, or buying and selling. Thus the term `market' conveys the idea of selling, and it assumes the existence of trade and implies competition, and also implies the existence of supply and demand, for, without the existence of either factor, no market is shown. A market is not a mere name without substance, and ordinarily a casual sale does not establish or create a market, but in some situations a single actual buyer would become a market. "The term `market' is usually associated with the sale, inspection, and supervision of food and food products designed for use by persons, and, although it has been extended by some courts to include food for domestic animals, the underlying idea in the term is the sale of products intended and designed primarily for human consumption. "As a noun. When employed as a noun the word `market' may mean simply purchase and sale, or it may mean the exchange of goods or provisions for money, purchase, or it may mean the rate of purchase and sale, or the demand there is for any particular article. It is also said that the term is used to denote that phase of commercial activity in which articles are bought and sold. * * * "The more common use of the term is to signify place, and in this sense it means a public place; a market place; a designated place in a town or city to which all persons can repair who wish to buy or sell articles there exposed for sale; a place set apart for trading; * * * "In a broader sense, the work `market' may signify the region in which any commodity can be sold; a district of a country in which trade in one or several articles is habitually conducted so as to furnish a criterion of value of the thing, or criteria of the values of the things, there sold; * * "As a verb. `To market' has been defined judicially and by lexicographers as to buy or to sell; * * * "`Marketing' signifies a bringing or sending to market, and includes buying as well as selling. "`Marketed' means sold." In 26A Words and Phrases Market, page 36, this rule of law is stated: "Since the word `market' conveys the idea of selling, the term `market value' would seem to mean the selling value. It is the price which an article will bring when offered for sale in the market. It is the highest price which those having the ability and occasion to buy are willing to pay. Brown v. W. T. Beaver Power Co., 52 S.E. 954, 955, 140 N.C. 333, citing Little Rock Junction Ry. v. Woodruff, 5 S.W. 792, 49 Ark. 381, 4 Am. St. Rep. 51." The use of the word "market", deliver to market, as used by the parties in the lease contract necessarily meant that the corn was to be delivered for the purpose of sale where buyers and sellers meet. Under the law we find that "market" conveys the idea of selling and that, under the lease contract which designated the rent corn 700 should be delivered to the "nearest market", we think it was the intention of the parties that the rent corn be delivered to the nearest market for sale and that the trial court was in error in holding that defendant breached his contract in selling the corn in question. We hold this although the evidence showed that in prior years the corn had been placed with the Commodity Credit Corporation. The evidence in this case clearly shows that the place designated for the delivery of the corn under the contract would not accept the corn excepting for sale; that its storage facilities had already been filled for the Commodity Credit Corporation and it could not be placed in the government loan at that time. We note that the trial court and the referee both mentioned that the corn could have been stored on the farm. A fair interpretation of the lease agreement does not give plaintiff any authority to store corn on the farm. A compliance with the lease requires the corn be delivered to the "nearest market". There is no evidence that plaintiff would have gotten 50 or 60 cents a bushel premium for his corn had it been stored on the farm. Necessarily, there must have been extra cost entailed had the corn been stored on the farm. The 50 or 60 cents per bushel increase in price was for corn stored in the elevator. We think the fact that the corn had been stored on the farm in other years, by agreement, did not change the obligation of the parties under the lease. We note that this transaction took place after the filing of this lawsuit and we find that defendant complied with the lease agreement; that the corn was sold for its reasonable market value and plaintiff was not damaged. The judgment will be modified deleting from it the sum of $542.84. Under point VI, error is alleged in the trial court's judgment ordering defendant to deliver complete possession of the real estate because defendant had fraudulently withheld from plaintiff portions of money, crops and livestock; because he had wrongfully refused to account for the same; because he had converted crops belonging to plaintiff; and because after notice he had refused to make a true account. The judgment of the trial court on this point reads: "The court further finds that the defendant was, during the time of the lease, in possession of crops, livestock and moneys that belonged to both plaintiff and defendant and that defendant, in violation of the conditions and the spirit of the lease, fraudulently withheld from plaintiff portions of said money, crops and livestock and wrongfully refused to account for same during the term of the lease and after demand in writing was duly made by plaintiff and that plaintiff was forced to file landlord's liens and this suit, and that some of the crops were converted by the defendant, no true account given by defendant, and that said violations of the contract on the part of the defendant continued during the life of said contract, and the Court finds that by reason of the conduct and demeanor of the defendant he has forfeited his rights thereunder and the contract and lease is declared to be null and void and the defendant is hereby ordered to forthwith surrender to the plaintiff full and complete possession of the farm land referred to in the evidence, * " We find that the trial court's judgment as to forfeiture of the premises is not supported by the evidence. A careful consideration of the evidence discloses that at the time of the filing of the action for accounting herein plaintiff was actually indebted to the defendant. There is no evidence of any fraud or willful withholding of crop rents; most of the contention arises out of crops grown in 1958, after the filing of the lawsuit. The tender of rents made by the defendant to plaintiff clearly shows that defendant was not intentionally withholding any rents due under the lease contract. The trial court's judgment dividing the 701 crops grown in 1958 and not sold were proper under the evidence, but no evidence of any fraud or willful withholding of rents was disclosed. Defendant's contention as to this alleged error is sustained. Under point VII, error is complained of in the court's judgment finding the lease null and void on the ground that there was no forfeiture clause in the lease and the court was without authority to declare it void. It is admitted that the written lease contained no forfeiture clause and plaintiff's attorneys admitted that if the lease agreement did not constitute a joint adventure that, under the laws in Missouri, the trial court was in error. It is plaintiff's contention that the trial court did not err in holding the lease null and void and ordering defendant to deliver possession of the real estate to plaintiff, first, because defendant fraudulently withheld from plaintiff portions of the money, crops and livestock; secondly, because defendant refused to account for the same; and, thirdly, because he gave no true account for same. To support this contention, plaintiff cites Shell Petroleum Corporation v. Gowan, 240 Ala. 497, 199 So. 849. On page 850 [2, 3] of 199 So. the court stated: "While it is well settled that a mere breach of the covenant in a lease to pay rent does not work a forfeiture or justify a rescission, 16 R.C.L. 1126, § 647, nevertheless it is also well settled that courts of equity have jurisdiction to decree rescission for vitiating fraud. 12 C.J.S., Cancellation of Instruments, p. 982, § 29. "And we are of opinion that if the lessee systematically and fraudulently made deceitful misrepresentations in respect to the gallonage sold from said filling station, or fraudulently withheld the payment of the true amounts due under the lease for the first term, complainants, on equitable principles, should be relieved from the obligation to renew for another term, and that the option in the lease for such renewal should be cancelled." We have no fault to find with the law as declared in this case but the facts in the instant case are entirely different. No fraud or fraudulent misrepresentation or concealment of the amounts of rents due is shown by the evidence in the instant case. Plaintiff cites 12 C.J.S. Cancellation of Instruments § 29, p. 983. This section reads: "The general rule is that the equitable relief of rescission will not be granted for a mere breach of contract, the remedy in such a case being ordinarily found in an action at law, which will afford an adequate remedy. This is, of course, particularly true if the performance of the condition has been rendered impossible by plaintiff. As otherwise expressed, in the absence of fraud, mistake, trust, cloud on title, multiplicity of suits, undue influence, or some other independent ground of equitable jurisdiction, a court of equity will not interfere to rescind a contract on the sole ground that defendant has failed to perform his part of the contract or has broken its warranties or condition. * * " Plaintiff cites 32 Am.Jur. § 872, p. 738. This section holds: "Ordinarily a court of equity will not assume jurisdiction to enforce a forfeiture of a lease, but will leave the lessor to his remedy at law, and, under some circumstances, will even relieve a lessee of the common-law effect of a forfeiture of his term. However, in cases where the forfeiture works equity and protects the rights of parties, courts of equity will in effect enforce it; they will not reject it when it becomes a means of enforcing equitable rights. Under special circumstances equity will assume jurisdiction to interfere and cancel a lease to prevent irreparable injury to the lessor from the breach of the lessee's covenants and agreements in the lease, though the lease contained no express provision for re-entry or forfeiture, although in such cases it will 702 decree forfeiture of a lease only on clear proof of a legal right." There is no evidence in the instant case that the plaintiff is about to, or has, suffered irreparable injury or that he has no adequate remedy at law. In 51 C.J.S. Landlord and Tenant § 102, p. 677, the law is stated: "Forfeiture, which is the right of the lessor to terminate a lease because of the lessee's breach of covenant or other wrongful act, is not favored by the courts, and provisions permitting forfeiture will be strictly construed against the lessor or the party invoking forfeiture. "* * * The word as used in a lease does not, strictly speaking, refer to any right given to the lessee to terminate the lease. * * " In Waring v. Rogers, Mo.App., 286 S.W.2d 374, 379, [19, 20], the law is stated: " * * To work a forfeiture of a leasehold estate at common law for non-payment of rent there must be a notice of forfeiture and a demand for the payment of the rent. Carbonetti v. Elms, Mo.App., 261 S.W. 748, and cases cited; 51 C.J.S., Landlord and Tenant, § 114 b, p. 694; Taylor's Landlord and Tenant, Ninth Ed., Vol. 1, § 297, p. 362; Thompson on Real Property, cit. supra, and § 1471. * * " There is no contention that there was any attempt to bring an action for rent and possession. In Mullaney v. McReynolds, 170 Mo. App. 406, 155 S.W. 485, 488, [4], the law is stated: "There is an absence of any forfeiture clause in this lease for nonpayment of rent, and we agree with appellant that, in the absence of such forfeiture provision, nonpayment of rent does not generally give a right of forfeiture and re-entry." (Citing authority.) In Haeffner v. A. P. Green Fire Brick Co., Mo., 76 S.W.2d 122, the Supreme Court held that forfeiture of leases is not favored at law and equity abhors forfeiture. See Edwards v. Collins, 198 Mo. App. 569, 199 S.W. 580. Where a lease contains a provision authorizing the lessor to terminate the tenancy on a failure to pay rent, the lessor is authorized to end the lease. See Wilson v. Watt, Mo., 327 S.W.2d 841, 852 [14], and authorities cited. But, in the instant case, there was no such reservation, therefore, the lease could not be terminated excepting where there is fraud or irreparable damage for which the lessor could not be adequately protected by damages in a suit at law. No such conditions are present under the facts in the instant case. Fraud cannot be presumed but must be affirmatively proved and the burden of proof is on the party who charges fraud. Shepherd v. Woodson, Mo., 328 S.W.2d 1, 6 [1,2]. In the instant case plaintiff wholly failed to prove fraud. Plaintiff, in his argument and brief, on page 23, states: " * * rather, there was a joint adventure contemplated and actually put into effect in this case. In addition, the crops, livestock and moneys were under the sole control and possession of appellant, who fraudulently took them and dealt with them, in instances, without regard for the rights of respondent." An examination of the pleadings in this case show that there were no allegations in the body of the petition pleading facts which would constitute a joint adventure and there was no evidence offered proving a joint adventure. In Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109, 116, [13, 15] the court defined joint adventure as follows: "A `joint adventure,' as a legal concept, is of comparative recent origin, Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491, 503, and is founded entirely on 703 contract, either express or implied. It can exist only by voluntary agreement of the parties to it. It has been defined as an `association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.' 48 C.J.S., Joint Adventures, § 1a. * * As a general rule, in order to constitute a joint adventure, there must be a community of interest in the accomplishment of a common purpose, a mutual right of control, a right to share in the profits and a duty to share in the losses as may be sustained." (See numerous authorities cited.) There was no joint adventure in the case at bar. The cause was not decided upon that basis and there are no facts offered in evidence that would support a finding on joint adventure. The judgment of the trial court holding the lease void and ordering restitution of possession to plaintiff is reversed. The final contention of defendant is that the costs should not be taxed entirely against defendant. It is the contention that this is an action in equity where the court found partly for plaintiff and partly for defendant. Ordinarily, a party prevailing in a case shall recover his costs against the other party, but in equity cases, courts have an inherent discretionary power to award costs by ordering either party to pay same or by apportioning the costs among the parties. Section 514.060 RSMo 1949, V.A. M.S.; Amitin v. Izard, Mo.App., 262 S.W.2d 353; Evans v. Buente, Mo.Sup., 284 S.W.2d 543. Under the facts in this case we deem it our duty to order the judgment as to costs set aside and judgment entered requiring each party to pay one-half the cost. It is the order and judgment of this court that the money judgment of $1,371.39 be modified by reducing it to $728.81, in accordance with our findings; that the judgment of the trial court declaring the lease between the parties to be null and void and ordering possession of the leased premises delivered to plaintiff be reversed and judgment ordered entered for the defendant on this issue, and, that part of the judgment assessing all costs against the defendant is modified and the costs directed to be taxed in equal amounts against each of the parties. The trial court's judgment in all other respects is by this court affirmed. STONE, P. J., and RUARK, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516147/	955 F. Supp. 531 (1996) Fernando J. CORTES, Plaintiff, v. McDONALD'S CORPORATION, F & D Huebner, L.L.C., d/b/a McDonald's Restaurant and Charles Harris, III, Defendants. No. 5:95-CV-827-H. United States District Court, E.D. North Carolina, Western Division. January 23, 1996. April 7, 1996. Order Granting Reconsideration April 8, 1996. 532 H.C. Kirkhart, Cary, NC, for Fernando J. Cortes. Frank P. Ward, Jr., Maupin, Taylor, Ellis & Adams, Raleigh, NC, R. Scott Brown, John B. Meuser, Raleigh, NC, Shannon E. Brown, Maupin, Taylor, Ellis & Adams, Raleigh, NC, for McDonald's Corporation. Frank P. Ward, Jr., Shannon E. Brown, Maupin, Taylor, Ellis & Adams, Raleigh, NC, R. Scott Brown, Raleigh, NC, for F & D Huebner, L.L.C. d/b/a McDonald's Restaurant, Charles Harris, III. ORDER MALCOLM J. HOWARD, District Judge. This matter is before the court upon defendants' motions to dismiss. Plaintiff's complaint was originally filed on August 24, 1995, in North Carolina Superior Court. The case was removed to this court on September 26, 1995, pursuant to 28 U.S.C. § 1441 based on the court's federal question and supplemental jurisdiction. The defendants have now filed individual motions to dismiss the action pursuant to Federal Rules of Civil Procedure ("Rules") 12(b)(1) and 12(b)(6). STATEMENT OF THE CASE Defendant F & D Huebner, L.L.C., d/b/a McDonald's ("Huebner") operates a McDonald's restaurant at 800 N. Main Street, Fuquay-Varina, North Carolina, ("the restaurant") through a franchise agreement with the defendant McDonald's Corporation ("McDonald's Corp."). Defendant Charles Harris III ("Harris") is the manager of the restaurant. In October of 1994, plaintiff was hired by Huebner to work at the restaurant. Plaintiff was directly supervised by Yvonne Lusky. In January of 1995, Ms. Lusky learned that she may have been exposed to tuberculosis. Ms. Lusky subsequently spoke to her manager, Harris, about she and plaintiff obtaining tuberculosis tests. While being tested for tuberculosis, plaintiff requested that he also be tested for the Human Immunodeficiency Virus ("HIV"). On or about February 3, 1995, plaintiff discovered that he had tested positive for HIV. Plaintiff immediately shared this information with his manager, defendant Harris. At the end of February, plaintiff discontinued his employment at the restaurant, allegedly due to "pressure from defendant Harris and in reliance upon defendant Harris [sic] statements that plaintiff would receive full Unemployment benefits." Complaint at 3. Plaintiff filed a Charge of Discrimination ("charge") with the Equal Employment Opportunity Commission ("EEOC") on April 26, 1995. On or about June 30, 1995, the EEOC issued plaintiff a Notice of Right to Sue upon his request. Id. Plaintiff's complaint alleges that the defendants wrongfully terminated him from his employment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and North Carolina law. Plaintiff contends that he was constructively discharged because of his HIV. DISCUSSION I. The Title VII Claim Title VII, 42 U.S.C. § 2000e et seq., provides that it is unlawful for an employer to, among other practices, "discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (1994). Although plaintiff lists Title VII as one of the statutes 533 violated by his employers' actions, plaintiff's complaint contains no allegation whatsoever relating to his race, color, religion, sex, or national origin. Plaintiff's Charge of Discrimination ("charge"), which was filed with the EEOC, also makes no reference to any cause of discrimination other than disability. In fact, plaintiff admits in his brief in opposition to defendants' motions to dismiss that the EEOC charge lacks allegations which would support a cause of action under Title VII. Consequently, because plaintiff's complaint cites only "his disability of being HIV positive" as the motivating factor behind the defendants' allegedly discriminatory actions, and because the plain language of Title VII does not include HIV as a situation to which the statute applies, the court finds that plaintiff has failed to state a claim upon which relief may be granted. The Title VII claim is therefore DISMISSED as to all defendants. II. McDonald's Corp's Motion to Dismiss the ADA Claim A. The "early" right-to-sue letter Defendant McDonald's Corp. alleges that the ADA cause of action should be dismissed, among other reasons, because a Notice of Right to Sue issued prior to the expiration of 180 days from the date of the filing of the charge is invalid. Plaintiff was granted a Notice of Right to Sue only a little over two months after he filed his charge. "Questions of the validity of the early right-to-sue letter have confounded district courts since enactment of the regulation in 1977." Pearce v. Barry Sable Diamonds, 912 F. Supp. 149 (E.D.Pa.1996). The "regulation" to which the Pennsylvania court is referring is 29 C.F.R. § 1601.28(a)(2) which authorizes the EEOC to issue a right-to-sue letter prior to 180 days from the date the charge was filed. The Ninth and Eleventh Circuits have found no problem with the C.F.R. provision, but many district courts in other circuits have ruled that the provision exceeds the power of the EEOC and is therefore invalid. The Fourth Circuit has not yet ruled on the issue. Without precedence or guidance from the Fourth Circuit, this court finds that the issuance of a so-called "early" right-to-sue letter, i.e., one that is issued prior to the expiration of 180 days, does not render an ADA claim invalid. Section 12117 of the ADA expressly adopts the "powers, remedies, and procedures" set forth in Title VII. 42 U.S.C. § 12117 (1995). Nowhere in the plain language of Title VII, in particular § 2000e-5, is the EEOC prohibited from issuing a notice of right-to-sue prior to 180 days. The United States Supreme Court has explained § 2000e-5 as meaning exactly what it seems to say: "An aggrieved person unwilling to await the conclusion of extended EEOC proceedings may institute a private lawsuit 180 days after a charge has been filed." Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355, 366, 97 S. Ct. 2447, 2454, 53 L. Ed. 2d 402 (1977). Thus, all § 2000e-5 requires is that the EEOC notify the aggrieved party if the EEOC has not filed its own civil action within 180 days or arranged a conciliation agreement within that time. In this court's opinion, § 2000e-5 does not mean that the EEOC must wait 180 days before granting the aggrieved party a right to sue. Consequently, the court rejects McDonald's Corp's argument that the court lacks jurisdiction over plaintiff's ADA claim because the right-to-sue letter was issued prematurely. B. The naming of the defendant in the EEOC charge McDonald's Corp. also alleges that the ADA claim should be dismissed because McDonald's Corp. was not named as a respondent in plaintiff's charge. Any defendant not named somewhere in the EEOC charge may not later be named as a defendant in a complaint filed in court. Dickey v. Greene, 603 F. Supp. 102, 105 (E.D.N.C.1984) (citing Dickey v. Greene, 710 F.2d 1003 (4th Cir.1983)). Plaintiff's charge lists "McDonald's" as the employer liable for the discrimination and lists the employer's address as "800 W. Main Street, Fuquay Varina, NC." Answer, Exh. A. In the space designated for the particulars of the discrimination, 534 plaintiff names Charles Harris as the store manager. The Eastern District of North Carolina has held that "the jurisdictional requisites of Title VII are satisfied if the party or parties alleged to have discriminated against plaintiff are clearly identified by plaintiff anywhere on the face of the charge of discrimination form." Dickey, 603 F.Supp. at 105. Judge Dupree, who authored the Dickey decision, also stated, "it is generally accepted that complaints filed with the EEOC should be liberally construed since they are framed by persons unfamiliar with the pleading requirements of the Act." Id. at 106. As has already been mentioned by this court, the procedural requirements of Title VII also apply to the ADA. This court agrees with Judge Dupree that charges filed with the EEOC must be liberally construed. In addition, this court will not impose hypertechnical requirements upon those untrained in the law. See generally, Alvarado v. Bd. of Trustees of Montgomery Community College, 848 F.2d 457 (4th Cir.1988). Consequently, the court finds that the plaintiff's listing of "McDonald's" on his charge is sufficient to allow the court to assert jurisdiction over the defendant McDonald's Corp. even though the address listed is that of the franchise located in Fuquay-Varina. C. Is McDonald's Corp. a proper party? McDonald's Corp's final argument in favor of its motion to dismiss the ADA claim is that McDonald's Corp. is not the employer of its franchisee's employees and is therefore not a proper party to this action. The court finds that such an argument is more suitable to a motion for summary judgment than a motion to dismiss for failure to state a claim. In a motion to dismiss for failure to state a claim upon which relief may be granted, a court is required to accept as true all well-pleaded allegations. The complaint must also be viewed in the light most favorable to the plaintiff. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). In the present matter, plaintiff's complaint states, Upon information and belief defendant McDonald's Corp. is the franchiser of the McDonald's store referenced above and the defendants Huebner are the franchisee. Defendant McDonald's Corporation as franchiser sets the policy regarding, but not limited to, personal policy, management training, running of the operation and publicity. Complaint at 1. Control is an important factor in any determination regarding the responsibility of a franchisor for its franchisees. In viewing the above-quoted statement in the light most favorable to the plaintiff, the court must assume that McDonald's Corp. exerted influence over the Huebner franchise in its hiring and firing decisions. Thus, while the court believes that defendants' argument may be a viable ground for dismissal, the court finds that it does not presently have before it enough information to rule on such an issue. McDonald's Corp's motion to dismiss the ADA claim must therefore be DENIED. III. Defendants Huebner and Harris' Motion to Dismiss the ADA Claim Defendants Huebner and Harris filed a separate motion to dismiss for lack of jurisdiction and failure to state a claim. Although their motion contains theories for dismissal that differ from those asserted by McDonald's Corp., these defendants also claim that this court lacks jurisdiction over the ADA claim because of the "early" right-to-sue letter. As this issue has already been thoroughly discussed above, the court will not repeat its discussion here. However, the court will reiterate that it rejects defendants' argument that the "early" right-to-sue letter renders the ADA claim invalid. Defendant Harris also alleges that the ADA claim should be dismissed against him because individuals cannot be held liable under the ADA. The question of whether an individual can be held liable under the ADA turns on whether individuals are included within the ADA's definition of "employer." The ADA defines an "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees for each 535 working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 12111(5)(A) (1995). Although the Fourth Circuit has not yet addressed the question of whether an individual can be held liable under the ADA, the Fourth Circuit has determined that individuals cannot be held individually liable under the Age Discrimination in Employment Act ("ADEA") for personnel decisions of a plainly delegable character. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-511 n. 1 (4th Cir.1994). The definition of "employer" in the ADEA is very similar to that of the ADA. In the present matter, plaintiff's complaint states that defendant Harris is the manager of the Huebner McDonald's. In addition, various statements within the complaint allege that Harris himself was quite personally involved in plaintiff's constructive discharge. Thus, in reading the complaint in the light most favorable to the plaintiff, the court finds that defendant Harris may fall within the ADA's definition of "employer." The defendants' motion to dismiss the ADA claim is therefore DENIED. IV. The State Law Claims A. N.C.Gen.Stat. § 14-355 Plaintiff's third cause of action is based upon the defendants alleged violation of the North Carolina blacklist statute, codified as N.C.Gen.Stat. § 14-355. Plaintiff states in his complaint, "[a]fter termination plaintiff has attempted to use his exemplary employment record to secure a position with another employer. However when his reference is checked with defendants upon information and belief, a negative reference is given and plaintiff has had a difficult time securing employment." Complaint at 4-5 (emphasis added). The Court of Appeals of North Carolina has very clearly explained that under § 14-355, "statements made about a former employee in response to a request from a prospective employer are privileged under § 14-355. For the statute to be violated, the statements to the prospective employer would have had to have been unsolicited." Friel v. Angell Care Inc., 113 N.C.App. 505, 511, 440 S.E.2d 111, 114-15 (1994) (emphasis added). Plaintiff's complaint plainly states, however, that the allegedly negative references given about him were given in response to the requests of potential employers. The court therefore finds that even in construing the complaint in the light most favorable to the plaintiff, plaintiff has not set forth a claim pursuant to § 14-355 upon which relief may be granted. Defendants' motion to dismiss for failure to state a claim is therefore GRANTED as to the claim asserted pursuant to N.C.Gen.Stat. § 14-355. B. The wrongful discharge claim Plaintiff's complaint also alleges a cause of action based upon wrongful discharge. Defendant Harris contends that the wrongful discharge cause of action should be dismissed because individuals cannot be held personally liable for wrongful discharge. For the same reasons already set forth in the court's discussion of the term "employer" under the ADA, the court DENIES defendant Harris' motion to dismiss the wrongful discharge claim. CONCLUSION Accordingly, for the reasons stated herein, the defendants' motion to dismiss the Title VII cause of action is hereby GRANTED. Defendants' motion to dismiss the ADA cause of action is DENIED. Defendants' motion to dismiss the N.C. Gen. Stat. § 14-355 blacklist cause of action is GRANTED. Defendants' motion to dismiss the wrongful discharge cause of action is DENIED. Thusly, there remains before this court, for further disposition and/or trial, plaintiff's ADA claim and plaintiff's wrongful discharge claim. ORDER GRANTING RECONSIDERATION This matter is before the court on defendant Charles Harris' ("Harris") motion for reconsideration. The court filed an order in the above-referenced matter on January 26, 1996, granting in part and denying in part defendants' motions to dismiss. In this January 536 26 order, the court denied defendant Harris' motion to dismiss plaintiff's ADA and wrongful discharge causes of action. Harris now asks this court to reconsider its prior ruling based on subsequently decided authority. Because the court recognizes that the issue of individual liability under the Americans with Disabilities Act is an area of evolving law and because the court recognizes that the tort of constructive discharge has not yet been explicitly recognized by the North Carolina courts, the court hereby GRANTS defendant Harris' motion for reconsideration and amends its order of January 26, 1996, as follows.[1] I. The ADA Claim Against Defendant Harris: May Individuals Be Held Personally Liable Under the ADA? The Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and Title VII of the Civil Rights Act of 1964 ("Title VII") "all have virtually identical definitions and liability schemes and all are designed with a common purpose: to prohibit discrimination in employment." Stephens v. Kay Management Co., Inc. 907 F. Supp. 169, 171 (E.D.Va. 1995). Thus, when a court is called upon to interpret one statute, case law discussing the other statutes is often looked to for guidance. Id. A question currently cropping up with some frequency among district courts in the Fourth Circuit, and presently before this court in relation to plaintiff's ADA cause of action, is whether an individual in a supervisory position may be held personally liable as an "employer" under the ADA, the ADEA, or Title VII.[2] The reason for the recent wave of discussion concerning individual liability under the discrimination statutes is the 1994 Fourth Circuit decision of Birkbeck v. Marvel Lighting Corporation, 30 F.3d 507 (4th Cir.1994). In Birkbeck, the Fourth Circuit held that supervisory individuals making personnel decisions "of a plainly delegable character" may not be held personally liable under the ADEA. Birkbeck, 30 F.3d at 511 n. 1. Prior to Birkbeck, the individual liability issue in this circuit was governed by the Court of Appeals' statement in Paroline v. Unisys Corporation, 879 F.2d 100 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990), that "[a]n individual qualifies as an `employer' ... if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment." Paroline, 879 F.2d at 104. Although Paroline involved a sexual harassment case brought pursuant to Title VII, the definition of "employer" under Title VII is virtually identical to the definition of "employer" under the ADA and the ADEA. Thus, after Paroline, as long as a supervisory individual's exercise of authority over a plaintiff was approved or acquiesced by an employing entity, then that supervisory individual was considered an "employer" for purposes of Title VII, the ADA, and the ADEA. Id. In 1994, however, the Fourth Circuit held in Birkbeck that "the ADEA limits civil liability to the [actual] employer." Birkbeck, 30 F.3d at 511. Thus, under the facts of Birkbeck, the vice-president of the company from which the plaintiffs had been laid off was not a proper defendant in the case even though he was "primarily responsible for the layoff decisions." Id. at 509-10. The Birkbeck court reasoned that because the definition of "employer" under the ADEA restricts the application of the ADEA to those `employers' who employ twenty or more workers ... it would be incongruous to hold that the ADEA does not apply to the owner of a business employing, for example, ten people, but that it does apply 537 with full force to a person who supervises the same number of workers in a company employing twenty or more. Id. The Birkbeck court also stated that imposing personal liability on supervisory individuals "would place a heavy burden on those who routinely make personnel decisions for enterprises employing twenty or more persons, and we do not read the statute as imposing it." Id. Thus, the Fourth Circuit interpreted the portion of the ADEA which includes "any agent" of "a person engaged in an industry affecting commerce" within the definition of "employer" "as an unremarkable expression of respondent superior that discriminatory personnel actions taken by an employer's agent may create liability for the employer." Id. (citing Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993)). Although Birkbeck may appear on its surface to abrogate the Fourth Circuit's decision in Paroline, the Birkbeck court did not explicitly overrule Paroline. Instead, the Birkbeck court stated in a footnote that "[a]n employee ... may not be shielded as an employer's agent in all circumstances. We address here only personnel decisions of a plainly delegable character." Id. at 511 n. 1 (emphasis added). The court then cited to Paroline and parenthetically explained that Paroline involved a "disputed issue of fact with respect to personal liability under Title VII in a sexual harassment setting." Id. Because of the Birkbeck footnote, the question confronting many district courts in the Fourth Circuit today is what is meant by the court's reference to "personnel decisions of a plainly delegable character." Unfortunately, the Fourth Circuit has not yet expounded upon the issue. Thus, the district courts have been left deciding the matter for themselves. In this court's recent January 26 order, the court recognized Birkbeck but stated that because defendant Harris may fall within the ADA's definition of "employer," defendant Harris' motion to dismiss the ADA claim must be denied. Since the court's January 26 ruling, however, two very recent decisions by district courts in the Fourth Circuit have been brought to the court's attention. The most recent of these decisions, authored by Judge Hiram H. Ward of the Middle District of North Carolina, confronts the individual liability issue under the ADEA. In Pardasani v. Rack Room Shoes Inc., 912 F. Supp. 187 (M.D.N.C.1996), Judge Ward determined that "[m]aking promotions and other normal personnel decisions are the type of actions that fall within the category of `personnel decisions of a plainly delegable character.' Thus, supervisors making these types of decision [sic] are protected by the Birkbeck decision and cannot be held individually liable for violations of the ADEA." Pardasani, 912 F.Supp. at 191. Judge Ward explained the Birkbeck footnote by stating, Paroline involved sexual harassment within the workplace and not a personnel decision of a plainly delegable character. Sexual harassment is not a personnel decision of a plainly delegable character since no employer could delegate authority to a supervisor to act as its agent for the purposes of engaging in sexually harassing conduct. Id. Thus, Judge Ward determined in Pardasani that the plaintiff's ADEA claim with regard to the two supervisory employees "involve plainly delegable decisions and as such neither defendant can be held personally liable." Id. Similarly, in Stephens v. Kay Management Co., Inc., 907 F. Supp. 169 (E.D.Va.1995), a Virginia district court recently stated, "because Birkbeck addressed termination of employment, it established that decisions of that sort were of a `plainly delegable character.'" Stephens, 907 F.Supp. at 173. The Stephens court then asserted that "[t]here is no valid reason not to apply the rationale of Birkbeck to the ADA." Id. at 174. Thus, the court held that the plaintiff's supervisor could not be held individually liable under the ADA for the plaintiff's termination even though the supervisor had allegedly "been trying to find a way to fire [the plaintiff] for some time." Id. at 171, 174. In the instant matter, defendant Harris is employed by defendant F & D Huebner, L.L.C., d/b/a McDonald's ("Huebner") as a manager at Huebner's restaurant. Plaintiff alleges that after the defendants learned of plaintiff's HIV status, Huebner told Harris "to get rid of" plaintiff, "but to keep it quiet 538 and not let it get out." Pl.'s Resp. to Def. Harris' Mot. to Reconsider at 2. Plaintiff then alleges that he "quit his job as a direct result of the pressure of defendant Harris and in reliance upon statements that plaintiff would receive his unemployment benefits." Id. These facts, even if taken in the light most favorable to the plaintiff, show that Harris' actions, albeit allegedly quite personal in nature, were nonetheless due to Huebner's delegating the job of "getting rid of" plaintiff to Harris, the manager of Huebner's restaurant. Thus, the facts as alleged by plaintiff clearly establish that any actions taken against plaintiff by Harris arose from a personnel decision of a plainly delegable character, i.e., the decision to terminate an employee. Consequently, because this court is convinced that Judge Ward's reasoning in Pardasani is what is dictated by the current precedent in this circuit, and because the court agrees that "[t]here is no valid reason not to apply the rationale of Birkbeck to the ADA," Stephens, 907 F.Supp. at 174, the court hereby amends this court's January 26, 1996, order to include a DISMISSAL of plaintiff's ADA cause of action against defendant Harris. The ADA cause of action remains as to defendants McDonald's Corporation and Huebner. II. The Constructive Wrongful Discharge Claim: Would a North Carolina Court Recognize the Tort in this Case? In his complaint, plaintiff states, "[c]onstructive termination of plaintiff's employment by defendants as heretofore described as a direct result of his HIV positive status constitutes a wrongful discharge under North Carolina law and as a matter of public policy...." Compl. ¶ 32. Wrongful discharge is only actionable in North Carolina if a plaintiff is in fact "discharged." Gravitte v. Mitsubishi Semiconductor America, 109 N.C.App. 466, 472, 428 S.E.2d 254 (1993). In the instant matter, plaintiff admits that he quit his job after allegedly being reassured that he would receive full unemployment benefits. Compl. ¶ 22, ¶ 31. Consequently, since plaintiff voluntarily resigned from defendant's employ, he cannot bring a claim for wrongful discharge. Gravitte, 109 N.C.App. at 472, 428 S.E.2d 254. Plaintiff's discharge claim is therefore only actionable if he can validly assert a claim for constructive discharge. As recently noted by the Court of Appeals of North Carolina, "North Carolina courts have yet to adopt the employment tort of constructive discharge." Graham v. Hardee's Food Systems, 121 N.C.App. 382, 385, 465 S.E.2d 558, 560 (N.C.Ct.App.1996). Plaintiff points out that this court could nonetheless "find that North Carolina recognizes the tort of constructive discharge." Pl.'s Resp. to Def. Harris' Mot. to Reconsider at 6. The court agrees with plaintiff's statement. As a federal court entertaining a pendent state law claim, this court must apply the relevant state law as would the highest court of the state in which the suit was brought. Liberty Mutual Insurance Co. v. Triangle Industries, Inc., 957 F.2d 1153, 1156 (4th Cir.1992); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). It is not the court's place to "fashion a rule which we, as an independent federal court, might consider best." Kline v. Wheels by Kinney, Inc., 464 F.2d 184, 187 (4th Cir. 1972) (citing Lowe's North Wilkesboro Hardware v. Fidelity Mut. Life Ins. Co., 319 F.2d 469 (4th Cir.1963)). Moreover, "the generally held view [is] that federal courts applying a state's law should not provide a cause of action which that state has not recognized." Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225, 241 (W.D.Va.1988). Because the North Carolina courts have not yet recognized the tort of constructive discharge, very little discussion of the tort appears in North Carolina case law. Moreover, two of the North Carolina appellate court decisions cited by plaintiff as supporting a recognition of the tort discuss constructive discharge only in terms of a federal statutory provision, see E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir. 1992), or adjudication of a claim by the Employment Security Commission, see Celis v. North Carolina Employment Security Commission, 97 N.C.App. 636, 389 S.E.2d 434 (1990). Thus, neither of these cases show 539 that the North Carolina courts would recognize the tort of constructive discharge on purely state-based grounds. Nonetheless, one North Carolina appellate decision has addressed constructive discharge on purely state-based grounds. It appears from this case, however, that the only manner in which a North Carolina court might recognize the tort would be as an extension of the concept of wrongful discharge. See Wagoner v. Elkin City Schools' Board of Education, 113 N.C.App. 579, 440 S.E.2d 119 (1994). In Wagoner, a school teacher sought to prove that the school system had constructively discharged her by making her employment intolerable. The Court of Appeals of North Carolina discussed the applicable tort not as one of "constructive discharge" but as one of "constructive wrongful discharge." Id. at 588, 440 S.E.2d 119. The court then dismissed the constructive wrongful discharge claim "because the tort of wrongful discharge arises only in the context of employees at will." Id. at 588, 440 S.E.2d 119. Because the Wagoner court acknowledged the tort of "constructive wrongful discharge," this court is not entirely convinced that the tort of constructive discharge would not be recognized by the Supreme Court of North Carolina if it were deciding the instant matter. However, the court does not feel that the constructive discharge issue has been sufficiently addressed by the parties and the court is not prepared at this time to make a decision as to whether or not the tort of constructive discharge should be dismissed. The court therefore reserves its ruling on this issue until the matter has been more thoroughly presented. CONCLUSION Accordingly, counsel for plaintiff and defendant Harris are requested to file additional briefs solely on the issue of the North Carolina Supreme Court's likely position on the existence of the tort of constructive discharge under the facts of this case. Defendant Harris, as the movant on this issue, shall file his brief in support of his motion to dismiss the constructive discharge claim by April 29, 1996. Plaintiff's response shall be filed by May 13, 1996. No reply will be accepted. Furthermore, for the reasons already stated herein, this court's order of January 26, 1996, is amended as follows: Defendant Harris' motion to dismiss plaintiff's ADA cause of action is GRANTED for failure to state a claim upon which relief may be granted. Thusly, there remains before this court, for further disposition and/or trial, plaintiff's ADA cause of action against defendants McDonald's Corporation and F & D Huebner, and plaintiff's constructive wrongful discharge claim. NOTES [1] The court will not repeat the facts of this case as they have already been set forth in the court's order of January 26, 1996. [2] The ADA, the ADEA, and Title VII define an "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 12111(5)(A) (ADA). See also 29 U.S.C. § 630(b) (ADEA) (the ADEA limits liability to employers with twenty or more employees) and 42 U.S.C. § 2000e(b) (Title VII).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516137/	913 A.2d 1081 (2007) 99 Conn.App. 251 STATE of Connecticut v. MICHAEL A.[1] No. 25834. Appellate Court of Connecticut. Argued September 13, 2006. Decided January 23, 2007. 1085 Donald D. Dakers, special public defender, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Mary M. Galvin, former state's attorney, for the appellee (state). DiPENTIMA, ROGERS and PELLEGRINO, Js. DiPENTIMA, J. The defendant, Michael A., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71(a)(1)[2] and risk of injury to a child in violation of General Statutes § 53-21(a)(2).[3] The defendant raises the following four claims on appeal: (1) he was denied his constitutional right to notice of the charges against him when the trial court improperly instructed the jury that it could consider the crime of sexual assault in the second degree as a lesser offense included within sexual assault in the first degree; (2) the court improperly instructed the jury on the elements of risk of injury to a child; (3) the court improperly permitted the state to introduce evidence of the defendant's prior misconduct; and (4) the court improperly admitted expert testimony concluding that a sexual assault actually had occurred.[4] We agree with the defendant on his first instructional claim, and therefore reverse the judgment of the trial court only as to his conviction of sexual assault in the second degree. The jury reasonably could have found the following facts. The victim, a fourteen year old high school freshman, resided across the street from the defendant's family and knew the defendant as her boyfriend's father. On the evening of November 29, 2000, the victim encountered the defendant standing outside his apartment building. He called her over, ostensibly for the purpose of talking to her about his son. The victim followed the defendant into an apartment rented by the defendant's sister, which was vacant but for a mattress in the middle of the living room. The defendant positioned himself between the victim and the front door and asked her what she would do if he kissed her, to which the victim replied, "stop playing, Mike." The defendant then proceeded to kiss the victim and to remove her jacket, her pants and her underpants. The victim testified that she did not want this to happen but that she did not fight the defendant or try to stop him because 1086 she was very frightened. The defendant laid the victim on the mattress and had sexual intercourse with her. The victim said no, told the defendant that it hurt her and told him to stop, but he did not stop. She could not move because the defendant overpowered her with his weight. After the defendant was finished, he walked the victim to the door and said, "you aren't going to tell anybody, right?" The victim returned home and called the defendant's son. She also told her best friend, T, other friends at school and, eventually, the school authorities, including the police officer at her school. Thereafter, the state charged the defendant with sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1)[5] and risk of injury to a child in violation of § 53-21(a)(2). On May 26, 2004, the state filed a substitute part B information charging the defendant with being a persistent serious felony offender as provided in General Statutes § 53a40(c).[6] In June, 2004, the jury found the defendant not guilty of sexual assault in the first degree but guilty of sexual assault in the second degree and risk of injury to a child. Following the jury verdict, the defendant pleaded nolo contendere to the part B information, which was conditioned on his right to challenge the underlying conviction. On August 23, 2004, the court, Cremins, J., rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty-four years imprisonment followed by ten years special probation and lifetime registration as a sex offender.[7] This appeal followed. Additional facts will be set forth as needed. I The defendant raises two instructional claims. "When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party. . . ." (Internal quotation marks omitted.) State v. Romero, 269 Conn. 481, 488, 849 A.2d 760 (2004). A The defendant first claims that the court improperly instructed the jury that it could find him guilty of sexual assault in the second degree as a lesser offense included within sexual assault in the first degree. We agree with the defendant. 1087 The defendant was charged by substitute long form information with one count of sexual assault in the first degree in violation of § 53a-70(a)(1) and one count of risk of injury to a child in violation of § 53-21(a)(2). With respect to the first count, the information charged that the defendant had "engaged in sexual intercourse, to wit: vaginal intercourse, with another person, by the use or threat of use of force against such other person which reasonably caused such person to fear physical injury to such person. . . ." With respect to the second count, the information charged that the defendant "had contact with the intimate parts of a child under the age of sixteen years, or subjected a child under sixteen years of age to contact with his intimate parts, in a sexual or indecent manner likely to impair the health or morals of such child. . . ."[8] At the close of evidence, the state filed a request to charge on the lesser included offense of sexual assault in the second degree, which the court granted. During its final argument, the state presented the lesser included offense as an alternative to sexual assault in the first degree, to which defense counsel did not object. The court then instructed the jury on sexual assault in the second degree, to which defense counsel did not take an exception. The jury ultimately found the defendant not guilty of sexual assault in the first degree but found him guilty of sexual assault in the second degree and risk of injury to a child. Although the defendant concedes that his claim is unpreserved, he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).[9] We agree that the claim is reviewable because the record is adequate, and if the defendant was convicted of a crime for which he was not given proper notice, he was deprived of due process of law. See State v. Tomlin, 266 Conn. 608, 616, 835 A.2d 12 (2003). The question of whether sexual assault in the second degree is a lesser offense included within the crime of sexual assault in the first degree is a question of law and therefore subject to de novo review. Id., at 615-16, 835 A.2d 12. We begin our analysis of the defendant's claim by reviewing the law regarding lesser included offenses. "A criminal defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial." (Internal quotation marks omitted.) State v. Ward, 76 Conn. App. 779, 787, 821 A.2d 822, cert. denied, 264 Conn. 918, 826 A.2d 1160 (2003); see also State v. Rosario, 82 Conn.App. 691, 695, 846 A.2d 926, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). This notice is accomplished through the state's charging 1088 documents and, particularly, the information. "The information serves the very important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions." (Internal quotation marks omitted.) State v. Ward, supra, at 787, 821 A.2d 822. A court, however, may instruct the jury to consider lesser included offenses of crimes alleged in the charging document because it is assumed that "whe[n] one or more offenses are lesser than and included within the crime charged, notice of the crime charged includes notice of all lesser included offenses. . . . This notice permits each party to prepare a case properly, each cognizant of its burden of proof." (Internal quotation marks omitted.). State v. Rosario, supra, at 695, 846 A.2d 926. The test governing lesser included offenses is well settled. For one offense to be included within another, it must not be "possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. . . ." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980); State v. Greene, 274 Conn. 134, 158, 874 A.2d 750 (2005), cert. denied, ___ U.S. ___, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). This inquiry is governed by the cognate pleadings approach. State v. Tomlin, supra, 266 Conn. at 618, 835 A.2d 12. "The cognate-pleadings approach . . . does not insist that the elements of the lesser offense be a subset of the higher offense. It is sufficient that the lesser offense have certain elements in common with the higher offense, which thereby makes it a cognate or allied offense even though it also has other elements not essential to the greater crime. [In addition], the relationship between the offenses is determined not by a comparison of statutory elements in the abstract, but by reference to the pleadings in the case. The key ordinarily is whether the allegations in the pleading charging the higher offense . . . include all of the elements of the lesser offense." (Internal quotation marks omitted.) Id. The defendant argues that sexual assault in the second degree is not a lesser offense included within sexual assault in the first degree because each crime requires proof of an element that the other does not. Sexual assault in the first degree requires that sexual intercourse be accomplished by force or threat of force, but has no age requirement for the victim. Sexual assault in the second degree does not require force or threat of force, but does require that the victim be between the ages of thirteen and sixteen years at the time of the offense and further requires that the accused be more than two years older than the victim. The state responds that this court should consider the second count of the information, charging the defendant with risk of injury to a child. According to the state, because this count requires the victim to be younger than sixteen years of age, the defendant was on notice as to the additional element of sexual assault in the second degree. We agree with the defendant that in this case, sexual assault in the second degree was not a lesser offense included within sexual assault in the first degree. "The crime of sexual assault in the second degree is an offense separate and distinct from sexual assault in the first degree." State v. Franko, 199 Conn. 481, 495, 508 A.2d 22 (1986). Consequently, we turn to the information and bill of particulars to determine whether it would be possible to commit sexual assault in the first degree in the manner described in those documents, without necessarily committing sexual assault in the second degree. The state's first count on the long form information simply charged the defendant with accomplishing sexual intercourse by use or threat of force. It neither identified the 1089 victim nor referenced her age. Because age is an element of sexual assault in the second degree but not of sexual assault in the first degree, the defendant clearly could have accomplished the latter without committing the former. The state asks us to overrule our holding in State v. Guess, 39 Conn.App. 224, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995), and look to the other counts alleged in the information to determine whether the defendant had adequate notice of the charges against him.[10] We decline the state's invitation to do so. In Guess, the defendant was charged with, inter alia, murder and carrying a pistol without a permit. The court instructed the jury that it could consider the lesser included offense of manslaughter in the first degree with a firearm. Id., at 226, 665 A.2d 126. On appeal, we raised the question, sua sponte, whether that instruction constituted a violation of the defendant's constitutional right to notice of the charges against him. Id., at 236, 665 A.2d 126. The state argued that the defendant had sufficient notice to be convicted of manslaughter in the first degree with a firearm because of the other counts in the information, which referred to the firing of gunshots from a handgun. Id., at 237, 665 A.2d 126. We held that although the defendant may have been alerted to the possible presentation of evidence at trial regarding the use of a firearm, the mention of a firearm in a different count of the information was insufficient notice that he could have been convicted of manslaughter with a firearm. Id., at 238, 665 A.2d 126. Our decision that sexual assault in the second degree cannot be a lesser offense included within sexual assault in the first degree in this case is consistent with Connecticut case law, which reveals a reluctance to find different degrees of sexual assault to be lesser included offenses of one another. In State v. Ciotti, 174 Conn. 336, 338, 387 A.2d 546 (1978), our Supreme Court held in a per curiam decision that sexual assault in the second degree is not a lesser included offense of sexual assault in the first degree when the information does not allege the age of the victim or the defendant, because each crime contains elements that the other does not. Cf. State v. Franko, supra, 199 Conn. at 494, 508 A.2d 22 (holding that sexual assault in second degree not lesser offense included within sexual assault in first degree because it is possible to commit one without necessarily committing other); State v. Henry, 76 Conn.App. 515, 551, 820 A.2d 1076 (holding that sexual assault in third and fourth degrees not lesser included offenses of sexual assault in first degree because they contain additional elements), cert. denied, 264 Conn. 908, 826 A.2d 178 (2003). Our resolution of the defendant's claim is also consistent with our case law regarding lesser offenses included within other crimes. See State v. Falcon, 26 Conn.App. 259, 266, 600 A.2d 1364 (1991) (manslaughter in first degree with firearm cannot be lesser offense included within murder when no reference to firearm or shooting in charging documents), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); compare State v. Tomlin, supra, 266 Conn. at 614, 835 A.2d 12 (conviction of manslaughter 1090 in first degree with firearm appropriate lesser offense included within murder when information alleged defendant "did shoot and cause the death of [the victim]" [internal quotation marks omitted]). Finally, strong considerations of due process underpin our decision. Only when the state's pleadings have "informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and [are] definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense" has the state performed its duty under the United States and Connecticut constitutions. (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). A conviction of sexual assault in the second degree as a lesser offense included within the count of sexual assault in the first degree, without the age of the victim being alleged in that count of the charging documents, deprived the defendant of the opportunity to mount a defense to the very crime for which he was ultimately convicted. We are mindful of the fact that defense counsel neither objected nor took an exception to the court's instruction to the jury that it could find the defendant guilty of sexual assault in the second degree. Nevertheless, we conclude that the instructional error was not harmless. Because the elements of the crimes are markedly different, we cannot say that had the defendant been afforded proper notice of his exposure to the charge of sexual assault in the second degree, the defense would have employed the same strategy as it did and the conviction would have ensued. Consequently, the state has failed to demonstrate the harmlessness of the constitutional violation beyond a reasonable doubt. See State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823. We conclude that the court's instruction on sexual assault in the second degree was a violation of the defendant's constitutional right to a fair trial and that the defendant was clearly harmed by this violation. Consequently, the defendant has satisfied the Golding standard and is entitled to relief. We therefore reverse the defendant's conviction of sexual assault in the second degree.[11] B The defendant next claims that the court improperly instructed the jury on the charge of risk of injury to a child. The defendant contends that the court improperly defined the word "likely" in the term "likely to impair the health or morals of a minor child," as "in all probability or possibility." The state concedes that the term "possibly" is an incorrect definition of "likely." It asserts, however, that the jury was not misled by the instruction on risk of injury to a child. We agree with the state. Defense counsel did not object or take an exception to the court's instruction. We therefore review his claim under State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, because the record is adequate for review, and the defendant's claim that the court improperly instructed the jury as to an element of a charged offense is of constitutional dimension. See 1091 State v. Romero, supra, 269 Conn. at 487, 849 A.2d 760. This court, as well as our Supreme Court, has concluded that such a jury instruction is incorrect. State v. Romero, supra, 269 Conn. at 489-92, 849 A.2d 760; State v. Ritrovato, 85 Conn.App. 575, 605, 858 A.2d 296 (2004), rev'd in part on other grounds, 280 Conn. 36, 905 A.2d 1079 (2006). The state concedes that the jury instruction in this case was similarly incorrect. Thus, our only inquiry is whether, under Golding's third prong, it was reasonably possible that the jury was misled. State v. Romero, supra, at 488, 849 A.2d 760. "In determining whether it was . . . reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury . . . is to be considered . . . as to its probable effect upon the jury in guiding [it] to a correct verdict in the case." (Internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 891 A.2d 897, cert. denied, ___ U.S. ___, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). Considering the charge as a whole, we first note that the court's improper definition of the term "likely" as "possible" was also accompanied by the proper definition of the term as "probable." As our Supreme Court has concluded, such "accurate instructions [minimize] the potential harm flowing from the trial court's improper instructions on the meaning of the term `likely.'" State v. Romero, supra, 269 Conn. at 494, 849 A.2d 760. Moreover, in finding the defendant guilty of risk of injury to a child, the jury necessarily found that the defendant had had contact with the victim's intimate parts in a sexual and indecent manner or that the defendant subjected the victim to contact with his intimate parts. In its instruction to the jury, the court broke down the risk of injury charge to three elements: (1) the victim was younger than the age of sixteen at the time of the criminal acts; (2) the defendant had contact with the victim's intimate parts or subjected the victim to contact with the defendant's intimate parts; and (3) such contact with intimate parts took place in a sexual and indecent manner that was likely to impair the victim's health or morals.[12]1092 The court also thoroughly explained the concept of reasonable doubt and the state's burden of proving each element of each charge beyond all reasonable doubt. The defendant challenges only the second half of the third element of the charge, in which the term "likely" was defined. The defendant does not challenge the remainder of the risk of injury charge, including that the contact with the intimate parts of the victim or defendant must have occurred in a sexual and indecent manner. Given the unchallenged propriety of these instructions, we may rely on the jury's duly reached conclusion that sexual or indecent contact between the defendant and the victim took place. See State v. Romero, supra, 269 Conn. at 493, 849 A.2d 760. We conclude that the defendant's indecent sexual conduct in relation to the victim, conduct the jury found to have occurred, must be conduct that is "likely to impair" the health or morals of a child. See, e.g., State v. Romero, supra, 269 Conn. at 493, 849 A.2d 760 ("[o]nce the jury determined that . . . intercourse and mutual sexual touching took place, as described by [the victim], it is difficult to imagine a finding that this conduct could not be deemed likelyin the context of probablyto impair [the victim's] morals" [emphasis in original]); see also State v. Ritrovato, supra, 85 Conn.App. at 605, 858 A.2d 296 ("because the jury . . . found the defendant guilty of having sexually assaulted the victim, we find no basis for any argument that the jury could have been uncertain that such an assault did, in fact, impair the child, as alleged in the risk of injury charge").[13] We therefore conclude that the jury could not reasonably have been misled and, accordingly, the defendant was not clearly deprived of a fair trial. II The defendant next raises two evidentiary claims. Our standard of review of evidentiary claims is well settled. "[T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling. . . ." (Internal quotation marks 1093 omitted.) State v. Aaron L., 272 Conn. 798, 811, 865 A.2d 1135 (2005). A The defendant's first evidentiary claim is that the court improperly admitted evidence of the defendant's prior misconduct that was not substantially similar to the offense charged and was therefore unduly prejudicial. Although we agree with the defendant that the challenged testimony was admitted improperly, we conclude that its admission was harmless. Prior to trial, the state filed a motion in limine notifying the court of its intention to call T, a close friend of the victim. T was expected to testify that on the night of the assault, the defendant had made overtures to her similar to those he had made to the victim and that on a prior occasion, he had placed his hands up the back of her blouse. The court allowed the testimony, over defense counsel's objection, to prove intent, motive and a pattern of conduct. At trial, T testified that she had encountered the defendant on the night of the assault and that he had asked her for a hug, so she hugged him. She stated that she had also done so in the past. She added, after the court allowed the state to refresh her recollection, that the defendant had rubbed her back in the past. The court did not allow her to testify about "how he rubbed her back." The court gave a limiting instruction to the jury on the proper use of prior misconduct evidence. "As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect." (Citations omitted; internal quotation marks omitted.) State v. Aaron L., supra, 272 Conn. at 820, 865 A.2d 1135. Evidence offered to prove a common plan or scheme constitutes an exception to the general rule against admitting prior misconduct evidence. See id. To be admissible under the common scheme exception, "the marks which the . . . charged [and uncharged] offenses have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other. . . . In order to assess the defendant's claim, we must examine the [prior uncharged misconduct] evidence and compare it to the charged offense." (Internal quotation marks omitted.). State v. Merriam, 264 Conn. 617, 661-62, 835 A.2d 895 (2003). Our Supreme Court has stated that "[t]o guide this analysis . . . [e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan whe[n] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. . . . We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in [trials of] sex related crimes than [in trials of] other crimes." (Emphasis added, internal quotation marks omitted). Id., at 662, 835 A.2d 895. 1094 The defendant concedes that T was approximately the same age as the victim and that the act of hugging her occurred on the same day as the alleged sexual assault. The defendant argues, however, that the act of hugging a young girl or rubbing her back is not similar conduct to the alleged sexual assault. We agree with the defendant. Although the state would have us find T's testimony admissible because it revealed that the defendant had made overtures to T that were similar to those made to the victim, we are not persuaded. We have previously held that evidence of prior misconduct that is not sexual misconduct is not sufficiently similar to the offense of sexual assault to be admissible. See State v. Jacobson, 87 Conn.App. 440, 454, 866 A.2d 678, cert. granted on other grounds, 273 Conn. 928, 873 A.2d 999 (2005). In Jacobson, a sexual abuse case, the court allowed a witness to testify that the defendant had maintained a relationship with her son very similar to the one alleged between the defendant and the victims. Id., at 452-53, 866 A.2d 678. On appeal, this court found that the admission of that testimony was improper because of the "crucial difference" that the witness did not claim that the defendant had actually sexually abused her son. Id., at 454, 866 A.2d 678. "That said, it cannot be inferred logically that if the defendant was guilty of the uncharged misconduct, he also must have been guilty of the charged offenses involving [the victims]." Id. Accordingly, we conclude that the court improperly admitted T's testimony. Our inquiry does not end with a finding of an improper evidentiary ruling. "When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful." (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006). Our Supreme Court recently clarified the standard for harmless error review of erroneous evidentiary rulings in the context of criminal cases. "[A] non-constitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) Id., at 357, 904 A.2d 101. "[W]hether [the improper admission of a witness' testimony] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . . . [In a case that] involves the improper admission of uncharged misconduct evidence, the most relevant factors to be considered are the strength of the state's case and the impact of the improperly admitted evidence on the trier of fact." (Citations omitted; internal quotation marks omitted). Id., at 358, 904 A.2d 101. In State v. Jacobson, supra, 87 Conn.App. at 454-55, 866 A.2d 678, we held that the improper admission of prior misconduct was harmless because it was not voluminous and did not contain any allegation of abuse. T's testimony was not the mainstay of the prosecution's case. It played a minor role in the state's evidence, was mentioned only once during rebuttal and was referenced in the state's closing argument only for constancy of accusation. Moreover, there was no allegation that the defendant actually assaulted T or committed any other 1095 act upon her so extreme that the jury might be prejudiced. Furthermore, to the extent that T's testimony was admitted to show the defendant's common scheme to force teenage girls to have intercourse with him, its admission was harmless, as the defendant was acquitted of sexual assault in the first degree. Therefore, we have a fair assurance that the testimony did not affect the jury's verdict. B Finally, the defendant claims that the court abused its discretion by admitting into evidence hospital records containing statements that might have misled the jury into believing that the examining physician had concluded, as an expert medical opinion, that the victim was sexually assaulted. We find no abuse of discretion. The following facts and procedural history are pertinent to our resolution of the defendant's claim. Prior to the testimony of Susan Dibs, the attending physician at Yale-New Haven Hospital on the day of the victim's medical examination, defense counsel objected to the admission of portions of the hospital report. The defendant argued that under the entry, "diagnosis," the reference to "sexual assault" amounted to an expert conclusion. He further argued that under the heading "assessment," the report stated, "sexual assault," and that this, too, was conclusive as an expert opinion. The state responded that the report was admissible as an ordinary medical record containing the statement of someone seeking treatment. The court reviewed the report and redacted any references to the identity of the perpetrator. The victim's statements that she was assaulted, however, were left in the report. The redacted report was admitted during Dibs' testimony. On cross-examination, defense counsel asked Dibs about the reference to sexual assault under the heading "assessment." Dibs confirmed that she had merely recorded what the victim had told her. She also reiterated her prior testimony, given on direct examination, that the victim's medical examination did not reveal signs of sexual assault. The court gave the jury a limiting instruction as to the permissible consideration of the victim's out-of-court statements to other persons.[14] "It is well settled that out-of-court statements made by a patient to a physician for the purposes of obtaining medical diagnosis and treatment are admissible under the treating physician exception to the hearsay rule." (Internal quotation marks omitted.) State v. William B., 76 Conn.App. 730, 739, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003). Ordinarily, an expert witness may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact. Nonetheless, "[a] physician, who is consulted by a patient for the purpose of obtaining from her [or him] professional medical treatment or advice incidental thereto, may testify to her [or his] opinion even though it is based, in whole or in part, on statements made . . . by the patient, and, of course, she [or he] 1096 may also testify to such statements." (Emphasis added; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 44, 770 A.2d 908 (2001). The defendant argues that the medical report impermissibly gave an opinion as to whether a sexual assault had in fact occurred and that as a result, the report was highly prejudicial to him. The defendant cites State v. Iban C., 275 Conn. 624, 881 A.2d 1005 (2005). In that case, the examining physician offered an actual diagnosis, both within her unredacted written report and in her oral testimony, that sexual assault had occurred. Our Supreme Court ruled that such evidence was inadmissible because it was based in part on the victim's own account, it endorsed the very credibility the jury was to determine and "functioned as an opinion as to whether the victim's claims were truthful." Id., at 636, 881 A.2d 1005. The present case is clearly distinguishable from Iban C. In this case, no diagnosis was offered as to whether a sexual assault occurred. The state did not present the hospital record for the purpose of providing an expert conclusion but merely as a means of corroborating the victim's size at the time of the assault and as a recording of the victim's account of what had happened. Dibs made clear through her testimony that the statements in question were merely recordings of the victim's statements and not her own conclusions. She also stated on direct examination, and reiterated on cross-examination, that there was no medical proof of sexual assault. Thus, any impermissible inferences the jury might have drawn were remedied by Dibs' explicit in-court testimony and by the court's limiting instruction. As a result, we conclude that the court did not abuse its discretion by admitting the redacted hospital records into evidence. The judgment is reversed only as to the conviction of sexual assault in the second degree and the case is remanded with direction to render judgment of not guilty as to that offense only. The judgment is affirmed in all other respects. In this opinion the other judges concurred. NOTES [1] In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom her identity may be ascertained. See General Statutes § 54-86e. [2] General Statutes § 53a-71(a) provides in relevant part: "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person. . . ." [3] General Statutes § 53-21(a) provides in relevant part: "Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child. . . ." [4] In his brief, the defendant raises two additional sentencing claims. His fifth claim is that his sentence for having been convicted of risk of injury to a child exceeded the statutory maximum permitted at the time the offense was committed. His sixth claim is that if this court reverses the conviction of sexual assault in the second degree, but affirms the conviction of risk of injury to a child, the sentence may not be enhanced as a result of the defendant's plea to being a persistent serious felony offender. On September 13, 2006, the defendant's counsel waived those final two claims at oral argument. [5] General Statutes § 53a-70(a) provides in relevant part: "A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . ." [6] General Statutes § 53a-40(c) provides: "A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. This subsection shall not apply where the present conviction is for a crime enumerated in subdivision (1) of subsection (a) of this section and the prior conviction was for a crime other than those enumerated in subsection (a) of this section." [7] The court, applying General Statutes § 53a-40(j), sentenced the defendant to twelve years imprisonment followed by five years special parole on the conviction of sexual assault in the second degree and a consecutive term of twelve years imprisonment followed by five years special parole on the conviction of risk of injury to a child. [8] The defendant filed a motion for a bill of particulars on September 16, 2003, asking for, inter alia, the name of the alleged victim. In response, the state filed this long form information, which did not provide any additional details as to the identity or age of the victim. [9] Under the Golding standard, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823; see also State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002) (first two prongs of Golding involve determination of whether claim reviewable; second two involve determination of whether defendant can prevail). [10] The state argues that because this is a constitutional notice claim not raised prior to the verdict, we should construe the information liberally in favor of the state, pursuant to State v. McMurray, 217 Conn. 243, 250, 585 A.2d 677 (1991). Under this standard, a conviction based on a challenged information is valid unless the information is "so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had." (Internal quotation marks omitted.) Id. Because we have concluded that the information does suffer from such obvious defects, the state's claim fails even under the liberal review it espouses. [11] We note the footnote in the state's brief conceding the inapplicability of sexual assault in the third degree, but not conceding the inapplicability of sexual assault in the fourth degree as a lesser included offense within sexual assault in the first degree under the cognate pleadings approach. We decline, however, to address this issue without the benefit of adequate briefing and argument. See State v. Waz, 240 Conn. 365, 371 n. 11, 692 A.2d 1217 (1997). [12] The court gave the following instruction regarding the elements of the crime of risk of injury to a child: "To find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: (1) at the time of the incident, the alleged victim was under the age of sixteen years; and (2) that the defendant had contact with the intimate parts of the alleged victim or subjected the alleged victim to contact with the defendant's intimate parts; and (3) that the contact with the intimate parts took place in a sexual and indecent manner, which was likely to impair the health and morals of the child. . . . "[T]he state must prove that the defendant had contact with the intimate parts of the child or subjected the complainant to contact with the defendant's intimate parts. `Intimate parts' means the genital area, groin, anus, inner thighs, buttocks or breasts. `Contact' means the touching of intimate parts. "The state must prove either that the defendant had contact with the child's genital area, groin, anus, inner thighs, buttocks or breasts, or that the defendant caused the child to make contact with the defendant's intimate parts. There need not be a touching of all the intimate parts. It is sufficient if any one of the intimate parts is touched. . . . "[T]he state must prove that the contact with the intimate parts took place in a sexual and indecent manner, which was likely to impair the health or morals of the child. The contact with the intimate parts must have taken place in a sexual or indecent manner, as opposed to an innocent touching or an accidental, inadvertent or reflective touching. "`Sexual' means having to do with sex; and `indecent' means offensive to good taste or public morals. The state must also show that the contact, which was sexual and indecent in nature, was likely to injure or weaken the health or morals of the child. The health of the child refers to the child's well being. "As used here, `morals' means good morals, living, acting and thinking in accordance with those principles and standards, which are commonly accepted among us as right and decent. "I want to stress that the state does not have to prove that the defendant actually did impair the health or morals of the child. Rather, the state must show that the defendant's behavior was likely to impair the child's health or morals. "`Likely' means in all probability or possibility. Thus, the state must show that it was possible or probable that the sexual and indecent behavior of the defendant would injure or weaken the child's health or morals. There is no requirement that the state prove actual harm to the child's health or morals. . . . "Again, the state must prove beyond a reasonable doubt the following three elements: (1) that the complainant was under sixteen years of age; and (2) that the defendant had contact with the intimate parts of a child or subjected that child to contact with the defendant's intimate parts; and (3) that the contact with the intimate parts took place in a sexual and indecent manner, which was likely to impair the health or morals of the child. "If you find that the state has proven these three elements beyond a reasonable doubt, you should find the defendant guilty. If, however, you do not find all these elements proven beyond a reasonable doubt, you should find the defendant not guilty." [13] We are cognizant of the fact that in both Romero and Ritrovato, there was a jury finding of sexual intercourse, whereas we rely on a jury finding of indecent sexual contact. We do not, however, believe that in this case, the distinction warrants a different result. [14] The court gave the following jury instruction: "[E]vidence of out-of-court statements by the complainant of sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted . . . in those out-of-court statements, but it is presented for you to consider when assessing the credibility that you will give to the complainant's in court testimony. . . . In determining whether these out-of-court statements are corroborative, or not corroborative, of the complainant's testimony in court, you should consider all of the circumstances under which these out-of-court statements were made, and to whom, and whether the statements made to those persons were or were not consistent with the complainant's testimony in court."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516151/	913 A.2d 572 (2006) Mark D. MAJKOWSKI, Plaintiff, v. AMERICAN IMAGING MANAGEMENT SERVICES, LLC, a Delaware limited liability company; and American Imaging Management East, LLC, a Delaware limited liability company, Defendants. C.A. No. 1797-N. Court of Chancery of Delaware, New Castle County. Submitted: September 28, 2006. Decided: December 6, 2006. 574 Kevin G. Abrams, J. Travis Laster, Matthew F. Davis, Abrams & Laster, LLP, Wilmington, DE, for Plaintiffs. Gregory V. Varallo, Geoffrey G. Grivner, Richards, Layton & Finger, P.A., Wilmington, DE; Dennis N. Ryan, Linda R. Stahl, Tonya M. Gray, Andrews Kurth, LLP, Dallas, TX, for Defendants. OPINION STRINE, Vice Chancellor. I. Introduction This advancement action is but one of a series of lawsuits that have burdened various courts with bits of one dispute. The plaintiff, Mark D. Majkowski, seeks a declaration that he is entitled to the advancement by the defendants, American Imaging Management Services, LLC and American Imaging Management East, LLC (the "AIM LLCs"), both Delaware limited liability companies, of his attorneys' fees and expenses in connection with a dispute between himself and the defendants' affiliates International Radiology Group, LLC ("IRG"), a Delaware limited liability company, and American Imaging Management, Inc. ("AIM, Inc."), an Illinois corporation (herein referred to collectively as "American Imaging"). The underlying dispute involves claims by Majkowski against American Imaging relating to: (1) Majkowski's former service as President and Chief Financial Officer of American Imaging; (2) his unsuccessful attempts to participate in a management-led buyout of American Imaging; and (3) the ultimate termination of his employment. Majkowski articulated his claims in a letter to American Imaging and sought to resolve them by settlement. Believing Majkowski's claims might impede the pending sale of the company, American Imaging sued him in Texas, seeking a declaration that his claims had no merit. As a result, Majkowski was forced to incur substantial attorneys' fees to defend that 575 action. Majkowski has contract rights, under agreements that are not at issue in this action, that seem to require American Imaging to advance those litigation expenses to him as he incurs them. But American Imaging has failed to do that, and has spared no expense in trying to deny Majkowski advancement. The result has been a series of unnecessary lawsuits, now involving three separate jurisdictions, that likely have eaten up more attorneys' fees than the parties' spats over the underlying dispute. The AIM LLCs have moved to compel this Delaware advancement action to arbitration pursuant to a consulting agreement that defined Majkowski's relationship with American Imaging ("the Consulting Agreement"), and alternatively to dismiss on the merits. Majkowski has filed a cross motion for summary judgment on his advancement claim. In resolving this dispute, I must answer two questions. First, does this advancement dispute "arise out of" or "relate to" the Consulting Agreement such that, according to the terms of that agreement, Majkowski must arbitrate this claim? Second, does Majkowski have a right to advancement under the AIM LLCs' LLC agreements (the "AIM LLC Agreements"), which promise to "indemnify and hold harmless" American Imaging's officers, but which do not mention the word advancement? On the first question, I conclude that the arbitration provision in the Consulting Agreement is not broad enough to cover this dispute. Therefore, I reach the merits of Majkowski's advancement claim. On that claim, I grant the AIM LLCs' motion to dismiss because the AIM LLC Agreements, by their plain terms, do not grant mandatory advancement rights. As I explain, the argument that the words "hold harmless" grant advancement rights is untenable. II. Factual Background And Procedural History A. The relevant facts are not in material dispute. American Imaging is a health care firm that, as of the summer of 2000, was on the brink of bankruptcy. Around that time, Majkowski, a financial consultant who specializes in the health care industry, in partnership with another consultant, David Harrington, prepared a proposal for the two to provide consulting services to American Imaging. In October 2000, American Imaging hired Majkowski and Harrington as financial consultants. The two used DASH Business Group, Inc. ("DASH"), a company solely owned by Harrington, as the vehicle through which they provided their services. American Imaging paid all compensation for the consulting services to DASH, and DASH paid Majkowski his share as salary and bonuses. The services were initially provided under a letter agreement between DASH and American Imaging. The term of the letter agreement ran from October 2, 2000 to December 1, 2000. After that initial term expired, Majkowski and Harrington continued to provide services to American Imaging, and on January 4, 2001, Majkowski was appointed as American Imaging's acting Chief Financial Officer. Harrington was also appointed acting Chief Executive Officer then. American Imaging continued to pay all of Majkowski's and Harrington's compensation through DASH. A second letter agreement between DASH and American Imaging became effective January 8, 2001. On February 19, 2001, Majkowski was appointed interim CFO and Treasurer. He was appointed to a permanent 576 position as President and CFO on August 1, 2001. B. By August 2001, Majkowski and Harrington had turned American Imaging around, and instead of facing imminent bankruptcy, it had become an attractive acquisition target. After substantial negotiations, DASH and American Imaging entered into a Consulting Agreement on August 10, 2001, under which Majkowski was to continue as President and CFO, and Harrington was to continue to serve as CEO. Notably, neither Majkowski nor the AIM LLCs were parties to the Consulting Agreement. The Consulting Agreement provided for specified immediate cash payments, deferred compensation, equity in American Imaging, and additional bonuses. It also required Majkowski and Harrington to seek to identify potential purchasers of American Imaging, and provided that they would be paid a commission of 5% of the purchase price upon completion of a sale. The Consulting Agreement also contained two provisions that are particularly relevant to this dispute. Section 3.3, entitled "Disputes," provides that "[a]ny controversy or claim arising out of or related to this Agreement . . . shall be settled by arbitration in Chicago, Illinois." Section 3.7, entitled "Indemnification," provides that American Imaging will "(i) defend and indemnify each Executive against, and advance all costs and expenses (including legal fees) associated with, any . . . lawsuits in any way arising out of such Executive's status as . . . an officer . . . of the Company, . . . and (ii) maintain its applicable organizational documents on a basis consistent with clause (i)." C. After execution of the Consulting Agreement, Majkowski and Harrington sought out purchasers for American Imaging, and received letters of interest from at least two potential acquirers. At the same time, Majkowski and Harrington put together a proposal for a management-led leveraged buyout.[1] On December 3, 2002, American Imaging entered into a Potential Sale of the Company Agreement (the "PSOC Agreement") with Harrington and Majkowski, specifying the minimum economic terms under which American Imaging's Board of Managers would recommend a transaction to American Imaging's stockholders for approval. The PSOC Agreement also provided for a ninety-day exclusivity period, during which American Imaging's Board of Managers was barred from negotiating with anyone other than Majkowski and Harrington or a potential buyer introduced by them. On December 31, 2002, Majkowski and Harrington submitted an offer to buy American Imaging that satisfied the minimum economic terms set forth in the PSOC Agreement. American Imaging's Board took no action in response to the offer, and the offer expired without substantive negotiation. Majkowski and Harrington then tried to put together other deals with outside purchasers, but nothing materialized. According to Majkowski, American Imaging's Chairman, Hays Lindsley, who effectively controlled American Imaging's Board of Managers, was hostile to the Majkowski-Harrington offer and the other purchasers introduced by them because he wanted to ensure that certain existing shareholders, including two investors with whom he was affiliated, Perot Investments, Inc. and Hunt Capital 577 Partners, L.P. ("Hunt Capital"), were given an opportunity to participate in a sale transaction. Majkowski considered Lindsley's behavior to be a breach of the PSOC Agreement and of the fiduciary duties he owed to American Imaging and its shareholders. Nonetheless, he and Harrington attempted to play ball with Lindsley by structuring a deal in which Majkowski and Harrington would partner with Hunt Capital to buy American Imaging. But Majkowski still could not get a deal done because Lindsley continued to balk, eventually granting a third party of his choosing, Waud Capital Partners, LLC, rights as an exclusive purchaser. D. By mid-2003, due to Majkowski's frustration over Lindsley's behavior in the sale process, the business relationship between Majkowski and American Imaging's Board had eroded. Harrington sided with Lindsley and the Board, and ultimately, a deal to sell the American Imaging was structured that excluded Majkowski. Majkowski was fired from his officer positions in July 2003, and DASH and American Imaging amended the Consulting Agreement to no longer require Majkowski's services. At the same time, Harrington, on behalf of DASH, wrote to Majkowski informing him that his consulting services were no longer required and offering him a standard severance package. Majkowski did not respond to this letter until more than a year and a half later March 7, 2005when he sent a letter to Harrington and American Imaging outlining various claims that Majkowski believed he had against Harrington, DASH, Lindsley, and American Imaging involving his role in the sale transaction. Among other claims, Majkowski contended that: (1) Harrington had breached the fiduciary duties that he owed to Majkowski by conspiring with Lindsley and the American Imaging Board to put together a deal that excluded Majkowski; (2) Harrington and Lindsley had tortiously interfered with Majkowski's business relationships with American Imaging and certain of its investors and potential acquirers; and (3) Lindsley and American Imaging had violated various duties they owed to Majkowski under the Consulting Agreement, the PSOC Agreement, and the law governing limited liability companies. Majkowski demanded a substantial cash payment, an increased equity position in American Imaging, and certain other concessions in return for a release of those and other claims. E. At the time Harrington and American Imaging received Majkowski's letter, they were still trying to sell American Imaging and claim to have become concerned that Majkowski would frustrate the impending sale. Accordingly, Harrington, DASH, and American Imaging filed a declaratory judgment action in Texas state court (the "Texas Action") seeking a declaration that Majkowski's claims were without merit. Although Majkowski was nominally a defendant in the Texas Action, the Texas Action sought only a declaratory judgment that Majkowski had no legal or equitable rights against American Imaging or the other parties involved in the proposed sale transaction. Once sued, Majkowski was required to either pursue or lose his claims. Faced with this choice, he asserted by counterclaim the various theories outlined in his earlier letter and sought substantial damages and other remedies against American Imaging, Harrington, Lindsley, and other related defendants. Thus, in one sense, Majkowski was the aggressor in the Texas Action. But the fact that American Imaging was the first 578 to file suit, forcing Majkowski to defend himself in the Texas court, is important. Although Majkowski initially attempted to informally resolve the dispute by sending a letter outlining the claims he believed he had against American Imaging, when American Imaging filed suit, it denied Majkowski the strategic option of choosing whether or where to sue. Indeed, by filing suit in Texas, American Imaging, whose principal place of business was in Northbrook, Illinois, bypassed the Consulting Agreement's arbitration provision, and forced Majkowski, a Chicago resident, to defend himself in a far-away court. Further, American Imaging's assertion that the declaratory judgment action was entirely motivated by its concern that Majkowski would frustrate the impending sale is undermined by the fact that shortly after the action was filed, the sale transaction closed, obviating the need for declaratory reliefand yet American Imaging did not dismiss its affirmative declaratory judgment action. As a result, Majkowski had no practical choice but to file a counterclaim in the Texas action to assert his claims against Harrington, DASH, Lindsley, American Imaging, and the other defendants. American Imaging then did an about-face, and did not object when Lindsley, who was not a party to the original declaratory judgment action, moved to compel arbitration of Majkowski's claims pursuant to the mandatory arbitration provision in the Consulting Agreement. The Texas court granted the motion, finding that Majkowski had to arbitrate his claims in Chicago. Thus, after going down to Texas, hiring local counsel, filing responsive pleadings (and two amended counterclaims), and contesting a motion to compel arbitration, Majkowski was told to go back home and start over with arbitration in Chicago. To date, no request for arbitration has been filed by either party. American Imaging, having denied Majkowski advancement for any of his expenses incurred in defending the Texas Action, appears content to let the litigation sit idle while Majkowski tries to figure out how to finance an expensive arbitration. At the same time, Majkowski remains in a defensive posture because American Imaging has not dismissed its affirmative declaratory relief claims against him. Majkowski has failed to initiate the arbitration proceedings, perhaps in some measure because he lacks sufficient funds to pursue the matter. To that end, Majkowski is attempting to assert a right to force American Imaging to advance his litigation expenses to him so that he can pay the attorneys' fees he has incurred to date and fund the arbitration proceedings. F. In determining where and how to assert advancement rights, Majkowski had a number of strategic options. Perhaps the most obvious choice would have been to attempt to enforce the advancement right granted to DASH for his benefit by the Consulting Agreement itself. The indemnification and advancement provision in that Agreement is very broad, and covers all disputes arising out of Majkowski's status as an officer of American Imaging. Further, it clearly provides that American Imaging must pay Majkowski's legal expenses as they are incurred. But American Imaging has taken the position, contrary to its plain-language contract obligations and to Illinois law (which appears to govern the Consulting Agreement), that Majkowski is not entitled to advancement.[2] If the question were in front of me, I would have little 579 difficulty concluding that Majkowski is entitled to advancement under the Consulting Agreement. But to date, Majkowski has not attempted to assert the Consulting Agreement's advancement right because all disputes over rights arising out of the Consulting Agreement (including rights to indemnification and advancement in that agreement) must be arbitrated and Majkowski apparently does not want to arbitrate an advancement dispute.[3] Instead, Majkowski has chosen to assert advancement rights arising out of the organic documents of the various affiliates within the American Imaging family, which do not have arbitration provisions. In October 2005, Majkowski filed suit in Illinois state court (the "Illinois Action"), seeking a declaration that he is entitled to advancement under AIM, Inc.'s articles of incorporation (the "AIM, Inc. Articles"). In November, 2005, he filed this action asserting that he is entitled to advancement under the AIM LLC Agreements. Because Majkowski will accomplish his goal by getting a favorable ruling 580 in either this or the Illinois court, he did not pursue this action initially, instead opting to press the Illinois Action first. The reason for this tactical decision is clear. The AIM, Inc. Articles unambiguously provide for both indemnification and advancement rights for all officers of AIM, Inc. and its affiliates.[4] By contrast, the AIM LLC Agreements nowhere mention advancement, and provide only that the AIM LLCs will "indemnify and hold harmless" their officers and the officers of their affiliatesand they will do that only if the officer acted in good faith, and in a manner that he reasonably believed to be in the best interests of the AIM LLCs. The mere right to ultimate indemnification does Majkowski no good at this point. What Majkowski needs is advancement. Given that Delaware clearly recognizes indemnification and advancement as two distinct legal rights,[5] and that absent a specifically worded bylaw providing for mandatory advancement, Delaware law leaves the decision whether to advance litigation expenses to the business judgment of the board,[6] Majkowski knew that he faced an uphill battle in this court. In response to the Illinois Action, AIM, Inc. filed a motion to compel arbitration and alternatively to dismiss, contending that the Illinois Action arises out of or relates to the Consulting Agreement, and thus must be arbitrated. The Illinois court denied the motion, finding that the Illinois Action was not sufficiently related to the Consulting Agreement to require arbitration because Majkowski became an officer of American Imaging, and thus acquired rights under the AIM, Inc. Articles, before execution of the Consulting Agreement, and because Majkowski was not a signatory to the Consulting Agreement. But AIM, Inc. was successful in obtaining interlocutory appellate review of that decision, and a stay of the trial court proceedings. Majkowski's petition to expedite the appeal was denied. Accordingly, it may be some time before the appeal is resolved. As a result, Majkowski now turns to this court to press his claims to advancement under the AIM LLC Agreements. III. Legal Standard American Imaging has filed a motion to dismiss Majkowski's claim to advancement under the AIM LLC Agreements for failure to state a claim, and Majkowski has cross moved for summary judgment. Because I resolve these motions by granting American Imaging's motion to dismiss, my analysis is governed by the familiar Rule 12(b)(6) standard, which requires me to accept all well-pled allegations of fact as true and draw all reasonable inferences in 581 Majkowski's favor.[7] I need not, however, accept as true conclusory assertions unsupported by specific factual allegations.[8] If, after these principles are applied, I conclude that the facts fail to support a valid cause of action, I must grant the motion to dismiss.[9] In deciding this motion, I also apply familiar principles of contract interpretation. Under Delaware law, the proper interpretation of language in a contract is a question of law. Accordingly, a motion to dismiss is a proper framework for determining the meaning of contract language.[10] When the language of a contract is plain and unambiguous, binding effect should be given to its evident meaning.[11] Only where there are ambiguities may a court look to collateral circumstances; otherwise, only the language of the contract itself is considered in determining the intentions of the parties.[12] IV. The Consulting Agreement Does Not Require Majkowski To Arbitrate This Advancement Dispute A. American Imaging contends that this advancement action falls within the scope of the mandatory arbitration provision in the Consulting Agreement, and, as a result, must be submitted to arbitration instead of being decided by this court. In deciding whether this advancement dispute is properly committed to arbitration,[13] I note that Delaware arbitration law mirrors federal law,[14] and that it is well settled federal policy, as well as the policy of this state, that arbitration is a favored method for resolving disputes.[15] Accordingly, contractual 582 arbitration clauses are generally interpreted broadly in furtherance of that policy.[16] On the other hand, both Delaware and federal law are clear that parties cannot be compelled to arbitrate claims unless the contract at issue requires that result.[17] In Parfi Holding AB v. Mirror Image Internet, Inc.,[18] the Delaware Supreme Court reconciled this rule with the public policy favoring arbitration as follows: [A]rbitration is a method of dispute resolution created by contract. An arbitration clause, no matter how broadly construed, can extend only so far as the series of obligations set forth in the underlying agreement. Thus, arbitration clauses should be applied only to claims that bear on the duties and obligations under the Agreement. The policy that favors alternate dispute resolution mechanisms . . . does not trump basic principles of contract interpretation.[19] Accordingly, to determine whether this advancement action is subject to mandatory arbitration under the Consulting Agreement, I need only consider the plain meaning of the arbitration provision's language, and decide whether this action "arises out of" or "relates to" the Consulting Agreement such that it falls within the arbitration provision's scope.[20] In Parfi, the Delaware Supreme Court established a framework for determining whether a dispute is properly committed to arbitration by creating the following two-part test: First, the court must determine whether the arbitration clause is broad or narrow in scope. Second, the court must apply the relevant scope of the provision to the asserted legal claim to determine whether the claim falls within the scope of the contractual provisions that require arbitration. If the court is evaluating a narrow arbitration clause, it will ask if the cause of action pursued in court directly relates to a right in the contract. If the arbitration clause is broad in scope, the court will defer to arbitration on any issues that touch on contract rights or contract performance.[21] The contract language at issue in Parfi was very similar to the contract language that I must interpret in this case. In Parfi, the parties had agreed to arbitrate all claims "arising out of or in connection 583 with" the contract.[22] In performing the first step in its two-part analysis, the Delaware Supreme Court determined that this was a "broad" arbitration provision.[23] I have no difficulty concluding that the contract language here, requiring the parties to arbitrate all disputes that "arise out of" or "relate to" the Consulting Agreement, has little functional difference than the language at issue in Parfi, and that it is also "broad" in scope. But that does not end the inquiry. Parfi held that the existence of a "broad" contractual arbitration provision does not require the parties to arbitrate all disputes that might arise between them. To the contrary, according to the Parfi decision, a "broad" arbitration clause signals only an intent to arbitrate matters that touch on contract rights and performance.[24]Parfi holds that even claims that arise out of the same nucleus of operative facts as an arbitrable contract claim do not have to be arbitrated, even by a plaintiff invoking the right to arbitration in a related matter. Indeed, Parfi held that where a contract contained a broad arbitration clause, a plaintiff could arbitrate a claim that an issuer breached a contractual prohibition against any unfairly dilutive capital calls, while at the same time litigating in this court the identical contention that the issuer's board, by making the unfair capital calls, had breached its fiduciary duty. The reason this claim splitting was allowed? The fiduciary duty claim did not depend on the contract even though the plaintiff's contract claim was identical in all material factual and legal respects. As Parfi put it, "purportedly independent actions do not touch matters implicated in a contract if the independent cause of action could be brought had the parties not signed a contract."[25] The question then is whether the purportedly arbitrable lawsuit depends on the existence of the contract containing the arbitration clause.[26] Applied to this case, even though the Consulting Agreement provides for the very rights that Majkowski is trying to assert here, under Parfi, Majkowski need not arbitrate this advancement action if he seeks to establish rights to advancement without reference to the Consulting Agreement.[27] B. As an initial matter, I note that the AIM LLCs are not parties to the Consulting Agreement. As a result, it is unclear on what theory they are even entitled to assert rights under it. But with that distraction aside, under Parfi's rubric, this dispute would not be arbitrable anyway because Majkowski can assert rights under the AIM LLC Agreements without ever mentioning the Consulting Agreement.[28]584 An officer of American Imaging acquires rights under the AIM LLC Agreements the moment he becomes an officer. Therefore, Majkowski acquired rights under the AIM LLC Agreements in January 2001 when he was first appointed acting CFO of American Imaginga full eight months before the Consulting Agreement was executed. He also acquired rights under the AIM LLC Agreements when he was appointed President and CFO on August 1, 2001. The Consulting Agreement was not executed until ten days later. Majkowski's rights under the AIM LLC Agreements rather obviously do not depend upon a contract that did not exist at the time he acquired the rights. Before August 10, 2001, Majkowski's employment as an officer of American Imaging had no relation to the (then non-existent) Consulting Agreement, and thus the rights that he acquired under the AIM LLC Agreements by virtue of his officer status could only have depended upon, if anything, the two letter agreements that were executed on October 2, 2000 and January 8, 2001 respectively. Neither of those agreements contain an arbitration clause. Had Majkowski been sued in his capacity as an officer of American Imaging before August 10, 2001, he would have been entitled to assert indemnification rights under the AIM LLC Agreements, and would not have been required to arbitrate a dispute over those rights pursuant to the Consulting Agreement because that Agreement did not yet exist. Majkowski's rights under the AIM LLC Agreements did not suddenly change when the Consulting Agreement was executed. In Parfi, Chief Justice Veasey relied heavily on the fact that the plaintiffs' fiduciary duty claims arose by operation of Delaware law independent of the execution of the contract that contained the broad arbitration clause, and that the issuer's other minority shareholders, who were not parties to the contract, possessed identical fiduciary duty claims. The point was that the plaintiffs' claims were not "in connection with" the contract because they could have been brought whether the contract existed or not, and because non-parties to the contract could bring the same claims. Likewise, here, the rights granted by the AIM LLC Agreements arose from those separate Agreements, and this advancement action could have been brought regardless of whether the Consulting Agreement had ever been executed. The rights granted by the AIM LLC Agreements similarly are held by all of American Imaging's officers, and not just the parties to, or beneficiaries of, the Consulting Agreement. Had the parties to the Consulting Agreement intended that an advancement action under the AIM LLC Agreements fall within the scope of the Consulting Agreement's arbitration provision, they could have agreed to arbitrate all disputes related to Majkowski's employment and to bind reciprocally all American Imaging affiliates 585 to that contract. The parties did not do either, and instead agreed only to arbitrate claims between themselves that "arise out of" or "relate to" the Consulting Agreement. According to Parfi, this dispute is independent of that Agreement, and does not fall within the scope of such an arbitration clause. The fact that Majkowski is, in this action, asserting an independent set of rights is further illustrated by the provision in the Consulting Agreement that requires American Imaging to maintain its organizational documents in such a manner as to provide advancement rights. As I discuss below, the AIM LLC Agreements fail to provide such advancement rights, and, as a result, Majkowski has a meritorious breach of contract claim against American Imaging. That claim, for breach of the Consulting Agreement, must, of course, be arbitrated. The purpose of this separate right seems to be to give DASH (and its beneficiaries Majkowski and Harrington) a club to wield if the AIM LLCs, which are not parties to the Consulting Agreement, do not maintain bylaws with advancement rights. If they do not do so and Majkowski is unsuccessful in seeking advancement against them, he may seek to prosecute a breach of contract action under the Consulting Agreement in arbitration. C. American Imaging next contends that the AIM LLC Agreements are so intertwined with the Consulting Agreement that the Consulting Agreement's arbitration provision applies to the advancement rights granted by that separate Agreement. But this contention, which is based on the fact that the Consulting Agreement required American Imaging to cause the AIM LLC Agreements to include advancement rights, also fails. In making this argument, American Imaging relies primarily on Yuen v. Gemstar-TV Guide International, Inc.[29] for the proposition that the Consulting Agreement's reference to the other independent sources of indemnification and advancement rights evidences the parties' intent to select arbitration as the forum for resolving all indemnification and advancement disputes. But Yuen does not stand for such a broad proposition, and is factually distinguishable from the situation here. In Yuen, two corporate officers executed a series of agreements (the "Termination Agreements") as part of a corporate restructuring, pursuant to which the two officers had agreed to step down from their roles as CEO and CFO respectively. At the time the agreements were executed, the company was awash in a number of stockholder and securities class action lawsuits, in which the two officers were named as defendants. As part of the Termination Agreements, the company granted the two officers broad indemnification and advancement rights, and specifically referenced the ongoing litigation as being among the lawsuits for which the company would pick up the tab. The Termination Agreements also included a broad arbitration provision. The two officers then tried to come to this court to litigate independent advancement claims arising out of the company's certificate of incorporation for the lawsuits specifically mentioned in the Termination Agreements, claiming, as Majkowski does here, that they did not have to arbitrate a dispute over those independent rights. Vice Chancellor Lamb concluded that because the Termination Agreements specifically mentioned the very lawsuits for which the officers were seeking advancement and provided that the parties would arbitrate all disputes 586 involving advancement rights for those lawsuits, a fair reading of the Termination Agreements was that the parties intended to arbitrate the advancement dispute.[30] In other words, when the parties were negotiating the Termination Agreements, they knew that the precise advancement dispute involved was likely comingbecause they expressly provided for it in the contractand specifically waived their rights to litigate that dispute, and agreed instead to resolve the claims in arbitration. Because the specific lawsuits were mentioned in the Termination Agreements, it was clear that the parties had expressly negotiated over all advancement rights with respect to those lawsuits, and that they had chosen arbitration as the forum to resolve any disputes. In contrast to the situation in Yuen, DASH and American Imaging executed the Consulting Agreement on a clear day when no particular litigation was pending, or even contemplated. As a result, because they did not reference any specific dispute over rights that existed independently of the Consulting Agreement, no inference arises that the parties intended to choose arbitration as the forum for resolving disputes over those separate rights that might someday ariseespecially when the nature of the reference recognizes the independence of those separate rights by requiring American Imaging to provide for them in separate agreements that did not include arbitration clauses. For all of these reasons, I conclude that this dispute is not subject to the mandatory arbitration provision of the Consulting Agreement. V. Majkowski Has No Rights To Advancement Under The AIM LLC Agreements A. I now turn to Majkowski's substantive contention that the AIM LLC Agreements grant him advancement rights. Delaware law has traditionally recognized that indemnification and advancement are two distinct and different legal rights, with the latter being a narrower and more provisional subset of the former.[31] Indemnification is the right to be reimbursed for all out of pocket expenses and losses caused by an underlying claim.[32] The right is typically subject to a requirement that the indemnitee have acted in good faith and in a manner that he reasonably believed was in the best interests of the company.[33] As a result, an indemnification dispute generally cannot be resolved until after the merits of the underlying controversy are decided because the good faith standard requires a factual inquiry into the events that gave rise to the lawsuit.[34] Advancement, by contrast, is a right whereby a potential indemnitee has the ability to force the company to pay his litigation expenses as they are incurred regardless of whether he will ultimately be entitled to indemnification.[35] Advancement is typically not conditioned on a finding that the party seeking advancement has met any standard of conduct.[36]587 A grant of advancement rights is essentially a decision to advance credit to the company's officers and directors because the officer or director must repay all sums advanced to him if it is later determined that he is not entitled to be indemnified.[37] B. In this case, it is undisputed that the AIM LLC Agreements contain no express mention of any mandatory advancement rights. The contract language at issue reads as follows: Indemnification of Member(s). The Company shall indemnify and hold harmless the member(s) and their affiliates . . . and their respective directors, officers, and constituent partners, employees and advisors and other representatives (individually an "Indemnitee"), as follows: (a) In any threatened, pending, or completed action . . . to which an Indemnitee was or is a party or is threatened to be made a party by reason of the fact that such Indemnitee is or was a member or an affiliate of a member . . . or a director, officer, employee, or constituent partner of a member or an affiliate of a member, . . . the Company shall indemnify such Indemnitee against attorneys' fees, judgments, fines, penalties, settlements, and reasonable expenses actually incurred by such Indemnitee in connection with the defense or settlement of such action, suit, or proceeding, if such Indemnitee acted in good faith . . . [and] in a manner reasonably believed by such Indemnitee to be in the best interests of the Company. This is a standard, straight-forward indemnification provision, devoid of any advancement rights. But Majkowski attempts to find an advancement right where no court has ever found one beforein the phrase "hold harmless." Majkowski claims that in order to avoid reading that phrase as mere surplusage, it must be given a different meaning than the word "indemnify." Majkowski then urges me to focus on what he claims is the "usually accepted" meaning of the phrase "hold harmless," so as to render him "free from harm, liability, or loss." Majkowski claims that he is "harmed" the moment he is forced to pay litigation expenses from his own account. Unless he is given advancement rights, he will not be "free from harm" because he may ultimately be unable personally to fund the litigation to the point where he will be vindicated, and found entitled to indemnification. C. Although I sympathize with Majkowski's frustration over his predicament, especially since he appears to have clear advancement rights from other sources, the argument he makes in this court is unpersuasive. The only authority on which Majkowski relies for the proposition that a right to be "held harmless" includes a right to advancement is Winchester Repeating Arms Co. v. United States,[38] a ninety-year-old case from the United States Court of Claims that does not even support his proposition. In Winchester, the plaintiff was attempting, after the conclusion of the underlying litigation, to recover attorneys' fees it expended in defending a patent infringement suit pursuant to an agreement whereby the defendant had promised to hold the plaintiff harmless from that suit. The defendant 588 contended that while the hold harmless provision required it to pay any judgment or fine levied against the plaintiff in the suit, it did not obligate it to pay the plaintiffs' attorneys' fees. The court interpreted the phrase "hold harmless" to require that the plaintiff be made "free from harm," and held that even though the agreement did not specifically provide for the plaintiff to recover attorneys' fees, the plaintiff would have been harmed by the suit unless it was permitted to recover all sums, including attorneys' fees, that it expended in its defense. Notably, however, Winchester, quite unlike modern Delaware advancement actions, was not a summary pre-merits proceeding. Instead, it was a post-merits proceeding to recover attorneys' fees that had been expended over the course of an eight-year lawsuit. The Winchester court essentially held that a right to be held harmless was equivalent to a right to be indemnified for all expenses, including attorneys' fees. For the Winchester court, the right to be held harmless was not necessarily a right to have attorneys fees advanced as they are incurred, but instead, a right to be made whole eventually. Indeed, the plaintiff in Winchester never even attempted to have its attorneys' fees advanced to it as they were incurred, and the court never even considered whether the plaintiff would have been entitled to that right. D. As a general matter, Majkowski is correct that courts attempt to interpret each word or phrase in a contract to have an independent meaning so as to avoid rendering contractual language mere surplusage. But the interpretation of the phrase "indemnify and hold harmless" that Majkowski urges would involve an extreme application of a contractual interpretation technique that is properly used only as a guide in determining the objective intent of the original parties to a contract. It is not a technical rule of law designed to trap a careless draftsperson into including a contract right that he did not mean to include. And it does not change the fact that courts will not bend contract language to read meaning into the words that the parties obviously did not intend. The terms "indemnify" and "hold harmless" have a long history of joint use throughout the lexicon of Anglo-American legal practice. The phrase "indemnify and hold harmless" appears in countless types of contracts in varying contexts.[39] The 589 plain fact is that lawyers have become so accustomed to using the phrase "indemnify and hold harmless" that it is often almost second nature for the drafter of a contract to include both phrases in referring to a single indemnification right. Indeed, were I to hold for Majkowski in this case, I imagine many transactional lawyers would be quite surprised to learn that by using the phrase "indemnify and hold harmless," they had all along unwittingly been creating mandatory advancement rights. As a result of its traditional usage, the phrase "indemnify and hold harmless" just naturally rolls off the tongue (and out of the word processors) of American commercial lawyers. The two terms almost always go together. Indeed, modern authorities confirm that "hold harmless" has little, if any, different meaning than the word "indemnify." Black's Law Dictionary in fact defines "hold harmless" by using the word "indemnify."[40] It defines "hold harmless agreement" as a "contract in which one party agrees to indemnify the other."[41] In defining "hold harmless clause," it simply says "[s]ee INDEMNITY CLAUSE."[42] Given the clear distinction that our law draws between indemnification and advancement rights, the argument that a right to be held harmless includes a right to advancement cannot stand up in light of the fact that the phrase "hold harmless" is actually defined by reference to indemnification rights. E. Our law has never denied that advancement is a subsidiary concept within the broader topic of indemnification. But it has maintained for a generation that the terms advancement and indemnification are not synonymous. Because rights to indemnification and advancement differ in important ways, our courts have refused to recognize claims for advancement not granted in specific language clearly suggesting such rights.[43] And as a result of the traditional association of the phrase "hold harmless" with the concept of indemnification, that phrase in no way suggests that the drafters of the AIM LLC Agreements 590 intended to include the very different right of advancement. Reasonable lawyers drafting indemnification and advancement provisions understand that they are dealing with two distinct types of rights. As a result, they typically create separate provisions to address the two different topics. Indeed, this is precisely how the AIM, Inc. Articles, which clearly provide an advancement right, were drafted.[44] In fact, a number of leading treatises suggest forms for indemnification provisions that both use the phrase "indemnify and hold harmless" in the indemnification section, and include a separate explicit provision for advancement.[45] A survey of indemnification provisions that appear in recent cases in this court reveals that many practitioners also use the "indemnify and hold harmless" language alongside a separate explicit advancement provision.[46] I do not mean to suggest that our law requires the use of any particular contractual template in order to create advancement rights. But the fact that so many distinguished treatise writers and experienced business lawyers drafted indemnification and advancement provisions in this way suggests that no reasonable lawyer would read the phrase "hold harmless" to include a right to advancement. Further, by importing an advancement right into the phrase "hold harmless," I would render meaningless the advancement provisions in the multitude of extant contracts that use the phrase "indemnify and hold harmless" and that also include the separate advancement provision.[47] The irony is that while Majkowski implores me not to render the phrase "hold harmless" meaningless, if "hold harmless" means advancement, then all that other advancement language serves no purpose. Majkowski attempts to bolster his argument by pointing out that 6 Del. C. § 18-108, the Delaware Limited Liability Company Act provision that has often been looked to as the source of power to grant mandatory advancement rights in an LLC agreement,[48] like the contract provision at issue here, also fails to mention advancement at all. That statute reads in pertinent part: "a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever."[49] Majkowski claims that the power to grant mandatory advancement rights must come from the phrase "hold harmless," and thus that same phrase in the LLC Agreements must grant Majkowski advancement rights. 591 But the advancement cases that rely on § 108 of the Limited Liability Company Act and the Limited Partnership Act never look to the phrase "hold harmless" as providing the authority to grant mandatory advancement rights. Indeed, the legal authority for an LLC agreement to grant mandatory advancement rights has never been questioned in this court. In Delphi Easter Partners, Chancellor Allen made clear that § 108 "defers completely to the contracting parties to create and delimit rights and obligations with respect to indemnification and advancement."[50] The point of § 108 is that the parties to these agreements have complete freedom of contractthey are free to contract for advancement because neither the statute nor any principle of law or equity prohibits it. To hold that the phrase "hold harmless" automatically includes a right to advancement would, in fact, risk infringing upon that freedom by creating a potential trap for a careless draftsperson accidentally to include contractual advancement rights that were not intended. As Chancellor Allen put it in Advanced Mining Systems, because mandatory advancement rights deprive the board of the opportunity to evaluate the important credit aspects of a decision to advance expenses, "the better policy . . . is to require [the documents] to expressly state their intention to mandate advancement."[51] "Hold harmless" does not do that. F. In pressing this claim, Majkowski would have me ignore both the technical and narrow usage of the phrase "hold harmless" as it appears in modern, sophisticated business contracts, and a generation of this court's jurisprudence regarding the separateness of indemnification and advancement rights. Majkowski urges me focus on an overly-broad reading of the phrase that imports far more substance into it than it is worth. He points out that "harmless," standing alone, means "free from harm, liability, or loss," and claims that he is not being "held harmless" the moment he is forced to pay litigation expenses out of his own pocket. I am not convinced that this is the proper method of interpreting what is essentially a piece of legal jargon. But even if I were to indulge Majkowski's attempts to impart such substance into this very insubstantial phrase, I note that Majkowski can be made "free from harm, liability, or loss" without having an advancement right. Indeed, that is precisely what indemnification does. When, and if, the proper tribunal determines that Majkowski is entitled to indemnification, he will be reimbursed for all out of pocket expenses, and will be left "free from harm." Just as in Winchester, he will be made whole. In interpreting the meaning of "hold harmless," I keep in mind that we live in an imperfect world. Bad things happen, and there is often nothing anyone can do to prevent them, ahead of time, from happening. When a person promises to hold another harmless, he does not promise to prevent harm from occurring. That would be an impossible promise to keep. When American Imaging promised to indemnify and hold Majkowski harmless, it simply promised in the traditional and accepted parlance of the commercial world, under certain circumstances, to make things right if harm did occurand even if Majkowski is, for some reason, unable to vindicate the advancement rights he has under the Consulting Agreement and the AIM, Inc. Articles, that is precisely what the 592 AIM LLCs will have to do under the terms of this plain-vanilla indemnification provision. Indeed, Majkowski's proffered interpretation of the AIM LLC Agreements' identical indemnification provisions is belied by their very structure. The provisions make clear that the good faith standard of conduct that our law requires to be met before an officer can be indemnified in fact applies to Majkowski's "hold harmless" right. The provisions grant the indemnification and hold harmless right in the introductory section. They then use the phrase "as follows" to explain and limit the rights. In subparagraph (a) of the provisions, the contracts state that an officer will be entitled to indemnification and hold harmless rights only if he acted in good faith and in a manner that he reasonably believed to be in the best interests of the company. By simple logic then, the "hold harmless" right in these Agreements cannot possibly mean that American Imaging must advance litigation expenses to Majkowski under them. Even if "hold harmless" did mean "advancement," the advancement right would be meaningless because the good faith standard would make it impossible to adjudicate the advancement dispute until the underlying controversy was resolved.[52] G. As a last-ditch effort, Majkowski contends that at the very least, the meaning of the phrase "hold harmless" is ambiguous, and should be interpreted against American Imaging to provide for advancement rights.[53] He also claims that it should be interpreted in light of Delaware's strong public policy of reading advancement and indemnification provisions broadly in hopes of attracting capable individuals into corporate service.[54] But the term "hold harmless" is not ambiguous. Lawyers have been using the term in conjunction with the word "indemnify" for generations, if not centuries. "Indemnify and hold harmless" is a legal term of art that does not include the unique concept of advancement as it functions within the rubric of Delaware's law of limited liability companies. I will not distort the contract language in the AIM LLC Agreements under the guise of construing it to give Majkowski a contract right that simply is not there.[55] The public policy in favor of 593 advancement rights, much like the public policy in favor of arbitration, "does not trump basic principles of contract interpretation,"[56] and does not alter the fact that a limited liability company will only be obligated to advance litigation expenses to an officer when its LLC agreement expressly states the company's intention to mandate advancement.[57] This court has already once implicitly rejected the argument that Majkowski makes in this case. In Morgan v. Grace,[58] without even suggesting the possibility that any ambiguity existed, Vice Chancellor Lamb held that an indemnification provision that required a limited liability company to "indemnify and save harmless" its members from certain losses did not require the company to advance any litigation expenses to its members. One would think that if the usually accepted meaning of the phrase "hold harmless" or "save harmless" included a right to advancement, or even if there was some ambiguity of meaning, that argument would have at least been raised in the Morgan case. It was not because the meaning is clear: "hold harmless" does not mean advancement. V. Conclusion For the reasons stated above, American Imaging's motion to dismiss Majkowski's claim to advancement under the AIM LLC Agreements for failure to state a claim is granted. Each side to bear its own costs. IT IS SO ORDERED. NOTES [1] The conflict of interest created by this situation appears to have been fully disclosed to, and waived by, American Imaging's Board of Managers. [2] American Imaging appears to be taking the position that Majkowski is not entitled to indemnification with respect to the underlying dispute because they contend that his actions that gave rise to the dispute were not taken in good faith or otherwise in a manner that Majkowski reasonably believed to be in American Imaging's best interests. But under both Illinois and Delaware law, that consideration is irrelevant to the question of whether Majkowski is entitled to have his litigation expenses advanced to him as they are incurred because advancement rights are not subject to a good faith standard. Johnson v. Gene's Supermarket, Inc., 117 Ill.App.3d 295, 301-02, 72 Ill. Dec. 778, 453 N.E.2d 83 (1983) (relying on Delaware authority in concluding that advancement and indemnification are separate rights, and that a right to advancement, unlike a right to indemnification, is not preconditioned on a finding that the person seeking advancement has met a particular standard of conduct); see also Homestore, Inc. v. Tafeen, 888 A.2d 204, 212 (Del.2005) ("The right to advancement is not dependent on the right to indemnification. The right to indemnification requires "success on the merits or otherwise" in defending proceedings brought under section 145(a) or (b). Section 145(e), however, expressly contemplates that corporations may confer a right to advancement that is greater than the right to indemnification and recognizes that advances must be repaid if it is ultimately determined that the corporate official is not entitled to be indemnified."); Citadel Holding Corp. v. Roven, 603 A.2d 818, 822 (Del.1992) (distinguishing the right to advancement from the right to indemnification); Senior Tour Players 207 Management Co. LLC v. Golftown 207 Holding Co. LLC, 2004 WL 550743, at 2 (Del.Ch.2004) ("This court has consistently held that advancement and indemnification, although obviously related, are distinct types of legal rights and that the right to advancement is not ordinarily dependent upon a determination that the party in question will ultimately be entitled to be indemnified."). As a practical matter, it is extremely difficult to premise advancement rights on a good faith standard because a determination of whether the indemnitee acted in good faith generally cannot be made until the merits of the underlying controversy are adjudicated. See Gene's Supermarket, 117 Ill.App.3d at 302, 72 Ill. Dec. 778, 453 N.E.2d 83 (noting that the Model Business Corporation Act, which had previously conditioned advancement rights on a finding that the officer seeking advancement had met a standard of conduct, was "revised because `in many instances it proved unworkable' because of its requirement that a determination be made in advance that a person had met a certain standard of conduct") (quoting Orvel Sebring, Recent Legislative Changes in the Law of Indemnification of Directors, Officers, and Others, 23 BUS. LAW. 95, 114 (1967)); see also Reddy v. Electronic Data Systems Corp., 2002 WL 1358761, at 5 (Del.Ch.2002) ("[I]t is highly problematic to make the advancement right of such officials dependent on the motivation ascribed to their conduct by the suing parties. To do so would be to largely vitiate the protections afforded by § 145 and contractual advancement rights."). [3] Majkowski may have also feared that American Imaging would claim that only DASH, and not anyone else, could enforce the advancement provision in the Consulting Agreement. Given its position on arbitration in this litigation, American Imaging is not well positioned to advance that contention gracefully. [4] The relevant provision of the AIM, Inc. Articles provide as follows: The Corporation . . . shall to the fullest extent now or hereafter permitted by law, indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed . . . proceeding . . . by reason of the fact that such person . . . was . . . an officer of the Corporation . . . against expenses (including attorneys' fees) incurred by such person in connection with such . . . proceeding . . . if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation. . . . . . . Expenses . . . shall be paid by the Corporation in advance of the final disposition of such . . . proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount, unless it shall ultimately be determined that such person is entitled to be indemnified by the Corporation. . . . Plaintiff's Op. Brief, Ex. H, at 6-7. [5] E.g., Advanced Mining Systems, Inc. v. Fricke, 623 A.2d 82, 84 (Del.Ch.1992). [6] Id. [7] E.g., In re Lukens, Inc. Shareholders Litig., 757 A.2d 720, 727 (Del.Ch.1999). [8] E.g., H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 139 (Del.Ch.2003). [9] E.g., Kohls v. Kenetech Corp., 791 A.2d 763, 767 (Del.Ch.2000). [10] E.g., OSI Systems, Inc. v. Instrumentarium Corp., 892 A.2d 1086, 1090 (Del.Ch.2006). [11] E.g., Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del.1992). [12] E.g., Citadel Holding Corp., v. Roven, 603 A.2d 818, 822 (Del.1992); Eagle Industries, Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232 (Del.1997). [13] In James & Jackson LLC v. Willie Gary LLC, 906 A.2d 76, 80 (Del.2006), the Delaware Supreme Court held that an express contractual reference to the Rules of the American Arbitration Association (the "AAA Rules"), which provide that the question of substantive arbitrability (i.e., whether a dispute must be arbitrated or not) may be submitted to an arbitrator, signals an intent of the parties to submit the substantive arbitrability issue to arbitration and requires this court to defer to the arbitrator on that question. Because the Consulting Agreement provides for arbitration to be conducted in accordance with the AAA Rules, had the AIM LLCs timely made the proper argument, I would have been required to dismiss or stay this action pending an arbitrator's determination of the substantive arbitrability issue. In briefing this motion, the AIM LLCs did not contend that substantive arbitrability must be decided by an arbitrator even though the Supreme Court decided Willie Gary before the AIM LLCs filed their reply brief. Instead, they first took that position at oral argument. "It is settled Delaware law that a party waives an argument by not including it in its brief." Emerald Partners v. Berlin, 2003 WL 21003437, at 43 (Del.Ch.2003), aff'd, 840 A.2d 641 (Del.2003); see also In re IBP, Inc. Shareholders Litig., 789 A.2d 14, 62 (Del.Ch. 2001) (finding that a party, waived an argument by not addressing it in its opening post-trial brief). Accordingly, the AIM LLCs have waived this argument and I must determine the substantive arbitrability question myself. [14] Willie Gary, 906 A.2d at 80. [15] Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-26, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987); Anadarko Petroleum Corp. v. Panhandle Eastern Corp., 1987 WL 13520, at 8 (Del.Ch.1987) ("Both Delaware and federal law recognize a strong public policy in favor of arbitration."). [16] See, e.g., Hercules, Inc. v. Orbital Sciences Corp., 1995 WL 125795, at 3 (Del.Ch.1995). [17] DMS Properties-First, Inc. v. P.W. Scott Assoc., Inc., 748 A.2d 389, 391 (Del.2000) ("A party cannot be forced to arbitrate the merits of a dispute . . . in the absence of a clear expression of such intent in a valid agreement."); Willie Gary LLC v. James & Jackson LLC, 2006 WL 75309, at 1 (Del.Ch.2006) (noting that federal law and Delaware law agree in the important sense that an arbitration clause "only requires a party to arbitrate a dispute that is otherwise litigable in court when the party has a contractual (or equitably enforceable) duty to do so"), aff'd, 906 A.2d 76 (Del.2006). [18] 817 A.2d 149 (Del.2002). [19] Id. at 156 (citations omitted) (emphasis added). [20] Notably, the Consulting Agreement has no choice of law provision. None of the parties have argued that Illinois contract law principlesthe ones most likely relevantdiffer from Delaware law. Both parties relied on Delaware cases in briefing the arbitrability question and I have relied on this rare agreement between them. [21] Parfi, 817 A.2d at 155. [22] Id. [23] Id. [24] Id. at 156 & n. 23 (explaining that broad arbitration clauses create a presumption of arbitrability only with respect to matters that implicate contract construction or the parties' contract rights and obligations) (citing Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir.2001)). [25] Parfi, 817 A.2d at 156 n. 24. [26] See id. at 155. [27] Parfi does not hold, and I do not mean to imply that an advancement action, like this one, could never fall within the scope of a very broadly drafted arbitration provision. Employment contracts often provide for mandatory arbitration of all disputes between an employer and an employee "of any nature whatsoever arising out of or connected with [the] employment." See JAY E. GRENIG, ALTERNATIVE DISPUTE RESOLUTION § 11.158 (3d ed. 2005) (emphasis added). [28] In making its substantive contention that the indemnification provisions of the AIM LLC Agreements in fact also grant advancement rights, Majkowski initially argued that the portion of the Consulting Agreement's indemnification provision that required American Imaging to maintain its organizational documents in a manner to provide for advancement rights reflects that the parties believed that the AIM LLC Agreements did in fact grant such rights because no changes were made to them after the execution of the Consulting Agreement. In other words, Majkowski initially attempted to rely on the terms of the Consulting Agreement to prove his right to advancement under the AIM LLC Agreements. If pressed, this argument would strongly undermine Majkowski's position that this advancement claim is not subject to arbitration. But Majkowski has withdrawn this argument, and given the liberality expressed by Parfi, it would be inappropriate for me to punish him for this infelicity. [29] 2004 WL 1517133 (Del.Ch.2004). [30] Id. at 3-4. [31] See, e.g., Advanced Mining Systems, Inc. v. Fricke, 623 A.2d 82, 84 (Del.Ch.1992). [32] Id. [33] Id. [34] R. FRANKLIN BALOTTI & JESSE A. FINKLESTEIN, DELAWARE LAW OF CORPORATIONS AND BUSINESS ORGANIZATIONS § 4.24, at F-21-146-47 (3d ed. 2006) ("Prejudgment indemnification beyond mere advancement of expenses is problematic."). [35] Id. at § 4.25. [36] Reddy, 2002 WL 1358761, at 9. [37] Advanced Mining Systems, 623 A.2d at 84. [38] 51 Ct. Cl. 118 (Ct.Cl.1916). [39] See 3 WILLISTON ON CONTRACTS 4TH FORMS § 54F:20 (in an employment contract: "the Company shall indemnify and hold harmless Employee from any and all claims, liabilities, losses, damages, and expenses, including reasonable attorneys' fees, as a result of acts of the Employee performed in the course and within the scope of the Employee's employment."); id. at § 50F:122 (in a commercial lease: "Lessee agrees to indemnify, hold harmless, and defend lessor at lessee's cost against all claims for damages to persons or property arising out of or connected with lessee's operation on or occupancy of the premises."); id. at § 54F:26.1 (in a railroad locomotive lease agreement: "[Lessor] shall enter and occupy Lessee's property at its sole risk and shall be subject at all times to Lessee's operating and safety requirements. Any injury, death, or property damage arising out of such entry, occupancy and inspection shall be the entire responsibility of [Lessor] and [Lessor] will indemnify and hold harmless Lessee from any and all such liabilities."); id. at § 61F:53.5 (in a performance bond: "the Surety shall defend, indemnify, and hold harmless the City from all claims, suits, causes of actions [sic], and demands (including as costs of litigation and a reasonable attorneys' fee), which are brought against the City . . . by reason of payment to the Surety."). Notably, some of the above examples involved contract language that also separately required the indemnitor to "defend" the indemnitee with respect to particular proceedings. I note that if the AIM LLC Agreements had similarly used the word "defend," Majkowski would have a stronger argument because the obligation to "defend" comes closer to suggesting the active employment of attorneys and continual payment as the attorneys' fees are incurred. But the AIM LLC Agreements are conspicuously devoid of any obligation on the part of American Imaging to "defend" its officers against any suits. Further, where an indemnitor is under an obligation to "defend" the indemnitee, the contract generally provides that the indemnitee give the indemnitor timely notice of the proceeding, a requirement that is also missing from the AIM LLC Agreements. [40] BLACK'S LAW DICTIONARY 749 (8th ed.2004) ("hold harmless, vb. To absolve (another party) from any responsibility for damage or other liability arising from the transaction; INDEMNIFY. Also termed save harmless.") (capitals and emphasis in original). [41] Id. [42] Id. (capitals in original). [43] See Advanced Mining Systems, 623 A.2d at 84 ("A by-law mandating the advancement of funds on the receipt of an undertaking to repay deprives the board of an opportunity to evaluate the important credit aspects of a decision with respect to advancing expenses. . . . [T]he better policy, more consistent with the provisions of Section 145(e), is to require any such by-law expressly to state its intention to mandate the advancement by the corporation of arguably indemnifiable expenses. . . ."); Havens v. Attar, 1997 WL 695579, at 1 (Del.Ch.1997) ("[A]bsent a specifically worded by-law providing for mandatory advancement, 8 Del. C. § 145(e) leaves to the business judgment of the board the task of determining whether the undertaking proffered in all of the circumstances, is sufficient to protect the corporation's interest in repayment and whether, ultimately, advancement of expenses would on balance be likely to promote the corporation's interests."). [44] See Plaintiff's Op. Brief, Ex. H, at 6-7, supra note 4. [45] See BALOTTI & FINKLESTEIN § 21.1, at F-21-146-47 (3d ed.2006); FLETCHER CORP. FMS § 102.30 (4th ed. 1999); MARTIN I. LUBAROFF & PAUL M. ALTMAN, DELAWARE LIMITED PARTNERSHIPS F-43 (2003). [46] See, e.g., DeLucca v. KKAT Management LLC, 2006 WL 224058, at 7 (Del.Ch.2006); Senior Tour Players 207 Management Co. LLC v. Golftown 207 Holding Co. LLC, 2004 WL 550743, at 2 (Del. Ch.2004); Weinstock v. Lazard Debt Recovery GP, LLC, 2003 WL 21843254, at 3 (Del.Ch.2003). [47] As noted, this technique in the crafting of the governing instruments of entities is consistent with contracts in other commercial contexts, which separately provide for a duty to defend even when the contract otherwise offers indemnification and hold harmless rights. See note 39, supra. [48] See, e.g., Delphi Easter Partners Limited Partnership v. Spectacular Partners, Inc., 1993 WL 328079, at 2 (Del.Ch.1993) (interpreting § 108 of the Delaware Limited Partnership Act, which is identical to the indemnification provision in the Limited Liability Company Act). [49] 6 Del. C. § 18-108. [50] Delphi Easter Partners, 1993 WL 328079, at 2. [51] Advanced Mining Systems, 623 A.2d at 84. [52] Reddy, 2002 WL 1358761, at 9. [53] See, e.g., SI Mgmt. L.P. v. Wininger, 707 A.2d 37, 43 (Del.1998) (applying the principle that ambiguities in unilaterally drafted contracts are construed against the drafter to a limited partnership agreement); Greco v. Columbia/HCA Healthcare Corp., 1999 WL 1261446, at 13 (Del.Ch.1999) (applying the same principle to construe a certificate provision regarding indemnification and advancement, to the extent it was ambiguous, against the corporation). [54] See Homestore, Inc. v. Tafeen, 888 A.2d 204, 218 (Del.2005) (explaining that advancement provisions promote the public policy of attracting the most capable people into corporate service). [55] As a final consideration, I note that if it were necessary to insist on giving some independent meaning to the term "hold harmless" without importing an advancement right into it, it would be possible to do so. The terms "indemnify" and "hold harmless," while having similar, if not identical, meanings, are typically used in subtly different contexts. In the abstract, the word indemnify generally grants rights, and the phrase hold harmless generally limits liability. At least one treatise on the Delaware Limited Liability Company Act suggests that the use of the phrase "hold harmless" in the indemnification provision (§ 108) of that Act, works to permit an LLC Agreement to limit a manager's liability for breaches of fiduciary duty. See WAYNE J. CAREY & ELLISA OPSTBAUM HABBART, DELAWARE LIMITED LIABILITY COMPANY FORMS AND PRACTICE MANUAL § 7.10 (2006) ("The indemnification provision in the Act, while unlike the provision in the DGCL which permits the elimination of director liability in certain circumstances for violations of the duty of care, does permit the LLC to `hold harmless' any member or manager or agent of the LLC `from and against any and all claims and demands whatsoever.' This language, in conjunction with the ability to restrict the duties otherwise imposed on a member or manager, suggests the ability to prepare a limited liability company agreement that not only holds a manager or member harmless for breaches of the duty of care, as in the DGCL, but also for matters beyond the duty of care, such as breaches of the duty of loyalty."). When read together, as they are used in the AIM LLC Agreements and American law traditionally, the two related terms impart, by a phrase, a singular right that entitles Majkowski to be made whole once it is determined that he has met the requisite good faith standard of conduct. [56] Parfi, 817 A.2d at 156. [57] Advanced Mining Systems, 623 A.2d at 84. [58] 2003 WL 22461916 (Del.Ch.2003).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516190/	913 A.2d 974 (2006) GREENE COUNTY CHILDREN AND YOUTH SERVICES, Petitioner v. DEPARTMENT OF PUBLIC WELFARE, Respondent. Commonwealth Court of Pennsylvania. Argued October 17, 2006. Decided November 28, 2006. Reconsideration or Reargument Denied January 23, 2007. 975 Gregory C. Hook, Waynesburg, for petitioner. Sally L. Apter, Waynesburg, for intervenor. BEFORE: COLINS, President Judge, SMITH-RIBNER, Judge, COHN JUBELIRER, Judge. Reconsideration or Reargument Denied En Banc January 23, 2007. OPINION BY Judge SMITH-RIBNER. Greene County Children and Youth Services (CYS) seeks review of a final administrative action order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals (Bureau) of the Department of Public Welfare (Department) that affirmed an order of Administrative Law Judge (ALJ) Katrina L. Dunderdale after a remand. The ALJ largely sustained the appeal of Steve and Sandy F. (Parents) and ordered CYS to enter into an adoption subsidy agreement for their adopted daughter Michelle effective August 12, 1999 and ending on her eighteenth birthday under the applicable method for calculating reimbursement for special needs children, with a quarterly clothing allowance. The ALJ also ordered CYS to pay the non-recurring legal expenses incurred as a result of the adoption proceedings not to exceed $4,000 and any non-reimbursed medical expenses incurred since August 12, 1999 in the identification, diagnosis and/or treatment of the child's mental or emotional condition and to provide her a Medical Assistance card. The ALJ denied payments retroactive to the date of Michelle's placement in the home as a foster child on June 22, 1998.[1] 976 I The Adoption Assistance and Child Welfare Act of 1980 (Federal Act), 42 U.S.C. §§ 670-676, provides for adoption assistance for "special needs" children. Under the Federal Act each state is required to enact its own program to administer adoption assistance. Section 771 of the state law commonly known as the Adoption Opportunities Act (State Act), Act of June 13, 1967, P.L. 31, as amended, added by Section 1 of the Act of December 30, 1974, P.L. 1039, 62 P.S. § 771, declares its purpose "to encourage and promote the placement in adoptive homes of children who are physically and/or mentally handicapped, emotionally disturbed, or hard to place by virtue of age, sibling relationship, or ethnicity." Adopting families may apply for financial assistance on behalf of children with special needs, provided they meet eligibility standards in Department regulations, in particular 55 Pa.Code § 3140.202. That section provides in part: (b) The county agency shall certify for adoption assistance children whose placement goal is adoption and who meet the following requirements: (1) The child is 17 years of age or younger. (2) Parental rights have been terminated. . . . . . . . (4) The child shall have at least one of the following characteristics: (i) A physical, mental or emotional condition or handicap. (ii) A genetic condition which indicates a high risk of developing a disease or handicap. (iii) Be a member of a minority group. (iv) Be a member of a sibling group. (v) Be 5 years of age or older. (c) Prior to certification for adoption assistance, the county agency shall make reasonable efforts to find an adoptive home without providing adoption assistance. Evidence of this effort shall be recorded in the case record and include registration with the Department's adoption exchange for at least 3 months. The child's eligibility under this section is certified by the county children and youth services agency, which determines the terms and amount of adoption assistance payments and makes those payments subject to reimbursement by the federal government and/or the state. Michelle was born on April 16, 1997. CYS took custody of her and placed her as a foster care child with Steve and Sandy F. on June 22, 1998. At that time she did not walk or talk, she could not eat table food, she suffered from shigellosis (a form of diarrhea that can come from feces on hands), she refused to be placed on her feet and she sometimes had temper tantrums and was defiant. Parental rights of the birth parents to the child were terminated August 12, 1999, and Michelle made significant progress while in foster care. CYS requested a pre-adoption child profile, which was performed by mental health therapist Bonnie Hassan and was submitted to CYS on October 5, 1999. The profile opined that at that time Michelle was developmentally on target, that she had bonded well with her foster family and that her behavior was consistent with that 977 of a normal two-year-old child. It noted also that Michelle's right foot turned out slightly and that she had asthma and had trouble with sleep and sleep-time issues. The birth family had experienced heart disease, high blood pressure, cancer, drug and alcohol abuse, suicide, mental health issues, eczema, diabetes and depression. CYS did not inform the Parents about the child profile or the adoption subsidy program; they adopted Michelle on December 17, 1999 in Greene County. On January 5, 2000 CYS provided them the child profile. The family moved to Northumberland County in January 2000. After accepting a male foster child from that county in November 2003, they began attending weekly therapy sessions. On November 23, 2003, the Parents requested adoption assistance from Greene County CYS for Michelle, including monthly subsidy payments, a Medical Assistance card and reimbursement of adoption-related legal expenses. CYS denied the request, and they appealed. ALJ Catherine Caplan rendered an adjudication in which she found in addition to the points above that Michelle at age seven was bossy, had no friends, might cry when she did not get her way and on occasion became furious.[2] On April 19, 2005, ALJ Caplan issued her adjudication denying the appeal, which was affirmed by Katrina L. Dunderdale, the Regional Manager of the Bureau on April 20, 2005. ALJ Caplan concluded that the only possible basis for considering Michelle to be a special needs child would be if she had a physical, mental or emotional handicap at the time of adoption. There was no evidence that CYS or the Parents considered that Michelle had such a handicap at the time of adoption. An expert in child and adolescent psychiatry did not consider incidents at age seven to be indicative of reactive attachment disorder (RAD), and he did not think that anyone could make such a diagnosis in retrospect for Michelle on available information. ALJ Caplan found that the evidence was insufficient to show that Michelle has a physical, emotional or mental condition or that she had a physical, mental or emotional condition or handicap at adoption, and there was no evidence that she had a genetic condition indicating high risk of developing disease or handicap. Therefore, she did not meet the definition of a special needs child. The Parents requested reconsideration, which was granted, and in an order of August 11, 2005, the Secretary of the Department set aside the Bureau's order and remanded the matter to the Bureau to reopen the hearing to accept testimony from the child's therapist and to issue a new adjudication. Licensed psychologist Cheryl Walters testified telephonically before ALJ Hoyer on September 22, 2005. Walters examined Michelle on May 7, 2004, spending an hour with Sandy F. and then half an hour with them both. She noted that the child profile included a statement that "the adoptive family will need to be sensitive to issues from her past and the effects they could have on her future." N.T. September 22, 2005, p. 41. She recounted medical and mental health problems in Michelle's birth family as indicated in the child profile. Walters stated that in May 2004 Michelle was diagnosed with generalized anxiety disorder, as having suffered some pre-verbal trauma, and with a childhood disorder not otherwise specified with attachment disorder difficulties. ALJ Dunderdale rendered her adjudication on remand on January 26, 2006. That 978 decision made additional findings that Walters found within the 1999 profile signs that prior to adoption Michelle suffered from delayed development, shigellosis, malnourishment, frequent crying and difficulty sleeping. The findings on remand referred to physical and mental problems in the birth family as genetic pre-dispositions. It noted the May 4, 2004 diagnosis and found in accordance with Walters' testimony that during the examination the child exhibited traits consistent with early trauma, including a failure to trust herself and the adults around her, a lack of trust that her environment would be safe and secure, a feeling that rules are imposed by adults to be mean, generalized resentment toward authority and evidence of an attachment break with a birth parent. Further, among other things, the child has difficulty with relationships with others, which causes her confusion; she has not developed a sense of remorse or conscience appropriate for her age; she has trouble telling the truth or being able to tell the truth; and she is unwilling to be accountable for her actions. The ALJ found that the cause of the generalized anxiety and attachment disorder dates to before the adoption decree. In her discussion, ALJ Dunderdale concluded that Michelle meets the definition of a "special needs" child under 55 Pa. Code § 3140.202(b)(4)(i) because she has a mental or emotional condition or handicap, i.e., generalized anxiety and a handicap with attachment disorder features. The ALJ rejected CYS's contention that the law requires the handicap to exist before the date of adoption, citing Allegheny County Office of Children, Youth and Families v. Department of Public Welfare, 800 A.2d 367 (Pa.Cmwlth.2002), where a child developed Attention Deficit Disorder (ADD) after he was adopted. The ALJ stated that the therapist testified that the child's behaviors in 1999, which the foster parents perceived as typical of a two-year-old, were "red flag" behaviors indicative of some trauma or neglect early in life. The child shows precursor symptoms for reactive attachment disorder. Assessments are needed sooner rather than later to determine if the child suffers from that disorder. The ALJ cited Allegheny County Office of Children, Youth and Families and Ward v. Pennsylvania Department of Public Welfare, 756 A.2d 122 (Pa.Cmwlth. 2000), for the proposition that the earliest date in Pennsylvania for an adoption subsidy is either the date that parental rights were terminated or the date of adoption. She ordered subsidy to begin as of the date of termination, August 12, 1999. The ALJ stated that CYS had withheld important background information from the Parents about the child's family history and about the availability of adoption assistance, and she ordered CYS to enter into the adoption subsidy agreement including subsidy payments and allowances specified above. The ALJ denied the appeal to the extent the Parents sought a subsidy retroactive to the date of placement on June 22, 1998. That decision was affirmed January 27, 2006 by Thomas E. Cheffins, Chief Administrative Law Judge of the Bureau.[3] 979 II CYS first argues that the ALJ used an incorrect legal standard as to when a handicap should exist in order for a child to be certified as a special needs child. It insists that the ALJ's statement that the regulations do not require the handicap to exist before the date of adoption and that case law has provided for a county agency to be ordered to pay assistance even for conditions or handicaps that were not known or revealed prior to adoption is contrary to Allegheny County Office of Children, Youth and Families, upon which the ALJ relied. The adopted boy involved in Allegheny County Office was bi-racial and therefore automatically met the criterion in 55 Pa. Code § 3140.202(b)(4)(iii) for recognition as a special needs child. The county agency had not informed the adoptive parents of the possibility of subsidy at the time of his adoption. Later, after the parents adopted an African American girl and were informed of the possibility of adoption assistance, they sought it in regard to the boy who by that time had been diagnosed with ADD. The parties agreed that he was a special needs child; the only issue was whether adoption assistance payments should be retroactive to the date of his adoption. CYS points to York County Children and Youth Services v. Department of Public Welfare, 833 A.2d 281 (Pa.Cmwlth. 2003), where a therapist diagnosed a child at age thirteen as having had RAD at the time of adoption. This diagnosis was based upon thirty-seven individual therapy visits, review of medical records and information from the adoptive parents. The child had resided in several foster placements, and she was the victim of physical abuse and possible sexual abuse by her biological mother. The Court determined that the testimony supported the finding that RAD existed at the time of adoption. In the present case, CYS argues, there is no testimony from any expert diagnosing Michelle with a condition that existed at the time of her adoption, and Sandy F. stated that she was not aware of any special needs at the time of adoption. CYS contends that it was not the intent of the legislature that a county agency should pay assistance for conditions that were not known or revealed at the time of adoption, which would cause agencies to be subject to numerous claims by adoptive families having trouble with adopted children years later. CYS's closely related second argument is that the evidence showing that Michelle may now have problems did not satisfy the Parents' burden to show that their child was a special needs child at the time of adoption. Walters made clear that the she was not providing a diagnosis for Michelle as of 1999 but only as of 2004, when she first saw Michelle. CYS cites testimony on cross-examination where Walters stated that she was not testifying that Michelle had a diagnosis of general anxiety disorder in 1999 or of a childhood disorder not otherwise specified in 1999, because Walters never met Michelle in 1999. N.T. September 22, 2005, pp. 74-75; R.R. 205a-206a. Walters' testimony that Michelle's behaviors in 1999 constituted a red flag is too speculative to support a finding that she had a physical, mental or emotional handicap at that time. In response the Parents assert that Michelle qualifies as a "special needs" child under 55 Pa.Code § 3140.202(b)(4)(i) and also (b)(4)(ii) because there were significant medical diseases and mental disorders in the family history for two generations 980 back.[4] They contend that the ALJ was correct in stating that they proved through the therapist's testimony and through statements in the 1999 child profile that the diagnosis of generalized anxiety and the behaviors with marked features of attachment disorder existed at the time of adoption. They note that the parties in Allegheny County Office stipulated that the boy was eligible for adoption subsidy payments based on both his special needs and his bi-racial origin; they also note that in York County Children and Youth Services the doctor related the issues back to the first three years of the child's life even though psychologists who had observed her then did not make a diagnosis. The child there was thirteen when she began counseling. The Parents review Walters' impressive credentials as a licensed psychologist with over 180 hours of specific attachment training and education and her professional work in this area. They note the several methods that she employed in her examination and her statement that the circumstances by which Michelle came into custody were red flags for and signs of neglect. They refer to Walters' statements that some of Michelle's anxiety disorder is based at least in part on early trauma, that some of her anxiety disorder was prevalent even before she was placed in a secure home in 1999, that a child can be diagnosed in a single visit providing one has the appropriate tools and appropriate knowledge to know what to look for and that without appropriate treatment Michelle would meet the criteria for the full diagnosis of RAD in the future. The Parents maintain that the notion that a doctor must make a diagnosis based upon observation at the time of adoption was rejected in York County Children and Youth Services. The doctor there could see the significant residual effects of earlier attachment problems. Here Michelle demonstrated problems consistent with attachment problems or other mental or emotional handicaps. On this issue, the Parents assert that in Ross v. Department of Public Welfare, 811 A.2d 1076 (Pa. Cmwlth.2002), where the county agency did not advise the adoptive parents of a history of mental illness in the biological family, the Court held that they were due adoption assistance payments under Gruzinski v. Department of Public Welfare, 731 A.2d 246 (Pa.Cmwlth.1999), where a family that otherwise qualified but was not informed of adoption assistance was entitled to retroactive adoption assistance payments. III The Court is constrained to agree with the position of CYS in this matter. First, in Allegheny County Office, the Court reiterated in a footnote that the parties stipulated in lieu of a hearing that the boy was eligible for adoption subsidy payments because he was "a bi-racial child" with "special needs," including the diagnosis of ADD. The parties also stipulated that the child was placed in the adoptive home on July 27, 1987 and adopted on October 5, 1989 and that he was eligible for adoption subsidy payments until he reached the age of eighteen due to his status as a bi-racial and a special needs child. As for the county agency's argument that the finding that "both" of the child's eligibility factors existed prior to his placement and adoption was not supported by the record, the Court noted that the child indeed was diagnosed with ADD several years after his *981 adoption but that this fact was only one of two characteristics rendering him eligible for adoption subsidy payments. The state regulations simply require that a child have one qualifying characteristic. Thus Allegheny County Office does not stand for the proposition that an adoptive family may be entitled to adoption subsidy payments based upon a physical, mental or emotional condition that arises after the adoption. This case is distinguishable from York County Children and Youth Services because of the absence of evidence of a diagnosis at the time of adoption. Although the Parents refer to Walters' statement that some of Michelle's anxiety disorder is based on early trauma and was prevalent before her placement in 1999, citing N.T. September 22, 2005, p. 74; R.R. 205a, this is the same exchange relied on by CYS in which Walters declined to diagnose generalized anxiety disorder or other unspecified childhood disorder as of 1999. The evidence clearly is distinct from that presented in York County Children and Youth Services. In the absence of a diagnosis at the time of adoption, even if rendered retroactively as in York County Children and Youth Services, the adoptive parents did not meet their burden to establish that Michelle was a special needs child at the time of adoption. Furthermore, the Parents cite no authority to support their position that the statements in the child profile concerning mental illness and certain diseases in the birth family constituted proof of a genetic condition indicating high risk of developing a disease or handicap under § 3140.202(b)(4)(ii), and the ALJ did not rely upon this in her reasoning. Also, the Court disagrees with the Parents' view of Ross. There on appeal of the initial denial of a request for assistance, the parties stipulated that the parents were entitled to retroactive assistance for two girls, and the issue was whether they were entitled to interest. In view of the Court's holding on the issue of eligibility, it need not address CYS's claims that the ALJ erred in awarding up to $4000 in legal fees, in awarding a quarterly clothing allowance and in awarding payments retroactive to the time when foster parent payments were still being received.[5] The Court reverses the order of the Bureau affirming the adjudication of the ALJ. ORDER AND NOW, this 28th day of November, 2006, the final administrative action order of the Chief Administrative Law Judge of the Bureau of Hearings and Appeals of the Department of Public Welfare is reversed. NOTES [1] CYS questions whether the ALJ's opinion is correct that a child may be a special needs child entitled to adoption assistance based on a finding that a handicap develops after the date of adoption; whether the evidence showing that the child currently has problems satisfies the burden to prove that she was a special needs child at the time of adoption; whether CYS is responsible for $4000 of non-recurring legal fees when regulations provide for $2000; whether payment of a per-diem from the date parental rights were terminated is correct when the adoptive family was paid the per-diem until the date of adoption; whether a quarterly clothing allowance is required when no statutory or regulatory authority for such exists; and whether the Department violated CYS's due process rights when it remanded for further testimony, when no showing was made that the testimony was not available at the time of the original hearing. [2] On December 17, 2003, the Parents adopted the male foster child, who was diagnosed with reactive attachment disorder (RAD), qualifying him for adoption assistance. [3] The Court's review of a final decision of the Department is limited to determining whether there was a constitutional violation or an error of law, whether a practice or procedure of the agency was not followed and whether necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; see Allegheny County Office of Children, Youth and Families. Substantial evidence is such evidence that a reasonable person would accept as adequate to support a conclusion. William Penn School District v. Department of Education, Division of Food and Nutrition, 902 A.2d 583 (Pa.Cmwlth.2006). [4] The Parents intervened in this matter. The Department did not file a brief after an order to do so, and the Court precluded it from filing a brief or participating in oral argument. [5] CYS also briefly argues a contention that the Department violated CYS's due process rights by granting the rehearing when no request for a continuance was made until after the first ALJ's decision and by the second ALJ's ignoring the findings of the first, resulting in granting the Parents two bites at the apple. They respond first that CYS has waived this issue by failing to state it in its petition for review. Pa. R.A.P. 1513(d)(5) requires an appellate petition for review to contain "a general statement of the objections to the order or other determination. . . ." CYS's petition for review does not mention this issue, and the Parents are correct that issues not stated in the petition for review but raised first in the brief are waived. S.T. v. Department of Public Welfare, Lackawanna County Office, Children, Youth & Family Services, 681 A.2d 853 (Pa.Cmwlth.1996).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516186/	913 A.2d 1153 (2005) 50 Conn. Super. Ct. 130 Louisette G. LAGASSEY, Executrix (Estate of Wilfred J. Lagassey) v. STATE of Connecticut. No. CV 01-0807201S. Superior Court of Connecticut, Judicial District of Hartford at Hartford. October 19, 2005. Trantolo & Trantolo, Hartford, for the plaintiff. O'Brien, Tanski & Young, Hartford, for the defendant. STENGEL, J. This is a wrongful death and loss of consortium action brought by the plaintiff, Louisette G. Lagassey, individually and in her capacity as the executrix of the estate of Wilfred J. Lagassey (decedent), against the defendant, the state of Connecticut. On April 20, 2001, the plaintiff filed a two count complaint against the defendant for the death of her decedent husband, who had died as a result of a ruptured infra-renal abdominal aortic aneurysm while he was a patient at the University of Connecticut Health Center and John Dempsey Hospital (hospital) operated by the defendant. In count one, the plaintiff alleges the following facts. Sometime in 1989, the decedent was diagnosed with an infra-renal abdominal aortic aneurysm that measured 4.1 centimeters. In August, 1992, while the decedent was at a routine visit to monitor the aneurysm, it was discovered that the aneurysm had grown to approximately 5.1 centimeters, and surgery was scheduled for November, 1992. On October 6, 1992, an aorta gram was performed to determine if he would undergo surgery. On the evening of October 7, 1992, the decedent began to experience lower back pain, gastrointestinal distress and abdominal pain. On October 8, 1992, he was admitted to the hospital for treatment. Various tests were performed, which indicated that the aneurysm had grown to 5.7 centimeters, his white blood cell count was elevated and there was a possibility of a leak. Steven Ruby, a vascular surgeon employed at the hospital, examined the decedent and was informed of the last recorded measurement of the aneurysm but declined to examine the records of the decedent from Yale-New Haven Hospital. The decedent was then given Percocet to alleviate his back and abdominal pain. The following day, his abdomen was visibly protruding and he was given a suppository by a staff nurse. Soon after the suppository was administered, the decedent had a seizure and went into cardiac arrest. He was immediately removed to an operating room where he died of a ruptured infra-renal abdominal aortic aneurysm. The plaintiff alleges the following additional facts in count one. The defendant and its agents, servants and/or employees "deviated from the applicable standards of medical care in their treatment of the plaintiff's decedent" in the following ways: (1) failing to diagnose and/or to treat properly 1156 the leaking aneurysm, the back and abdominal pain, and the elevated white blood cell count; (2) improperly prescribing Percocet; and (3) failing to operate, which resulted in the decedent remaining "undiagnosed and untreated for an extended period of time." As a result of the defendant's alleged actions, the ability of the decedent to pursue and enjoy life's activities was destroyed and the plaintiff was forced to incur financial obligations. On August 23, 2000, the plaintiff was granted permission to sue the defendant by the claims commissioner. In count two, the plaintiff further alleges that as a direct and proximate cause of the defendant's negligence, the plaintiff has and will continue to suffer a loss of consortium. On July 27, 2004, the defendant filed a motion for summary judgment. The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment on August 27, 2004. On September 20, 2004, the defendant filed a reply memorandum. A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). Summary judgment is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute. . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). The defendant moves for summary judgment on the ground that the two year statute of limitations contained in General Statutes § 52-555(a)[1] expired prior to the plaintiff commencing the present cause of action. Specifically, the defendant argues that while the tolling provision in General Statutes § 4-160(d)[2] temporarily suspends 1157 the statute of limitations from running, it does not begin the limitation period anew. In response, the plaintiff argues that the tolling provision contained in § 4-160(d) suspends the onset of any applicable statute of limitations. I GENERAL STATUTES § 52-555(a) "The wrongful death statute; General Statutes § 52-555; is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought. At common law, the death of the injured person, whether contemporaneous with the wrongful act or not, terminated liability of the wrongdoer because the right to enforce it ended with the death. . . . Death and its direct consequences can constitute recoverable elements of damages only if, and to the extent that, they are made so by statute. . . . Because it is in derogation of the common law, an action for wrongful death is limited to matters clearly within its scope." (Citations omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). Moreover, our Supreme Court has held that the two year statute of limitations contained in § 52-555(a) is a jurisdictional prerequisite to sustaining a cause of action. Ecker v. West Hartford, 205 Conn. 219, 233, 530 A.2d 1056 (1987). "[T]he . . . limitation [period] contained within § 52-555 is a jurisdictional prerequisite which cannot be waived and which must be met in order to maintain an action under § 52-555. Since § 52-555 creates liability where none formerly existed, the statute must be strictly construed and we are not at liberty to extend, modify or enlarge its scope through the mechanics of construction." Id. In the present case, the plaintiff had two years from the date of the decedent's death, October 8, 1992, in which to bring a cause of action pursuant to § 52-555.[3] In the absence of a relevant tolling provision, the plaintiff would be barred from bringing this cause of action. Both parties are in agreement that the tolling provision contained in § 4-160 is applicable to the facts of this case. The plaintiff contends, however, that the tolling provision does not suspend the applicable statute of limitations period but rather delays the onset of the limitation period. II GENERAL STATUTES § 4-160 Our Supreme Court has "long recognized the common-law principle that the state cannot be sued without its consent." (Internal quotation marks omitted.) Bloom v. Gershon, 271 Conn. 96, 107, 856 A.2d 335 (2004). "[A] plaintiff seeking to circumvent the doctrine of sovereign immunity must show that: (1) the legislature, either expressly or by force of a necessary implication, statutorily waived the state's sovereign immunity . . . or (2) in an action for declaratory or injunctive relief, the state officer or officers against whom such relief is sought acted in excess of statutory authority, or pursuant to an unconstitutional statute." (Citation omitted.) Miller v. Egan, 265 Conn. 301, 314, 828 A.2d 549 (2003). "[I]n the absence of legislative 1158 authority . . . [the Supreme Court has] declined to permit any monetary award against the state or its officials [or agents]." (Internal quotation marks omitted.) Bloom v. Gershon, supra, at 107, 856 A.2d 335. "When sovereign immunity has not been waived, the . . . [claims] commissioner is authorized by statute to hear monetary claims against the state and determine whether the claimant has a cognizable claim. See General Statutes §§ 4-141 through 4-165b. The . . . [claims] commissioner, if he deems it just and equitable, may sanction suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be liable. General Statutes § 4-160(a)." (Internal quotation marks omitted.) Lagassey v. State, 268 Conn. at 723, 732, 846 A.2d 831 (2004). Our Supreme Court has stated that § 4-160 does not alter the substantive rights of parties. "The sole purpose of § 4-160 . . . is to remove the bar of sovereign immunity when the claims commissioner determines that it would be `just and equitable' to permit a claimant to seek redress against the state. . . . [T]here is no indication that the legislature, in empowering the claims commissioner to waive the state's immunity from suit, intended to enhance or otherwise to modify a plaintiff's substantive rights." (Citation omitted.) Chotkowski v. State, 240 Conn. 246, 270, 690 A.2d 368 (1997). As stated previously in this opinion, the plaintiff's sole cause of action for wrongful death is pursuant to § 52-555, which contains a two year statute of limitations. It is undisputed that the tolling provision contained in § 4-160(d)[4] is applicable to the present case. The parties disagree, however, over the application of the tolling provision, which is the crux of the present case. The tolling provision contained in § 4-160(d) provides in relevant part that "any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted." The word "toll" is not defined in the statute and therefore the court must rely on its "appropriate meaning in the law. . . ." General Statutes § 1-1(a).[5] As emphasized by our Supreme Court, "legal terms . . . absent any legislative intent shown to the contrary, are to be presumed to be used in their legal sense. . . . Words with a fixed legal or judicially settled meaning must be presumed to have been used in that sense. . . . In ascertaining legislative intent [r]ather than using terms in their everyday sense, [t]he law uses familiar legal expressions in their familiar legal sense." (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, 228 Conn. 158, 169-70, 635 A.2d 783 (1993). "Toll" is defined by Black's Law Dictionary as "[t]o suspend or stop temporarily as the statute of limitations is tolled during the defendant's absence from the jurisdiction and during the plaintiff's minority." Black's Law Dictionary (6th Ed.1990). The word "until" is defined by Merriam-Webster's Collegiate Dictionary (10th Ed.1993) as "a function word to indicate continuance (as of an action or condition) to a specified time. . . ." Historically, "[t]he word until is a word of limitation used ordinarily to restrict what immediately precedes it to what immediately 1159 follows it. Its office is to point out some point of time or the happening of some event when what precedes it shall cease to exist or have any further force or effect." (Internal quotation marks omitted.) Whitford v. Lee, 97 Conn. 554, 561, 117 A. 554 (1922). As most recently defined by our Appellate Court, "[t]he tolling of a statute of limitations may potentially overcome a statute of limitations defense. When a statute of limitations is tolled, it does not run and the time during which the statute is tolled is considered, in effect, as not having occurred. Therefore, if a statute in a particular case is tolled, it is as if the statute commenced on a later date. A. Levy, Solving Statute of Limitations Problems (1987) § 5.14, p. 195." (Internal quotation marks omitted.) Fontanella v. Marcucci, 89 Conn.App. 690, 699, 877 A.2d 828 (2005). Moreover, as further emphasized by the United States Court of Appeals for the Second Circuit, "[e]quitable tolling of a statute means only that the running of the statute is suspended, not that the limitations period begins over again." (Internal quotation marks omitted.) Tristar Corp. v. Freitas, 84 F.3d 550, 553 (2d Cir.1996), cert. denied, 521 U.S. 1118, 117 S. Ct. 2508, 138 L. Ed. 2d 1012 (1997). The plaintiff cites to a trial court decision, Toomey v. State, Superior Court, judicial district of Litchfield, Docket No. CV910057183S, 1992 WL 280410 (September 15, 1992) (7 Conn. L. Rptr. 412), for the proposition that the statute of limitations does not begin to run until permission has been granted by the claims commissioner to bring suit. The court finds this assertion, however, to be misleading as Toomey was decided prior to the enactment of No. 92-34 of the 1992 Public Acts, which is now codified at § 4-160(d). Moreover, the court in Toomey relied on a series of cases that are now outdated and have no legal relevance to the current statutory structure of § 4-160. Applied to the facts in the present case, the tolling provision contained in § 4-160(d) merely provides the plaintiff with an extension of time in which to bring her claim. It does not, however, authorize the limitation period contained in § 52-555(a) to begin anew. Quite the contrary, the plain language of § 4-160(d) clearly provides that "any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted." Section 4-160(d) does not provide that any applicable statute of limitation will be terminated or begin anew, rather it provides that the statute of limitation will be tolled "until" authorization is granted. It is clear that the plain language of § 4-160(d) needs no further review. "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z. It is noted that statutes of limitation serve a valid and important function in our jurisprudence. "The purpose of the statute of limitations is well settled in our law. There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose. . . . [T]he policy of statutes *1160 of limitation includes promoting repose by giving security and stability to human affairs. . . . [W]e will not deprive . . . defendants of the finality, repose and avoidance of stale claims and stale evidence for which the statute of limitations was designed." (Citations omitted; internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn.App. 60, 67, 708 A.2d 231 (1998). In the present case, the decedent died on October 8, 1992. Pursuant to § 52-555(a), the plaintiff had two years from the date of death in which to bring a cause of action. She presented her claim to the claims commissioner on September 19, 1994, which was less than one month before the statute of limitation period would have barred her claim entirely. The period of time that the claim was being reviewed by the claims commissioner tolled the statute of limitation period. In other words, the time spent reviewing the claim "does not exist" when determining the applicable statute of limitation period. Authorization to bring the claim against the defendant was given to the plaintiff on August 23, 2000, which then allowed her the remaining period of time pursuant to the statute of limitations contained in § 52-555(a), which was less than one month, in which to bring her claim. The plaintiff did not initiate this action until April 20, 2001, which was well beyond the applicable limitation period for this type of claim. The court concludes that the tolling of the statute in the present case means only that the running of the statute is suspended and not that the limitations period begins over again. Accordingly, the motion for summary judgment is granted. NOTES [1] General Statutes § 52-555(a) provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." [2] General Statutes § 4-160(d) provides: "No such action shall be brought but within one year from the date such authorization to sue is granted. With respect to any claim pending before the Claims Commissioner on October 1, 1992, or presented to the Claims Commissioner on or after said date for which authorization is granted, any statute of limitation applicable to such action shall be tolled until the date such authorization to sue is granted. Action shall be brought against the state as party defendant in the judicial district in which the claimant resides or, if the claimant is not a resident of this state, in the judicial district of Hartford or in the judicial district in which the claim arose." [3] The court notes that the claim presented to the claims commissioner is not considered the initiation of a cause of action. "That claim is not a demand, a suit or an action in a court of justice but, rather, is a petition seeking permission to proceed with an action against the state in a court of justice." Capers v. Lee, 239 Conn. 265, 272, 684 A.2d 696 (1996). [4] See footnote 2 of this opinion. [5] General Statutes § 1-1(a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." Our Supreme Court has stated that "[i]n order to determine the commonly approved usage of language in a statute, we refer to the definition of a word as found in a dictionary." State v. Miranda, 274 Conn. 727, 753, 878 A.2d 1118 (2005).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516215/	420 S.W.2d 446 (1967) Clyde V. DRIGGS, Appellant, v. CITY OF DENISON, Appellee. No. 16979. Court of Civil Appeals of Texas, Dallas. October 27, 1967. 447 Jack Kennedy, Sherman, for appellant. Robert L. Doss, Charles O. Smyre, City Attys., Denison, for appellee. CLAUDE WILLIAMS, Justice. Pursuant to an admittedly valid ordinance of the City of Denison, Clyde V. Driggs filed his application for districting, in proper form, with the City Council of the City of Denison in which he sought a permit to conduct the business of off-premises sale of wine and beer at 613 North Austin Street. The area in which the property in question was located had been previously zoned as retail territory under the General Zoning Ordinance of the City of Denison and the sale of wine and beer in such area was perfectly legal. However, under alcoholic Beverages Ordinance of Denison the City Council was empowered to district and grant permits for the sale of such beverages in the area. Driggs' application was denied by unanimous vote of the City Council. He filed suit in the district court in which he prayed that the court enter its order approving his application based upon his allegations that the City Council had acted arbitrarily and capriciously in refusing to grant him the relief sought. The City filed its motion for summary judgment to which were attached supporting affidavits of the mayor and two of the city councilmen. Also attached to the motion were copies of the minutes of the City Council relating to the hearing of Driggs' application. The mayor and city councilmen related in their affidavits that after careful and thoughtful deliberation, and with a view towards the promotion of the public safety, health, prosperity, convenience, morals and general welfare of the city, they exercised the discretion confided in them by the charter of the City of Denison and voted to deny the districting of Driggs' property. Driggs filed his first amended original petition wherein, for the first time, he prayed for the issuance of a writ of mandamus against the City of Denison ordering and directing it to grant Driggs the permit sought by his petition for districting, and also praying for monetary damages sustained by him as a result of the denial of his application. Driggs also filed his affidavit and that of his first attorney, Joe M. Joiner, both being in opposition to the motion for summary judgment filed by the City. The trial court sustained the City's application for summary judgment and rendered judgment that Driggs take nothing by his action. In five points of error appellant contends that the trial court erred in granting summary judgment against him for the reason that the pleadings and affidavits before the court demonstrated the existence of at least one issuable fact which should have been submitted to a jury, such fact being that the City Council had acted arbitrarily, capriciously and unreasonably in denying his application. After careful consideration of all appellant's points in the light of the record here presented we find no merit in any of them and affirm the judgment of the trial court. In doing so we have carefully adhered to the rules relating to review of summary 448 judgment cases which were clearly enunciated by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. Sup.1965). Appellee City, by the filing of its motion for summary judgment, assumed the negative burden of showing the nonexistence of issuable facts, or that, as a matter of law, appellant Driggs had no cause of action against the City. By the filing of its motion, supported by appropriate affidavits of the mayor and city councilmen, the City did assume its burden in this regard. The City Council of the City of Denison, a home-rule city, acting as a legislative body, is vested with broad discretion in deciding questions dealing with the public safety, health, morals and general welfare. Inherent in this rule of law is the right of cities to regulate occupations and businesses within the limits of such cities. The right of every person to pursue any lawful business, occupation or profession is not an absolute right but is subject to the paramount right, inherent in the governing body as a part of its police power, to impose whatever reasonable restrictions and regulations the protection of the public may require. 40 Tex.Jur.2d, Municipal Corporations, § 341. Thus the municipality may impose reasonable restrictions on the manner in which the business is conducted, and also place limitations on the time and place it is to be carried on. City of Austin v. Austin City Cemetery Ass'n, 87 Tex. 330, 28 S.W. 528 (1894); 40 Tex.Jur. 2d, § 342; Lombardo v. City of Dallas, 47 S.W.2d 495 (Tex.Civ.App., Dallas 1932). It has long been the law in this state that if an officer or governing board acting under powers granted by law exercises discretion in the discharge of their duties, mandamus will not lie to control such exercise of discretion. The only exception to this rule is that a mandamus will lie to correct a gross abuse of discretion upon the part of boards or officers entrusted with such discretion, when such abuse is so clearly shown as to establish the fact that in performing the act complained of the officers acted wholly through fraud, caprice, or by a purely arbitrary decision, and without reason. King v. Guerra, 1 S.W.2d 373, 376 (Tex.Civ.App., San Antonio 1927, writ ref'd). In the King case the court said that in cases involving the exercise of discretion on the part of city councils the burden of defending the exercise of discretion is not upon the city government but "the extraordinary burden rests upon appellee to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it by a valid ordinance in determining a matter of purely governmental policy." See also Arberry v. Beavers, 6 Tex. 457, 55 Am.Decisions 791; Riggins v. City of Waco, 100 Tex. 32, 93 S.W. 426 (1906); and the recent decision by our Supreme Court in Dykes v. City of Houston, 406 S.W.2d 176 (Tex.Sup.1966). In the instant case the City of Denison, having demonstrated by proper motion, pleadings and affidavits that it had applied reasonable discretion in denying appellant's permit, the burden was cast upon appellant to demonstrate factually that the city commissioners abused their discretion and that such refusal amounted to a purely arbitrary decision without reason. This is especially so since we are here dealing with the question of granting a privilege to operate a business which is not a property right in itself. No property rights as such are involved. Appellant makes the sole contention that the affidavits of Joe Joiner and appellant himself present sufficient summary judgment evidence which would clearly support an issuable fact, that is, that the City Council acted arbitrarily, capriciously and unreasonably in denying his application. We have carefully read these affidavits and find that rather than presenting facts which *449 would be admissible upon the trial of the case, they contain hearsay and conclusory statements relating to the Council's abuse of discretion. In Covington v. City of Denison, 369 S.W.2d 824 (Tex.Civ.App., Dallas 1963, writ ref'd n.r.e.), we considered a strikingly similar situation and there held that mere conclusions were not sufficient to attack the action on the part of the city council as being arbitrary and capricious in denying an application such as the one presented here. Appellant, apparently realizing the weakness of his position, seizes upon certain statements of the mayor and one city councilman both before and following the council meeting, as constituting some evidence to raise a fact issue. In the affidavit of Driggs he relates as a fact that prior to the time that Joe W. Gay was elected mayor of Denison he consulted Mr. Gay in his capacity as a banker concerning his proposed application and asked Mr. Gay directly what he thought of such application. According to Driggs Mr. Gay said that "he made no objections to my application and said that he would be in a position to support it if it was presented." Driggs also related that councilman Anderson, prior to his election to the City Council, was asked whether or not he would support the application and Anderson said that "he saw no reason why my application would not be granted." Furthermore, Driggs related that several weeks after the hearing and denial of the application Anderson apologized to him for the action taken. Appellant's reliance upon these alleged statements, made by the mayor and one city councilman concerning his application at a time when neither of such gentlemen was a member of the City Council, to support his contention cannot be sustained in law. The identical question was presented to the court in King v. Guerra, 1 S.W.2d 373, 374 (Tex.Civ.App., San Antonio 1927, writ ref'd). There contention was made, as here, that various members of the city commission, together with the mayor, were contacted separately and privately prior to the hearing on the application involved and that on each occasion the officials indicated that they would not oppose same. The court, in denying the very contention made here, said: "It is true, as a matter of course, that the friendly expressions obtained from the mayor and two commissioners, in private conversationswhether made casually, upon impulses of the moment and without definite knowledge or consideration of the true facts of the proposed projects, or whether given deliberately and after mature consideration of all the ascertainable factscan have no bearing upon the case. Even had they been so disposed, which they deny is the case, those officials, acting singly, individually, and separately, at different places and times and upon different occasions, could not bind themselves in their official capacity, nor the board of city commissioners as a body, nor the government of the city, nor any of its departments. Those expressions, whether of casually friendly acquiescence, or of solemn promises, can have no more bearing upon the official matter of the issuance of the permit than would similar expressions from any private citizen wholly disconnected from the city government." Finding no issue of fact presented we overrule appellant's points. Appellee's cross-point is also without merit and is overruled. The judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516213/	420 S.W.2d 330 (1967) STATE of Missouri, Respondent, v. Charles Larry ALLEN, Appellant. No. 52440. Supreme Court of Missouri, Division No. 1. October 9, 1967. Motion for Reconsideration and Modification Without Rehearing Denied November 13, 1967. 331 Norman H. Anderson, Atty. Gen., Jefferson City, A. Michael Sullivan, Special Asst. Atty. Gen., Clayton, for respondent. Lovell W. George, Clayton, for appellant. HOUSER, Commissioner. Eighteen-year-old Charles Larry Allen, convicted by a jury of second degree burglary and stealing and sentenced to consecutive 3 and 2-year terms in the custody of the department of corrections, has appealed. Represented at the trial and on this appeal by counsel of his own choosing, appellant makes two points: First, that the evidence is not sufficient to sustain a verdict of second degree burglary and stealing; second, that the prosecuting attorney made an inflammatory and prejudicial argument to the jury. On the night of August 2-3, 1965 a sporting goods store located on Manchester Road in the City of Rockhill was broken into. Guns, rifles and knives valued at $700 were removed therefrom. There are front and rear entrances. The rear entrance consists of combination wood and glass twin or double doors, covered on the outside by screen doors. The screen doors were secured by hooks. The twin doors were secured by two inside bolts, one belt high, the other about six feet up. There was a crack in the glass in the left-hand door (as you face the doors from the outside) caused by the wind slamming the door shut. It had been taped over with Scotch tape. The crack was 18 inches long. Semicircular in shape, it ranged up from the base of the glass pane in a curving line to a point on the side of the door frame where the pane was set in the molding. The section of glass outlined by the crack constituted the right-hand area of the glass pane of the left door. The glass panes were held in place in the doors by a half-inch 332 wooden molding. There was a "molding line" on the long perpendicular side of the somewhat triangular section of the pane of glass. On the night of August 2 the proprietor of the store checked the doors and put the bolts in place. The next morning he found the back door standing open, some shells and gun cases scattered around and a couple of little pieces of glass on the floor inside the building, and a hole in the back screen door that was not there the night before; a hole "like you'd stick your hand through." The elongated, semicircular-shaped piece of glass had been removed from the left rear door. It appeared that the entrant had burst through the screen, unlatched it, removed the piece of glass and unbolted the door by reaching through the opening created by the removal of the glass. The proprietor called the police department. Sergeant Bell, an experienced officer, made an examination of the premises. On the interior he found the disarray above described. He took the empty cardboard boxes and some boxes of shotgun shells to the police station for fingerprints but found nothing legible, "only smudges." Outside the building he found the displaced section of the left rear door glass, leaning from the ground against the concrete steps which lead from the porch at the rear of the store. Fingerprints on this section of glass were "quite obvious." The sergeant put transparent tape over them and the section of glass was taken to the Identification Bureau of the St. Louis County Police Department for processing. Two detectives, both experienced in the art of fingerprinting, one of them in charge of the identification bureau, testified with respect to the fingerprints on the section of glass. A fingerprint examination was conducted. Several prints were lifted and put on a white background and photographed. One print which could not be lifted was photographed on the glass. The photographs were enlarged. Appellant lived with his grandmother in the vicinity. There is no evidence that appellant had ever been in the store prior to August 2, 1965. Appellant was taken into custody as a suspect and his fingerprints were taken. His fingerprint card, made available to the identification bureau, was photographed and enlarged. The enlarged photographs from the glass and the enlarged photograph of appellant's fingerprint card were paired on a comparison chart. One print lifted off the glass was a partial latent fingerprint impression, which the expert testified was made along the edge of the section of glass. The experts found numerous points of identificationabutments, scars, ending ridges, etc.on the basis of which they expressed their opinions that the fingerprints on the glass were identical with and belonged to the same person who made the prints on the card. There were 15 points of identification on one pair of prints. There was a line on the glass under one of the prints. This was the "molding line" where the molding held the pane in the frame. A latent fingerprint lifted off the glass was found to compare with the right middle finger on the chart. At one point skin was missing as a result of an opening in the skin which had not grown over. That pattern was in exactly the same spot on the card print. They were identical. Two prints, from the right index and right middle fingers, were found on one side of the glass, and a right thumbprint on the other side. These were compared with appellant's fingerprints on the card and 12 points of identification were noted. The officers positively testified that the prints on the glass were one and the sameidentical withthe prints on the card. The card and charts were offered in evidence. Appellant took the stand and testified that he was walking through the area behind the sporting goods shop on the night in question; that he had left his sister's house in St. Louis sometime between 10 and 11 p. m. and caught a bus to the Maplewood loop, from whence he walked home; that when he passed the corner of the store building his attention was attracted by the fact that the door was open or ajar, and it seemed like there was a little light flashing 333 in the front of the store. The door was not wholly open but was "cracked." Curious, he mounted the back porch steps, put his hands on the doors, "leaned in," looked inside and saw only a flash of the light coming from the front. He testified that he did not go inside the store. He "figured the man might be in there or something wrong," so he turned around, went down the steps, went home and went to bed. He said that in leaning over and "peeking in" he held onto one door with his left hand and rested his extended right arm and hand on the other (closed) door; that he saw no open place where glass had been broken, but was not looking for glass; that he had to touch the glass since he put his hand on the door; that if he hit the glass with his left thumb and fingers the prints should be on it, and his right palm print should be on the glass part of the other door. He could not say whether there was glass in either door because he "didn't exactly examine it." It was the state's theory that the only way one could get his fingerprints on the part of the glass covered by the molding would be to "wiggle" the glass out of the frame and then touch it after the glass was removed and out from behind the molding, and that the position of the prints on the glass proves beyond doubt that appellant took the glass out and made the prints thereafter. Appellant argues that this is unlikely; that the state's evidence is puzzling and at most creates a suspicion that appellant was implicated, or a probability of guilt, and that circumstantial evidence must go beyond mere suspicion and conjecture. Appellant claims there is no chain of evidence here, but merely a single link, a single circumstance. Where the evidence of defendant's agency in connection with the crime charged is entirely circumstantial, "the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant's guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence." State v. Walker, Mo.Sup., 365 S.W.2d 597, 601 [5]; State v. Stoner, Mo.Sup., 395 S.W.2d 192. Ordinarily evidence of a single, isolated fact, however incriminating, is not sufficient to support a conviction. State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17; 52 C.J.S. Larceny § 137 c. (1). Furthermore, the mere presence of the accused at the scene of a crime and an opportunity on his part to have committed the offense is not sufficient circumstantial evidence to justify conviction. State v. Castaldi, Mo. Sup., 386 S.W.2d 392; State v. Whitaker, Mo.Sup., 275 S.W.2d 322 [4]. The mere fact that defendant was at the rear of the building at or near the time the building was burglarized is a circumstance entirely consistent with his innocence, and is insufficient to support a conviction in the absence of proof of flight or "other corroborating circumstances." State v. Rutledge, 304 Mo. 32, 262 S.W. 718. Proof, however, that fingerprints found in the place where a crime is committed, "under such circumstances that they could only have been impressed at the time the crime was committed, correspond to those of the accused, may be sufficient proof of identity to sustain a conviction." Anno: Evidence Finger, Palm, or Footprint, 28 A.L.R. 2d 1115, §§ 28, 29. The evidence in this case shows more than mere presence of defendant at the scene of the crime and opportunity to commit the crime. It connects this defendant with the removal of the glass from the door through which the burglar entered. There is the admitted fact that defendant was at the rear door of the shop that night, interested in what was within the building. The glass with the fingerprints thereon, and the enlarged prints from the glass and from defendant's fingerprint card, with the aid of the expert testimony, provided the jury with proof from which it could be found beyond a reasonable doubt that defendant 334 removed the glass from the door. The fingerprints and thumbprint were found at the edge of the piece of glass which had been removed from the door, at and on a portion of the glass which had been covered by the molding, so positioned that it would have been physically impossible to have left the prints there while the glass yet remained in position as a part of the door. The evidence dispels the possibility that defendant left these prints on the glass after the commission of the burglary by another. There was nothing to indicate that these particular fingerprints, at that particular place on the glass, were placed there innocently. There was no attempt to show that the fingerprints were not those of the defendant. That the person who removed the glass could have gained entrance to the building by reaching through the hole and unbolting the door and that whoever entered the building took or participated in the taking of the property that was missing the next morning, follows so reasonably and surely as to exclude any other reasonable hypothesis. The jury was justified in concluding that defendant was the guilty party and that he committed the crimes beyond a reasonable doubt. In an almost identical situation the Court of Criminal Appeals of Texas said: "The presence of appellant's finger print on the portion of the glass covered by the molding is inconsistent with his innocence. It could not have been placed there while the pane was in the door and the molding in place. The evidence was sufficient to authorize the jury's finding. This court has no right to disturb their verdict." In his motion for rehearing appellant contended that the evidence of identity of the fingerprint was not sufficient to sustain the verdict. The court answered: "In determining this question we think the first requisite is to show a reasonable doubt that the finger print found on the glass was placed there by the burglar at the time of the burglary, excluding the hypothesis that it might have been innocently imprinted on the glass at a time prior to or subsequent to the burglary. On this point we think the evidence leaves no room for doubt. The glass was held in the door by a molding. Along the glass at the edge of the molding was a showing of paint. The finger print found was on the glass at a point which had been covered by the the molding, hence impossible to find its way there until the molding was removed. Therefore it seems conclusive that when the glass was removed in order to effect an entrance to the building the burglar at that time left his finger print on the glass after removing the molding. The evidence excludes the idea that appellant ever handled the glass subsequent to the burglary." Grice v. State, 142 Tex. Crim. 4, 151 S.W.2d 211, 221. Prejudicial closing argument? The assistant prosecuting attorney said: "* * * This wasn't a prank. He didn't go in and steal some tennis balls or baseball bats. He went in there and took $700 worth of guns and rifles out of that store. Those shotguns and rifles haven't been returned, they haven't been found. And you can bet your life they are not going to be used for hunting or for any legal purposes. Those are shotguns now. * * " At this point counsel for defendant made an objection and the court said "There's been an objection; let's attempt to stay within the record." No other or further action was requested by the defendant. It is urged that the state thereby implied that the guns were stolen by defendant for the specific purpose of perpetrating violence and, coming as it did when the Watts riot was still fresh in the public mind, was so prejudicial and inflammatory as to deprive defendant of the full and fair consideration of the evidence. This interpretation would require us to reach and stretch the argument beyond the realities of the situation. The plain truth is that the assistant prosecuting attorney did not directly or indirectly refer to Watts, rioting or violence. Defendant was a negro but no reference was made to race. We find nothing in the argument from which the reasonable inference could be drawn 335 that reference was being made to these tender subjects. The "bet your life" argument was irrelevant, nothing on this subject having been put in evidence. The court properly noted the objection and admonished counsel to stay within the record. No request to strike or to instruct the jury to disregard was made, and no other or further action was requested. We find nothing to place the court in error in its ruling. An examination of the record as required by Supreme Court Rule 28.02, V.A. M.R., discloses no error. The judgment is affirmed. WELBORN and HIGGINS, CC., concur. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court. All of the Judges concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516179/	955 F. Supp. 490 (1996) Lisa D. WILLIAMS, et al. v. PORETSKY MANAGEMENT, INC., et al. Civil Action No. CCB-95-2051. United States District Court, D. Maryland. October 15, 1996. 491 John P. Relman, Christine R. Ladd, Washington Lawyer's Committee for Civil Rights and Urban Affairs, Washington, DC and Monica Wagner, Margaret E. Johnson, Terris, Pravlik & Wagner, Washington, DC, for Plaintiffs. Norman G. Schneider, Kamerow & Kamerow, PC, Washington, DC, for Defendants. MEMORANDUM OPINION BLAKE, District Judge. In this case, the plaintiff presents a novel question regarding the type of conduct actionable as discrimination on the basis of sex under the Fair Housing Act, 42 U.S.C. § 3601 et seq. Lisa D. Williams claims that the defendants, the real estate management company that manages Chevet Manor Apartments and its owners, violated the Fair Housing Act, 42 U.S.C. §§ 3604, 3617, because of sexual harassment committed by their employee. She asserts that Harry Little, the porter of Ms. Williams' apartment building, sexually assaulted her in the elevator of the building on July 23, 1993 and then in the laundry room later that same night. The harassment continued after Ms. Williams reported the incident: Mr. Little told other residents about Ms. Williams' complaint, accused her of trying to have him fired, and called her derogatory names. The apartment resident manager, to whom Ms. Williams reported the incident, nevertheless assigned Mr. Little to repair jobs that needed to be done in Ms. Williams' apartment. On Halloween in 1993, a group of masked men frightened Ms. Williams and her son and accused her of making trouble for Mr. Little. Ms. Williams complained following each incident. After the Halloween incident, she asked to be released from her lease, and the property manager refused her request. Ms. Williams is joined in her suit by the Fair Housing Council of Greater Washington (the "FHC"), an organization dedicated to ending discrimination in housing. The defendants now seek summary judgment, arguing that they did not interfere with Ms. William's rights under the Fair Housing Act. First, the defendants argue that Ms. Williams has not made a prima facie case of discrimination in the rental of housing under 42 U.S.C. § 3604(a), because Ms. Williams was never denied the right to rent her apartment. Second, the defendants argue that Ms. Williams was never denied any of the privileges of her rental contract under 42 U.S.C. § 3604(b), because she had access to all parts of the apartment building and even used the "party room," a room available for use by the tenants, for her own surprise 492 birthday party after the alleged incidents occurred. Third, the defendants argue that Ms. Williams was never coerced, intimidated, or threatened because she made a discrimination claim, because she did not file her complaint until the fall of 1995 and no facts exist to show any intimidation, coercion, or threats against her since that time. Finally, relying heavily upon Ms. Williams' failure to report these incidents to the police, the defendants argue that the incident complained of was isolated and trivial and should not serve as a basis for recovery. The defendants also argue that the Fair Housing Council has no standing and that the plaintiffs are not entitled to an award of punitive damages. For the reasons that follow, the defendants' motion for summary judgment will be denied. BACKGROUND Ms. Williams and her son Gary moved into apartment number 602 of the Chevet Manor Apartments in Oxon Hill, Maryland on or about March 1, 1993. (Defs.' Answer, Ninth Defense ¶¶ 9, 11.) On the evening of July 23, 1993, Ms. Williams was styling the hair of some friends in her apartment. (Williams Dep. at p. 96, Pls.' Ex. 2; Dandridge Aff., Pls.' Ex. 13.) About 7:30 p.m., Ms. Williams left her apartment to get some laundry from the apartment laundry room, located in the basement of the building. (Williams Dep. at p. 85, Pls.' Ex. 2.) When Ms. Williams entered the elevator to go down to the basement, Mr. Little, a man employed by Poretsky management to do minor repairs in the building, was already on the elevator. (Id. at pp. 85-87.) While they were in the elevator together, Mr. Little touched or grabbed Ms. Williams' buttocks. (Id. at pp. 87-89.) Ms. Williams immediately pushed Mr. Little away and told him never to touch her. (Id. at p. 89.) Mr. Little exited on the first floor, and Ms. Williams proceeded to the laundry room. (Id. at p. 90.) While Ms. Williams, who was leaning against a table, was waiting for some clothes to finish drying, Mr. Little entered the laundry room. (Id. at p. 92.) Mr. Little put one of his hands on each side of Ms. Williams and pinned her body against the table with his body. (Id. at p. 93.) Mr. Little attempted to kiss Ms. Williams. (Id.) Ms. Williams fought against Mr. Little, but he continued to rub his body, including his penis, against her and would not let her go. (Id. at p. 94; Pls.' Ex. 6.) Ms. Williams was screaming and struggling. Eventually, she managed to free a hand and strike Mr. Little across the face. Mr. Little then ran out of the laundry room. (Williams Dep. at p. 94, Pls.' Ex. 2.) The following day, Mr. Little came to Ms. Williams apartment door and pounded on it, demanding that Ms. Williams speak to him. (Id. at pp. 111-13; Dandridge Aff., Pls.' Ex. 13.) Ms. Williams refused to answer the door. On or about July 26, 1993, Ms. Williams delivered a letter, (Pls.' Ex. 6), to the resident manager of the Chevet Manor Apartments, Dan Paynter, that described the incidents on July 23, 1993 and July 24, 1993. (Williams Dep. at p. 50, Pls.' Ex. 2; Hampton Dep. at p. 48, Pls.' Ex. 14.) On or about July 29, 1993, Mr. Paynter met with Ms. Williams and a friend of Ms. Williams, Ms. Hampton. (Defs.' Answer, Ninth Defense ¶ 17.) Mr. Paynter assured Ms. Williams that Mr. Little either would be fired or transferred from Chevet Manor. (Williams Dep. at p. 53, Pls.' Ex. 2.) Mr. Paynter did meet with Mr. Little but Mr. Little denied the allegations. (Paynter Dep. at p. 73, Pls.' Ex. 11.) Mr. Paynter reported this incident to the property manager, Don Thompson, and asked Mr. Little to stay away from Ms. Williams, (Id. at 75), but no other action was taken. Instead of keeping Mr. Little away from Ms. Williams, Mr. Paynter continued to assign Mr. Little to do repairs in Ms. Williams' apartment. Later in July, Ms. Williams' air conditioning broke down. (Williams Dep. at p. 132, 178-79, Pls.' Ex. 2.) Mr. Paynter offered to send Mr. Little to do the work. (Id.) Because Ms. Williams refused to allow Mr. Little into her apartment, she was forced to wait over a month for the repairs to be done. (Id.) On September 27, 1993, Mr. Paynter assigned Mr. Little to repair a leaky faucet in Ms. Williams' apartment. (Paynter Dep. at pp. 110-11.) When Mr. Little saw Ms. Williams in the apartment building, he harassed her verbally. As she walked past him one day in October, 493 Mr. Little, in a voice loud enough for her to hear, said that Ms. Williams was the bitch that was trying to get him fired. (Williams Dep. at pp. 261-63, Pls. Ex. 2.) On another occasion Mr. Little called Ms. Williams a freak. (Id.) Ms. Williams reported both incidents to Dan Paynter. (Id.) On October 31, 1993, Ms. Williams and her son were approached by two men in masks whom she had seen earlier with Mr. Little. (Id. at pp. 136-39.) They tried to touch Ms. Williams and said that Mr. Little had told them she was a freak. (Id.) Ms. Williams managed to push past the men and enter her apartment. After this incident, she wrote a second letter of complaint to Mr. Paynter and asked to be released from her lease. (Pls.' Ex. 7.) Mr. Thompson, the property manager, refused to release Ms. Williams from her lease. (Thompson Dep. at pp. 40, 69-70, Pls.' Ex. 8.) In the middle of December 1993, Ms. Williams left her apartment. (Williams Dep. at p. 154, Pls.' Ex. 2.) In October and November of 1995, Dr. Elizabeth Morrison completed a psychological evaluation of Ms. Williams and diagnosed her as suffering from Post Traumatic Stress Disorder and Major Depression as a consequence of the events that occurred at Chevet Manor Apartments. (Report of Elizabeth Morrison, M.D., Pls.' Ex. 23.) ANALYSIS I. Standing of the Fair Housing Council of Greater Washington Before addressing the merits of Ms. Williams' claim, the court must decide whether the Fair Housing Council of Greater Washington (the "FHC") has standing in this matter. Ms. Williams is joined in this suit by the FHC, a private, nonprofit organization dedicated to promoting equal housing opportunity and eliminating discriminatory housing practices based on race, color, religion, sex, national origin, familial status, or handicap. (Berenbaum Decl. ¶ 2, Pls.' Ex. 3.) The FHC has devoted significant resources to counseling Ms. Williams and investigating her complaint. (Id. ¶ 4.) To date, the FHC has spent over 122 hours on matters related to Ms. Williams' complaint and case, at a cost to the organization of $12,200. (Id.) The FHC claims that the defendants' discriminatory actions have caused the FHC to divert its scarce resources to identifying and counteracting the defendants' discriminatory practices, taking time and money from the FHC's usual educational and counseling activities. (Id. at ¶ 5.) The Supreme Court has held that an organization has standing to sue in its own right under the Fair Housing Act when the alleged discriminatory practices have "perceptibly impaired" the organization's usual efforts against discrimination. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S. Ct. 1114, 1124-25, 71 L. Ed. 2d 214 (1982). In Havens, the discriminatory activity involved steering black potential tenants away from the defendants' apartment complexes. Id. at 367 The organization spent considerable time identifying and counteracting the discriminatory practices, by sending "testers" to the apartment complexes in question to find out if the "testers" would be offered housing. Id. at 368, 379, 102 S.Ct. at 1118-19, 1124-25. If not for the defendants' discrimination, the organization could have devoted its time and money to other activities. One circuit has emphasized that "Havens makes clear ... that an organization establishes Article III injury if it alleges that the purportedly illegal action increases the resources the group must devote to programs independent of its suit challenging the action." Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.), cert. denied, 498 U.S. 980, 111 S. Ct. 508, 112 L. Ed. 2d 521 (1990). In Spann, the defendants were accused of placing advertising with white models to the exclusion of black models. Id. at 25. The court agreed that the organization had standing, however, and found that "increased education and counseling could plausibly be required ... to identify and inform minorities, steered away from defendants' complexes by the challenged ads, that defendants' housing is by law open to all." Id. at 28-29. In this circuit, at least one district court has further refined this standard, finding that "[w]hile it may be true that some of this time was spent on activities necessary to the instant lawsuit, such contention does not negate the establishment of standing." Saunders v. General Servs. 494 Corp., 659 F. Supp. 1042, 1052 (E.D.Va.1987) (noting that the organization had spent considerable time, investigating the complaint and trying to resolve it). Thus, an organization has standing under the Fair Housing Act when it demonstrates that it has: (1) devoted significant resources to identifying and counteracting the defendant's discriminatory practice; and (2) such practices have frustrated the organization's efforts against discrimination. Saunders, 659 F.Supp. at 1052. The FHC seems to have met this standard. It has devoted significant resources to identifying and counteracting the defendants' practices, and because time was spent on these efforts, the organization was prevented from spending time on other efforts to end discrimination in the housing area. Paragraph 4 of Mr. Berenbaum's Declaration (Pls.' Ex. 3) describes in the most detail the FHC's activities leading up to the suit. Mr. Berenbaum states that time and money were spent investigating Ms. Williams' complaint to the FHC and on this case. (Berenbaum Decl. ¶ 4.) While investigating her complaint seems related to the development of this lawsuit, it also can be regarded as an independent activity associated with the identification and counteraction of the defendants' discriminatory practices. See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir.1993) (finding that the organization had standing where it had devoted substantial time to identifying the parties involved, attending a conciliation conference, and developing the lawsuit itself); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir.1990) ("[T]he only injury which need be shown to confer standing on a fair-housing agency is deflection of the agency's time and money from counseling to legal efforts directed against discrimination."). Thus, the FHC has demonstrated a palpable injury to itself and will be permitted to proceed. SUMMARY JUDGMENT STANDARD Rule 56 (c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted when there is no genuine dispute as to material fact, and the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). Once the moving party has met its initial burden, the nonmoving party must set forth specific facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Adickes, 398 U.S. at 160 n. 22, 90 S.Ct. at 1610 n. 22. In deciding the motion, the court must view the material facts and the inferences properly drawn therefrom in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14; Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1609. Summary judgment is inappropriate, even where there is no dispute as to the basic facts, if the parties disagree on the inferences that may be drawn from the undisputed facts. Morrison v. Nissan Co., 601 F.2d 139, 141 (4th Cir.1979). The substantive law identifies those facts, or inferences therefrom, that are material and also identifies the standard of proof against which the presence or absence of material factual dispute is to be gauged. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. I. Sexual Harassment as a violation of the Fair Housing Act Ms. Williams is asking this court to permit her to bring a claim of sex discrimination under the Fair Housing Act (Title VIII), because Mr. Little sexually harassed her and because of the harassment that she suffered after reporting the incident to the resident manager, Mr. Paynter. The Fourth Circuit has not yet decided the question whether a plaintiff may recover for sexual harassment under the Fair Housing Act's prohibition against sex discrimination. Because the Fourth Circuit consistently has understood Title VII and Title VIII to provide similar protections, however, this court will recognize the cause of action and permit Ms. Williams to attempt to prove a claim on this basis. 495 To date, six other federal courts have considered whether a plaintiff should be permitted to bring a claim of sexual harassment under the Fair Housing Act. DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir.1996) ("Like the Tenth Circuit, we recognize a hostile housing environment cause of action. ..."); Honce v. Vigil, 1 F.3d 1085, 1088 (10th Cir.1993) (holding that the sex-based discrimination prohibited in the Fair Housing Act includes sexual harassment); Beliveau v. Caras, 873 F. Supp. 1393, 1396 (C.D.Cal.1995) ("[I]t is beyond question that sexual harassment is a form of discrimination."); New York ex rel. Abrams v. Merlino, 694 F. Supp. 1101, 1104 (S.D.N.Y.1988) (recognizing sexual harassment as permissible cause of action under Fair Housing Act even where no loss of housing is claimed); Grieger v. Sheets, 689 F. Supp. 835, 840-41 (N.D.Ill.1988) (holding that sexual harassment is actionable under the Fair Housing Act); Shelhammer v. Lewallen, 1 Fair Housing-Fair Lending Cases (P-H) ¶ 15, 472, at 135 (W.D.Ohio 1983) ("I conclude that it is entirely appropriate to incorporate this doctrine [sexual harassment] into the fair housing area."), aff'd, 770 F.2d 167 (6th Cir.1985) (unpublished opinion). Each of these courts has had little trouble in finding that sexual harassment is a proper basis for recovery under the Fair Housing Act. DiCenso, at 1008; Honce, 1 F.3d at 1088; Beliveau, 873 F.Supp. at 1396; Abrams, 694 F.Supp. at 1104; Grieger, 689 F.Supp. at 840-41; Shellhammer, 1 Fair Housing-Fair Lending Cases ¶ 15,472, at 136. The courts generally rely upon three grounds in finding that sexual harassment claims are actionable under the Fair Housing Act. First, sexual harassment is actionable under Title VII in the employment context. Because Title VII and Title VIII share the same purpose to end bias and prejudice sexual harassment should be actionable under Title VIII. See Beliveau, 873 F.Supp. at 1397 ("[T]he purposes underlying Titles VII and VIII are sufficiently similar so as to support discrimination claims based on sexual harassment regardless of context."); Abrams, 694 F.Supp. at 1104 ("[T]he `two statutes are part of a coordinated scheme of federal civil rights laws enacted to end discrimination.'") (quoting Huntington Branch, NAACP v. Huntington, 844 F.2d 926, 934 (2d Cir.1988)); Shellhammer, 1 Fair Housing-Fair Lending Cases ¶ 15, 472, at 135-36 ("[B]oth statutes are designed to eradicate the effects of bias and prejudice. Their purposes are, clearly, the same; only their field of operation differs."). Second, other courts have so held. See DiCenso, 96 F.3d 1004, 1008; Beliveau, 873 F.Supp. at 1396-97 ("Since Shellhammer, additional courts have agreed that sexual harassment is an actionable form of housing discrimination.") (citing to Honce and Abrams); Abrams, 694 F.Supp. at 1104 ("[T]he plaintiffs finds [sic] support from other jurisdictions in which courts have held that sexual discrimination under the Fair Housing Act encompasses claims of sexual harassment.") (citing to Grieger and Shellhammer). Third, the Supreme Court has held that sexual harassment is a form of sex discrimination. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986). After reviewing these cases, few as they may be, it is not difficult to conclude that this court should recognize sexual harassment as actionable under Title VIII. The Fourth Circuit has recognized that sexual harassment is actionable under Title VII. See Katz v. Dole, 709 F.2d 251, 254 (4th Cir.1983). It also has recognized the shared purpose of Title VII and Title VIII to end discrimination. See Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir.1984) ("We and other courts of appeals have recognized the parallel objectives of Title VII and Title VIII."). Moreover, in recognition of these similar aims, it has been willing to import doctrines or interpretations of language accepted under Title VII to Title VIII claims. See Pinchback v. Armistead Homes Corp., 907 F.2d 1447, 1451 (4th Cir.) ("[W]e do not consider novelty a bar to the application of [a] doctrine [previously employed in fair employment contexts to fair housing contexts]."), cert. denied, 498 U.S. 983, 111 S. Ct. 515, 112 L. Ed. 2d 527 (1990); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir.1982) (noting that "some courts have reasoned that since the antidiscrimination objectives 496 of Title VIII are parallel to the goals of Title VII, the ... rationale [applied in Title VII cases] must be applied in Fair Housing Act cases.... We agree with that analysis"). The defendants have cited no case holding that a plaintiff may not recover for sexual harassment under Title VIII, nor have the defendants offered any persuasive reasons for not holding this conduct actionable. After recognizing this cause of action, the next issue is to determine what a plaintiff must demonstrate to make a prima facie case of sexual harassment. Under Title VII, courts have recognized two types of sexual harassment claims quid pro quo and hostile environment. See Katz, 709 F.2d at 254; Henson v. City of Dundee, 682 F.2d 897, 908 n. 18 (11th Cir.1982). Ms. Williams is making a claim of hostile housing environment sexual harassment. (See Pls.' Opp'n at pp. 20-22.) The plaintiff urges the court to follow the standards promulgated in a HUD administrative decision, HUD v. DiCenso, HUD Admin. Decis. ¶ 25,101, at 25,909 (April 18, 1995), arguing that HUD's interpretation should be accorded great weight. (Pls.' Opp'n at p. 21.)[1] Other courts have turned to Title VII cases to guide them in deciding claims of sexual harassment under the Fair Housing Act. See DiCenso, 96 F.3d 1004, 1008 ("[We] begin our analysis with the more familiar Title VII standard."); Honce, 1 F.3d at 1088 ("[W]e will look to employment discrimination cases for guidance."). District courts in the Fourth Circuit also have turned to Title VII for guidance in determining the standards applicable to Title VIII claims. See Williams v. 5300 Columbia Pike Corp., 891 F. Supp. 1169, 1178 (E.D.Va.1995) ("In evaluating Fair Housing Act claims, courts employ the same method of analysis used in Title VII employment discrimination cases."); McCauley v. City of Jacksonville, N.C., 739 F. Supp. 278, 281 n. 2 (E.D.N.C.1989) (noting that the standards for deciding claims under §§ 1981, 1982, and Title VII were the same, and thus, "[a]lthough this is not a Title VII action, the `parallel goals' of Title VII and Title VIII make it appropriate to treat plaintiff's civil rights and Fair Housing act claims together"), aff'd, 904 F.2d 700 (4th Cir.1990). In the Fourth Circuit, a prima facie case of hostile environment sexual harassment in the work place is made upon showing that: "(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer." Spicer v. Virginia Dep't of Corrections, 66 F.3d 705, 710 (4th Cir.1995) (en banc); accord Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir.1989), aff'd in relevant part, vacated on other grounds, 900 F.2d 27 (1990) (en banc). A similar test should be applied in the hostile housing environment context.[2] Applying the facts of Ms. Williams' case to the elements outlined above, the first, second, and fourth elements have been met. Mr. Little's conduct was unwelcome, and it was based on the sex of the plaintiff but for her sex she would not have been subjected to the harassment. Moreover, this conduct was imputable on some basis to the defendants. Conduct is imputable to a landlord, if the landlord "knew or should have known of the harassment, and took no effectual action to correct the situation." Katz, 709 F.2d at 256; accord Spicer, 66 F.3d at 710. Indeed, in many circumstances under the Fair Housing Act, the duty not to discriminate is non-delegable, and an employer may be held responsible for the discriminatory conduct of his employees, even though the conduct was 497 not authorized. See Walker v. Crigler, 976 F.2d 900, 904 (4th Cir.1992); Saunders v. General Servs. Corp., 659 F. Supp. 1042, 1059 (E.D.Va.1987). Ms. Williams reported each incident to management at Chevet Manor, either orally or in writing. In response, the resident manager, Mr. Paynter, failed to transfer or fire Mr. Little as promised and continued to assign Mr. Little to do repairs in Ms. Williams' apartment. When she asked to be let out of her lease in November, Mr. Thompson, the property manager, refused to end the lease. Thus, on this record, it appears that the landlord knew or should have known of the incidents and took little, if any, action to correct the situation. The third element, whether the harassment to which the plaintiff was subjected was sufficiently severe or pervasive to alter the plaintiff's conditions of tenancy and to create an abusive living environment, is less obvious. Viewing Ms. Williams' evidence in the light most favorable to her, however, it appears that a fact finder reasonably could find that it has been met. "To determine whether the harassment was sufficiently severe or pervasive, the fact finder must examine the evidence both from an objective perspective and from the point of view of the victim." Paroline, 879 F.2d at 105. As the Supreme Court recently has clarified, Conduct that is not severe or pervasive enough to create an objectively hostile or abusive ... environment an environment that a reasonable person would find hostile or abusive is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's [environment].... Harris v. Forklift Systems, Inc., 510 U.S. 17, 20-22, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993). Ms. Williams has offered evidence that she perceived the events in question as significantly affecting her environment. (See Williams Dep. at pp. 131, 140, Pls.' Ex. 2; Report of Elizabeth Morrison, M.D., Pls.' Ex. 23.) Ms. Williams decided to move to avoid further harassment. (Id.) In addition, her doctor will testify that Ms. Williams suffers from Post Traumatic Stress Disorder as a result of the harassment that she suffered and the indifference shown by the Chevet Manor management. (Id.) Whether a reasonable person would have been detrimentally affected by the harassment to which Ms. Williams was subjected is "quintessentially a question of fact." Paroline, 879 F.2d at 105. Summary judgment should not be granted unless no fact finder reasonably could conclude that the conduct was so severe or pervasive as to create an abusive living environment. Id. The abusive environment can be established "only by looking at all the circumstances[:] ... the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with [a tenant's living experience]." Harris, 510 U.S. at 23, 114 S.Ct. at 371. In Paroline v. Unisys Corp., the harasser, Mr. Moore, made suggestive remarks to the plaintiff and rubbed her back on one occasion. Paroline, 879 F.2d at 103. The culminating event occurred one afternoon in January when he drove the plaintiff home from the office. On the way he repeatedly tried to kiss her and upon arrival at her home insisted on coming in and began kissing the plaintiff and rubbing his hands up and down her back. Id. The plaintiff eventually persuaded him to leave. Id. The next day the plaintiff complained to management. Id. The court found that "[a] reasonable person could find such behavior not merely offensive, but traumatic as well." Id. at 105-06. The facts of this case appear most similar to the facts of Paroline. Although in this case no harassment occurred leading up to the incidents in the elevator and the laundry room, those particular events were severe. Mr. Little pinned Ms. Williams against a table, rubbed his body against hers, and repeatedly attempted to kiss her, until she struck him. In addition, Mr. Little continued to harass Ms. Williams in retaliation after she reported the incident, calling her derogatory names and embarrassing her by repeating her accusations to other residents. The other defendants took no effectual action to correct the problem. Thus, while Ms. 498 Williams' claim may have lacked the pervasiveness sometimes evidenced in a hostile environment claim, see e.g., Amirmokri v. Baltimore Gas and Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995) (holding the harassment was sufficiently pervasive because it occurred almost daily for six months), the severity seems to match that found in Paroline. In addition, Ms Williams was harassed over a period of three and a half months, until she left her apartment. In combination, these facts reasonably would support a finding of the required severity or pervasiveness. This case involves a more serious incident than did Raley v. Board of St. Mary's County Comm'rs, 752 F. Supp. 1272 (D.Md. 1990), in which the court found that "various offensive touchings and other sexual innuendos" were not sufficiently severe or pervasive to support a claim for sexual harassment. Id. at 1275, 1280. In addition, as the plaintiffs point out, although courts have looked to employment cases to determine housing claims, the settings are not completely analogous. At least one court has recognized that sexual harassment in the home may have more severe effects than harassment in the workplace. See Beliveau, 873 F.Supp. at 1397 n. 1. Thus, Ms. Williams' claims sufficiently allege facts upon which a jury reasonably could find that the conduct alleged was sufficient to create a hostile environment. Accordingly, the defendants' motion for summary judgment will be denied. II. Punitive Damages The defendants also complain that the plaintiffs are not entitled to an award of punitive damages as a matter of law. "Punitive damages are awarded in federal question cases when a defendant has acted `with actual knowledge that he was violating a federally protected right or with reckless disregard of whether he was doing so.'" Pinchback v. Armistead Homes Corp., 689 F. Supp. 541, 556 (D.Md.1988) (quoting Miller v. Apartments and Homes of N.J., Inc., 646 F.2d 101, 111 (3d Cir.1981)) (refusing to award punitive damages where the defendants had been adequately punished through award of attorneys' fees), cert. denied, 498 U.S. 983, 111 S. Ct. 515, 112 L. Ed. 2d 527 (1990); accord Fenwick-Schafer v. Sterling Homes Corp., 774 F. Supp. 361, 366 (D.Md.1991) (permitting question of punitive damages to survive summary judgment stage because a sufficient dispute of fact existed as to the defendants' degree of knowledge). In this case, Ms. Williams alleges that the defendants knew about Mr. Little's assault and took little action to remedy the harm. (Williams Dep. at p. 177, Pls.' Ex. 2.) Mr. Paynter continued to assign Mr. Little to perform repairs in Ms. Williams' apartment, despite her strenuous objections. (Id. at p. 178.) Ms. Williams also alleges that Mr. Paynter told her that this was not the first time the management had received complaints about Mr. Little. (Id. at 223.) Accordingly, it appears that a question of fact has been generated whether the defendants acted with "reckless disregard" of Ms. Williams' federal rights. A punitive damage award will not be precluded at this stage. Accordingly, summary judgment is denied on all counts. A separate order follows. ORDER For the reasons stated in the accompanying Memorandum Opinion, it is hereby Ordered that: 1. the defendants' motion for summary judgment is DENIED; and 2. the clerk shall mail copies of the accompanying Memorandum Opinion and this Order to all parties. NOTES [1] The elements of the claim as stated by HUD are: 1. complainant is a member of a protected class; 2. complainant was subject to unwelcome sexual harassment; 3. the harassment complained of was based on sex; 4. the harassment complained of affected a term, condition, or privilege of housing; 5. if vicarious liability is asserted, the defendants knew or should have know of the harassment and failed to take prompt effective remedial action. DiCenso, HUD Admin. Decis. at 25,909. [2] The third element may be stated as: whether the conduct is sufficiently severe or pervasive to alter the plaintiff's conditions of tenancy and to create an abusive living environment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516196/	913 A.2d 78 (2006) 389 N.J. Super. 281 In the Matter of a GRAND JURY SUBPOENA ISSUED TO Amato A. GALASSO, esq. Superior Court of New Jersey, Appellate Division. Argued November 9, 2006. Decided December 12, 2006. 82 Marco A. Laracca, Orange, argued the cause for appellant, Amato A. Galasso, Esq. (Bio & Laracca, attorneys; Mr. Laracca, on the brief). John S. Redden, Chief Assistant Prosecutor, argued the cause for respondent, State of New Jersey (Michael M. Rubbinaccio, Morris County Prosecutor, attorney; Mr. Redden, on the brief). Before Judges CUFF, WINKELSTEIN and FUENTES. The opinion of the court was delivered by WINKELSTEIN, J.A.D. Appellant was the attorney for the principals of a social club where illegal gambling activity had allegedly been conducted. A Morris County Grand Jury subpoenaed him to testify and produce documents in connection with an investigation of the club. Based in part on a certification of the chief assistant prosecutor submitted ex parte for in camera review, by order of December 16, 2005, the Law Division judge denied appellant's motion to quash the subpoena. By that same order, the judge also denied appellant's motion to obtain access to a copy of the ex parte certification. On leave granted, appellant claims that the judge erred by considering the ex parte certification without first allowing him access to it; the attorney-client privilege and the attorney work product privilege exempt him from testifying before the grand jury; and the State abused the grand jury process by issuing a subpoena after indictments had been handed down. We disagree and affirm. Given the secrecy underlying the grand jury investigation, the judge was entitled to rely on the ex parte certification without informing appellant of its specific contents. Further, neither the attorney-client privilege nor the attorney work product privilege exempt appellant from testifying before the grand jury, although he may raise the attorney-client privilege in response to specific questions when he testifies. Finally, we agree with the trial judge that issuance of the subpoena after indictments were handed down was not an abuse of the grand jury process. 83 I. Facts Some discussion of the facts is necessary to place the issues in context. In 2004, appellant represented a number of persons involved in the formation of a social club, known as the 5th Street Club, LLC (the club), to be located in a warehouse in Dover. His clients included Richard and Jennifer Winstock, Thomas Juskus, and Scott and Robin Furer.[1] At an August 2004 meeting of the Dover Zoning Board of Adjustment, appellant represented the club and its principals with regard to a request for a variance to operate the social club in an area zoned for industrial use. Richard Winstock testified before the Board that the club would be "an amusement and recreation center for adults . . . consisting of business type people . . . after hours executives . . . [and] law enforcement officers." A variety of games would be available to patrons, including billiards, board games, chess, monopoly, and backgammon. Neither Winstock nor appellant informed the Board that the club would be promoting or managing gambling activity. The Board granted the variance; the club allegedly began gambling activities on November 19, 2004. On December 30, 2004, a detective from the Morris County Prosecutor's Office received a facsimile transmission from appellant, consisting of a three-page letter from appellant to the owners of the club, titled "Opinion Letter regarding 5th Street Club, LLC operation." The letter stated, in part, that "[t]his Opinion Letter is provided in the course of an attorney-client relationship. Publication of this Letter is intended as a limited waiver of such privilege. All other matters protected by the attorney-client and work-product privileges with respect to such relationship are hereby reserved." While the letter stated that the prosecutor's office had requested an opinion regarding the legality of the activities conducted in the club, the State claims it is not aware of such a request. In the letter, appellant opined that although members of the club had the option to wager on the gaming activities conducted there, such as air hockey, billiards, bridge, chess, darts, foosball, gin rummy, ping pong, pinochle, and poker, the "activities carried out at the 5th Street Club [did] not violate the law, because the Club [was] not acting as a gambling resort." Club members would be permitted to wager on the outcome of games played there as long as "no one, including the Club, act[ed] as a bookmaker," and so long as appellant's "client [did] not profit or receive remuneration for any bet or wager [placed] . . . by the individual members." The letter concluded: "if 5th Street Club, LLC operates [its] establishment in the manner in which it was described to me, the Club is not in violation of New Jersey Law." On August 30, 2005, the grand jury indicted Richard and Jennifer Winstock, Thomas Juskus, Scott and Robin Furer, and Richard Wagner on multiple counts of conspiracy, official misconduct, perjury, and maintaining a gambling resort. On October 31, 2005, the grand jury issued a subpoena duces tecum and ad testificandum, ordering appellant to appear before it to testify and bring documents in connection with his representation of the club. After appellant moved to quash the subpoena, the State, in opposition, asked the court to review in camera an ex parte certification prepared by the chief assistant prosecutor. Appellant then moved to compel access to the certification. The trial court denied both the motion to quash and motion to compel access. The court 84 granted appellant's request for a stay of the subpoena pending appeal. After the return of the indictment, Thomas Juskus, the Winstocks, and Richard Wagner raised the defense of "Ignorance or Mistake," pursuant to N.J.S.A. 2C:2-4(c), "inten[ding] to rely on a defense of `Mistake of Law Due to Bad Legal Advice' (said advice as set forth in the opinion letter)." According to the State, counsel for each of the Furers orally informed the chief assistant prosecutor that they both intended to rely on a defense of ignorance or mistake based on advice of counsel, and acknowledged that this defense constituted a waiver of the attorney-client privilege. The Winstocks, Juskus, and Wagner also waived their claims of attorney-client privilege, although new counsel for Juskus later revoked the waiver. II. Function of the Grand Jury The grand jury "has always occupied a high place as an instrument of justice" in New Jersey's legal system, serving the dual purpose of determining whether an accused should be subjected to trial, while simultaneously safeguarding citizens against arbitrary, oppressive and unsupported criminal proceedings. In re the Essex County Grand Jury Investigation, 368 N.J.Super. 269, 279-80, 845 A.2d 739 (Law Div.2003) (quoting State v. Del Fino, 100 N.J. 154, 165, 495 A.2d 60 (1985)); see also State v. Sivo, 341 N.J.Super. 302, 325, 775 A.2d 227 (Law Div.2000) ("[t]he grand jury acts as the conscience of the community"). It also operates as an independent investigatory body, free from the constraints of the rules of evidence and procedure. Essex County Grand Jury, supra, 368 N.J.Super. at 280, 845 A.2d 739. The grand jury plays a significant role in the administration of criminal justice, and courts accordingly demonstrate a marked reluctance to intervene in the grand jury process. See ibid. Though judicial supervision of its activities is limited, ibid., the grand jury exercises its powers under the authority and supervision of the judiciary. State v. Arace Bros., 230 N.J.Super. 22, 33-34, 552 A.2d 628 (App.Div.1989). A grand jury is entitled to engage in an exhaustive investigation. State v. Francis, 385 N.J.Super. 350, 358, 897 A.2d 388 (App.Div.), leave to appeal granted, 188 N.J. 344, 907 A.2d 1006 (2006); see also State v. Johnson, 287 N.J.Super. 247, 259, 670 A.2d 1100 (App.Div.) (when grand jury conducts its investigation, society's interest is best served by a thorough and extensive investigation), certif. denied, 144 N.J. 587, 677 A.2d 759 (1996); In re Grand Jury Subpoena Duces Tecum, 143 N.J.Super. 526, 535, 363 A.2d 936 (Law Div.1976) ("a grand jury is . . . permitted wide latitude in . . . its investigation"). Because the grand jury's task is to inquire into the existence of possible criminal conduct and to return only indictments that are well founded, its "investigative powers are necessarily broad." Francis, supra, 385 N.J.Super. at 358, 897 A.2d 388. Courts grant leeway to a grand jury's decision to conduct an investigation and issue subpoenas; the grand jury itself is the "best judge of what evidence it deems necessary in the pursuit of its investigation." See United States v. Doe, 429 F.3d 450, 453 (3d Cir.2005). "How much information is `enough' is a matter for the judgment of the grand jurors and the prosecution rather than the court." Ibid. The grand jury's power to subpoena witnesses is essential to its function. Johnson, supra, 287 N.J.Super. at 258, 670 A.2d 1100. The grand jury wields its exceptional powers not on behalf of the prosecutor, but in its capacity as an arm of the court. Arace Bros., supra, 230 N.J.Super. at 33, 552 A.2d 628. A prosecutor possesses 85 no pretrial subpoena power independent of the grand jury. Johnson, supra, 287 N.J.Super. at 258, 670 A.2d 1100; State v. Hilltop Private Nursing Home, Inc., 177 N.J.Super. 377, 389, 426 A.2d 1041 (App. Div.1981) ("[a] prosecutor, unlike a grand jury, does not have the power to order any individual to appear before him"). Nevertheless, the prosecutor directs the investigation and proposes witnesses to be subpoenaed, Johnson, supra, 287 N.J.Super. at 258, 670 A.2d 1100, and issues subpoenas in the grand jury's name. State v. McAllister, 184 N.J. 17, 34-35, 875 A.2d 866 (2005) (stating, "a grand jury does not have to initiate the subpoena process because the prosecutor `must be given leeway in marshaling evidence before a grand jury'" (quoting Hilltop, supra, 177 N.J.Super. at 389, 426 A.2d 1041)). III. The Ex Parte Certification Bringing these principles to bear, we turn first to the court's order denying appellant's motion to compel access to the ex parte certification submitted to the court by the State. While we may not disclose the specifics of the certification, in general terms, it describes the nature of the grand jury investigation, details the reasons the State required appellant to testify, and provides facts supporting those reasons. The certification reveals facts pertaining to an ongoing investigation to determine if individuals not yet indicted could be criminally culpable and whether additional charges were warranted. The State believes that publication of the specific facts contained in the certification could impair the investigation. While no New Jersey case has directly addressed the propriety of the submission of an ex parte certification in this context, in a footnote in In re Grand Jury Subpoenas Duces Tecum Served by the Sussex County Grand Jury, 241 N.J.Super. 18, 23, 574 A.2d 449 (App.Div.1989), we kept sealed "an affidavit [of the prosecutor] . . . describing in great detail much of what had transpired before the grand jury." Although we recognized that the subpoenaed witness's "ability to argue the merits of the issue[] . . . [was] hampered by the fact that the prosecutor's affidavit [was] shrouded in secrecy, . . . we [were] concerned . . . with an ongoing grand jury investigation and, thus, [we concluded that] to unseal the prosecutor's affidavit would substantially damage the grand jury's inquiry." Id. at 24 n. 2, 574 A.2d 449. Federal "courts of appeals have held that a court may consider the government's ex parte submission in order to preserve the secrecy of the grand jury proceedings and have rejected . . . due process argument[s]" to the contrary. (In re Grand Jury Subpoena as to C97-216, 187 F.3d 996, 998 (8th Cir.1999)); see also In re Grand Jury Subpoena, 223 F.3d 213, 219 (3d Cir.2000) (noting that the Third Circuit decided the issue the same way as the Second, Fourth, Seventh, Eighth, Ninth and Tenth Circuits). These courts have done so "confident that the [trial] courts will vigorously test the factual and legal bases for any subpoena." Ibid. Accordingly, federal district courts enjoy considerable discretion in determining whether an ex parte affidavit submitted by the government is sufficient to enforce a subpoena. Id. at 216. The various means of testing the sufficiency of an ex parte affidavit include discovery, in camera inspection, additional affidavits and a hearing. Id. at 219. The federal decisions permitting the use of ex parte certifications in the grand jury context are predicated, in significant part, on the secrecy historically afforded grand jury proceedings. New Jersey, too, recognizes the need for secrecy 86 in grand jury proceedings. See R. 3:6-7 ("the requirement as to secrecy of proceedings of the grand jury shall remain as heretofore, and all persons . . . shall be required to take an oath of secrecy before their admission thereto"); see also Daily Journal v. Police Dep't of Vineland, 351 N.J.Super. 110, 124, 797 A.2d 186 (App. Div.) (stating that Rule 3:6-7 "implements the historical requirement as to the secrecy of grand jury proceedings"), certif. denied, 174 N.J. 364, 807 A.2d 195 (2002). "It has long been recognized that the proper function of [the State's] grand jury system depends upon the secrecy of the proceedings." Daily Journal, supra, 351 N.J.Super. at 124, 797 A.2d 186. Secrecy ensures that witnesses will testify fully, without fear of retribution or inducement; ensures that grand jurors will deliberate freely and openly; prevents targets of a grand jury investigation from fleeing; and protects innocent persons whose names have been mentioned in connection with a grand jury investigation, but who have not been, and may never be, charged. Ibid.; Arace Bros., supra, 230 N.J.Super. at 36, 552 A.2d 628. A grand jury is permitted wide latitude in conducting investigations. In re Grand Jury Subpoena Duces Tecum, supra, 143 N.J.Super. at 535, 363 A.2d 936; see also In re Addonizio, 53 N.J. 107, 126, 248 A.2d 531 (1968). Consequently, the State does not bear a heavy burden to overcome a motion to quash a grand jury subpoena duces tecum. Where the validity of a grand jury subpoena duces tecum is challenged, to overcome the challenge, the State need preliminarily establish only: (1) the existence of a grand jury investigation and (2) the nature and subject matter of that investigation. In re Grand Jury Subpoena Duces Tecum, 167 N.J.Super. 471, 472, 401 A.2d 258 (App.Div.1979). The burden need not be met by affidavit or other formal proofs, but may be satisfied by a simple representation by counsel that a grand jury investigation had been commenced and a recitation of the nature of the investigation. Ibid. The State need only show that the documents subpoenaed bear some possible relationship, however indirect, to the grand jury investigation. Id. at 473, 401 A.2d 258. Where a witness is compelled to produce documents and objects on the grounds that the subpoena is unduly oppressive, the State's burden is to demonstrate the relevance of the requested documents by a "very light and minimal" showing. In re Grand Jury Subpoena Duces Tecum, supra, 143 N.J.Super. at 536, 363 A.2d 936. Though these decisions speak only to a subpoena duces tecum, they demonstrate the limited burden the State carries to justify a subpoena. In this case, the court inspected the certification in camera and allowed appellant and the defendants to argue their positions regarding the certification and the issuance of the subpoena. This procedure was sufficient to test the sufficiency of the ex parte certification. See In re Grand Jury Subpoena, supra, 223 F.3d at 219 (court has many methods available to test sufficiency of ex parte certification). Indeed, the prosecutor here could have opposed the motion to quash simply on his representations, without the necessity of providing the court with formal proofs. See McAllister, supra, 184 N.J. at 34, 875 A.2d 866. The reasons for grand jury secrecy are applicable here. The certification describes the nature of the ongoing investigation, provides the names of persons not yet indicted, and gives facts concerning their possible involvement in criminal activities. While nondisclosure of the contents of the certification may hamper appellant's ability to challenge the subpoena, 87 on balance, we agree with the State that disclosure could jeopardize the grand jury's continuing investigation. See In re Grand Jury Proceedings, 867 F.2d 539, 540 (9th Cir.1989) (disclosure of sensitive grand jury materials could seriously impede the function of the grand jury). A trial court's acceptance of an ex parte certification is a matter of discretion. In re Grand Jury Subpoena, supra, 223 F.3d at 216. Under the facts here, we conclude that the court did not abuse its discretion in permitting the State to submit the ex parte certification. IV. Appellant's Claims of Privilege A. Attorney-Client Privilege We turn next, then, to appellant's claim that his right to raise the attorney-client privilege excuses him from testifying before the grand jury. We disagree. A blanket motion to quash a subpoena ad testificandum is "extremely inadvisable." Sussex County Grand Jury, supra, 241 N.J.Super. at 34, 574 A.2d 449. An attorney-witness should appear and assert the privilege in response to specific questions. Ibid. Then, the court, rather than counsel, can decide if the privilege applies. Ibid. The burden is on the witness to justify the invocation of the privilege as to each question propounded. Ibid.; see also Horon Holding Corp. v. McKenzie, 341 N.J.Super. 117, 125, 775 A.2d 111 (App.Div.2001) (person asserting privilege bears burden to prove it applies to given communication). Pursuant to the attorney-client privilege, "communications between [a] lawyer and his client in the course of that relationship and in professional confidence, are privileged." N.J.R.E. 504. Nevertheless, as privileges against compelled disclosure of relevant evidence "run[] counter to the fundamental theory of our judicial system that the fullest disclosure of the facts will best lead to the truth," they are generally construed narrowly in favor of admitting relevant evidence. Kinsella v. Kinsella, 150 N.J. 276, 294, 696 A.2d 556 (1997). Absent waiver, the attorney, when called as a witness, must assert the privilege on behalf of the client. Aysseh v. Lawn, 186 N.J.Super. 218, 223, 452 A.2d 213 (Ch.Div.1982). The holder of the privilege may waive it, however, if the holder has "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." N.J.R.E. 530. The waiver of the attorney-client privilege rests solely with the client. State v. Davis, 116 N.J. 341, 362, 561 A.2d 1082 (1989). Most jurisdictions, New Jersey among them, recognize implicit waiver of the attorney-client privilege "where the [client] has placed in issue a communication which goes to the heart of the claim in controversy." See Kinsella, supra, 150 N.J. at 300, 696 A.2d 556; see also United Jersey Bank v. Wolosoff, 196 N.J.Super. 553, 567, 483 A.2d 821 (App.Div.1984). This way, the client cannot "use the privilege as a sword rather than a shield," and thereby "divulge whatever information is favorable to [the client's] position and assert the privilege to preclude disclosure of the detrimental facts." United Jersey, supra, 196 N.J.Super. at 567, 483 A.2d 821. Waiver of the privilege also occurs if the holder of the privilege discloses "a confidential communication for a purpose outside the scope of the privilege," Sicpa North Am., Inc. v. Donaldson Enters., 179 N.J.Super. 56, 62, 430 A.2d 262 (Law Div. 1981); and, once the holder discloses privileged communications, he has waived the privilege with respect to related privileged information pertaining to the same subject 88 matter. Weingarten v. Weingarten, 234 N.J.Super. 318, 326, 560 A.2d 1243 (App. Div.1989); Sicpa, supra, 179 N.J.Super. at 62, 430 A.2d 262; N.J.R.E. 530. Here, resolution of the applicability of the privilege should abide a full record of the questions asked to which the privilege has been asserted. If a question before the grand jury, in appellant's opinion, implicates the privilege, he may, at that time, assert it in response to the specific question. That way, a clear record of the questions asked and the basis of appellant's objections may be created. In any event, appellant is required to testify. Consequently, we do not determine the bounds of the privilege at this time. We leave that for the trial court to determine in the context of the specific questions asked of appellant. The court shall be guided by the parameters within which the privilege may be asserted, as we have outlined. B. Work Product Privilege Appellant also claims that the work product privilege should preclude him from testifying before the grand jury. That argument is without merit. Neither the civil work product privilege, R. 4:10-2(c), nor the criminal work product privilege, R. 3:13-3(e), are applicable under the circumstances presented here. The former applies when a party seeks to discover materials that were prepared in anticipation of litigation. R. 4:10-2(c); Miller v. J.B. Hunt Transport, 339 N.J.Super. 144, 148, 770 A.2d 1288 (App. Div.2001). No evidence exists here to show that the materials appellant is to produce in accordance with the dictates of the subpoena were prepared in anticipation of litigation. The latter precludes "discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney in connection with the investigation, prosecution or defense of the matter." R. 3:13-3(e). That privilege does not apply here because the documents subpoenaed were not prepared in connection with the investigation or the defense of the pending criminal charges. The State is not seeking "inculpatory evidence uncovered . . . during [appellant's] preparation for trial." State v. Williams, 80 N.J. 472, 479, 404 A.2d 34 (1979). In fact, though appellant was the attorney for the club, he does not represent any of the defendants in connection with the pending criminal charges. V. Abuse of Grand Jury Process Finally, we turn to appellant's argument that the State abused the grand jury process by issuing a subpoena to him, not to garner testimony to support the indictment, but only so the State could "take . . . the equivalent of a civil deposition." He maintains that because the grand jury had already issued an indictment, his testimony could serve no permissible purpose, absent a "good-faith showing" by the State of an intention to file a superseding indictment, adding defendants or counts. Though appellant is correct that the prosecutor's post-indictment subpoena power is not as broad as its pre-indictment subpoena power, even after the issuance of an indictment, a grand jury may still serve an investigatory function, and appellant's testimony may serve this investigatory purpose. To repeat, the grand jury has a broad investigatory function and while prosecutors have no independent subpoena power, they are granted substantial leeway in issuing subpoenas in the grand jury's name. McAllister, supra, 184 N.J. at 34-35, 875 A.2d 866; Francis, supra, 385 N.J.Super. at 358, 897 A.2d 388; Johnson, 89 supra, 287 N.J.Super. at 258-59, 670 A.2d 1100. While a prosecutor may not abuse the grand jury process by issuing subpoenas solely for the purposes of preserving testimony or gathering additional evidence, see Johnson, supra, 287 N.J.Super. at 259-61, 670 A.2d 1100, a prosecutor may still issue subpoenas after an indictment has been issued. As the court in Johnson noted, the defendants there did not, nor could they, argue "that a prosecutor must cease all investigatory efforts once an indictment is issued"; a grand jury can continue an investigation after an indictment has been issued, so long as the purpose of the investigation is to identify further crimes committed by either the already-indicted defendants or unnamed actors not yet indicted. Id. at 259, 670 A.2d 1100. A "grand jury investigation is not fully carried out until every available clue has been run down and all witnesses [have been] examined." Francis, supra, 385 N.J.Super. at 359, 897 A.2d 388. The Francis court adopted the "dominant purpose" test for determining whether the post-indictment calling of witnesses to testify before a grand jury serves this investigatory function or is improper. Id. at 361, 897 A.2d 388. The State may not call the witness if the "dominant purpose" in doing so is to "gather[] . . . evidence for use in a pending case." Id. at 359, 897 A.2d 388 (quoting United States v. Furrow, 125 F.Supp.2d 1170, 1172 (C.D.Cal.2000)). While the "`use of the grand jury as a means for criminal discovery is prohibited,'" id. at 359, 897 A.2d 388 (quoting Furrow, supra, 125 F.Supp.2d at 1172), it is appropriate for the government to interrogate witnesses on subjects relevant to a continuing grand jury investigation, even when the evidence received may also relate to a pending indictment. Johnson, supra, 287 N.J.Super. at 259, 670 A.2d 1100. The dominant purpose of the subpoena here is the investigation of criminal activity. The grand jury is investigating the involvement in criminal activities of individuals other than the already charged defendants, as well as the possibility that other crimes have been committed. While one of the purposes of the subpoena may also be to probe the raised defense of mistake of law, which serves a discovery rather than an investigatory function, that purpose is not the dominant purpose of the subpoena. VI. Summary In sum, we affirm the trial judge's denial of appellant's motion seeking access to the ex parte certification. We also affirm the court's order denying appellant's motion to quash the subpoena, and requiring appellant to testify before the Morris County Grand Jury, subject, however, to appellant's right to raise the attorney-client privilege in response to specific questions. We vacate the stay of the subpoena. Affirmed. NOTES [1] Although some of appellant's former clients joined in his application in the Law Division to quash the subpoena, none have joined in this appeal.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516244/	913 A.2d 1258 (2006) In re Martin S. TANNER, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 418351). No. 06-BG-278. District of Columbia Court of Appeals. Submitted December 20, 2006. Decided December 28, 2006. Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KERN, Senior Judge. PER CURIAM: In this disciplinary proceeding against respondent Martin S. Tanner,[1] a member of the Bar of the District of Columbia Court of Appeals, the Board on Professional Responsibility ("Board") has recommended to this court that reciprocal and functionally identical discipline be imposed in the form of a five-year suspension with a requirement to prove fitness as a condition of reinstatement. No exceptions to the Board's Report and Recommendation have been filed. 1259 On November 1, 2002, the Utah Supreme Court granted its consent to respondent's petition to resign with discipline pending and permitting respondent to apply for readmission to the Utah State Bar after five years. That petition stated that respondent did not dispute the facts reported to the Utah Supreme Court by the Utah Office of Professional Conduct involving respondent's violations of the Utah Rules of Professional Conduct involving candor to the tribunal, fairness to opposing party and counsel, knowingly violating the Rules of Professional Conduct, committing a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, and engaging in conduct prejudicial to the administration of justice.[2]Tanner, Utah Sup.Ct. No. 20020803 (October 15, 2002). On March 23, 2006, Bar Counsel filed a certified copy of the order from the Utah Supreme Court. On April 4, 2006, this court issued an order temporarily suspending respondent and directing: 1) Bar Counsel to inform the Board of his position regarding reciprocal discipline within thirty days; 2) respondent to show cause why identical, greater, or lesser discipline should not be imposed; and 3) the Board either to recommend reciprocal discipline or proceed de novo. Thereafter, Bar Counsel filed a statement recommending reciprocal discipline of a five year suspension with a requirement to prove fitness as a condition of reinstatement. Respondent has not filed an objection opposing the imposition of reciprocal discipline. In its report and recommendation, the Board determined that respondent's misconduct also violated District of Columbia Rules of Professional Conduct,[3] and stated that a reciprocal and functionally identical discipline of a five-year suspension with a requirement to prove fitness as a condition of reinstatement is warranted. See, e.g., In re Angel, 889 A.2d 993 (D.C. 2005). In cases like this, where neither Bar Counsel nor the respondent opposes identical discipline, "`the most the Board should consider itself obliged to do . . . is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical disciplinea situation that we anticipate would rarely, if ever, present itself.'" In re Childress, 811 A.2d 805, 807 (D.C.2002) (quoting In re Spann, 711 A.2d 1262, 1265 (D.C.1998)); In re Reis, 888 A.2d 1158 (D.C.2005). Here, the Board reports there was no miscarriage of justice in the Utah proceeding and respondent petitioned the court for resignation and did not dispute the factual findings reported to the Utah Supreme Court. A rebuttable presumption exists that "the discipline will be the same in the District of Columbia as it was in the original disciplining jurisdiction." In re Goldsborough, 654 A.2d 1285, 1287 (D.C.1995) (citing In re Zilberberg, 612 A.2d 832, 834 (D.C.1992)). The Board found, and we agree, that there is no basis for any exception set forth in D.C. Bar R. XI, § 11(c) to apply here. Since no exception has been taken to the Board's report and recommendation, the court gives heightened deference to its recommendation. See D.C. Bar R. XI, § 9(g)(2); In re Delaney, 697 A.2d 1212, 1214 (D.C.1997). As we find support in the record for the Board's findings, we 1260 accept them, and adopt the sanction the Board recommended. Accordingly, it is ORDERED that Martin S. Tanner is hereby suspended from the practice of law in the District of Columbia for a period of five years. Reinstatement is conditioned on proof of fitness to practice law. We direct respondent's attention to the requirements of D.C. Bar R. XI, § 14(g), and their effect on his eligibility for reinstatement. See D.C. Bar R. XI, § 16(c). So ordered. NOTES [1] Respondent has been administratively suspended from the Bar of the District of Columbia since September 30, 2002, for non-payment of Bar dues. [2] The Utah Rules of Professional Conduct, which respondent violated, are virtually identical to corresponding District of Columbia Rules of Professional Conduct. [3] Specifically, the Board noted that respondent's conduct in Utah violated District of Columbia Rules of Professional Conduct 3.3(a) (candor toward the tribunal), 3.4(b) (fairness to opposing party and counsel) and 8.4(a), (c), and (d) (misconduct).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516240/	913 A.2d 750 (2006) PROPERTY PORTFOLIO GROUP, LLC v. TOWN OF DERRY and another. No. 2005-867. Supreme Court of New Hampshire. Argued: October 18, 2006. Opinion Issued: December 21, 2006. As Modified on Denial of Reconsideration January 24, 2007. 751 Griffith & Associates, PLLC, of Wilton (John P. Griffith on the brief and orally), for the petitioner. Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the brief and orally), for respondent Town of Derry. Brennan Caron Lenehan & Iacopino, of Manchester (Ronald J. Caron and Jaye L. Rancourt on the brief, and Ms. Rancourt orally), for respondent Hall Business Restorations, LLC. DALIANIS, J. The petitioner, Property Portfolio Group, LLC (PPG), appeals a decision of the Trial Court (Morrill, J.) granting respondent Town of Derry's motion to dismiss 752 PPG's petition for declaratory judgment. We affirm. The record supports the following: Respondent Hall Business Restorations, LLC (Hall) sought a site plan determination from respondent Town of Derry Planning Board to convert a former fire station into a dining facility. PPG is an abutter with notice of the proceedings. At a May 18, 2005 public hearing, the planning board approved the site plan as follows: Mr. Ochs moved to waive formal site plan review pursuant to LDCR Article IX, Section 170-51 Site Plan Determination for the application submitted by Hall Business Renovations, LLC to convert Station One to a restaurant, at parcel ID 29195, W Broadway subject to the following conditions: 1. Provide landscape buffer details for the Central Street residential uses. This action was taken pursuant to Town of Derry Land Development Control Regulation (LDCR) Article IX, Section 170-51(D) (2005). Under the applicable regulations, an applicant has two choices: apply for "site plan determination" or for "site plan review." Applications for "site plan determination" are governed by Article IX, Section 170-51. This regulation requires the submission of an application and "a duly noticed public hearing." If the application is successful, site plan determination is granted. If the application is denied, the applicant may then submit an application for site plan review. See RSA 676:4, III (Supp.2006). Applications for "site plan review" are governed by Sections 170-52 through 170-54. Site plan review is a more rigorous process, which includes three distinct phases of detailed review. See RSA 676:4, I, II (Supp.2006). Section 170-52 governs a "[c]onceptual consultation phase" at which "informal consultation" between the applicant and the planning board occurs before an application is filed. See RSA 676:4, II(a). Section 170-53 outlines a "[d]esign review phase," an optional but "strongly recommended" step "particularly in cases of developments of significant size or complexity." See RSA 676:4, II(b). In this stage, the planning board discusses the design with the applicant as well as other parties whose interests may be affected by the proposed project. After these discussions, the planning board may communicate to the applicant any specific changes which would serve as a prerequisite to the approval of the final site plan. Section 170-54 is the "[f]inal application phase" which entails a review for application completeness, a vote to accept jurisdiction over the application and a public hearing and approval or disapproval of the final application. See RSA 676:4, I. Under these regulations, site plan determination is the more expedited of the two procedures. Site plan review, by virtue of its many procedural steps, is a more rigorous review process. Five months after the planning board approved Hall's application for site plan determination, PPG filed its petition in superior court, seeking temporary and permanent restraining orders and declaratory judgment against the respondents. The town filed a motion to dismiss, which the trial court granted on the basis that PPG's claims were an untimely attempt to appeal the decision of the planning board. When a trial court's review of a planning board decision is appealed, we will uphold the decision unless it is not supported by the evidence or is legally erroneous. DHB v. Town of Pembroke, 152 N.H. 314, 319, 876 A.2d 206 (2005). In determining whether a decision is supported by the evidence, we look to whether a reasonable person could have reached the same decision as the trial court based 753 upon the evidence before it. Id. at 319-20, 876 A.2d 206. The issues in this case involve statutory construction. We are the final arbiter of the legislature's intent as expressed in the words of the statute as a whole. Id. at 317, 876 A.2d 206. We ascribe to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise. Id. New Hampshire law requires strict compliance with statutory time requirements for appeals of planning board decisions to the superior court. Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575, 825 A.2d 493 (2003). This is because statutory compliance is a necessary prerequisite to establishing jurisdiction in the superior court. Id. RSA 677:15, I (Supp.2006) provides the jurisdictional deadline for superior court review of a planning board decision. Id. It requires that a person "aggrieved by any decision of the planning board" present a petition to the superior court "within 30 days after the date upon which the board voted to approve or disapprove the application." RSA 677:15, I. Here, because PPG filed its appeal five months after the planning board approved Hall's application for site plan determination, its appeal was untimely under RSA 677:15, I, and, thus, the trial court did not err when it ruled that it lacked jurisdiction to decide the appeal. See Route 12 Books & Video, 149 N.H. at 576, 825 A.2d 493. PPG argues that the thirty-day appeal period set forth in RSA 677:15, I, does not apply for three reasons: First, PPG argues that the planning board's May 2005 decision was not a final decision because the planning board had no application before it, and because, to the extent that it granted approval, it did so subject to a condition precedent, which PPG asserts, has not yet been fulfilled. Second, PPG argues that the trial court had jurisdiction to decide its appeal under RSA 676:4, IV (Supp.2006). Third, PPG contends that the trial court should have permitted its declaratory judgment action, even though it was filed outside of the thirty-day appeal period in RSA 677:15, I. I. The Decision of the Planning Board PPG first argues that the thirty-day time limit in RSA 677:15, I, for appealing decisions of planning boards does not apply because there was no decision to appeal. PPG claims that: (1) the planning board had no application before it; and (2) even if there were a pending application, the planning board's approval was not a final decision because there was a condition precedent attached to it, namely, the submission of a landscaping plan. The respondents counter that the proposal was an application and the condition was a condition subsequent, which would not negate the finality and appealability of the site plan determination. We first address PPG's challenge to the application, then its argument that the conditional approval of the application precluded a final decision. A. Application To support its claim that there was no application and, therefore, no decision, PPG cites DHB, 152 N.H. at 317, 876 A.2d 206, in which a landowner sought to appeal the decision of a planning board not to accept an application. There, we held that the decision not to accept the application was not a decision under RSA 677:15, I, because the trigger for the thirty-day appeal period is the approval or disapproval of an application. DHB, 152 N.H. at 318, 876 A.2d 206; see RSA 676:4, I(c)(1). PPG attempts to analogize, arguing that, "[T]he planning board did not vote to approve 754 the application, it voted to waive formal site plan review. . . . A vote to waive formal site plan review is no more a vote to approve than a vote not to accept an application for review is a vote to disapprove." PPG's reliance upon DHB is misplaced because DHB concerned site plan review pursuant to RSA 676:4, I, II and not the site plan determination process referred to in 676:4, III, which specifically authorizes the expedited procedure used by the town. RSA 676:4, III provides in pertinent part: A planning board may, by adopting regulations, provide for an expedited review and approval for proposals involving minor subdivisions which create not more than 3 lots for building development purposes or for proposals which do not involve creation of lots for building development purposes. The record demonstrates that Hall submitted an application for site plan determination on applicable planning board forms. Hall's application was filed pursuant to LDCR Article IX, Section 170-51, C, which provides that applicants "seeking a site plan determination . . . shall submit a duly executed site plan determination application on forms provided by the Planning Department, together with any exhibits or fees required as part of the same." Though the official form was submitted after the fact, the record shows that the proposal submitted before the hearing, which was sufficiently publicized to abutters and the public, functioned as an application. The proposal came in response to the town's request for proposals and met the requirements of that request. In making this determination, we bear in mind that the statute governing procedural challenges expressly commands that "[t]he planning board's procedures shall not be subjected to strict scrutiny for technical compliance. Procedural defects shall result in the reversal of a planning board's actions by judicial action only when such defects create serious impairment of opportunity for notice and participation." RSA 676:4, IV (Supp.2006). By approving the application for site plan determination and, therefore, waiving site plan review, the planning board followed the expedited procedure for site plan determination set forth in the applicable regulations. Having found the proposal to be an application upon which a valid final decision could be made and appealed, we consider PPG's next argument that that decision was not final and appealable under RSA 677:15, I, because there was a condition precedent attached to it. B. Conditional Approval PPG refers to our ruling in Totty v. Grantham Planning Board, 120 N.H. 388, 415 A.2d 687 (1980), overruled in part on other grounds by Winslow v. Holderness Planning Board, 125 N.H. 262, 269, 480 A.2d 114 (1984), which held that intervening parties who owned land adjoining that of an applicant could not appeal a board's grant of conditional approval of an applicant's proposal because the decision did not constitute final approval and, therefore, was not appealable. Following Totty, we clarified the difference between conditions precedent to approval and conditions subsequent to approval and we described their effect upon the finality and appealability of a planning board decision. See Sklar Realty v. Town of Merrimack, 125 N.H. 321, 327, 480 A.2d 149 (1984). We noted that conditions precedent, such as those in Totty, contemplate additional action on the part of the town and, thus, cannot constitute final approval. Conditions subsequent, on the other hand, do not delay approval. Id. The "condition" 755 for approval in this case was not required to be fulfilled before any renovation commenced, and, thus, was a condition subsequent, not a condition precedent. Within the context of the site plan determination process, what Hall received from the planning board was an approval. Had the planning board intended that Hall go through the rigors of site plan review, it would have denied Hall's application for site plan determination. However, having approved the proposal with conditions, the planning board issued a final decision that was appealable to the superior court under RSA 677:15, I. II. Jurisdiction Under RSA 676:4, IV PPG argues that the trial court had jurisdiction to review procedural aspects of planning board decisions under RSA 676:4, IV. It presented a list of alleged procedural errors for the trial court to review. The respondents argue that actions under RSA 676:4, IV are limited to the thirty-day window for appeal specified in RSA 677:15, I; therefore, PPG's procedural challenge was untimely and was "an unavailing attempt to circumvent the time requirements of . . . RSA 677:15." RSA 676:4 governs the procedures planning boards must use when considering or acting upon a plat or application. PPG's reliance upon RSA 676:4, IV is misplaced as that provision does not address the process by which one may appeal a planning board decision. RSA 676:4, IV must be read in conjunction with RSA 677:15 (Supp.2006), which describes that process and requires that such appeal be brought within thirty days of the planning board's decision. Ill. Dec.laratory Judgment Action Under RSA 491:22 PPG's final argument is that the trial court should have allowed its declaratory judgment action, even if it were untimely because PPG filed it outside of the thirty-day appeal period provided in RSA 677:15, I. See Blue Jay Realty Trust v. City of Franklin, 132 N.H. 502, 567 A.2d 188 (1989); Morgenstern v. Town of Rye, 147 N.H. 558, 561, 794 A.2d 782 (2002). We have held that a plaintiff "who chooses to initiate a declaratory judgment action to challenge the validity of a zoning ordinance may do so after the expiration of the [applicable statutory] appeal period." Morgenstern, 147 N.H. at 561, 794 A.2d 782; see Blue Jay Realty Trust, 132 N.H. at 509, 567 A.2d 188. In Blue Jay Realty Trust, we explained that this was an exception to the usual requirement that administrative remedies be exhausted. We noted that, generally, "[w]hen the issue in an appeal involves a question of law rather than a question of the exercise of administrative discretion, administrative remedies need not always be exhausted." Blue Jay Realty Trust, 132 N.H. at 509, 567 A.2d 188 (quotation omitted). Similarly, in Olson v. Litchfield, 112 N.H. 261, 262, 296 A.2d 470 (1972), we explained that it is proper to permit the use of the declaratory judgment procedure to challenge the validity of a zoning ordinance, even if the challenge is outside the applicable time period, "where . . . the question is one peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available to plaintiff. Under these circumstances the rule of exhaustion of administrative remedies is inapplicable." We have not, however, expanded this line of cases to challenges to planning board decisions. Indeed in Town of Auburn v. McEvoy, 131 N.H. 383, 385, 553 A.2d 317 (1988), decided before we decided Blue Jay Realty Trust, we held that a constitutional challenge to a planning board decision was not exempt from the thirty-day appeal period in RSA 677:15, I. 756 Even if we assume, without deciding, that one may challenge a planning board decision outside of the thirty-day appeal period in RSA 677:15, I, PPG's action would still be prohibited. PPG's challenge to the planning board's decision did not raise a question of law, but rather contested the planning board's exercise of administrative discretion. Therefore, the thirty-day appeal period applied. For all the above reasons we hold that the trial court did not err when it granted the motion to dismiss for lack of jurisdiction. PPG's motion to remand to the trial court for findings on whether the condition was a condition precedent or a condition subsequent is, thus, denied. In the absence of specific findings, a trial court is presumed to have made all findings necessary to support its ruling. Bell v. Liberty Mut. Ins. Co., 146 N.H. 190, 196, 776 A.2d 1260 (2001). In this case, the trial court necessarily found the condition to be a condition subsequent when it granted the motion to dismiss. Affirmed. BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516241/	913 A.2d 451 (2007) 99 Conn.App. 145 Victoria MARTIN v. Peter MARTIN. No. 26735. Appellate Court of Connecticut. Argued October 19, 2006. Decided January 9, 2007. 453 Lori Welch-Rubin, with whom, on the brief, was Catherine P. Whelan, Greenwich, for the appellant (plaintiff). Laurel Fedor, for the appellee (defendant). FLYNN, C.J., and LAVINE and DUPONT, Js. DUPONT, J. The plaintiff, Victoria Martin, appeals from the judgment dissolving her marriage to the defendant, Peter Martin. She also appeals from the trial court's denial of her motion to open the judgment of dissolution due to an alleged substantial change in circumstances after the judgment was rendered. Her claims fall into two basic categories, both of which involve the court's order to sell the marital home. She argues that (1) the orders of the judgment involving the sale of the parties' marital home were an abuse of discretion, given the facts found by, and the evidence presented to, the court, and (2) the deterioration of her son's health occurring after the date of the rendering of judgment constituted a substantial change in circumstances that required the opening of the judgment to eliminate the order of sale. We affirm the judgment of the trial court. The parties were married in 1989 and have two children, one born on January 7, 1992, and the other on October 11, 1996. 454 The judgment of dissolution was rendered on September 22, 2004, after a contested hearing. Before issuing its orders as part of "said judgment" dissolving the marriage on the ground of irretrievable breakdown, the court discussed the educational and financial background of the parties, the financing of the marital home, the health of the parties and the assets of the parties. An expert witness for the plaintiff wife estimated the fair market value of the home to be $585,000, and the defendant listed the value as $840,000 on his financial affidavit. The court concluded that its current fair market value was $650,000, that it was encumbered by a mortgage balance of about $367,000 and that it had an equity of $283,000. The court also noted in its preliminary discussion that preceded its orders that the parties agreed on the record that they would have joint legal custody of their children, primary care with the mother with liberal visitation for the father. The judgment was signed by the court and included the following. The defendant was to pay $156 weekly for child support and $44 weekly on the remaining arrears,[1] and to provide medical insurance for the children; the parties each were to insure their respective lives for $250,000, naming the children as primary beneficiaries until neither party is responsible for child support, which order is modifiable; the defendant was to pay $1 per year as periodic alimony to the plaintiff; the marital home was to be sold and the net proceeds divided 60 percent to the plaintiff and 40 percent to the defendant. The court specifically ordered that "[t]he plaintiff shall have exclusive possession of the premises until sold and she shall pay the ongoing utilities, heat and the mortgage installments during the said time. She shall also collect the rent[2] and retain same to defray the said expenses. If the parties cannot agree on the asking price, broker, or other terms of sale, either party may move for further orders to carry out this order."[3] The plaintiff summarized her position as to the marital home in her final argument to the court before it had rendered its judgment of dissolution and before she had filed her motion to open the judgment. She sought a quitclaim deed of the defendant's interest in the premises and offered to pay the defendant for his equitable share of the value, calculated by deducting the mortgage, a sum for closing and expenses, and deducting $63,000, payable to her, for the money she supplied toward its purchase, with the remaining balance to be divided 25 percent to the defendant and 75 percent to the plaintiff. The defendant stated that if the house was not going to be sold, no sum should be deducted from its equity for a sales commission and that the plaintiff's contribution to the purchase was "spurious." He also sought 50 percent 455 of the rental income of the apartment in the marital home if the plaintiff were to receive exclusive possession. On October 1, 2004, the plaintiff filed a motion to open the judgment and filed an amended motion to open on October 25, 2004, both of which alleged "substantial and significant changes in circumstances. . . ." The changes cited by the plaintiff primarily related to the health of the parties' two young children. The plaintiff introduced, at the hearing on her motion to open, testimony from the son's treating physician that changing residences would be detrimental to the son's health. On October 1, 2004, the plaintiff also filed a motion for articulation, requesting the court to state whether she could buy the house and whether she had the right of first refusal. On January 20, 2005, the court, in an oral decision, denied the plaintiff's motion to open and denied the relief requested in the motion for articulation. Although the court denied the plaintiff's motion for articulation, it did state that it was not preventing either party from purchasing the home. The plaintiff filed this appeal on July 11, 2005. I The plaintiff first challenges the correctness of the September 22, 2004 judgment. She primarily claims that it was an abuse of discretion for the court to order that the marital home be sold on the open market. This claim has two parts. A The plaintiff argues that the court did not have the authority, pursuant to General Statutes § 46b-81, to order a sale of the home on the open market, having concluded in its preamble to the judgment that the house had a value of $650,000 on September 22, 2004, the date of the marriage dissolution.[4] The plaintiff does not cite the particular statutory language, if any, that she believes supports her contention. She also cites no case law to support her proposition. The defendant does not directly address the plaintiff's argument in his brief. Section 46b-81(a) provides in relevant part: "At the time of entering a decree annulling or dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect." General Statutes § 46b-81(a). The statute explicitly empowers the court to order the sale of the marital property, and the plaintiff does not dispute this. The plaintiff also does not dispute that the court could establish, as part of the judgment, the fair market value of the home and equitably distribute the assets of the parties on the basis of that value. Although not explicitly stated, the plaintiff's argument appears to be that to allow the court first to establish the current fair market value of the marital home as of the 456 day it renders its judgment, and then to allow it to order simultaneously the property to be sold on the open market at a potentially different value is an absurdity and, thus, presumptively not allowed by the statute. Whether the statute authorizes the court to order a sale of real estate on the open market, having first ascribed a current value to it, is a question of law; hence our review is de novo. See Bornemann v. Bornemann, 245 Conn. 508, 514-15, 752 A.2d 978 (1998). "The principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results." (Internal quotation marks omitted.) Rutledge v. State, 63 Conn.App. 370, 383, 776 A.2d 477 (2001); see Wyka v. Colt's Patent Fire Arms Mfg. Co., 129 Conn. 71, 74, 26 A.2d 465 (1942). When reviewing the plaintiff's contention, we begin by noting that "[t]here are three stages of analysis regarding the equitable distribution of each resource: first, whether the resource is property within § 46b81 to be equitably distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties (distribution)." (Internal quotation marks omitted.) Bender v. Bender, 258 Conn. 733, 740, 785 A.2d 197 (2001). The court decided that the appropriate distribution of the marital home was to sell the property on the open market and to apportion the proceeds of the sale. We conclude that the court ascribed a value to it on the date of the dissolution judgment in order to assist it in its determination of what the most equitable percentage distribution would be, given the value of all of the assets of the parties. The main focus of the court, in distributing the property, was on the percentage division and not on the monetary number itself. The court listed the current value figure of the home only in the portion of its opinion that discussed the various factors involved in the equitable distribution of the property, rather than in its orders. The percentage figures, in contrast, clearly and prominently appear in the order of the judgment itself, which lists eleven parts and begins with the words "each party is declared to be unmarried, and the following orders are entered as part of said judgment." The judgment signed by the court repeats the exact language regarding the sale as appears in the order portion of the memorandum of decision. Neither contains any finding of a monetary valuation. The monetary value of the marital home is conspicuously absent from both the orders of the court and the judgment of the court. Considering the complexity of finding an equitable balance in the distribution of assets order, the finding by the court of an initial current value of the home was reasonable. In addition, there are other reasons for establishing the current value of the house. The valuation could prove useful in the future if the parties were unable to sell the house for some reason and therefore returned to court for additional orders, as allowed by the court's order to sell the home. The court's valuation could assist it in a future determination of the best way to effectuate its order, namely, a sale to either party or to another, on the open market. See generally Roberts v. Roberts, 32 Conn.App. 465, 475, 629 A.2d 1160 (1993). Ascribing a current value to the home, in combination with an order to sell the home is neither absurd nor prohibited by § 46b-81 (a). B The plaintiff also claims that it was an abuse of discretion for the court to 457 order the sale of the marital home on the open market when (1) neither party requested a sale of the marital home, (2) the court did not request that they argue the efficacy of sale, thereby depriving the plaintiff of the opportunity to argue against the sale at trial, (3) the plaintiff proffered payment on the basis of the court's September 22, 2004 valuation and (4) sale of the house to a third party would severely damage the son's health. The first two claims are related, and the third and fourth claims may be disposed of summarily.[5] The plaintiff had an opportunity to argue before judgment was rendered that the home should not be sold and did so. The defendant also had an opportunity to discuss any sale, although he may have assumed that the home would not be sold. The court, therefore, was aware of both parties' wishes as to the disposition of the marital home. Whether the plaintiff or the defendant requested that the house not be sold is not determinative. It is the court that must determine the mode by which the equitable value of the asset to each party is best realized. We review financial awards in dissolution actions under the familiar abuse of discretion standard. Falkenstein v. Falkenstein, 84 Conn.App. 495, 502-503, 854 A.2d 749, cert. denied, 271 Conn. 928, 859 A.2d 581 (2004). "[T]rial courts are empowered to deal broadly with property and its equitable division incident to dissolution proceedings." (Internal quotation marks omitted.) Id., at 503, 854 A.2d 749. The trial court is granted the authority, pursuant to § 46b-81, to order the sale of the marital home "without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect." General Statutes § 46b-81(a). The statute also commands the court to consider a number of factors when making its distribution determination. "In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity for each for future acquisition of capital assets and income. . . ." General Statutes § 46b-81(c). The court reviewed these statutory factors and the relevant case law in its memorandum of decision. We conclude that the court did not abuse its discretion when it concluded that the most equitable means of distributing the asset, the marital home, was to order it sold on the open market. II The plaintiff also claims that the court abused its discretion when it denied her motion to open the judgment because of an alleged substantial change in circumstances that occurred after the judgment was rendered. The plaintiff primarily argues that the evidence supporting her allegation of a substantial deterioration of her son's health, beginning on September 23, 2004, the day after the court's September 22, 2004 judgment, was sufficient to compel 458 the court to open the judgment.[6] As previously stated, the judgment ordered the home "sold and the net proceeds divided 60 percent to the plaintiff and 40 percent to the [defendant]," and that "[t]he plaintiff shall have exclusive possession of the premises until sold and she shall pay the ongoing utilities, heat and the mortgage installments during said time. . . . If the parties cannot agree on the asking price, broker or other terms of the sale, either party may move for further orders to carry out this order." When it orally denied the plaintiff's motion to open the judgment, the court additionally stated that "if the plaintiff is anxious to buy the house, certainly she can deal with it just like any other potential buyer." At oral argument in support of her motion to open, the plaintiff introduced testimony of the son's treating physician, Demitri Papolos. When asked about the factors leading up to the exacerbation of the son's illness, Papolos noted the divorce itself and a hospitalization of the plaintiff. The plaintiff, in her brief, acknowledges that a cause of the child's deterioration was her own hospitalization and concomitant separation from him. "Courts have an inherent power to open, correct and modify judgments. . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment." (Citations omitted; internal quotation marks omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983); Practice Book § 17-4. Because of the important consideration of finality of judgments, however, a judgment should not be opened without a strong and compelling reason. Steve Viglione Sheet Metal Co. v. Sakonchick, supra, at 711, 462 A.2d 1037. Further, a motion to open in order to permit a party to present evidence of a substantial change in circumstances after the judgment need not be granted when the evidence offered is not likely to affect the result. Id., at 712, 462 A.2d 1037. The motion should be granted only "when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Internal quotation marks omitted.) Id., at 711, 462 A.2d 1037. "Once the trial court has refused to open a judgment, the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of its discretion." (Internal quotation marks omitted.) Id.; see State v. New England Health Care Employees Union, 271 Conn. 127, 144, 855 A.2d 964 (2004); Cox v. Burdick, 98 Conn.App. 167, 176, 907 A.2d 1282 (2006). "In determining whether the trial court abused its discretion, [the appellate court] must make every reasonable presumption in favor of its action. The manner in which [this] discretion is exercised should not be disturbed so long as the court could reasonably conclude as it did." (Internal quotation marks omitted.) State v. New England Health Care *459 Employees Union, supra, at 144, 855 A.2d 964. The son's condition was known to the court before it rendered its September 22, 2004 decision. There is no evidence that the son was misdiagnosed at the time of the trial or that he had subsequently developed a health condition distinct from his preexisting condition. The court was aware of the son's condition when fashioning its original order. For example, the court specifically addressed the plaintiff's fears that the defendant would not properly attend to the son's health by ordering the defendant to administer to the child all medications as instructed by the plaintiff. Taking into consideration the plaintiff's desire to keep the child in the marital home, the court granted the plaintiff exclusive possession of the marital home until such time as it was sold, giving the parties the right to return to court in the event of a dispute as to the terms of sale. The evidence that the plaintiff produced in support of her motion to open did not indicate that the underlying condition had changed, but only that the son's symptoms had worsened. Even if the plaintiff is correct that the change in her son's health after September 22, 2004, rose to the level of a "substantial change in circumstances," the evidence would not likely have altered the decision of the court. The plaintiff herself acknowledged that a major cause of the son's deterioration was the stress of being separated from her, his mother, while she was in a hospital. Further, the court's order did not prevent the plaintiff from purchasing the marital home on the open market, and she has not argued that she is financially unable to do so. Thus, the court could have concluded reasonably that the proffered evidence would not alter its decision.[7] III The plaintiff's last claim relates to her belief that there will be diminution in her income from her home interior design business if the house is sold and she must pay rent for the conduct of her business. The plaintiff states that we "must find error here and remand this matter for a full hearing on the merits." She argues that if her income is lessened, the modifiable alimony award of one dollar would need to be increased. The plaintiff's concern relates to a hypothetical situation that may never arise. The court properly made its alimony determination on the basis of the net incomes of the parties at the time of the dissolution. The court's order did not prohibit the parties from later seeking modification of the alimony amount. Should either party's financial situation substantially change in the future, either may seek to have the order of child support or alimony modified. See Crowley v. Crowley, 46 Conn.App. 87, 91-93, 699 A.2d 1029 (1997). The judgment is affirmed. In this opinion the other judges concurred. NOTES [1] The parties agreed that $2283 were the remaining arrears as of April 16, 2004. [2] The marital residence has an "in-law apartment" that has been rented for a long time and a basement utilized by the plaintiff for her interior design business. Both uses were, according to a real estate appraiser and the defendant, violative of zoning regulations. No evidence indicated that any zoning authority had sought to enforce any alleged violations. [3] Ordinarily, an order for a sale of a marital asset is a nonmodifiable assignment, but a court may retain jurisdiction to determine what the best means are to effectuate a sale. See Roberts v. Roberts, 32 Conn.App. 465, 475, 629 A.2d 1160 (1993). A trial court may retain jurisdiction over the terms and conditions of a listing for sale in the event of a disagreement and can bar either party from purchasing the asset. See Falkenstein v. Falkenstein, 84 Conn.App. 495, 498, 854 A.2d 749, cert. denied, 271 Conn. 928, 859 A.2d 581 (2004). [4] The court heard testimony from a real estate appraiser. Also, the parties valued the property in their financial affidavits. A court may accept or reject such valuations in whole or in part and ascribe its own valuation to real estate. See Sunbury v. Sunbury, 13 Conn.App. 651, 659-60, 538 A.2d 1082 (1988), rev'd on other grounds, 210 Conn. 170, 553 A.2d 612 (1989). The valuation of real estate is a matter of opinion based on all of the evidence and at best is an approximation to be determined by the fact finder. See Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 430-31, 534 A.2d 213 (1987). [5] At the time the plaintiff tried to buy the defendant's interest in the home, the court had already ordered a sale on the open market, which was within the court's equitable power. Given the original order, which required such a sale, the plaintiff had no right to buy the home from the defendant at any particular price. On the basis of the evidence adduced at trial, before the judgment was rendered, the court could have concluded reasonably that the sale of the house would not unduly damage the son's health. Furthermore, the sale might be one in which the plaintiff was the buyer. [6] The plaintiff also argues that the court should have considered awarding her a "deferred sale of family residence order," as described by the American Law Institute; see American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 3.11 (2000); in light of the increased severity of the son's health condition. That provision, however, is inapplicable here, as it applies only to short-term deferrals. The comments following the provision specifically state that deferral "may be warranted to avoid any significant detriment to a child when the duration of deferral is short. . . ." Id., at 510. The plaintiff does not suggest an appropriate short deferral period. Reading her argument as a whole, it appears that she seeks an indefinite deferral, or at least one until the son graduates from the school system in which he is presently enrolled. The child was seven at the time of the decision. [7] The issue of whether the subsequent deterioration of the children's health was sufficient to support a motion to modify either alimony or child support award is not before this court. Periodic alimony and child support are modifiable after a judgment of dissolution. Crowley v. Crowley, 46 Conn.App. 87, 91-93, 699 A.2d 1029 (1997).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516274/	420 S.W.2d 760 (1967) ARGONAUT SOUTHWEST INSURANCE COMPANY, Appellant, v. John E. MORRIS, Jr., Appellee. No. 11545 Court of Civil Appeals of Texas, Austin. November 8, 1967. Rehearing Denied November 29, 1967. 762 L. W. Anderson, Dallas, C. C. Small, Jr., Austin, for appellant. J. Hubert Lee, Austin, for appellee. HUGHES, Justice. This is a workmen's compensation case in which the insurer, Argonaut Southwest Insurance Company is appellant and the employe, John E. Morris, Jr., is appellee. Previously overruled by us is a motion filed by appellee to dismiss this appeal for want of jurisdiction. We will now state the reasons for denying this motion. The final judgment was signed and entered January 31, 1967. Appellant filed a motion for new trial February 6, 1967. February 28, 1967, appellant filed an amended motion for new trial. On March 21, 1967, appellant filed a motion asking that its amended motion for new trial be considered as timely filed for the reason that since the last day for filing, February 26, fell on Sunday that Monday February 27th would be the last day for filing and that it, on February 25, 1967, prepared and mailed to the clerk of the trial court by depositing the same in the United States mail its amended motion for a new trial, but that for some reason this amended motion was not received by the clerk until February 28, 1967. This motion, of March 21, 1967, was granted by the trial judge. The amended motion for a new trial was overruled by order signed March 22, 1967. Notice of appeal was given in this order and a separate notice of appeal was filed March 27, 1967. Appeal bond was filed March 31, 1967. The record was filed in this Court on May 4, 1967. Rule 329b requires an amended motion for new trial to be filed within 20 days after the original motion for new trial is filed. We agree with appellee that appellant's motion that the amended motion for new trial be considered as having been timely filed is insufficient to sustain the order of the trial judge granting such motion. It is agreed that the factual allegations of the motion constitute the only evidence offered to support the motion. It was also agreed that such factual allegations should be considered as evidence. These allegations do not comply with the requirements of Rule 5, Texas Rules of Civil Procedure, namely, that the motion be sent by first class mail in an envelope or wrapper properly addressed and stamped, and the envelope or wrapper containing same bears a postmark showing a timely deposit. Disregarding the amended motion for a new trial and considering only the original motion for a new trial, Rule 329b provides that such motion shall, if nothing else transpires, be overruled by operation of law 45 days after the same is filed. Here, nothing within the rule transpired after the original motion was filed and it was overruled 45 days after it was filed, to wit, March 23, 1967. As shown above, the necessary appellate steps were timely taken after March 23, 1967. 763 Appellee also says that since appellant gave notice of appeal from the judgment and from the order overruling its amended motion for a new trial that it has restricted its appeal in some manner. An appeal is from the judgment or some portion of it and not from the order overruling a motion for new trial. Rule 353(b) T.R.C.P. The trial was to the court without a jury. Judgment was rendered for appellee for total and permanent disability. Appellant's first point is that the trial court erred in permitting appellee to testify to statements made to him by Doctors B. F. Simms and Robert Farris regarding his physical condition, appellant objecting that such statements were hearsay. Upon such objections being overruled, appellee testified at length to statements attributed to these doctors concerning his physical condition. It is quite true that unsworn, out of court statements made by doctors with reference to the physical conditions of their patients is hearsay and inadmissible. Traders and General Insurance Company v. Wheeler, 271 S.W.2d 679, Tex.Civ.App. El Paso, writ ref. n. r. e. It is equally true that such statements in the nature of admissions against interest are admissible against a principal when made by an agent within the scope of his duties. Texas Law of Evidence, 2nd ed., McCormick and Ray, Vol. 2, Sec. 1164. 31A C.J.S. Evidence § 343, p. 834. Appellant has admitted that it requested Dr. Simms to examine appellee and that it received reports from Dr. Farris regarding the condition of appellee. There is evidence that the doctors to whom appellee's employer sent him were Doctors Simms and Paulsen and that they sent him to Dr. Farris. The admissions and testimony are sufficient to support an implied finding that the doctors named were agents of appellant. It is our opinion that the statements made by these doctors regarding the physical condition of appellee were admissible. See Vineyard v. Texas Employers' Ins. Association, 263 S.W.2d 675, Tex. Civ.App. Dallas, writ ref. n. r. e.; Bituminous Casualty Corporation v. Jordan, 351 S.W.2d 559, Tex.Civ.App. Waco, n. w. h. Point one is overruled. The second point of appellant is that the trial court erred in receiving in evidence the payroll records of appellant relating to Halden Lloyd Holstien in order to prove the wage rate of appellee under subdivision (2) of Sec. 1 of Art. 8309, V.T.C.S., for the reason that there was no evidence that Mr. Holstien had worked in Austin or in a neighboring place for 210 days during the year immediately preceding the date of appellee's accident. Appellee was employed by the Cecil Ruby Construction Company in Austin, Texas, when he was injured in the scope of his employment on September 14, 1965. He had not worked in the employment in which he was working at the time of his injury for the same or a different employer for 210 days during the year immediately preceding his injury. Sub. (2), supra, provides that in such case an employee's average weekly wage should be calculated from the average weekly wage or salary of an employee of the same class working 210 days in the year immediately preceding in the same or similar employment "in the same or a neighboring place." In attempting to make the requisite proof under this subdivision, appellee called the payroll clerk of the Cecil Ruby Company, Mrs. Sarah Darby Holland, who lived in Austin. We quote from her testimony: "Q I will ask you if you brought with you the record of any employee of the Cecil Ruby Company that does a similar work to the work done by John Morris, namely a truck driver, driving those large highway construction 764 trucks? Did you bring the record of another employee? A I brought the records of another one as close as I could to this man. Q What does that man do? A He is a truck driver. Q The same type of trucks? A Yes. Q Has he worked for the company for a year or more before September 14, 1965? A Yes, sir. Q Do you have that record with you? A Yes, sir. Q Does that employee work in the same area as John Morris did? A He has worked in the same area and other areas also. Q And at the time betweenthe year just before September of 1965, his job was about the same as John Morris? A Yes, sir. Q And he was paid out of the same office as John Morris was? A Yes, sir. Q And he was driving whatever truck that he had driven in the same way that John Morris would have to do? A Yes, sir. Q And that is in Travis County and other surrounding territory, is that right, both of them? A Yes, sir, wherever they were working. Q Wherever they were sent? A Yes. Q Where is the company basedthe main office of this company, the Cecil Ruby Construction Company? A In the Brown Building, 907 Brown Building. Q 907 Brown Building, Austin, Texas? A Yes." On cross examination by appellant, Mrs. Holland testified: "Q Mrs. Holland, Cecil Ruby and Company, Inc., is your employer, is that correct? A Yes. Q They have jobs pending in numerous parts of the state, do they not? A Yes, sir. Q I believe actually most of your operations now are in Dallas. Isn't that true? A Yes, but in other places, also. Q Yes, I understand. In fact, during this time Mr. Holstien worked for you, you had operations in Big Spring and San Marcos and Dallas and all over the state; isn't that right? A Yes. Q I believe that's all." On redirect examination, she testified: "Q Mrs. Holland, I will ask you if the wages that are paid are the same whether the man traveled to Dallas or stayed in Travis County? A The wages are based on the Federal wage requirements and the men are paid according to the wage scale on each project that is awarded to our company, and then some of the men who have been with us and are good employees make more than that wage scale. 765 Q But what I was trying to arrive at is whether the wages in Dallas or Big Spring or whatever are different than in Austin? A No, that has no bearing on what the man makes. Q So far as the location of the job, they are paid the same wages? A Yes." The payroll record of Mr. Holstien was admitted in evidence. It shows that his address was given as Edna, Texas. There is a line on the record under which these printed words appear "Dept. or Place of Work." This line is blank. The trial court made this finding: "That Plaintiff had not worked for at least 210 days during the year immediately preceding the date of his injury but that there was an employee of the same class as Plaintiff employed in the same or similar employment as Plaintiff, in the same or neighboring place who did work at least 210 days of the year immediately preceding the date of Plaintiff's accidental injury on September 14, 1965, and that such employee was Haldon Lloyd Holstien, and that his average weekly wages were not less than $70.00 per week." Mrs. Holland in explaining these records testified that they reflected the regular weekly pay of Mr. Holstien, his overtime and his gross weekly pay, and that a week was from Sunday through Saturday. The record reflects that Mr. Holstien earned $1.50 an hour regular pay and that his overtime pay was $2.25 an hour. The regular pay earned during a full week was shown to be $60.00. The amount of overtime pay varied. If we assume that the $60.00 weekly regular pay was for a five day, eight hour a day week (8 × $1.50 × 5 = $60.00) then the records show that Mr. Holstien worked 209 days in the year immediately preceding the injury of appellee. While much overtime is shown, there are two weeks where overtime earnings were large, too large, in reason, to have been earned except by working on Saturday or Sunday. In the week ending October 24, 1964, Mr. Holstien earned $60.00 regular pay and $52.87 overtime pay. In the week ending March 6, 1965, he earned $60.00 regular pay and $58.50 overtime pay. To have earned $58.50 overtime in five days Mr. Holstien would have had to work on the average of more than 5 hours overtime each day. This is an unreasonable assumption. We believe that the fact finder, the trial judge, had the right to infer from the evidence that Mr. Holstien worked at least 210 days in the year immediately preceding the date of appellee's injury in the same or similar employment as appellee worked. It remains to be determined whether Mr. Holstien worked in a "neighboring place." We believe that the principle of Commercial Standard Ins. Co. v. Brock, 167 S.W.2d 281, Tex.Civ.App. Amarillo, writ ref. w. o. m., requires an affirmative answer to this question. In that case the employe was injured in Lipscomb County, Texas. He lived in Seminole, Oklahoma. His employer was engaged in oil field contract labor in Oklahoma. When injured, the employe was engaged in moving oil field machinery in special trucks from Garden City, Kansas to Odessa, Texas, a distance of 485 miles. In proving his weekly wage rate the employe used the employment of a worker from Seminole, Oklahoma, who, while working for a different employer, was engaged in the same kind of work as the employe performed. Seminole, Oklahoma is something over 200 miles from Lipscomb County, Texas. We quote from the opinion of the Court which recites other facts in connection with its holding that the proof was sufficient: "The appellant contends, first, that the wages or salary of Poling was not a correct 766 measure because his work was not performed in the same or a neighboring place as that of appellee, and asserts that the phrase `in the same or neighboring place' refers to the place of the accident, in this case, Lipscomb County, and not to some other place where the appellee or Poling may have worked. Under the facts presented, we think such a restricted meaning of this phrase is not applicable. The expression `neighboring place' is obviously a relative term and the purpose and import of its use are to be known from the context. What would not constitute a neighboring place in one instance might do so in another. * * Therefore, the circumstances under which the term is applied must be considered in each case. In this case we have extraordinary circumstances. The work of the appellee and of Poling and his associates was of an unusual type and character and extended over considerable territory, including several States. It was not of a local character, and, with the exception of appellee's passing through the place of the accident, so far as the record reveals, such work was not performed in Lipscomb County or in that immediate vicinity. Under such conditions, we are of the opinion that the meaning of the term must be given a larger and a more appropriate interpretation." This case was followed by the Eastland Court of Civil Appeals in Texas Employers' Insurance Association v. Goforth, 307 S.W.2d 610, writ ref. n. r. e., where the Court held that the employe, an oil field roughneck and driller, injured while working in Stonewall County could establish his wage rate under subdivision 2, supra, by showing that a workman of the same class worked in Stephens, Callahan and Stonewall Counties and in "East Texas" for the requisite number of days. Only the work in "East Texas" was challenged as not being a "neighboring place" to Stonewall County in West Texas. After citing the Brock case, the Court stated: "The record in this case indicates that the oil field workers involved were engaged in work which, like the oil field machinery removing work in the above cited case, was transitory and extended over a large territory. The evidence shows that Goforth was being paid at approximately the same rate per hour for the work he performed as a roughneck that Lewis was being paid for the same type of work and that the wages paid in each of the counties involved were the same. We are unable to see how appellant could be injured by an application of the same liberal rule used in the Brock case in identifying and determining the extent or breadth of `a neighboring place'." Similarly here, the work of the Ruby Construction Company was carried on at various places over the State, presumably at places where construction jobs were obtained. The work, the trucks and the wages were the same regardless of where the employe was situated. The locale of the job was of no relevance. Under these circumstances, we conclude that a neighboring place, under the facts of this case, includes places where the same employer conducts the same type of business under the same conditions and the conditions of employment are the same. In reaching this conclusion we are also aided by the rule that a liberal construction of the Workmen's Compensation Act requires but slight proof of the applicable wage rate where, as here, there is no real controversy over it. American General Insurance Company v. Hightower, 279 S.W.2d 397, Tex.Civ.App. Eastland, writ ref. n. r. e. We overrule the second point. Appellant's points three and four, jointly briefed, are to the effect that the trial court erred in considering evidence to sustain a finding of $70.00 per week as a just and fair wage under subdivision 3 of Sec. 1 of Art. 8309, supra, since the 767 applicability of subdivision 2 of such article had not been negated. We have held that the evidence supports the findings of the trial court with reference to the application of subdivision 2 of Art. 8309, Sec. 1, which holding makes moot these points. They are not decided. The fifth point of appellant is that the finding of the trial court that appellee was totally and permanently disabled is not supported by any evidence and, alternatively, is against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule this point. We copy, in full, appellant's statement under this point: "The Plaintiff admitted at the suggestion and the leading question of his attorney that he was able to do light work. Dr. Jerry D. Julian had testified that in his opinion he was able to do work of driving a truck, as the result of his examination of the Plaintiff. Dr. Maurice Jacobs the physician to whom the Plaintiff had gone immediately following the alleged accident, and who had treated the Plaintiff on three (3) occasions prior to this for his previous back injuries, testified, in his opinion that when he saw him on September 18, 1965, which was three (3) days after the alleged accident, the Plaintiff would be able to return to work as a truck driver and the most he should be off as the result of the alleged accident was two (2) or three (3) weeks. Even Dr. Warran A. Ross, the physician to whom his attorney sent him, testified that in his opinion the Plaintiff might have some pain but he could do the work of a truck driver." The reference to the testimony of Dr. Ross with regard to the ability of appellee to drive a truck is quoted below: "Q Will you state now, in view of the reports that I have, that you have seen and that you have made, on review of them whether you have any opinion as to whether or not John Morris is able at this time to do any heavy lifting? "A I would strongly not recommend it. "Q And would he be able to do any material twisting, such, for example, as taking a wheelbarrow load of dirt and turning it over into a dump? "A I wouldn't advise him to do this continuously throughout the day, no, sir. "Q And in your opiniondo you have an opinion about whether or not John Morris can do any heavy lifting at this time? "A I would recommend that he do nothing that would require prolonged use of his back for lifting, bending, twisting, stooping or straining. "Q Now, Dr. Ross, assuming that the driving of these trucks, highway trucks, such as John Morris was driving previously, requires a substantial and continuous amount of heavy twisting of the wheels and heavy pulling of the levers and controlling of the trucks, and heavy pressing of the feet on the brakes, do you have any opinion as to whether that sort of continuous activity wouldwhether he could do it without pain? "A He could, but for how long, I don't know. In other words, if he persisted in it, he would have pain, and he would have pain of such a severe degree that he would have to quit. "Q So that actually he could not do the work regularly? "A If it's the type of truck that I would be familiar with, not being a truck-driver any more, I couldn't say much more about that. Again I limit 768 my qualifications to the medical aspects that the man should not do any prolonged lifting, bending, squatting, stooping, straining or twisting of his back. Q And, now, do you consider that to be a permanent condition? A Yes, sir. Q Maybe I should ask you in another way, Doctor: Do you have an opinion as to whether it would bethat condition would be permanent? A His injury that he has there? Q Yes, and disability to do the twisting and bending and stooping and lifting that you have described? A Yes, sir; it is permanent." The so-called admission of appellee that he could do light work was derived from the following testimony of appellee: "Q Can you bend backwards or forwards reasonably well when you have the brace on? A I have not tried to bend backwards, but I have tried to bend forwards. Q You can bend forwards? A Yes, sir, reasonably. Q Do you have any difficulty in picking up anything heavy and twisting from your waist? A I try not to pick up anything heavy, not over ten to fifteen pounds. Q Have you had any pain of any kind in connection with trying to do any strenuous exercise or lifting? A Yes, sir. Q Tell us how. Do you remember any particular instance? A When I bend down on my exercise, I get pain in my back, and when I cut the yard, I get pain in my back and my legs, and so I quit and rest a while, and then work a while, and then keep on doing that until I finish the yard. Q Are you willing to do some kind of light work that you could do if you could find it? A Yes, sir. Q Have you looked for it? A Yes, sir. Q Have you found it? A No, sir." Appellee was a truck driver. The truck he drove was a tandem type. Its cab had four wheels. The tandem trailer had twelve wheels, six double wheels. The truck had a flat and while it was being repaired it was noticed that a brake drum was cracked and a new one had to be installed. While helping another employe carry this brake drum, which weighed about 100 lbs., the employe, so appellee testified, dropped his end of the drum and in picking it up and carrying it to the truck, appellee strained and injured his back. Two employes who were present when this incident occurred testified that appellee dropped the drum. Appellee described driving the truck as follows: "Q Will you state to the Court whether managing these large trucks and driving them requires you to exercise any strength from your waist and your legs and your arms? A Yes, it does. Q Describe how and to what extent and why. A You have to use your right leg for the gas and for the brakes, and your left leg is for the clutch, and you use your arms for the twisting and turning of the steering wheel. If you are going up a steep hill and 769 you have to change gears awfully fast and the road is bumpy, you bounce up so, and you have to keep wrestling with the steering wheel and have to change gears fast enough to keep from rolling back down the hill. Q Does the weight of the load have anything to do with that, the fact that it is a heavy truck or heavy load? A Not exactly. The weight of the load sometimes makes it go smoother, and other times, if the road is pretty bumpy, it is rough anyway. Q In turning corners, are you required to make any more or less exertion than driving straight? A Yes, you do. Q Do you have to exert any strength from your waist? A Yes, you have to wrestle with that steering wheel. Q How many shifts does a truck like that have? A This one has five forward and one reverse." Dr. Jerry D. Julian, an orthopedic surgeon, was a witness for appellant. He testified that he examined appellee one time, June 1, 1966, for appellant. He stated that appellee had a slight pelvic obliquity with the right side elevated and the left compensatory lower thoracic upper lumbar scoliosis. That the range of motion of the lumbar spine was limited; that there was subjective tenderness in the lower thoracic and upper sacral area but no demonstrable paravertebral muscle spasm; that the left leg was two (2) centimeters shorter than the right and that the thigh circumference was 48 centimeters on the right and 47 on the left; that there was a hamstring muscle tightness to 40 degrees bilaterally which is usually associated with discomfort on the part of the patient; that his x-rays showed a grade one spondylolisthesis with approximately one centimeter of anterior displacement of the body of L-5 on S-1. That there appeared to be an increased sclerosis about the lumbo sacral facets. That the spondylolisthesis grade one, means a forward displacement of the last lumbar vertebra on the first sacral vertebra. That this was a congenital defect. Dr. Julian also testified that a person with a spondylolisthesis may in all honesty suffer several separate injuries to his back because he has got this spondylolisthesis situation, and that it is probably true that a person with a good back does not get injured as often as a person with a spondylolisthesis, and that with respect to muscle spasms there are periods of remission when the muscle spasms are not evident and that the fact that the doctor did not detect muscle spasms on the occasion of his examination did not mean that appellee had not had muscle spasms within recent times. Dr. Julian further testified that you could have the sprain being chronic without the necessity of a displacement of any of the vertebrae of the back, if it is a low back sprain; that a person with a low back spondylolisthesis does render his back more susceptible to low back sprains and chronic sprains. Dr. Julian also testified: "Q Now, do you ever find any situation in which a sprain may become chronic and so affect the individual that he really would not be able to return to the type of work that he was doing before, if his work involved lifting heavy weights, twisting heavy wheels on heavy trucks, and that sort of thing? A It is possible. Q I will ask you if you could deny and rule out that John Morris' back is in that condition? A I could not deny it with complete certainty." 770 Dr. Maurice Jacobs, an orthopedic surgeon, testified for appellant. He examined appellee on the day following his injury. We quote from his testimony: "Q On that occasion, was he again complaining of a backache or back pain in the same area for which you had treated him before on these two previous occasions? A Yes. Q Did you or not take any x-rays of him at that time? A No. I did not take any x-rays. Q Did you give him any treatment? A Yes. Q What type of treatment did you give him? A I prescribed some muscle relaxant pills and some pain medicine, too. Q Did you prescribe a back brace at that time or not? A I have no note here of having prescribed a back brace. Q Did you consider that he had a serious injury and would have any permanent injury as a result of the condition which you treated him for as a result of this accident in September of 1965? A No. Q Doctor, when was the last time you saw him after you treated him in September, 1965? A September 18, 1965. Q And the last time you saw him, did you or not think that his physical condition would improve so that he could return to work as a truck driver? A Yes. Q What is your opinion as to how long you think he should have remained off work as a result of the injury or alleged injury in September of 1965? A About two or three weeks." On cross examination, he testified: "Q If he suffered any disability by reason of having been injured in September, 1965, the last time he went to see you, would you attribute that disability to the injury that he suffered in September of 1965? In other words, when he came to see you in September of 1965, if he had any disability after that accident of September, 1965, would you attribute that disability to that accident or the injury suffered at that accident? A In other words, was this a fresh injury in September? Q Yes, sir. A Well, I would assume that, yes, if he worked for several months without complaining of pain, and then had a new complaint of pain and recalled an injury to it, I would say this was a fresh injury." Dr. Warran A. Ross, a medical doctor, specializing in orthopedics, testified for appellee. Dr. Ross saw appellee about February 4, 1966, the first time, and treated him thereafter to the time of trial. Dr. Ross examined him on February 4, 1966, neurologically and also took x-rays of appellee's spine and lower back. Dr. Ross found a forward displacement of the vertebral body of L-5 on the sacrum and an increased lumbosacral angle of 55 degrees. He also found structural deformities of the low lumbar level at L-4, 5 and the sacrum, and the pelvic crest was level with the spine of L-3. The right and left oblique projections demonstrate extreme narrowing of the pars-interarticularis at L-5 and more apparent loss of continuity on the right than on the left. Dr. Ross' diagnosis was acute and chronic lumbar strain; structural instability, lumbar 771 spinc; that the acute and chronic lumbar strain was referable to the ligaments of the lower back; that the x-ray evidence was his primary basis for diagnosing the structural instability of the lumbar spine. Dr. Ross stated that he found muscle spasms on appellee when he examined him in February of 1966. Dr. Ross also stated that the structural instability was not caused by a sudden traumatic incident and that the previous injuries that he may have sustained would not be the cause of his structural instability. He also testified that these prior accidents did not contribute to the present disability, that the structural disability of the lumbar spine was a permanent condition, which has likely been that way for many years and was not caused by an acute traumatic condition. Dr. Ross further stated that the relaxation of these torn ligaments is permanent. We have previously recited the testimony of Dr. Ross to the effect that the disability of appellee to perform the usual duties of a truck driver was permanent. After appellee was injured he, at the suggestion of Dr. Simms, returned to his job and resumed driving a truck. After a very short time, the same day, he had to quit because of pain. Appellee testified that he applied for work at several places but was unsuccessful in obtaining it. There is much more evidence in the record regarding the injury of appellee, its extent and permanency and we have, as duty requires and as appellant suggests, examined all the evidence very closely in order to determine this point. We are of the opinion that the evidence is legally and factually sufficient, and that this point should be and is overruled. Appellant cites no cases considered factually in point in its favor. Appellee cites several cases as factually supporting its position. Since the facts of these cases differ from those found here, a review of them would not be fruitful. The sixth point of appellant is that the trial court erred in finding that prior compensable injuries sustained by appellee did not contribute to his present disability because such finding was not supported by any evidence and was against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. Appellee testified that he had sustained a back injury in 1958, that he received medical treatment for it but was not compensated under the Workmen's Compensation Law for it. He next sustained an injury to his back in 1959. He received medical treatment for this injury. His claim before the Industrial Accident Board was settled after he had not worked for four or five months. He next was injured in 1961, received medical treatment, did not work for three or four months and settled his claim for workmen's compensation benefits. He then worked for six months prior to another injury to his back in March, 1964. He received medical treatment for this injury, did not work for one year and settled his claim for workmen's compensation benefits. He commenced working for the Cecil Ruby Company in May, 1965 and sustained the injury involved in this suit on September 14, 1965, while in the same employment. Appellee testified that he had worn back braces after his previous injuries but not the chair type brace he was now wearing. Dr. Maurice Jacobs testified that appellee had complained of the same low back area when he treated him following injuries prior to the September, 1965 injury. We quote the following testimony of Dr. Ross: "Q Now, I believe you said awhile ago that whenever you have an injury to a muscle or a joint that 772 that creates an arthritic condition that remains the rest of their life? A Yes, sir. Q Now, this man had these series of injuries in this very same area that he had had this bad back, he has been treated for it, and he has collected money for it; now, each one of those occasions, if they occurred, created an arthritic condition that continued from then on, didn't it? A Only if it involved the joints. Q Right. Well, if there were similar claims based on these same symptoms, it would be working on the same parts of the body, and would have created these same arthritic conditions in the very same places involved in this action? A If it involved the joint, yes, sir. Q And if it was a complaint caused by lifting something, hurting his back, it would have created a condition each time that projected itself permanently into the future? A Yes, sir. Q You say that that doesn't contribute at all to his present condition? A I said it contributes to his potential; in other words, the fact that he has an unstable back does Q I am talking about this arthritic condition that has set up, this inflammatory reaction of the joints. A Well, I have no way of knowing whether he had an injury of the joints preceding this present injury. In fact, it would be most difficult to say that he has an injury of the joint at this time categorically, although it is presumed with the severity of his symptoms and the prolonged history that he gives that the injury is most likely involved. And, therefore, if the injury does extend into the joint, then he does have an arthritic condition of that joint which will be permanent. Q And that could very well have been the case in the prior injuries? A Have no way of knowing. I didn't see him then. Q You just don't know? A That's right. * * * Q Now, assuming this man had substantially the same symptoms on all these other occasions, if he had torn ligaments on these other three occasions, that would have created a permanent condition A Yes, sir. Qthat might have contributed to his problem at this time? A It would contribute to his weakness, but not his present incapacity. Q But would contribute to the permanency of his present condition? A Well, yes, I think you could say that, but not to hisI don't think you could even say that. Q Well now, A Because I have no way of knowing how severe his previous injuries were. Apparently they weren't too severe because he recovered. * * A He has been out over a year this time. Q Right. A So this would indicate some increased severity of this injury over the preceding injury. Q Well, isn't that severity a result probably of the previous permanent damage that might have occurred to him? 773 A It is possible. Q It is possible. So you can't say then categorically that this particular injury or transaction is the sole cause of his present permanent condition, can you? A Yes, I can. Q Well, you just said it was possible A No. Qthat these others contributed to the permanency of his present condition. A No; no. We are talking about two different things. You are talking about the structural condition, and I am talking about the newly acquired ligamentous condition. Q Well, now, those ligaments could have been torn and strained in these other accidents, couldn't they? A Sure; he could have broken his toe in these other accidents, too, but that has nothing to do with his present injury. Q But that contributes to the permanency of it, doesn't it? A No, sir. Q No? A No, sir. It contributes to the condi-of his back prior to his present injury, but not to the permanency of it. In other words, the permanency of his condition at this time is related to the permanency of the injury at this time. The permanency of the injury before has contributed to the permanency of his condition before he sustained his injury. He did recover before. * * Q You are saying that his previous injuries or claimed injuries wouldn't contribute at all to the continuation of the muscle spasm and the pain that he claims now exists? A That is correct. * * * Q If I follow you correctly then, this prior history of injury in this very same locality of his back was of no concern or interest to you whatever in making your diagnosis? A That is correct. Q And you didn't even consider that in making your diagnosis of the man? A That is correct. Q And you don't consider that any of those could have had any contributing cause to the present condition man suffers from? A It contributed to his instability, but not to his present incapacity; that is correct. * * * Q Well, let's go into this matter of structural instability. I believe you weren't willing to say whether that was congenital or what it was; is that correctdid I hear you right? A. Yes, I said that it could be argued that it is a congenital condition or that it is an acquired condition, but to be acquired it would not be considered as developing from one acute episode of injury. Q What is your best judgment on itis it congenital or acquired? A Well, I don't think it is really material about whether the fellow was born with this or whether he developed it because of doing heavy work over his thirty-three years of existence. I do know the x-rays show it is present, and this is the only thing that concerns me; the fact that the x-rays indicate this, the symptoms indicate that he has an injured condition in his back on the 4th of February when I first 774 saw him, and the history he relates is the fact that his symptoms started the 14th of September, 1965. Q All right. Then, I take it that this structural instability was present at the time of the injury and didn't in your opinion contribute to any degree to the injury or the possibility of the injury? A It contributed to the weakened condition of the spine, but it did not it was not the cause of his present incapacity, no, sir. Q It doesn't have any effect on his present incapacity? A I don't understand what you mean by the Q The structural instability, does that have anything to do with the man's sore back at the present time and his complaint that his back hurts him? A His injury is the reason that his back is hurting. Q The injury was not caused in any respect and not influenced by the structural instability? A I think you can say that it was influenced, but not caused by it." In discussing point five, we set out the testimony of Dr. Julian to the effect that he could not rule out with certainty that the effect of a chronic sprain would disable a person so that he could not do the type of work which appellee was doing when injured last. Appellant cites us to no medical testimony to the effect that the prior injuries appellee sustained contributed to his present disability. The most that the medical testimony of doctors testifying for appellant shows is that appellee had an unstable back which made him more susceptible to back injury. In fact, Dr. Jacobs testified, supra, that any disability which appellee has after September 14, 1965, would be attributed to any injury then sustained. Appellant asserts that the findings of the trial court in this respect constitute a travesty on justice in that appellee has been paid for two or more compensable claims resulting from injuries to his back. Whatever merit there may be in this assertion is of an equitable rather than a legal nature. The Workmen's Compensation Law is purely statutory. No doubt, at times, its operation is deemed inequitable both by the employer and the employee. With these complaints, we are not judicially concerned. Our duty is to enforce the Act as written. The evidence to support the findings, attacked here, in our opinion, preponderates in support of the findings of the trial court, and we, therefore, have no authority to disturb them. Point six is overruled. Appellant's point seven is that the trial court erred in finding that appellee's prior physical condition was not the sole cause of his disability, because there was no evidence to support such finding and it was against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Drs. Julian and Jacobs testified and the trial court found that appellee had an unstable back and that this was a congenital condition. Appellant contends that appellee should have pleaded and proved and the trial court should have found that this congenital condition of appellee was aggravated by the injury complained of before he was entitled to recover in this case. The trial court found that the prior physical condition of appellee was not the sole cause of his present disability. The trial court made no finding with respect to aggravation of appellee's infirmity, nor would this have been appropriate 775 since there was neither pleading nor proof of aggravation. We quote from Texas Jurisprudence 2d Vol. 62 Sec. 109, Workmen's Compensation, the law, as we understand it to be, which fully answers the contention of appellant: "If a protected employee sustains an accidental injury of the character defined in the law and from which disability or death results, the injury is compensable even though the employee was at the time suffering from some disease or infirmity that rendered him more susceptible to such an injury or that aggravated or enhanced its effect. In other words, if there is a real injury, the background of the employee's peculiarities will not defeat compensation for it. The employer accepts the employee subject to the latter's condition when he enters the employment, and it is no defense to a claim for compensation that the injury would not have been as great, or that death would not have occurred, if the employee had been in a healthy condition. * * * A claimant is precluded from recovery if the disability or death for which compensation is sought was not the direct result of the injury but was solely caused by a pre-existing disease or idiopathic condition." Many cases are cited to sustain the text including Sowell v. Travelers Insurance Co., 374 S.W.2d 412, Tex.Sup.Ct. See also Texas Employers' Ins. Co. Association v. Beard, 390 S.W.2d 59, Tex. Civ.App. Fort Worth, writ ref. n. r. e. where it is stated: "In order for a prior or existing disease, impairment or condition to constitute a defense to a claim for compensation it must be established that such prior or existing disease, impairment or condition or some combination thereof standing alone is the sole cause of the the incapacity. Otherwise stated, it must be shown that such prior or existing disease, impairment or condition or combination thereof is disassociated or disconnected with and not aggravated by the injury or incapacity upon which the claim for compensation is based. The appellant Insurance Company must plead such matter as a sole cause defense and secure favorable findings thereon. The burden of proving the negative of the sole cause issue is upon the claimant." Appellant cites the case of Whitten v. Liberty Mutual Insurance Co., 257 F.2d 699 (5th Circuit) as holding that compensation benefits under the Texas law cannot be recovered where there is no evidence that the injury aggravated a prior condition, and as being directly in point here. As we understand this case, it merely holds that causation between the death of the employee and his employment was not shown since there was no evidence that his over exertion metastasized cancer of the prostate and was a producing cause of death as claimed. We overrule point seven. Point eight is that the trial court erred in admitting into evidence the typewritten reports of Dr. Ross made by him regarding the physical condition of appellee. The objection was that the reports were hearsay. In arguing this point, appellant states, "Since apparently this was the only medical testimony upon which the court could rely in making any finding of fact of total and permanent disability, the finding was obviously in error since it was based upon incompetent evidence." The reports of Dr. Ross were made by him shortly after each examination made by him of appellee. Some of the reports are quite lengthy. Dr. Ross testified that the reports were true and correct. Appellant had the opportunity to cross examine Dr. Ross about these reports. It did cross examine Dr. Ross. 776 The objection to the reports was a general objection that they were hearsay. If any portion of the reports was admissible as an exception to the hearsay rule, then a general objection to the reports in their entirety was properly overruled. We are of the opinion that these reports of Dr. Ross fall within the purview of Art. 3737e, V.T.C.S., and were generally admissible. Goshorn v. Hattman, 387 S.W.2d 422, Tex.Civ.App. Beaumont, writ ref. n.r.e. If, as appellant contends, some portion of these records was inadmissible under the decision of the Supreme Court in Loper v. Andrews, 404 S.W.2d 300, then it was incumbent upon appellant to isolate such portion and specifically object to it. Furthermore, the evidence recited in this opinion refutes the statement of appellant that dehors these reports there was no evidence that appellee was totally and permanently disabled. The point is overruled. Point nine is that the trial court erred in refusing to admit in evidence two exhibits offered for impeachment purposes. One exhibit is a letter signed by John E. Morris and by E. B. Fuller, attorney. It is a letter dated November 27, 1959, reciting that while he, appellee, was in the employ of Bob King's Humble Station and that about October 8, 1959, in the course of his employment he was helping to move a small car which was on the grease rack and about to fall. In assisting, he injured his back. It also states that the Bob King's Humble Insurance Company contends that there is a question as to whether or not he sustained an injury of any kind and that if he did, it was minor and would not result in permanent disability and that there was a possibility that the injury and disability of which he complained was congenital. While testifying in this case, appellee was asked whether on October 8, 1959, if he didn't claim that he injured his back while working for King's Humble Service Station while holding a small car on a grease rack. He answered that he did hold a small car on the grease rack and that he thought that he filed a claim and he knows that he injured his back at that time. He stated that the signature on exhibit "1" looked like his signature. That it was the claim that he had filed with the Industrial Accident Board. It was received in evidence as Defendant's exhibit "1." Appellee also testified that he went to Dr. Jacobs at that time but he did not remember if Dr. Jacobs told him that he had a congenital back condition. He acknowledged that he employed Mr. E. B. Fuller to represent him. Appellant's counsel stated that he was offering this exhibit for impeachment, saying: "I asked him about what Dr. Jacobs told him about his back and so forth, and that is in here, and I will read it to you or let you read it first." Portions of it were read in evidence, but upon the instrument being offered in evidence, the court sustained the objection. There was no statement in the instrument made by Dr. Maurice Jacobs. Appellant states that this letter was offered to impeach appellee regarding "what the doctors had told him about his prior back condition, and that it was congenital." There is nothing in this exhibit to impeach appellee on this subject. No error was committed in excluding this proffered evidence. The other proffered and excluded exhibit was a copy of an instrument providing for settlement for $500.00 of a previous compensation claim made by appellee for an injury while working for "Big Bear." 777 The record shows that appellee had made such a claim and that it had been settled. When asked whether he received $500.00 as settlement, appellee answered, "I don't think I did, I don't know it was that much." Evidence of the amount received in settlement of a prior workmen's compensation claim is not admissible in a workmen's compensation case. St. Paul Fire and Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744. It is not permissible to impeach a witness on immaterial or inadmissible matters. Point nine is overruled. The judgment of the trial court is affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1519535/	232 S.W.2d 389 (1950) CURD et ux. v. REABAN et al. No. 41672. Supreme Court of Missouri, Division No. 2. July 10, 1950. Motion for Rehearing or to Transfer to Overruled September 11, 1950. Hall & Reaban, Dale Reaban, and Roy H. Bergmann, all of St. Louis, for appellants. 390 Jackson F. Adams, St. Louis, for respondents-appellants Logan W. Curd and others. Motion of Defendants-Appellants for Rehearing or to Transfer to Court en Banc Overruled September 11, 1950. BARRETT, Commissioner. This action in two counts was instituted on the 23rd day of June 1947. The purpose of the first count is to quiet the title to a part of a lot in Westmoor Park Subdivision No. 2 in St. Louis County and the second count is in ejectment. The controversy arose in these facts: Logan W. and Gladys V. Curd purchased Lot 23 in Block 12 of the subdivision in May 1946 for $3,600. Fred W. E. and Myrtle E. Best purchased Lot 24 in 1937 and built a house and garage and a concrete driveway on the lot. On March 18, 1938 they sold the property to John E. and Ethel J. Reaban. In April 1947 Mr. Curd had his property surveyed and it was discovered, for the first time, that the garage and driveway encroached on his lot. At the widest point the garage encroaches two feet eight and three-eighths inches and at its narrowest point one foot one and one-half inches. The lots are irregularly shaped and the concrete driveway encroaches Lot 23 from zero to two feet nine and one-eighth inches at the widest point. When the survey revealed the encroachments the Curds instituted this action. The Bests and the Reabans claim title by adverse possession. The two counts were separately tried, the first count to quiet title in September 1948 and the second count in ejectment in February 1949. The trial court found for the Curds on both counts but failed to make an award of damages. The Reabans and the Bests appeal from the judgments against them and the Curds likewise appeal assigning as error the failure of the trial court to make them an award of damages. Upon the Bests' and the Reabans' appeal the principal error briefed and argued is that the Curds' petition and the judgments entered upon it are void because they fail to sufficiently describe the encroachment. It is said that the petition as to the first count to quiet title failed to set out or describe the encroachment and that the plaintiffs' principal witness could not describe it and, therefore, the petition failed to state a cause of action and the judgment entered upon that count of the petition is void. The petition described the Curds' property as Lot 23 and the defendants' property as Lot 24. It alleged that "the property of the plaintiffs forms the western boundary line of the property of defendants." The petition described the improvements erected by the Bests on Lot 24 and alleged that "in erecting their driveway and garage they encroached upon the above described property of plaintiffs to the extent of three (3) feet, more or less, as more definitely described in plat hereto attached and made a part of this petition * ." The pleaded plat, made by a qualified engineersurveyor, was introduced in evidence upon the trial of count one. The plat accurately measures and describes the boundaries of the Curds' lot and the encroachment of the garage and the driveway but it is not a metes and bounds description of the encroaching areas. In short it is not such a description as would be employed in a conveyance. It was not a description, however, comparable to the one involved in Bricken v. Cross, 140 Mo. 166, 41 S.W. 735, 736, an ejectment suit. There the land sued for was not only incorrectly described, the given courses, the court said, constituted an impossibilitythat is the description did not circumscribe an area of land, and so the petition failed to state a cause of action. As to the judgment the court said: "While it may be that from the description of the land in the judgment an officer charged with the execution of a writ of possession might be able to put plaintiff in possession of the land therein described, certain it is that it cannot be platted as thus described because in so doing it must have for its base the description given in the petition, which is no foundation at all." Likewise the description here is not comparable to the attempted description of the abandoned railroad right of way in Broderick v. Tyer, 239 Mo.App. 118, 187 S.W.2d 476, 478. There the court pointed out the deficiencies in the description as set forth in the petition and added, "There is no evidence that the abandoned lands now have any defined boundaries, such as fences, or that 391 there is present any markers, or physical characteristics, by which they might be located." So too the case is not comparable to Tillman v. Hutcherson, 348 Mo. 473,154 S.W.2d 104, 110, a suit to quiet title in which the dispute was as to the boundary line. There the court said: "Since the location of the east boundary line of the SE¼ of the quarter section was questioned and not proven; and this description did not locate the new fence and the old fence with reference to each other, or to any Government survey or natural monuments, the judgment was too vague to locate the land in dispute. If the old fence was not removed after the new one was built, one could go on the ground and find it. But even so, if it is not tied in with recognized monuments, the rights of the parties will still rest partly in parol; and unless the land in dispute can be located from the written description in the judgment, the law suit has been in vain and settles nothing except that respondent is entitled to the land wherever it is. It is universally held that judgments should describe with reasonable certainty the land adjudicated therein, both in ejectment and actions to determine title. If there is any difference, it seems the land description should be more definite in the latter, since we are coming to regard ejectment as a possessory action only." Here, as we have indicated, the plat accurately measures the Curds' property and the encroachments. In addition, when the engineer-surveyor testified he said: "A metes and bounds description can be made from the data that is on here." He said that, up to that point, he had not given the court a metes and bounds description "but I gave him sufficient data from which one could be written." At the conclusion of the trial on the first count the court's judgment found "that plaintiffs are entitled to a decree as prayed on Count One of the petition declaring plaintiffs are fully invested in the following described property to-wit: Lot 23, in Block 12 of Westmoor Park, Subdivision No. 2, a subdivision in the County of St. Louis free and clear of any claims of defendants but judgment and decree is hereby reserved and withheld until all issues between the parties on Count Two have been tried and judgment and decree determined." Before the cause was tried on count two the Curds amended their petition by interlineation and included a precisely accurate description of the encroachments and when the engineer-surveyor testified upon the trial of that count he stated that he had made the new description from the plat filed and used in connection with count one. In the court's decree on count two that description was set forth in the decree. In addition, when the court ruled on the motion for a new trial the court filed a memorandum which said: "The Judgment and Decree should contain the description of the property and an order for the issuance of a writ of possession, and the said decree should be prepared for the record by the plaintiff." Whereupon the decree was amended containing the admittedly accurate description. Now, however, the Reabans and the Bests contend that the court had already rendered judgment on count one, six months previously, and could not use the testimony admitted on count two. But we need not decide this question. The point to it all is that the admittedly accurate description was taken from the plat and if the plat and its measurements were sufficiently accurate that a precisely accurate description could be and was made from it, it was certainly sufficient against a motion to dismiss for failure to state a cause of action and the judgment on the first count was not void. Hartvedt v. Harpst, Mo.Sup., 173 S.W.2d 65; Wilkinson v. Lieberman, 327 Mo. 420, 428, 37 S.W.2d 533, 536. In addition, in the circumstances of this case, a precisely accurate description of the encroachments could have been ordered either by the trial court or by this court on appeal. Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1020; Point Prairie Hunting & Fishing Club v. Schmidt, Mo.Sup., 44 S.W.2d 73. The Bests and the Reabans also claim as to both counts that the court erred in ruling that they had not acquired title by adverse possession. As to count two they contend that the statute of limitations ran until the petition was amended by interlineation 392 that it did not state a cause of action until it correctly described the area of the encroachments. They contend that the "uncontradicted testimony" shows that the Bests purchased Lot 24 on March 25, 1937 "for the purpose of erecting a building and on the following day arranged for a temporary construction loan and started to work within a week or ten days." They contend that the improvements were completed by October or November 1937 and from that time forward they and the Reabans have occupied and used the encroachments so as to acquire title by adverse possession prior to the institution of this action in June 1947. They contend that they have met all the requirements as set forth in State ex rel. Edie v. Sham, 348 Mo. 119, 152 S.W.2d 174. It may be conceded that their evidence tended to support their claim of adverse possession but their evidence was not uncontradicted in the sense that but one conclusion could be drawn from it. Eatherton v. Henderson, Mo.Sup., 59 S.W.2d 623. This is an action at law, tried before the court and while it must be reviewed upon both the law and the evidence as in suits of an equitable nature, Mo.R.S.A., § 847.114(d), "The judgment will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Hart v. T. L. Wright Lumber Co., 355 Mo. 397, 402, 196 S.W.2d 272, 275. The Bests had no records to substantiate their claim that they started their improvements on any particular date prior to the 23rd day of June 1937. He testified that he purchased the lot on March 25, 1937 and that he started the improvements, excavating for the basement and making a fill for the driveway, within a week or ten days "around the first of April or shortly after." His father had borrowed $1,200 from a bank on March 26, 1937 and he said that that money was used in building the improvements. But as we have said, he had no records corroborative of his oral testimony as to when construction began, particularly as to when the fill for the garage and driveway was made. The permit for the construction of the improvements was turned in by the building inspector on January 10, 1938, although Mr. Best says that he could have obtained the permit after ninety-nine per cent completion. The plumbing inspector's permit was dated August 31, 1937 and the electrical inspector's permit was issued in October 1937 and a water connection was made to the premises on September 1, 1937. The trial court specifically found against the Reabans and the Bests on this issue and it is evident from the court's decree that that finding is based upon the court's belief that the improvements were not started until later than June 23rd or 27th, 1937 and that finding is of necessity based upon the court's views of the credibility of the evidence and we defer to that finding. Hart v. T. L. Wright Lumber Co., supra. The Curds insist upon their appeal that the court erred in refusing to award them damages. Mo.R.S.A. §§ 1544, 1558. In the court's memorandum, on this issue, the court stated that the true measure of damages was the value of the strip covered by the encroachment, that "There is insufficient evidence to support any judgment for a substantial amount of damages, and while the Court should have rendered a verdict for nominal damages, it's failure to do so, I don't believe invalidates the judgment." As the court found, there was no evidence entitling the Curds to substantial, or, more accurately perhaps, to the compensatory damages contemplated by the statute. Franklin v. Haynes, 119 Mo. 566, 25 S.W. 223. It is true that the prevailing party in an ejectment suit is entitled to nominal damages without other proof than his right to possession. Hahn v."Cotton, 136 Mo. 216, 37 S.W. 919; 28 C.J.S., Ejectment, § 148, p. 1038. And in this jurisdiction a judgment for nominal damages is a substantial right since such a judgment decides the incidence of the costs (State, to Use of Goddard, v. Rayburn, 22 Mo.App. 303) and for that reason may compel a reversal of a judgment which does not award nominal damages. But in this case the court assessed the costs against the defendants and no substantial rights of the plaintiffs were violated. Hesse v. Imperial Electric Light, Heat & Power Co., 144 Mo.App. 549, 129 S.W. 49. 393 Upon review of the entire record the judgment of the trial court is not clearly erroneous in any material respect and the judgment is therefore affirmed. WESTHUES and BOHLING, CC., concur. PER CURIAM. The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court. All concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516211/	955 F. Supp. 878 (1996) INTERNATIONAL CHURCH OF THE FOURSQUARE GOSPEL, Plaintiff, v. CITY OF CHICAGO HEIGHTS, Defendant. No. 96 C 4183. United States District Court, N.D. Illinois, Eastern Division. December 10, 1996. John W. Mauck, Mark Robert Sargis, Christine M. Reidy, Joseph Thomas Witek, Mauck, Bellande, Baker & O'Connell, Chicago, IL, for International Church of the Foursquare Gospel. 879 Anthony Scariano, Raymond A. Hauser, John M. Izzo, Janet Lea Schwieters, Scariano, Kula, Ellch & Himes, Chtd., Chicago Heights, IL, for City of Chicago Heights. MEMORANDUM AND ORDER MORAN, Senior District Judge. The City of Chicago Heights has fallen upon hard times. The Comprehensive Plan adopted in 1995 by the City describes the decline of the once vibrant commercial activity in the community and the flight of business to outlying malls. "The majority of existing retail and commercial service uses are found along Lincoln Highway/Route 30" (Comprehensive Plan at 12). Until recently that area included Kline's Department Store, the only department store in town. Despite City financial help through creation of a tax increment finance development district, reimbursement of Kline's of approximately $400,000 and approximately $500,000 expended by the City for land acquisition and demolition, Kline's did not survive. The area, as described in the testimony, is a patchwork of commercial uses and vacancies. A new supermarket has come in and there are three automobile dealerships. The City hopes to build on that base to create a stronger automobile-related commercial area that will provide much needed revenue to the community. In the meantime, Kline's is vacant and its owner has had little success in trying to sell the property first as a going business and then as a vacant property. In 1993 the Cornerstone Christian Center (Church), a local subsidiary congregation of plaintiff, was burned out of its church building in Chicago Heights and it has since been meeting at the Bloom Trail High School. It now wants to purchase Kline's. The Church sought a special use permit for that purpose, which was denied. It now seeks preliminary injunctive relief. After a testimonial hearing Magistrate Judge W. Thomas Rosemond, Jr. recommended that injunctive relief be denied. We agree. The motion for a preliminary injunction or a temporary restraining order is denied. The Church has a large congregation drawn from Chicago Heights and several nearby communities. All of its members drive to church services and activities. The Church has been making-do at Bloom Trail High School, but that is not a long term solution. It needs a permanent church facility, and we accept as a given that an adequate permanent facility is of considerable importance to the exercise of the congregation's religion. The Church's former location was 30,000 square feet. Kline's has 90,000 square feet, and it is evident that the Church does not need all that space for existing programs. It hopes, however, to keep growing and it has thoughts about how at least some of that additional space can be used. The site also has 275 paved and lighted parking places. The site is also at a very visible location, a matter of some interest to the Church. Finally, the price is attractive $1,250,000. The Church would also have to spend an undetermined amount over some period of time to redevelop the space for program use. Rebuilding at its prior site would cost the Church about $1,800,000, and presumably the purchase and development of other sites would increase the expense beyond the cost of Kline's. The sticking point is that Kline's is zoned B-2, and a church is a special use in all business and manufacturing areas. A church can be located as of right in any residential zone, and 60 per cent of the City is zoned residential. The City is also not saying "no" to relocation elsewhere in the business and manufacturing zones. It is just saying "no" to acquisition of Kline's, a major commercial property in the Lincoln Highway corridor it hopes to revive. This is a rather abbreviated statement of the salient facts, which Judge Rosemond set forth in considerable greater detail. It will, however, with some amplification, serve as a basis for this court's conclusions. As the Church recognizes, its broadest claim is under the Religions Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1(a)-(b). Initially we must determine the likelihood that plaintiff will prevail on the merits, whether or not the Church will suffer irreparable harm if preliminary relief is denied, what irreparable harm the City may suffer if relief is granted, and the consequences 880 to the public interest if relief is granted or denied. The RFRA was the congressional response to Employment Div., Department of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). Its enactment takes us back pre-Smith. Mack v. O'Leary, 80 F.3d 1175 (7th Cir.1996). The Act provides that government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. "[A] substantial burden on the free exercise of religion within the meaning of the Act, is one that forces adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains conduct or expression that manifests a central tenet of a person's religious beliefs, or compels conduct or expression that is contrary to those beliefs." Id. at 1179. We do not believe the City's denial of a permit imposes a substantial burden within the meaning of the Act. It does not impose a forfeiture of a benefit or a penalty because of religious belief. The impact is not upon the content of religious practices but only upon where that religion may be practiced. Having a church facility is important to the Church, but specific location is not. The Church may purchase property without restriction in 60 per cent of the community, some of it bordering on substantial thoroughfares and, apparently, at least some is vacant. It can develop on contiguous lots, presently vacant or not. It can seek a special use permit for property elsewhere, and there is little to suggest that such a request would be rejected. It can rebuild at its old site. It can buy an existing vacant church, and the evidence indicates that it has not fully explored that option. The only thing it cannot do is use Kline's for a church. There are reasonable alternative areas of communication, Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), although those avenues may pose some economic inconveniences. See Islamic Center of Mississippi v. Starkville, Miss., 840 F.2d 293 (5th Cir.1988). A principal reason that Kline's is attractive to the Church is that the price is a good one. It gets a large, indeed larger than it presently needs, facility for less than it would have to pay elsewhere. But the City is not restricting its location to some obscure corner or requiring that it be located in the most highly-priced part of the community, or insisting that it rehabilitate some substandard land at excessive cost. It requires only that the Church not locate at the Kline's site, a large commercial building in which it has invested substantial monies in the middle of a commercial corridor it is desperately seeking to support and encourage. The effort to redevelop that commercial area may not succeed. Indeed, the price Kline's is willing to take indicates the difficulties the City faces the Church is Kline's only real bird-in-the-hand. The RFRA does not, however, require the City to permit the Church to pick up a bargain because commercial redevelopment is sluggish. The City is concerned about a secondary effect, the negative impact of locating a large non-commercial use in what is envisioned as an area for contiguous commercial uses, thereby attracting the purchasing public. It has not developed any studies that verify that such a common location has a positive spill-over effect, see Renton v. Playtime Theatres, Inc., supra, but we believe the City could reasonably determine as a legislative decision that a church in Kline's is an incompatible use. See Messiah Baptist Church v. County of Jefferson, Colo., 859 F.2d 820 (10th Cir.1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1638, 104 L. Ed. 2d 154 (1989). Additional expense, at least so long as it is not an inflated expense not imposed upon most landowners, is not a substantial burden within the meaning of the RFRA or in the context of the First Amendment. Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); Messiah Baptist Church v. County of Jefferson, Colo., supra; Lakewood Ohio Congregation of Jehovah's Witnesses, Inc. v. Lakewood, Ohio, 699 F.2d 303 (6th Cir.1983), cert. denied, 464 U.S. 815, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983), Love Church *881 v. City of Evanston, 671 F. Supp. 508 (N.D.Ill. 1987). We also agree with Judge Rosemond that the City has demonstrated a compelling governmental interest and that the zoning plan it has chosen is the least restrictive means of furthering that interest. It must create an economic underpinning. That means it must stimulate commercial activity. Indeed, the more desperate the endeavor the more economically attractive the area is to alternate land users and the more compelling the City's need to exclude them if it is to have any chance to succeed. The Church also contends that the denial impermissibly restricts its freedom of speech and violates equal protection of the law. We think that what we have already said sufficiently indicates why we conclude that its free speech rights were not infringed and why the City's zoning decision was a permissible time, place and manner restriction. See Christian Gospel Church v. City and County of San Francisco, 896 F.2d 1221 (9th Cir. 1990), cert. denied, 498 U.S. 999, 111 S. Ct. 559, 112 L. Ed. 2d 565 (1990). Likewise, we note that the permitted uses in B-2 zones are all commercial uses, many of which will encourage shopper traffic in the area during shopping hours. That includes meeting halls, which the evidence establishes are banquet hall facilities. We see, therefore, no basis for a claim of equal protection discrimination such as that raised in Love Church v. City of Evanston, 671 F. Supp. 515 (N.D.Ill. 1987), rev'd on other grounds 896 F.2d 1082 (7th Cir.1990), cert. denied, 498 U.S. 898, 111 S. Ct. 252, 112 L. Ed. 2d 210 (1990), and C.L.U.B. v. City of Chicago, 1996 WL 89241 (N.D.Ill.1996). Plaintiff rests heavily upon the view that it is being excluded because it does not pay taxes, but that is not the special use pattern disclosed in the zoning ordinance. Rather, it is being excluded because it is a non-commercial, and therefore incompatible, use, prompted by concerns of secondary effects. The Church can go elsewhere in the City and be tax-exempt, so long as it is willing to incur the same economic burdens shouldered by another property owner seeking to locate the facility of its choice in those areas. If there were a violation of First Amendment rights we would presume irreparable harm. Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689 (7th Cir. 1975). We conclude, however, that the Church's likelihood of prevailing on the merits is insubstantial, that the City's interest in reviving its most significant commercial area far overbalances the Church's interest in locating in Kline's instead of elsewhere in the community, and for that reason the public interest is best served by preserving what is, essentially, the status quo. The motion is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516212/	420 S.W.2d 601 (1967) Shaper TAYLOR, Appellant, v. The STATE of Texas, Appellee. No. 40546. Court of Criminal Appeals of Texas. October 11, 1967. Rehearing Denied November 29, 1967. 603 J. M. Fly, Victoria, L. S. Benge, Goliad, for appellant. Wiley Cheatham, Dist. Atty., Quero, and Leon B. Douglas, State's Atty., Austin, for the State. OPINION ONION, Judge. The offense is Murder with Malice; the punishment, assessed by the jury, 99 years in the Texas Department of Corrections. Appellant does not challenge the sufficiency of the evidence, and we do not deem necessary a complete recitation of the facts reflected by this 3,800 page record. The following summary will suffice. Appellant, a 65 year-old bachelor rancher, was charged with the murder of Lucia Cabrerra Davila Etter, age 38. The record shows that appellant's father on his death bed had extracted a promise from appellant that he would never marry and would always care for his older sisters. It appears that over a period of 15 years appellant had engaged in sexual relations with the deceased, who at the time of her death had been married to Fritz Etter, age 70, for approximately a year and a half. On November 16, 1965, at approximately 2:40 p. m. appellant followed Lucia, the deceased, and Fritz in his automobile and after overtaking their pickup truck within the city of Goliad, shot and killed both of them with his rifle. There were eye witnesses. Appellant testified that he had always paid the deceased for her favors, but sometime before the alleged offense, and particularly since her marriage to Etter, the deceased had begun to extort money from him upon the threat to reveal their long time illicit affair to his old maid sisters with whom he lived. He related that on the day in question the deceased had demanded more money, rejecting his offer of $45.00 out of the $50.00 he had as not being enough, and had motioned for him to follow. Appellant testified he concluded that the deceased and her husband were on the way to the ranch to see his sisters; that when they stopped, the deceased jumped out of the pickup and that Fritz was reaching under the seat of the pickup as if for a gun. Appellant then claimed that he remembered nothing that transpired afterwards until he was on his way home, whereupon he returned voluntarily to the Sheriff's office. Appellant's defenses were insanity and self-defense. Appellant initially contends the evidence was insufficient to support the jury's verdict finding the appellant sane at the pretrial hearing afforded appellant by virtue of Article 46.02, Sec. 1, Vernon's Ann. C.C.P. Appellant apparently overlooks the fact that no appeal lies from a judgment rendered in a preliminary trial on the issue of insanity. Pena v. State, 167 Tex. Crim. 406, 320 S.W.2d 355; Ex parte Hodges, 166 Tex. Crim. 433, 314 S.W.2d 581. See also State v. Olsen, Tex., 360 S.W.2d 398. Nevertheless, we observe that, in addition to the presumption of sanity, the State's evidence including medical testimony clearly supports the jury verdict. It is further noted that the same two issues, 604 present insanity and insanity at the time of the commission of the offense, were also presented to and rejected by the jury at the trial on the merits. In view of some discrepancy in numbers and in order to discuss the grounds of error urged in a more chronological order, we have taken the liberty of re-numbering the remaining grounds of errors. If we understand appellant's second ground of error, it is that there existed so great a prejudice in the county that he could not obtain a fair and impartial trial, and the trial court erred in refusing to change venue upon appellant's motion. At the hearing upon the written motion for a change of venue, appellant called nine witnesses, eight of whom testified they had heard the case generally discussed and expressed their opinion that appellant could not receive a fair trial in Goliad County. The State called ten witnesses who related that the case had only been slightly discussed and that in their opinion appellant could receive a fair and impartial trial. The record reflects that Goliad County had a population in excess of 5,000 persons according to the 1960 Federal Census, and approximately 2,000 qualified voters at the time of the hearing. The court overruled such motion. Inspection of the voir dire examination indicates that approximately 39 of the 112 jurors questioned held the opinion that appellant was guilty. However, all of the twelve jurors ultimately selected had formulated no opinion as to guilt or innocence, though most had either heard the case discussed or read about the case in the newspapers. It is noted that appellant's counsel expressly stated that he was happy to accept at least 9 of the 12 jurors chosen. Appellant attached to the record at hearing on Motion for New Trial a number of copies of the Victoria Advocate and clippings from the Corpus Christi Caller-Times. Most of the articles dealt with news reports of the trial on the merits after the selection of the jury. There is a showing that the Victoria Advocate had a circulation of 500 copies in Goliad County at the time, but the circulation figures in the county of other newspapers were not offered. The news accounts attached appear to be fair, non-inflammatory, and apparently published for the purpose of informing the public of current events. There is no showing that by reason of such publication there was created in the public mind a prejudice so great as to prevent appellant from receiving a fair trial. Appellant does point to the affidavit of Dr. George Constant, appellant's expert witness at the separate sanity trial, that his life was threatened by an unknown person if he testified again. Appellant further contends that the fact the jury returned with the verdict of guilty after deliberating only an hour and twenty minutes is evidence of the jury's preconceived notion of appellant's guilt. No authority is cited in support of such proposition. In Moon v. State, 169 Tex. Crim. 14, 331 S.W.2d 312, where the death penalty was imposed in a murder case, this Court held that in order to require a reversal for refusal to change venue there must be a showing that prejudice against the accused found its way into the jury box at his trial. See also Lopez v. State, 158 Tex. Cr.R. 16, 252 S.W.2d 701; Kizzee v. State, 166 Tex. Crim. 191, 312 S.W.2d 661; Slater v. State, 166 Tex. Crim. 606, 317 S.W.2d 203. After a careful examination of the facts and circumstances and procedures employed, it is our considered judgment that there has been no showing of identifiable prejudice, or that the appellant was denied a fair trial or due process of law. The trial judge did not abuse his discretion in refusing to change venue. In his third ground of error appellant contends "that the trial court erred in ordering the Sheriff's department to summon talesmen after exhausting the list of the first one hundred jurors and forcing 605 the defense to attempt to select a jury from persons handpicked by the Sheriff's department, when all during this time the Court had on file with the District Clerk's office a list of jurors selected by the jury commission to be used during this term of Court." The record indicates that the jury was selected in part from the jury panel for the week rather than by a special venire as permitted by Article 34.01, V.A.C.C.P. When it appeared to the court that such jury panel was soon to be exhausted, the court properly ordered the Sheriff to summon a group of talesmen in accordance with Article 34.02(b), V.A.C.C.P., Goliad County being a jury commission county. Appellant subsequently objected to these talesmen as being "handpicked" by the Sheriff, composed chiefly of persons of Dutch or German extraction, and not selected from all parts of the county. The objection was overruled. Later, when it again appeared that the panel would be exhausted, the court ordered the Sheriff to summon 15 additional talesmen. At such time the court noted that there was an unused jury list selected by the jury commissioners for the term, and stated if appellant agreed, the second group of talesmen might be summoned from such list. In view of such list appellant then objected to all talesmen summoned, asking that they be dismissed. Upon being overruled, appellant's counsel then agreed to the use of such jury list by the Sheriff for summoning the second group of talesmen. It appears that subsequently a third group of talesmen was summoned by the Sheriff. We perceive no error. In capital cases, upon the exhaustion of a special venire or the jury panel for the week (where as many as one hundered have been summoned) in counties not using the jury wheel, the additional veniremen or talesmen are to be summoned by the Sheriff upon the order of the court. Articles 34.01, 34.02, V.A.C.C.P. The court was not required to resort to jury lists selected by jury commissioners for the term of court. Further, it is not necessary that talesmen be summoned from every section of the county; Gonzalez v. State, 164 Tex. Cr.R. 64, 297 S.W.2d 144; Adams v. State, 158 Tex. Crim. 306, 255 S.W.2d 513. Appellant contends in his fourth ground of error that the trial court erred in refusing to give him five additional challenges after he exhausted his fifteen peremptory challenges. If we understand appellant's contention, it is that he was required to use five of his peremptory challenges when the judge refused his challenges for cause where the prospective jurors had stated they had an opinion as to appellant's guilt or innocence and that it would require evidence to remove such opinion. This Court has, in order to give to this appeal every consideration, searched the 1,549 pages of the voir dire examination to determine which fifteen prospective jurors appellant challenged peremptorily and from this group the five of which appellant now complains. We cannot find any testimony by these prospective jurors which would indicate the trial court erred in refusing any challenge for cause, where made, on the ground that the prospective jurors entertained an opinion which would influence his verdict. Appellant's contention is without merit and is overruled. In his fifth ground of error appellant complains that the trial court erred in admitting, over repeated objections, testimony that he had also killed Fritz Etter. It is well settled that "(w)here the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper." 4 Branch's Anno. P.C.2d, Sec. 2255, p. 618. See also 23 Tex.Jur.2d, Sec. 196, p. 302; 606 Cook v. State, Tex.Cr.App., 398 S.W.2d 284; Fuller v. State, Tex.Cr.App., 380 S.W.2d 619. The trial judge did not err in admitting this testimony. We observe that throughout the trial the careful trial judge sought to give the above rule as limited an application as possible, even to the extent of entirely excluding one State's witness. Appellant's fifth ground of error is overruled. Appellant further contends in his sixth ground of error that the trial court committed reversible error in permitting, over objection, the Sheriff of Goliad County to testify as to oral inculpatory statements made by appellant at the time of his voluntary surrender at the Sheriff's office. The shooting occurred at 2:50 p. m., and shortly thereafter the Sheriff arrived at the scene. After a few minutes of investigation the Sheriff left to find appellant. Meanwhile appellant had voluntarily arrived at the Sheriff's courthouse office, but found no one present. Having heard over the Sheriff's two-way radio that the Sheriff was on his way to appellant's residence, and not being able to operate the same, appellant walked to the Tax Collector's office and asked a woman deputy there to contact the Sheriff and tell him that he (appellant) was not running. Appellant then returned alone to the Sheriff's office, sat down and began reading a newspaper. When the Sheriff arrived, between 3:15 p. m. and 3:30 p. m., the appellant arose and voluntarily stated, "Well, I told them I was going to do it." The Sheriff then pointed to the .30-30 rifle (later shown to be the weapon from which the fatal shots were fired) and appellant stated it belonged to him, but warned the Sheriff to be careful as the rifle was loaded. The record reflects that the Sheriff then told appellant he should not make any further statements as there were certain procedures to be followed before he could say anything. Shortly thereafter the appellant was taken before a magistrate. The Sheriff testified he had not arrested appellant prior to the complained of statements. From all the facts and circumstances in evidence, including the fact appellant was still in possession of his loaded rifle, we conclude that appellant was not under arrest when he made the inculpatory remarks described. The trial court did not err in admitting such statements. Appellant relies upon Holland v. State, Tex.Cr.App., 415 S.W.2d 186, in support of his contention. Holland is clearly distinguishable on its facts from the case at bar. We further note that Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, is not applicable to the case at bar because appellant's trial commenced prior to June 13, 1966, the date of the decision in Miranda. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882. Even if appellant's trial had commenced after the effective date of the Miranda decision, we note that in Miranda the United States Supreme Court held: "There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." In his seventh ground of error appellant contends that reversible error was committed when the State, over objection, was permitted to read into evidence statements from Dr. George Constant's deposition relating to prejudicial extraneous offenses and transactions committed by the appellant. It appears that it was the appellant who, without objection, introduced such evidence from the deposition, not the State. The appellant read into evidence Dr. Constant's testimony from the separate sanity hearing as well as a large portion of his deposition, 607 both on direct and cross-examination. Such testimony included the extraneous transactions now complained of. It is true that the State subsequently offered the remainder of Dr. Constant's deposition which also mentioned some of such extraneous matters. This was clearly permissible. See Article 38.24, V.A.C.C.P. Appellant's seventh ground of error is overruled. In appellant's eighth ground of error he urges that the courtroom decorum was such that he was deprived of a fair and impartial trial accorded by the Fourteenth Amendment, United States Constitution. He contends that armed sheriff's deputies were located throughout the courtroom and seated near the jury box and appellant's counsel table; that coffee was provided to the jury by the Sheriff's office; that the courtroom was filled to capacity and a local class of school children attended one court session (apparently at hearing on Motion to Change Venue only); that the press was provided a table inside the bar or rail in view of the jury box; and that on numerous occasions the Sheriff and State's counsel conferred in open court in presence of the jury. There can be no question that "atmosphere essential to the preservation of a fair trialthe most fundamental of all freedomsmust be maintained at all costs." Estes v. State of Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543. We recognize that despite the observance of the formal requisites of a trial that the atmosphere in and around the courtroom might be so hostile as to interfere with the trial process. Estes v. State of Texas, supra; Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543. With this in mind we will examine appellant's contention. During the trial appellant made two objections in this connection. First, he objected to a deputy sheriff sitting close to appellant's counsel table. Such objection was sustained and the deputy was instructed by the court to move. Second, appellant objected to the State's counsel conferring with the Sheriff in presence of the jury. The objection was overruled. There is no showing that the conference or conferences were within the hearing of the jury. It is further noted that when the Rule was invoked as to the witnesses, the Sheriff was excused therefrom by the court, without objection, to assist the court in the conduct of its business. It is obvious from the record that the trial judge was aware from the outset that there would be a large crowd in the courtroom at all times. He requested the Sheriff to assign such men as necessary to maintain security and insure an orderly trial. Though there is some conflict in the testimony, it appears also that one of appellant's counsel cautioned the Sheriff to take precautions as he felt the appellant (at liberty on two $25,000.00 bonds) might come to the courthouse armed during the trial. This followed information received by the Sheriff that appellant had purchased .45 caliber ammunition. The trial judge repeatedly cautioned the courtroom audience out of the jury's presence as to their proper conduct to insure no disruption or disturbance. None is reflected in the record. It is interesting to note that in careful compliance with Article 36.24, V.A.C.C.P., and the decision in Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424, "special" deputies who were not witnesses to the cases and had not participated in the investigation, were sworn in to act as jury bailiffs for the trial to attend to the wants of the jury. It was these special bailiffs, not the Sheriff, who made 608 arrangements with the County Judge in order to provide coffee for the jurors. It is true that in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, that the Supreme Court clearly indicated that news reporters should not be placed inside the bar. Here, we observe, that only two reporters attended the trial, and one was not present at all sessions. There is no showing that they handled exhibits, caused confusion or disrupted the trial, or took any action that would have dicated that the trial judge regulate their conduct in the courtroom. We fail to see, from a totality of circumstances, how the procedures employed in the case at bar involved prejudice or even such a probability of prejudice that they can be deemed inherently lacking in due process. Appellant urges in his ninth ground of error that the jury was guilty of misconduct and committed reversible error when, in disregard of the court's specific charge thereon, they considered the aspect of parole in their deliberations on appellant's punishment. The record reflects that the jury, while in deliberation at the penalty stage of the proceedings, sent the following note to the trial judge: "Judge: What is the difference in a life sentence and a 99 year sentence. Subject to parole. Elmer C. Jacob" The trial judge, with approval of appellant's counsel, answered as follows: "The Court can only refer you to the instructions in charge. Joe E. Kelly Judge, 24th District Court" It is a matter of common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole, Torres v. State, 169 Tex. Crim. 113, 331 S.W.2d 929; Walker v. State, Tex.Cr.App., 201 S.W.2d 823, and it is not every mention of parole which calls for a reversal. Henderson v. State, 169 Tex. Crim. 206, 332 S.W.2d 705; De La Rosa v. State, 167 Tex.Cr. R. 28, 317 S.W.2d 544. There is no showing that any further discussion followed receipt of the judge's answer, or that at any time during deliberations any juror made an incorrect statement of the law concerning parole which would justify reversal. In fact, the contrary appears. No error is presented. Jackson v. State, Tex.Cr.App., 403 S.W.2d 145; Martin v. State, Tex.Cr. App., 400 S.W.2d 919; Walton v. State, Tex.Cr.App., 398 S.W.2d 555; Mullins v. State, Tex.Cr.App., 397 S.W.2d 426; Henderson v. State, supra; Torres v. State, supra. In his tenth ground of error appellant complains that the jurors following their discharge refused to give appellant's counsel affidavits concerning their deliberations. The refusal of any or all of the members of the jury, after their discharge, to talk to appellant's attorneys or investigators violates no statute and does not authorize a reversal. See Graves v. State, Tex.Cr.App., 382 S.W.2d 486; Farrar v. State, 162 Tex. Crim. 136, 277 S.W.2d 114, Cert. denied, 350 U.S. 854, 76 S. Ct. 97, 100 L. Ed. 759. Appellant lastly complains that the trial court erred in refusing to declare appellant a pauper for the purposes of appeal following a hearing in response to his pauper's oath. He asks this Court to reverse this ruling and order that all costs of the transcription of the court reporter's notes be paid by the county of Goliad. Under former Article 759a, Sec. 5, C.C.P., an appellant's right to a statement of facts, upon proper presentation of a pauper's affidavit was absolute and no discretion *609 was vested in the trial court to refuse the same. Zamora v. State, 165 Tex. Crim. 613, 309 S.W.2d 447. The former law did not permit the trial court to hear evidence on the question. Under Article 40.09, Sec. 5, V.A.C.C.P., 1965, the appellant has the responsibility of securing and paying for a transcription of the court reporter's notes and furnishing the same to the clerk in time for inclusion in the record. The 1965 Code gives the trial judge the authority to conduct a hearing to determine indigency when a pauper's affidavit is filed to obtain such transcription without charge. Such procedure was followed in the case at bar. We have reviewed the record of the hearing, including testimony of appellant's various financial transactions, the sale of cattle following the alleged offense, the transfer of his one-third interest in the ranch to his sisters the day following the trial, and the subsequent sale of such ranch to appellant's attorneys. We cannot agree that the trial court abused its discretion in refusing to order the county to pay for the record. It is observed that this is not a case where the appellant is before us without a transcription of the court reporter's notes by virtue of the trial court's ruling. Appellant's counsel had the benefit of such transcription in preparing his appeal, both in the trial court and here. One of appellant's retained counsel at the trial and on appeal deposited $400.00 with the reporter and informed the reporter that he or appellant would be responsible for the balance ($3,215.00). The record does not reveal whether such balance has been paid. We are not called upon in this appeal to interpret the contractual obligations here involved. Compare Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516239/	420 S.W.2d 73 (1967) 243 Ark. 329 Willie Lee PASCHAL, Appellant, v. STATE of Arkansas, Appellee. No. 5306. Supreme Court of Arkansas. October 30, 1967. Rehearing Denied November 27, 1967. McKay, Anderson & Crumpler, Magnolia, for appellant. Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee. GEORGE ROSE SMITH, Justice. Charged with having had possession of goods which he knew to have been stolen, the appellant was found guilty and sentenced to three years imprisonment. Ark.Stat.Ann. § 41-3938 (Repl.1964). For reversal he contends, first, that his admission of guilt was inadmissible and, second, that it was not sufficiently corroborated. On January 3, 1967, police officers were investigating the burglary of a liquor store in Ouachita county. Acting upon information that the stolen whiskey was being sold in Columbia county the officers obtained a search warrant and searched Paschal's home near Magnolia. They found two-cases *74 of whiskey, which were later identified as having been taken in the burglary. The officers arrested Paschal and took him to Camden, in Ouachita county, for questioning. There is no contention that Paschal was not duly warned of his constitutional rights before the interrogation began. According to the State's testimony, Paschal readily admitted that he knew that the liquor had been stolen. Counsel for the appellant, citing McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), insist that the confession was inadmissible because Paschal had not been taken before a magistrate for commitment, as the statute requires. Ark.Stat.Ann. § 43-601. The McNabb case, however, involved the interpretation of federal statutes that do not apply to the states. State v. Browning, 206 Ark. 791, 178 S.W.2d 77 (1944). Under our statute the failure to take an arrested person before a magistrate does not vitiate a confession, because the statute is construed to be directory only. State v. Browning, supra; Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958). Nor is there merit in the suggestion that the confession should have been excluded because Paschal was held in confinement for several days before he was charged with an offense. Such an illegal detention does not retroactively affect an admissible confession that was made soon after the initial arrest. United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140 (1944). This is true because the necessary causal connection between the detention and the confession is lacking. Secondly, it is argued that the confession was inadmissible for the reason that it "embraced an element vital to the State's case which was not corroborated." The statute does not require that a confession be corroborated in every detail. It is enough that the confession be accompanied by other proof that the offense was committed. Ark.Stat.Ann. § 43-2115;Mouser v. State, 215 Ark. 131, 219 S.W.2d 611 (1949). Not only did the State's evidence show that the two cases of liquor were stolen property; the jury could have inferred from Paschal's own testimony that he knew this to be true. He testified that he bought the two cases at less than the retail price, in a dry county, from two men who were transporting the whiskey in an automobile. Thus there was ample proof to show that the offense was actually committed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516258/	420 S.W.2d 553 (1967) C. Leslie DAWSON, Commissioner, Department of Economic Security, Appellant, v. Mary Nell DRIVER, Appellee. Court of Appeals of Kentucky. November 3, 1967. 554 Robert Matthews, Atty. Gen., Paul E. Tierney, Forest Smith, Dept. of Economic Security, Frankfort, for appellant. Robert C. Carter, Glasgow, for appellee. PALMORE, Judge. This is an appeal by the Commissioner of Economic Security from a judgment of the circuit court overturning an order of the appeal board affirming a referee's decision to the effect that the appellee, Mary Nell Driver, was not eligible to receive public assistance for the support of her three dependent children. KRS 205.200, 205.231. KRS 205.200(2) authorizes and directs the Commissioner to prescribe by administrative regulation, in conformity with the Social Security Act and federal regulations promulgated thereunder, the conditions of eligibility for public assistance. By appropriate regulation the definition of "needy child" set forth in KRS 205.010(5) has been particularized to mean a child who is deprived of parental support by reason of the death, continued absence, or incapacity of a parent. In like manner the term "incapacity" has been limited as follows: "If incapacity of the father is involved, the incapacity must prevent him from working in an occupation in which he previously engaged, and prevent him from working at another job accessible in the county or community where he normally resides, for which [sic] he is equipped to do * . If a job opportunity exists * * it shall be considered accessible irrespective of its immediate availability. In other words 555 scarcity of work opportunities or inability to find work are insufficient grounds for a determination of eligibility unless there is a causal relationship between the current unemployment and the alleged incapacitating condition." Regulation PA-58, Department of Economic Security (eff. July 27, 1961). The ground on which the referee and the appeal board denied the application for relief is that James Bethel Driver, father of the three children, is not incapacitated within the meaning of the quoted regulation. Fully mindful of KRS 205.234(3), which confines the circuit court's review to a determination, from the record certified to it, of whether (a) there was sufficient probative evidence to support the board's order, (b) the dispositive regulations are reasonable, and (c) the board acted arbitrarily, unlawfully, or in abuse of its discretion, the learned chancellor concluded that under the evidence in the record Driver was incapacitated as a matter of law. As pointed out in Lee v. International Harvester Company, Ky., 373 S.W.2d 418, 420 (1963), there are some cases in which no evidence whatever is required in support of a negative finding against one who bears the burden of proof before a fact-finding body. For example, if no evidence has been offered in a claimant's behalf, obviously a denial of the claim would need no defensive evidence to support it. The same is true whenever the claimant's evidence is not sufficiently persuasive to require a favorable finding as a matter of law. Since the claimant had the burden of proof in the administrative proceeding, the question before the circuit court in this case was whether, under the whole state of the evidence in the record, it was unreasonable and thus an abuse of discretion for the board to deny the claim. Applied to the particular fact situation, is there room for a difference of opinion among reasonable minds as to whether Driver, the father, is "incapacitated" within the meaning of the term as it has been defined by the regulation? At the time of the hearing in April of 1965 Mr. Driver was 42 years old. He has a fourth-grade education. The only work he has ever done for a living has been as a common laborer. Prior to 1959 he had worked as a sawmill laborer, farm laborer, and hod carrier. In 1959 it was discovered that he had pulmonary tuberculosis. This led to surgery in 1961, by which one of the lobes of his right lung was removed. Shortly after the operation he developed a muscular twitching or spasm in the right scapular area. It bothers him all the time and he takes various medicines to palliate it. He worked for a day or two in the winter of 1963-1964 packing tobacco at a warehouse, but found it was too strenuous and could not stand inhaling the tobacco dust. He has applied for work at a cabinet-making plant but was told there was no opening at the time. One of the reports filed by a social worker for the Department indicates, however, that on the latter occasion he was advised that employment might be available later. There was filed in the record a "To whom it may concern" statement from the county judge of Barren County dated March 26, 1965, to the effect that from "my observation James Bethel Driver is a man who wants to work and make a living for his family. It is my opinion that he is unable to do so because of the surgery he has had." Another such statement by a local physician, dated January 14, 1964, is as follows: "Bethel Driver apparently has arrested tuberculosis and has a nerve lesion, causing a twitching and pain, which followed lung surgery. These two disorders place a stigma upon him, as far as obtaining employment. It is felt that his family should not suffer until rehabilitation procedures can be worked out for him." Still another local physician signed a similar statement on April 7, 1965, that "Bethel Driver has a disabling nerve condition of right chest following chest surgery. Doubt he is able to do manual labor." 556 On October 3, 1963, Dr. William F. Meacham, a neurological surgeon at Vanderbilt University, had examined Driver and reported in part as follows: "There is no organic neurological basis for this type of intermittent muscular contraction and [sic] is a manifestation of a functional disorder. This man can and should be rehabilitated. * * * In due course with appropriate readjustment and rehabilitation of this man, I think he could be cured and I recommend that some employment be considered for him within the range of his current physical ability. There are no neurological deficits existing at the moment that would preclude his doing anything other than very strenuous manual, physical labor." On April 14, 1964, Dr. Paul A. Pichardo, director of the state TB hospital at Glasgow, re-examined Mr. Driver and entered a report concluding: "The patient is disabled for any form of gainful employment due to painful clonic contraction of the right Latissimus Dorsi, residual of previous resectional surgery on the right." Faced with these apparently contradictory medical reports, the appeal board on April 28, 1964, held the Driver family eligible for public assistance subject to the qualification that a re-evaluation be made within six months. Dr. Meacham examined Mr. Driver again in September of 1964 and found "no appreciable change." He elaborated as follows: "I have re-examined him and find absolutely the identical situation which is, in my opinion, mostly a psychosomatic type of disturbance and not an organic neurological difficulty. "This man is poorly motivated. He is doing such work about the house as mowing the yard, and raising a garden, but steadfastly states that he could not do any other form of work. He also indicates that the state is the cause of his condition and that the state of Kentucky owes him and his family a living and that he feels he should be either supported or placed in some sedentary type work that he could do. "The muscular contractions are not, in themselves, sufficiently severe to interfere with carrying out any form of sedentary type occupation and the fact that he mows his yard and raises a garden is indicative of the fact that he can, indeed, do mild muscular type activities without risk. "I do not feel that there is any neurological treatment for him except the use of sedatives and would strongly be opposed to nerve root sections in an attempt to stop the muscular contractions which are, in themselves, not serious." Following a "routine check-up" on November 17, 1964, Dr. Pichardo filed a report stating that the patient was "asymptomatic, except for persistence of muscular twitching of right latissimus dorsi * * . Mr. Driver has completed his treatment for pulmonary tuberculosis. His condition has been considered as minimal, inactive for several years. The intermittent muscular contractions of the posterior scapular groups are of the psychosomatic type and not an organic neurological difficulty . The patient would benefit from rehabilitation training. He should continue with Phenobarbital indefinitely and periodic check-ups in our OPD." The latter report quotes Dr. Meacham's last report at length, and in a letter to Mrs. Driver's counsel dated March 8, 1965, Dr. Pichardo said, "I am not a Neurologist and I accepted Dr. Meacham's report as the true findings of his examination of this tient. Therefore, in view of Dr. Meacham's report and the fact that Mr. Driver's pulmonary tuberculosis has been considered minimal inactive since 1962, I changed my recommendation regarding the patient's employment status." We have set forth rather fully the salient information in the record. Counsel for Mrs. Driver argued in the circuit court (but 557 did not submit a brief to this court) that "the ability of a 42 year old manual laborer to engage in `sedentary type occupation' and/or `mild muscular type activities' * * is not the ability to engage in a substantially gainful employment." Clearly the chancellor was of the same persuasion, concluding "that a forty-two year old man with only a fourth grade education and by occupation a common laborer, and by reason of either his physical or mental condition is only able to do work of a sedentary type, is, within the meaning of the law * * * [as represented by the definition of `incapacity' hereinbefore quoted] * * * incapacitated." In the field of workmen's compensation this court has accepted (with some degree of misgiving) the proposition "that if a workman is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired," he is totally disabled. Cf. E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 241, 84 A.L.R. 2d 1102 (1960); Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 730 (1963). However, in the type of case now before us the regulatory definition forbids such a conclusion. "Incapacity" means that which in fact renders the man unemployable in the community of his residence. After all the evidence has been considered there still remains an area of judgment in which the administrative department, with its superior experience and expertise, must be allowed broad latitude as against the power of the courts to interfere. Perhaps what is really needed in the proliferate field of governmental administration is an ombudsman, a role for which the courts are not equipped or staffed. But even if we should assume that avuncular province in the case now before us, it would be difficult to say that the decision of the administrative officials was arbitrary. The record demonstrates a great deal of constant effort and careful consideration devoted to the case over a period of several years by various social workers, doctors, supervisory personnel, and hearing examiners. At least upon its face, the record would appear to refute any inference of arbitrariness in approach or attitude on the part of the departmental employes whose services have been engaged in the case. The referee and the appeal board were not satisfied that Mr. Driver was in fact unemployable at the time his case was heard. It should be borne in mind that he had the burden of proving the inaccessibility of work in the community. The evidence in that particular respect was not enlightening. On the face of the record we are of the opinion that the administrative decision was not arbitrary or in abuse of its discretion, and that the judgment of the circuit court was in error. Events which have transpired since the time of the hearing may, of course, very well call for a different result upon a new application. The judgment is reversed with directions that the order of the appeal board be confirmed. All concur. OSBORNE, J., not sitting.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516297/	420 S.W.2d 800 (1967) Frank HAYES, Appellant, v. Eugene H. BOULIGNY, Appellee. No. 344. Court of Civil Appeals of Texas, Corpus Christi. October 19, 1967. Rehearing Denied November 9, 1967. 801 W. W. Kilgore, of Whitlow, Cole & Kilgore, Victoria, for appellant. Clarence Stevenson, of Fly, Cory, Moeller & Stevenson, Victoria, for appellee. OPINION NYE, Justice. This is a suit on a promissory note brought by Eugene H. Bouligny, the payee, against Frank Hayes, the maker. The trial was to the court without a jury and the court rendered judgment for the plaintiff for the principal sum of the note together with interest and attorney fees. The defendant maker has perfected his appeal to this court. The plaintiff alleged that he was the legal owner and holder of the indebtedness evidenced by a promissory note executed by the defendant dated July 1, 1963 in the original principal sum of $2,500.00 payable on or before July 1, 1964 at Victoria, Victoria County, Texas, bearing interest from date until maturity at the rate of six percent per annum and bearing interest from maturity until paid at the rate of ten percent per annum, which promissory note contained the provision that the maker thereof agreed to pay an additional sum of ten percent of the amount due and owing on said note as attorney fees in the event suit was filed for the collection of said promissory note. The petition stated that the plaintiff had made repeated demands on the defendant to pay the same but that the defendant had failed and refused. Plaintiff further alleged that he no longer had in his possession the original of such promissory note but that such note was in the possession of the defendant and he made demand that the defendant produce the original of the promissory note upon the trial. Defendant answered by a general denial and by an amended pleading that "if plaintiff has a cause of action, the same is barred by the statute of limitations in that it was not commenced within two years after the cause of action, if any, occurred." Neither answer was verified by affidavit. 802 Appellant's first point is that the trial court erred in admitting evidence that the $2,500.00 note was supported by consideration when the plaintiff had not plead a consideration for said non-negotiable note and when said note had not recited a consideration. Where the instrument sued upon cannot as a practical matter be produced because of its loss, the production of the original is excused and other evidence of its contents may be received. Plaintiff followed the correct procedure of advising his adversary of the lost instrument so as to apprise him of the necessity of producing the original or that secondary evidence would be used. See 2 McCormick & Ray 421, § 1570. Plaintiff's oral testimony of the contents of the instrument was sufficient. McCormick & Ray, § 1577. This court has held that where an original instrument has been lost or destroyed and cannot be produced, it is not error to permit the oral testimony of witnesses as to the contents of the writing over the objection that such testimony violated the best evidence rule. Danaho Refining Company v. Dietz, 378 S.W.2d 412-416 (Tex.Civ.App.-Corpus Christi, 1964). Appellant contends that since the plaintiff's pleading did not describe the note as being payable to "bearer or to order" or that the pleading did not use the words "for value received" such note was a non-negotiable instrument and since plaintiff did not plead that it was received for a valuable consideration the pleading will not support the judgment. Plaintiff plead that the note in question was a promissory note. Plaintiff's cause of action was a plain statement which set forth his claim for relief and was sufficient to give fair notice of the claim involved. Rule 45 and Rule 47, Tex.R.Civ.P. There was no doubt from the pleading that the suit was on a written instrument. Since a written contract imports a consideration it is not necessary to plead consideration. See 13 Tex.Jur.2d 653, § 375. Absent any exception to plaintiff's pleading the petition was sufficient to apprise the defendant of the plaintiff's claim. During the trial plaintiff testified that he had loaned the defendant $9,000.00; that the defendant had paid $4,000.00 on it and that he prepared a note for $5,000.00; thereafter, the defendant paid $2,500.00 and the subject note in question represented the balance due on the original loan. We hold that the plaintiff proved up the terms of the note and the consideration for it by legally competent evidence. The burden of establishing a want or failure of consideration is upon the defendant. Where a written instrument upon which a pleading is founded is to be alleged to be without consideration such pleading shall be verified by the party asserting it. Rule 93(j) Tex.R.Civ.P. Where the payee sues on the instrument it is not necessary for him to set up the nature of the consideration that passed. Failure of consideration is purely a defensive matter and the burden rests upon the defendant to allege and prove a prima facie case. 9 Tex.Jur.2d 272-273, § 250 and pp. 303-305, § 280. Appellant's point is overruled. Appellant's second point is that the trial court erred in rendering judgment on plaintiff's trial amendment which he dictated to the court reporter but which was not signed or filed subsequently with the clerk. Although the trial court permitted the plaintiff during the course of the trial to file a verbal trial amendment it is apparent from the record that the judgment entered was not based on this pleading. Since the plaintiff did not rely on his trial amendment, it is not necessary for us to consider this point. Judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516280/	102 Pa. Commw. 645 (1986) 519 A.2d 567 Richard D. Turzai, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent. No. 1668 C.D. 1985. Commonwealth Court of Pennsylvania. Submitted on briefs December 16, 1985. December 31, 1986. 646 Submitted on briefs December 16, 1985, to President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three. Ralph J. Ruggiero, for appellant. Eileen S. Maunus, Assistant Chief Counsel, for respondent. OPINION BY JUDGE BLATT, December 31, 1986: Richard D. Turzai (claimant) petitions for review[1] of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision finding him ineligible for benefits on account of willful misconduct.[2] The claimant, an enforcement officer for the Pennsylvania Liquor Control Board (PLCB), was dismissed 647 for allegedly disclosing the existence of an on-going undercover investigation to a liquor licensee who was the subject of the investigation. The claimant's dismissal was upheld by the Civil Service Commission (Commission), which decision was affirmed by this Court in Turzai v. Pennsylvania Liquor Control Board, 90 Pa. Commw. 374, 495 A.2d 639 (1985).[3] At the hearing before the unemployment compensation referee, the PLCB advised the referee that its two key witnesses, the licensee, a Mr. Stavo, and his employee to whom the claimant also allegedly revealed the investigation, had ignored properly served subpoenas[4] and would not be present to testify. After the claimant, appearing at this hearing pro se, objected to obtaining the testimony of these witnesses by telephone,[5] the referee admitted into evidence, under advisement and subject to the claimant's objection, the notes of testimony of the Commission hearing at which both of these witnesses testified. The referee stated that he would 648 schedule another hearing if he subsequently determined that the Commission transcript was inadmissible. No decision, however, was rendered by this referee. A second hearing was held by a different referee and the claimant denied disclosing confidential information to any unauthorized persons. The PLCB presented only a single witness who admitted that he had no first-hand knowledge of the alleged misconduct. The PLCB found itself once again unable to produce the licensee and his employee, although both had been again properly subpoenaed, and so the PLCB again proffered the notes of testimony of the Commission hearing. Over the objection of the claimant, now represented by counsel, the referee admitted the transcript and subsequently determined that the claimant was ineligible for compensation. The Board then reversed the referee's determination and awarded compensation. Upon the PLCB's motion for reconsideration, the Board reversed its prior determination and denied the claimant compensation. The claimant's appeal to this Court followed. Before us, the claimant contends that the referee erred in admitting the notes of testimony from the Commission hearing, in that the proffered notes of testimony consisted of a copy of the transcript, unverified in any manner other than by the verbal representations of counsel for the employer, and, that the conditions precedent required by Section 5934 of the Judicial Code (Code), 42 Pa. C.S. §5934, were not met. We will address the claimant's Section 5934 argument first. Section 5934 pertinently provides that: Whenever any person has been examined as a witness in any civil matter before any tribunal of this Commonwealth . . . if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent 649 to testify for any legally sufficient reason . . . properly proven notes of the examination of such witness shall be competent evidence in any civil issue which may exist at the time of his examination, or which may be afterwards formed between the same parties and involving the same subject-matter as that upon which such witness was so examined. . . . (Emphasis added.) It is beyond argument that the witnesses necessary to the Commission's case were available; that subpoenas had been properly served on them; and that no effort was made to enforce those subpoenas, despite the referee's information as to the appropriate method to do so. Clearly, under such circumstances, Section 5934 operates to bar the admission of the Civil Service Commission transcript in this case. Without the Civil Service Commission transcript, the record here is devoid of competent evidence to support the Board's adjudication. In accordance with the limitations on our scope of review,[6] we will, therefore, reverse the order of the Board.[7] ORDER AND NOW, this 31st day of December, 1986, the order of the Unemployment Compensation Board of Review in the above-captioned case is reversed. *650 CONCURRING OPINION BY JUDGE COLINS: I concur in the result reached by the majority of this Court in the instant matter, but would find the notes of testimony of the prior Civil Service Commission (Commission) inadmissible on other grounds. Assuming arguendo, that the conditions precedent for the admission of notes of former testimony required by Section 5934 of the Judicial Code (Code), 42 Pa. C. S. §5934, had been satisfied, the notes of testimony proffered by the Pennsylvania Liquor Control Board (Board), as the majority indicates, consisted of a mere photostatic copy of the transcript unverified in any manner other than by the verbal representations of counsel. This photostatic copy was devoid of any certification by the Commission, the individual stenographer, or any stenographic service. An alleged verification by the stenographer appended to the transcript was also a photostatic copy. The only statements concerning the accuracy of the transcript were made by counsel for the Board, who was incompetent to testify in this matter and who was never sworn as a witness. Since administrative proceedings are not governed by technical rules of evidence, 2 Pa. C. S. §505, it is arguable that Section 5934 of the Code does not apply in the instant matter. However, absent proper authentication, the notes of testimony could not be admissible under any statutory or common law exception to the hearsay rule. This Court has previously held that the hearsay rule is "not a technical rule of evidence but a basic, vital and fundamental rule of law which ought to be followed by administrative agencies at those points in their hearings when facts crucial to the issue are sought to be placed upon the record." Bleilevens v. Pa. State Civil Service Commission, 11 Pa. Commw. 1, 5, 312 A.2d 109, 111 (1973). Therefore, I would reverse for a different reason than that of the majority. NOTES [1] This case was assigned to the author on November 6, 1986. [2] Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e), provides for the ineligibility of a claimant who is discharged for willful misconduct connected to his work. The burden of proving willful misconduct is, of course, on the employer. Wideman v. Unemployment Compensation Board of Review, 95 Pa. Commw. 218, 505 A.2d 364 (1986). [3] Just cause for removal of a civil service employee is a clearly different standard than willful misconduct. Lebanon County Board of Assistance v. Unemployment Compensation Board of Review, 16 Pa. Commw. 558, 332 A.2d 888 (1975). [4] The Board and its referees are empowered by Section 506 of the Act, 43 P.S. §826, to compel the attendance of witnesses by subpoena. And, in this case, the referee at the second hearing, outlined the appropriate subpoena enforcement procedure. See Section 507 of the Act, 43 P.S. §827 and 34 Pa. Code §§101.31 101.34. [5] Evidence obtained via telephone, to which, as here, a proper objection has been made, may not be admitted into an unemployment compensation hearing record. Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commw. 519, 501 A.2d 1180 (1985) (On February 20, 1986 the Board filed a Motion to Amend Order to Include Statement Required to Appeal Interlocutory Order in Knisley pursuant to Section 702(b) of the Judicial Code, 42 Pa. C.S. §702(b), and on March 26, 1986, this Court entered an Order denying the Board's Motion). [6] In reviewing administrative adjudications, we are limited to determining whether or not constitutional rights were violated, errors of law were committed or necessary findings of fact are not supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C. S. §704; Estate of McGovern v. Pennsylvania State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). [7] Due to our holding under Section 5934, we need not address the claimant's other argument.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516288/	519 A.2d 1257 (1987) Antonio CHAPPELL, Appellant, v. UNITED STATES, Appellee. Lester McBRIDE, Appellant, v. UNITED STATES, Appellee. No. 85-916, 85-928. District of Columbia Court of Appeals. Argued December 10, 1986. Decided January 15, 1987. 1258 Hugh O'Neill, Washington, D.C., appointed by the court, for appellant Chappell. Nancy R. Beiter, Washington, D.C., appointed by the court, for appellant McBride. Robertson T. Park, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Richard A. Kaplan, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee. Before NEWMAN, BELSON, and STEADMAN, Associate Judges. NEWMAN, Associate Judge: Antonio Chappell and Lester McBride challenge their convictions of first-degree burglary and robbery on a number of grounds; we deem only one of them to merit discussion. Chappell presented an alibi defense testifying that he was with three other persons at a different location at the time of the crime. On cross-examination, the government asked the following question as to those three persons: "You know that they wouldn't say that you were on that truck all day, sir. Is that right?" Chappell contends the prosecutor thereby transgressed our holdings with respect to "missing witnesses". We agree, and hold that error was committed, but that it was harmless. We affirm.[1] The evidence showed that Chappell and McBride burglarized the apartment of Furman Henry, robbing him of his wallet containing approximately $370. Chappell presented an alibi defense. He testified that he was working on a trash truck with three other persons at the relevant time. On cross-examination, the government established that these witnesses were not present to testify and then asked if the reason they were not there was that "[y]ou know that they wouldn't say that you were on that truck all day, sir. Is that right?" Chappell answered, "No, sir. They would say I was on the truck all day." The 1259 record reflects that Chappell had complied with Super.Ct.Crim.R. 12.1 by providing information to the government about the identity and whereabouts of alibi witnesses.[2] The record further reflects that Chappell had been unable to secure their attendance by subpoena. The government acknowledges that we have required that a party seeking to make a missing witness argument or suggest a missing witness inference must first seek a ruling of the court. See Dent v. United States, 404 A.2d 165 (D.C.1979) (as to missing witness argument); see Arnold v. United States, 511 A.2d 399 (D.C.1986) (as to missing witness inference). The government, in its brief, states that we have "suggested" that the prosecutor has the same obligation to obtain leave of the court, out of the jury's presence, before suggesting through cross-examination that a missing witness' testimony would be adverse to the defendant. It cites the following language of ours: "In the absence of a prior ruling on missing witnesses by the trial court, it would be improper for the prosecutor to pursue questioning which would suggest to the jury that their testimony would be adverse to appellant." Sherrod v. United States, 478 A.2d 644, 654 (D.C.1984). The government concedes that the prosecutor's conduct in this case was improper. That concession is appropriate. We now hold that which the government states we have previously only "suggested": in the absence of a prior ruling on missing witnesses by the trial court, informed by this court's opinions in Lawson v. United States, 514 A.2d 787 (D.C.1986), Arnold v. United States, supra, and similar cases, it is improper to conduct cross-examination which may suggest to the jury that the missing witness' testimony would be adverse to the party who failed to call the witness. The misconduct in this case was compounded by the trial court's inexplicable denial of Chappell's counsel's request to come to the bench and explain an objection in a timely fashion. Counsel was belatedly permitted to do so, and moved for a mistrial. The motion was denied. Given the strength of the government's case, which was virtually overwhelming, we hold that the error by the prosecutor did not mandate a mistrial. See Arnold, supra. Affirmed. NOTES [1] Chappell's other contentions are meritless. He argues that the admission into evidence of a mug shot of him was error. It was not. See (Lenwood) Williams v. United States, 481 A.2d 1303 (D.C.1984). In a somewhat shotgun fashion, he contends the trial court deprived him of a fair trial by permitting the government to lead a juvenile witness on redirect examination; by refusing to conduct a voir dire of the competence of an adult witness; and by not ordering family members to refrain from talking to a minor witness during an overnight recess. These matters are generally committed to the discretion of the trial court. We find no abuse of discretion. See Johnson v. United States, 398 A.2d 354 (D.C.1979). McBride contends the trial court erred in ruling a juvenile witness competent to testify. Although afforded an opportunity to voir dire the witness after the court had done so, he declined and interposed no objection to the court's ruling of competence. There was no plain error. He also contends that a photo identification of him should have been suppressed. We disagree. See Patterson v. United States, 384 A.2d 663 (D.C.1978). [2] Super.Ct.Crim.R. 12.1 is substantially identical to its federal counterpart.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516300/	420 S.W.2d 462 (1967) J. G. MOORING, Jr., Appellant, v. FRAM CORPORATION, Appellee. No. 4108. Court of Civil Appeals of Texas, Eastland. October 20, 1967. Rehearing Denied November 10, 1967. Todd & Quinn, Nelson Quinn, Abilene, for appellant. Mays, Leonard, Moore & Dickson, R. Temple Dickson, Sweetwater, for appellee. COLLINGS, Justice. J. G. Mooring, Jr. brought suit against Fram Corporation, seeking damages alleged to have resulted to the engine of a truck belonging to him, by reason of negligence, on the part of the defendant (1) in manufacturing and placing on the market an oil filter which had a defective return duct, (2) in failing to inspect and discover said defective return duct, and (3) in placing on the market an oil filter which was inherently dangerous and which would cause unreasonable risk and damage if placed in a motor vehicle for use. At the close of plaintiff's testimony the court withdrew the case from the jury and rendered judgment for the defendant. Plaintiff J. G. Mooring, Jr. has appealed. Appellant presents one point of error in which it is contended that there is ample evidence to raise a material question of fact and that the court erred in withdrawing the case from the jury and rendering judgment for the defendant. In our opinion the point is well taken. The pleadings and the evidence raise a fact question for the jury concerning negligence on the part of appellee in the manufacture of its oil filter proximately causing the damage to Mooring's truck. It is well recognized that a manufacturer or processor is liable for the proximate results of its negligence in manufacturing or processing its product. Brown v. Howard, 285 S.W.2d 752, (Ct.Civil Apps. 1955, n. r. e.); Cruz v. Ansul Chemical Company, 399 S.W.2d 944-947, (Ct.Civil Apps. 1966, n. r. e.); Ford Motor Company v. Puskar, 394 S.W.2d page 1, (Ct.Civil Apps. 1965), modified and affirmed by Supreme Court, 417 S.W.2d 262. In 65 C.J.S. Negligence § 100(2), pages 1078, 1079 and 463 1080 the statement of the rule is, in effect, that a manufacturer of an article which is inherently or imminently dangerous, or becomes so when applied to its intended use in the usual and customary manner, is liable to one, who, without fault suffers damage to his person or property which is the natural and proximate result of negligence in the manufacture of the article, if the damage might have been reasonably anticipated. The rule is held to be applicable irrespective of privity or any contractual relationship between the parties. 65 C.J.S. Negligence § 100(3), pages 1106 and 1107. Also see Shamrock Fuel and Oil Sales Company v. Tunks, 406 S.W.2d 483, (Ct.Civ.Apps. 1966, no writ history); Cohn v. Saenz, 211 S.W. 492, (Ct.Civ.Apps. 1919, writ ref.). The last cited Court of Civil Appeals cases involved the placing on the market and sale of dangerous explosive substances. They held that privity of contract was not required in tort actions because the duty owed by one who places such a substance on the market extends not only to the immediate buyer, but, since the purchase is for resale, the duty is owed to all who thereafter have occasion to purchase the product and use it for its intended purpose. The record in the instant case shows that appellant was the operator of commercial trucks in the Abilene area. He left one of his trucks at a Conoco Station in Abilene and the oil filter in question was installed therein. The pleadings and the evidence show that Fram Corporation was the manufacturer of the filter. The evidence also indicates that the filter was the proper Fram filter for use in the truck, in that it was "the right number", and that it "was put on the way it should have been." The filter was thus properly applied to its intended use. The evidence shows that shortly after the filter was installed in appellant's truck and when the truck was in use on the highway, the engine overheated and was damaged to such an extent that a repair of the entire engine was necessary. A mechanic who qualified as an expert witness testified that when the truck was brought to him he found that the return duct in the oil filter had separated from the lid or top of the filter, and that in his opinion the separation was caused by pressure building up in the filter due to the lack of adequate perforations in the return duct to allow the oil to flow freely from the filter into and through the return duct back into the engine; that the pressure was still so great when he opened the case by taking off the top "the lid went about ten feet in the air, just covered all over the left-hand side of that truck with oil." The witness testified that the separation of the return duct from the lid or top of the oil filter had allowed filtering material to flow through the oil system and engine of appellant's truck, stopping up the oil galleries and pump and other parts of the engine, thereby starving the engine for oil and causing the injury and damage complained of. He stated that the oil comes straight from the oil pump through the oil filter and then to the bearings; that the oil in passing through the filter is cleansed before it gets to the crankshaft and bearings. The filter in question was introduced in evidence. It was cylindrical in shape and about fourteen inches long. The perforated return duct ran through the entire length of the filter. The expert witness stated, in effect, that perforations on the return duct should have been drilled the full length of the duct from top to bottom, inside the filter; that other filters of Fram Corporation which he examined had such perforations extending the full length of the return duct; that the perforated portion of the return duct of the filter complained of measured only approximately one and one-half inches in length. The witness stated that such perforations were not sufficient to permit the circulating oil to get into the return duct. He stated in effect that the pressure from the pump necessary to circulate the oil and the congestion of the filtered material in the inadequate perforations resulted in a pressure building up within the filter which caused the separation of the return duct from the top of the filter. He stated that this was the reason for the damage to the engine of appellant's truck. In our opinion the pleadings and evidence 464 raise a fact question concerning negligence on the part of appellee, Fram Corporation, in the manufacture of its oil filter proximately causing the damage to the engine of appellant's truck. The court erred in withdrawing the case from the jury and rendering judgment for appellee. The judgment is reversed and the cause is remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516314/	420 S.W.2d 729 (1967) William NEWHOUSE, Appellant, v. The STATE of Texas, Appellee. No. 40746. Court of Criminal Appeals of Texas. November 15, 1967. 730 Don Leonard, Fort Worth, for appellant. Frank Coffey, Dist. Atty., R. J. Adcock and Gordon Gray, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State. OPINION DICE, Judge. The offense is murder; the punishment, ninety-nine years. The evidence was undisputed that appellant killed the deceased by stabbing her with a knife. The killing occurred about 9 a.m. inside a café known as Mae's Place, in the city of Fort Worth. According to the state's eye witness, the appellant walked over to a table where the deceased was seated and started stabbing her with a knife. Upon being asked to leave, appellant walked to the front door and as he started out he said to the deceased: "I told you I would kill you." Appellant then left the scene and went to the police station at the city hall, where he walked into the office of Lieutenant S. D. Pruitt, about 9:20 p.m., and told the officer "he had cut up his girl friend real bad." Officer Pruitt asked "how bad?" and appellant replied: "pretty bad * ." When the officer inquired if she was dead, appellant said "she wasn't when I left but she was cut up pretty bad. I stabbed her seven or eight times." In the conversation appellant told the officer he had cut the deceased with a pocket knife which he borrowed from a man at the café; that he first borrowed a smaller knife and gave it back because he needed a larger one. Appellant also told Officer Pruitt that the reason he wanted to surrender to him was because he knew the officer was his friend and he would not hurt him. Officer Pruitt testified that at the time appellant came to the police station he did not know anything about the killing and that it was not until after the conversation and he had confirmed the stabbing by radio that he placed appellant under arrest. At such time he warned appellant that anything he said could be used against him. At the trial, appellant testified, in subtance, that he cut and stabbed the deceased in self-defense when she produced a pistol from her bosom. 731 In his ground of error No. III, appellant urges that: "The court committed reversible error by allowing the oral confession of the appellant to be admitted over the exception of his counsel without the warning required by Art. 15.17, C.C.P., 1965, and without the oral statement reduced to writing as required by Art. 38.22, C.C.P., 1965." We find no merit in the contention, as the record is undisputed that the oral statements were made by appellant to Officer Pruitt prior to his arrest and being taken into custody. The requirements of Articles 15.17, supra, and 38.22, supra, as to the warnings necessary to the making of a written confession were not applicable under the facts. Nor was appellant's oral confession inadmissible under the decision of the Supreme Court of the United States in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. In that case, Chief Justice Warren, speaking for the court, said: "In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." The ground of error is overruled. In his ground of error No. I, appellant complains of certain jury argument of state's counsel. The record does not contain a transcription of the jury arguments in the case. Appellant presented to the trial court his formal bill of exception No. 1, which alleged that in his opening argument to the jury counsel for the state said: "The only reason the defendant did this was because Elva Mae Culton had got herself a better man." The bill, as presented, recited that appellant timely objected to such argument on the ground that the same was manifestly improper, that it injected new facts into the case, that there was no evidence to support such argument, that he moved the court to instruct the jury not to consider the same, and that the court overruled the objections and refused to so instruct the jury. The trial court refused to approve the bill: "* * * for the reason that if such statement was made by the District Attorney, the Court's attention was not called to the matter by a written request at the time, and the Court does not recall that the language complained of was used; however, if such language was used it was a fair comment upon the testimony." Thereafter, appellant filed a purported bystanders bill, which was attested by only one bystander. Under the record, appellant's complaint to the jury argument is not before us for review, as his bill of exception No. 1 was refused by the court and his bystanders bill is attested by only one bystander. Rule 372 of Texas Rules of *732 Civil Procedure requires that a bystanders bill be attested by at least three bystanders. Such rule governs the preparation of bills of exception in criminal cases. Arts. 36.20 and 40.10, Vernon's Ann.C.C.P. We observe that if such argument was before us for review, it was a reasonable deduction from the evidence in view of the testimony given at the trial by the witness Joe Lewis Walker, who was the deceased's brother. Walker testified that on the day of the killing, the appellant and the deceased had an argument and "He was accusing her of Mae's husband and he said that he was coming over to tell, to kill Irey, and then he said he was going to tell him off and tell him to stay out of his business." Appellant's remaining ground of error No. II reads as follows: "The conviction should be reversed on the ground that the final arguments of state's attorney were not recorded; thus not reviewable by this court, and thereby denying appellant full judicial review of a most critical part of the state's case." In his brief, appellant concedes that the record does not show that a request was made for the recordation of the arguments but insists that Art. 2324, Vernon's Ann.Civ.St., should, in capital cases, be held to require the jury arguments be recorded, and the failure to have such a record constitutes a denial of due process under the Fourteenth Amendment to the Constitution of the United States and Art. 1, Sec. 19, of the Constitution, Vernon's Ann.St. of this State. Art. 2324, supra, provides that the official court reporter shall "take full shorthand notes of closing arguments when requested to do so by the attorney for any party to such case." Art. 40.09, subd. 4, V.A.C.C.P., provides: "At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court's charge, and final arguments." In the absence of a request, appellant is in no position to complain of the court reporter's failure to take shorthand notes of the final arguments and to include a transcription of the same in the record on appeal. Moore v. State, Tex.Cr.App., 363 S.W.2d 477, relied upon by appellant, is not here controlling, because, in that case, a request was timely and properly made that the court reporter take shorthand notes of the closing arguments and the request was refused. The ground of error is overruled. The judgment is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516332/	420 S.W.2d 956 (1967) Ex parte Charles E. PAUL. No. 40941. Court of Criminal Appeals of Texas. November 29, 1967. Ben D. Sudderth, Comanche, for appellant. Leon B. Douglas, State's Atty., Austin, for the State. 957 OPINION ONION, Judge. This is an appeal from an order in a habeas corpus proceeding refusing appellant bail after indictment for murder with malice of his mother-in-law. A previous appeal from a denial of bail before indictment was dismissed when such appeal was rendered moot by the return of the indictment. See Ex parte Paul, 419 S.W.2d 867 (October 25, 1967). At the habeas corpus hearing it was stipulated by the defense and the State that in reaching a decision the court would consider the evidence adduced at the previous habeas corpus proceeding held on September 16, 1967. The Constitution of this State provides that all prisoners are entitled to bail except in capital cases, when the "proof is evident." Article I, Section 11. The term "proof is evident" means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty. Ex parte Collins, 168 Tex. Crim. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex. Crim. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex. Crim. 651, 280 S.W.2d 257; Ex parte Shults, 127 Tex. Crim. 484, 77 S.W.2d 877. In Ex parte Thrash, supra, this Court said: "The burden is upon the State to establish that the `proof is evident' in order to defeat bail. Ex parte Donohoe, 112 Tex. Cr.R. 124, 14 S.W.2d 848; Ex parte Readhimer, 123 Tex. Crim. 635, 60 S.W.2d 788; and Ex parte Coward, 145 Tex. Cr.R. 593, 170 S.W.2d 754. The trial court has by denial of bail to this appellant construed the facts presented as showing a case of `proof evident.' It is the duty of this Court to determine if the trial court was authorized to reach that conclusion." In performing this duty it has long been the policy of this Court in proceedings of this nature to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show the defendant's guilt. The purpose of such policy is that the trial should proceed without pre-judgment by this Court. This policy was departed from in Ex parte Krueger, Tex.Cr.App., 391 S.W.2d 737, but is here reaffirmed. At the outset appellant's counsel readily concedes that the evidence is sufficient to show that an offense was committed and that appellant is the guilty party, but contends that the evidence does not indicate that appellant would probably be punished capitally if the law is administered. He points to evidence showing that appellant and his wife had experienced marital difficulties; that she had left their home in Matagorda County taking all the children except their son Don and had moved to DeLeon in Comanche County where her mother and father resided; that a divorce suit was instituted; that appellant was ill the night before he left for DeLeon where the killing took place; that as a result of such illness he had been given a prescription by a doctor in Matagorda County; that he had taken Haldrone pills for arthritis for some time; that he was under mental stress as a result of the separation; that on his trip to DeLeon to see his wife and children he made a wrong turn and had gone 40 or 50 miles out of his way; that when he inquired of his mother-in-law as to the where-abouts of his wife and children, the deceased was heard to say, "It's none of your business"; that following the shooting his eleven-year-old son Don drove him 16 miles to a hospital where he arrived in an unconscious or semiconscious state and was treated for cyanosis (blue skin due to lack 958 of oxygen); that the hospital stay resulted from an overdose of drugs. It must be remembered that to affirm an order denying bail this Court must find that the facts show a case of "proof evident" including the fact that upon a trial of this case a dispassionate jury would not only convict but would assess the death penalty. After careful consideration of the evidence in the light of the briefs and oral argument presented, we cannot so conclude. The judgment of the trial court denying bail is reversed and bail is granted in the sum of $25,000.00.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516348/	420 S.W.2d 583 (1967) The OAK RIDGE HOSPITAL OF the METHODIST CHURCH, INC., Appellee, v. CITY OF OAK RIDGE, Tennessee, Appellant (3 suits). The OAK RIDGE HOSPITAL OF the METHODIST CHURCH, INC., Appellee, v. COUNTY OF ANDERSON, Tennessee, Appellant (2 suits). No. 14. Court of Appeals of Tennessee, Eastern Section. March 30, 1967. Certiorari Denied November 6, 1967. Luther M. Reed, Oak Ridge, for City of Oak Ridge. Harry Lillard, Oak Ridge, for Anderson County. David E. Rodgers and Jackson C. Kramer, Knoxville, for The Oak Ridge Hospital of the Methodist Church, Inc. Certiorari Denied by Supreme Court November 6, 1967. OPINION PARROTT, Judge. These suits concern the tax exempt status of two tracts of property in Oak Ridge, Tennessee, owned by Oak Ridge Hospital of the Methodist Church, Inc. The hospital initiated these suits in the chancery court by 584 filing original bills against the City of Oak Ridge and Anderson County seeking a refund of ad valorem taxes which were paid under protest for the years in question. From the Chancellor's decree holding the properties were not subject to taxes, Anderson County and City of Oak Ridge have appealed to this Court. The facts in the cases are undisputed and come to this Court in the form of a stipulation. It is admitted that the hospital is a general welfare corporation and its property is entitled to a tax exempt status under the provision of T.C.A. 67-502(2) so long as its property meets the terms of the statute. Since there are two tracts of property involved (Parcel 384 and 385A) and the problems pertaining to them are quite different, in an effort to obtain clarity, we will consider the two tracts separately. Considering Parcel 384 first, we find that in June 1960 the hospital acquired from the United States of America, Parcels 384A and 384 as identified by the city plat and records. At the time of this transfer and now, the hospital building was located on Parcel 384A which is not involved in this litigation. In the latter part of 1961, construction was commenced on Parcel 384 of a Medical Arts Building which was to be used in the future to house doctors' offices. The building was completed and ready for use in March 1962. For the year 1962 both the city and county levied an ad valorem assessment on Parcel 384 and the partially completed Medical Arts Building. The hospital paid these taxes under protest and filed these suits against the county and city seeking refunds. In the original bills it was alleged that on January 10th, the effective date of the assessment, the building was not completed or in use. Therefore, it should be permitted to retain its tax exempt status through the year 1962. In the answers of the City and County it is admitted the building was not completed on January 10, 1962, but it is averred that the State Board of Equalization on October 1, 1962, approved the assessment and ruled the property was taxable and contends this ruling is final and conclusive so as to be a bar to these suits. The answers further aver that even though the building was still under construction and not ready for use on January 10th, the property was subject to assessment because it was no longer being used for purposes which would entitle a tax exemption. We disagree with appellant's contention the Board of Equalization's findings were final and conclusive so as to bar these suits. It has long been the rule that the action of the Board of Equalization upon matters other than valuation are subject to judicial review. The question of whether or not this property would enjoy a tax exemption is purely a question of law and addresses itself to the courts of this state. Tennessee Mining and Mfg. Co. v. Cooper, 176 Tenn. 229, 140 S.W.2d 411; City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458. It is our opinion the question of whether this property is subject to taxes for the year 1962 is controlled by the decision of our Supreme Court in the case of Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769. Chief Justice Burnett, speaking for the Court in an unanimous opinion, made it clear that the taxable day in Tennessee is January 10th of each year [T.C.A. 67-606] and the use of property on that day determines whether or not it is subject to tax. In the opinion of that case there is quoted with approval from the case of New Orleans Bank and Trust Co. v. City of New Orleans, 176 La. 946, 147 So. 42, as follows: "`The taxable status of property relates to a certain day in each year. There 585 must be some day of the year as of which the power to tax property at all is determined. That day fixes the power to tax with reference to whether the property was exempt from taxation on that date. If the property is exempt on the tax day, it is not liable for taxes during that fiscal year, although it afterwards goes into the hands of those not exempt.'" The opinion makes it clear that use, not intention, is what determines whether property will be subject to taxation. At page 607, 366 S.W.2d at page 773 we find the following: "* * * when property thus immune has been put back into competition with other properties by someone receiving rents, etc., from the property, the logic of the situation is that until this property is thus in a position to be used in competition with other properties, it should hold its immunity from taxation until this happens." Since it is stipulated that the building was not completed and in use on January 10, 1962, and the property was never assessed for taxes and was continuously treated as exempt for prior years as in Mid-State Baptist Hospital, Inc. v. City of Nashville, supra, we must concur in the Chancellor's finding and decree that Parcel 384 was not subject to taxation by either the county or city for the year 1962. Turning now to Parcel 385A which is vacant unimproved property situated in close proximity to the hospital. It appears from the record this property has been continuously assessed for taxes and treated as nonexempt. The rule of Mid-State Baptist Hospital v. City of Nashville, supra, would not apply. We cannot tell from the record the exact location of the property but according to appellant's brief, this parcel is located east of Parcel 384. Thus the Medical Arts Building is between the hospital and the vacant lot. The hospital acquired this property by private purchase in 1961. The stipulated testimony of the Executive Director of the Hospital states the purpose in acquiring the property was to make it a part of the hospital complex with a possible future use as a site for children's or maternity hospital. It appears this property was on the tax rolls at the time the hospital acquired it and has remained assessed since its acquisition. It is the appellant's insistence that the hospital is not entitled to hold tax exempt property for possible future use or expansion. In support of this insistence, appellants rely on and cite T.C.A. 67-502 and the case of City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458. T.C.A. 67-502 provides: "The property herein enumerated shall be exempt from taxation: * * * * * * "(2) The real estate owned by any religious, charitable, scientific or educational institution and occupied by such institution or its officers exclusively for carrying out thereupon one (1) or more of the purposes for which said institution was created or exists * * . " * * The real property of any such institution not so used exclusively for carrying out thereupon one (1) or more of such purposes, but leased or otherwise used for other purposes, whether the income received therefrom be used for one (1) or more of such purposes or not, shall not be exempt; but if a portion only of any lot or building of any such institution is used exclusively for carrying out thereupon one (1) or more of such purposes of such institution, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation." *586 In the case of City of Nashville v. State Board of Equalization, supra, Justice Felts goes into a comprehensive and historic review of the cases and statutes pertaining to tax exempt property in this state. In considering T.C.A. 67-502, the Court held that the language of the statute was clear and the meaning plain. The opinion sets out the conditions that must be met if real property is to be exempt from taxation by saying: "As said above, the plain intent of this Act is to exempt such an institution's real estate only when it is both (1) `occupied' and (2) `used exclusively' by the institution for one of its charter purposes; and the exemption is denied not only to property `leased' by it to others, but also to property occupied by it but `not used exclusively' for a charter purpose." In the present case we can say the property meets the above test by being "occupied" by a charitable institution. But can it be logically said the property meets the second part of the test of being "used exclusively" by the institution for "one of its charter purposes?" The Chancellor was of the opinion the property did qualify. However, we are unable to agree with his conclusion for the following reasons. The hospital only shows an indefinite intention to use this vacant property sometime in the future for charitable purposes. In our opinion such does not qualify the property within the terms of the statute. Property not used for any purpose but held for future development cannot be said to be "exclusively" devoted to carry out the charitable purposes of the hospital nor is it shown to be necessary to carry out its charter provisions. Furthermore, we are mindful of the holding in the case of Mid-State Baptist Hospital v. City of Nashville, supra, which made the criterion of exemption use, not intention. It is apparent the occupation and use of the property must be such as to contribute presently or in the very immediate future to the operation of the charitable institution if the institution is going to enjoy a tax exempt status of the property. Consequently, we believe that property owned by a charitable institution but not being used at all by the institution and such is held merely for the purpose and with the intention of erecting at some future time buildings for said purely charitable purposes is not sufficient to qualify as tax exempt property under our present statute [T.C.A. 67-502]. For cases holding such, see annotations in 34 A.L.R. 634, 668; 62 A.L.R. 328, 335; 108 A.L.R. 284, 294. Particularly is this true where, as in this case, the property is not contiguous or adjacent to other properties used by the charitable institution for its charter purposes or in the absence of a showing the property was necessary for use by the institution. In fear of misunderstanding, we want to make it perfectly plain that in this opinion we are not saying that all vacant or unused property of a charitable, benevolent or educational institution is subject to tax. The only determination made herein is that property admittedly held for future use by a charitable institution is subject to tax. Necessarily, it follows that once the institution puts the property to an exclusive use for its beneficent purposes, then such property would be removed from the tax roll. For the above reasons we affirm the Chancellor's decree pertaining to Parcel 384, and reverse the decree as to Parcel 385A, with the costs of this appeal being evenly divided among the parties. McAMIS, P.J., and COOPER, J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516356/	420 S.W.2d 788 (1967) LIFE & CASUALTY INSURANCE COMPANY OF TENNESSEE, Appellant, v. Homero RIVERA, Appellee. No. 306. Court of Civil Appeals of Texas, Corpus Christi. November 9, 1967. Rehearing Denied November 21, 1967. 789 Wm. R. Anderson, Jr., and James H. Atwill, of Sorrell, Anderson & Porter, Corpus Christi, for appellant. Eduardo E. de Ases, Corpus Christi, for appellee. OPINION NYE, Justice. This is a suit on a life insurance policy brought by Homero Rivera against Life and Casualty Insurance Company of Tennessee. Plaintiff alleged that he entered into a contract with the defendant insurance company whereby the plaintiff agreed to pay a stipulated premium and defendant agreed to issue a policy of insurance insuring the lives of the plaintiff, his wife and children. The insurance company issued a nonmedical life insurance policy on the life of the plaintiff in the principal sum of $1,000.00 and $500.00 on each dependent child. One of plaintiff's children Nora Linda Rivera died several months after the policy was issued. Plaintiff alleged that the contract of insurance was in full force and effect, the premium had been paid, and that after notice to the insurance company, the claim upon the policy had been denied. The insurance company defended on the sole ground that the deceased child was not in good health and that under the express terms of the policy said insurance would not be effective unless at the time of such issuance of the policy the said Nora Linda Rivera was in fact in good health. The case was tried before the court without the aid of a jury resulting in a judgment in favor of the plaintiff for $500.00 plus costs and $250.00 attorney fees. The insurance policy provided that: "This Policy shall take effect as of the date of issue provided the insured, the insured 790 Wife and each Dependent Child are alive and in good health on such date and the first premium shall have been paid in cash." The insurance company's agent completed the application for insurance and filled in the blanks because the plaintiff insured was an illiterate farm worker who could not read nor write. The insured stated that he and his children were in good health. The insurance company did not raise any question about fraudulent statements or misrepresentations. The appellant insurance company's sole defense in the trial court and here is that the deceased child was not in good health at the time the policy of insurance was issued. Appellant's four points of error are to the effect that the plaintiff was required to prove that the deceased was in good health at the time the policy was issued. Appellant argues that in view of the fact that the insurance company plead this defense (that the insured deceased child was not in good health) that under Rule 94 Tex.R.Civ.P. the burden of proof was on the plaintiff and that the plaintiff failed to meet this burden, and that the trial court was therefore in error in rendering judgment for the plaintiff. Appellant contends that when the defendant insurance company pleads exceptions as a defense to the policy, the plaintiff has the burden of proof to negate the exclusions to the limitations contained in the policy pleaded as a defense by the defendant's answer. Citing Sherman et ux v. Provident American Insurance Co., 404 S.W.2d 340 (Tex.Civ.App.-Beaumont 1966, affirmed 421 S.W.2d 652, Tex.1967). It is true that where an insurance company issues a policy of insurance containing certain exceptions, limitations and exclusions to the coverage and the defendant insurance company answers a suit based on its policy of insurance pleading certain exclusions and limitations contained in the policy, which the company contends would relieve it of liability, then the burden of producing evidence to demonstrate that the plaintiff's cause of action was not attributable to the pleaded exclusions and limitations is on the plaintiff. Sherman v. Provident American Insurance Company, supra; Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309 (Tex.Sup.1965) and International Travelers Association v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938) see the cases cited therein. But this is not the situation where the defense by the insurer goes to a promissory warranty that affects the very validity or effectiveness of the policy of insurance itself. See 32 Tex.Jur.2d 795, Sec. 540. Where the plaintiff in a suit on the policy pleads and proves the execution and delivery of a policy of life insurance, he makes out a prima facie case as to the original validity of the policy of insurance. Trevino v. American Nat. Ins. Co., 140 Tex. 500, 168 S.W.2d 656 (Tex.Com.App., opinion adopted Tex.Sup.1943). The plaintiff suing on the policy of insurance is not required either to plead or prove that the deceased insured was in sound health when the policy was issued. Ill health of the insured or fraudulent representations as to the condition of the insured's health are extrinsic facts, matters of defense, upon which the insurer may rely in contesting the policy that evidences its liability. The plaintiff made out a prima facie case by proving up a valid life insurance policy held by him on the life of the deceased child. The burden of invalidating the policy was upon the defendant insurance company. Manhattan Life Insurance Co. v. Harkrider, 396 S.W.2d 207 (Tex.Civ.App.-Austin 1965, wr. ref., n. r. e., Tex.Sup., 402 S.W.2d 511, 1966); Trevino v. American Nat. Ins. Co., supra. This is true under Rule 94, Tex.R. Civ.P. as nothing under the rule changes the burden of proof on such issue of good health. The question concerning the burden of proof was recently before the Supreme Court of Texas. There the insurance company sought to cancel a non-medical life insurance policy. The beneficiary in a cross action sought recovery of the policy 791 proceeds. The policy contained the similar provision that it shall not take effect unless the insured was in good health at the time it was delivered to him. The court stated that the insurance company had the burden of proof on the question of good health in either situation as plaintiff or as cross defendant. The insurance company is required to obtain a finding from a preponderance of the evidence that the insured was not in good health. Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.Sup.1966); 46 C.J.S. Insurance § 1319 at pp. 424 and 431. In the case at bar the judgment was for the insured in face of the defense that the deceased was not in good health. There were no findings of fact and conclusions of law requested or found. Therefore, the judgment of the trial court should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex. Sup.1962). The trial court impliedly found that the deceased was in good health at the time the policy went into effect. Where the insurer fails to obtain a favorable finding on the question of good health, then the true question to be decided by us is whether the evidence establishes conclusively, according to recognized legal standards, that the insured was not in good health. Great American Reserve Insurance Co. v. Britton, supra. The Court in Britton stated: " * * `good health' does not mean `perfect health'. * * * The term (the Court reasoned) is usually defined as a state of health free from any disease or bodily infirmity of a substantial nature which affects the general soundness and healthfulness of the system seriously or materially increases the risk to be assumed by the insurer. * * " Citing cases. " * * We have also held that a good health provision is breached if the applicant `is suffering from a serious kind of illness, which continues and eventually causes his death.'" Citing cases. The conclusiveness of the insurance company's proof that the deceased was not in good health must be tested by these standards. The history of the deceased child revealed five periods of hospitalization. It is apparent from the evidence that the five confinements were not in any way connected to one another. Quoting from the hospital records the treating doctor stated that the dates of admission and the primary complaints were as follows: 1. July 26, 1959: At age seven months. Acute cerebellar ataxia, an inflammation of cerebellum or the lower part of the brain. The cause was probably a virus. 2. February 6, 1961: History given that child had two convulsions prior to admission. Diagnosis: "Convulsions", although she had no convulsions in the hospital. Discharged February 21 in good condition. 3. May 14, 1962: The hospital records showed a history of convulsions prior to admission to the hospital but patient responded to treatment and had no convulsions in the hospital. Discharged May 22. 4. January 30, 1964 to February 11, 1964: Acute otitis media, (which means an abscessed middle ear) and, acute pharyngitis, (an acute inflammation of the throat). There was no history of convulsions either before admission or during her stay in the hospital which ended February 11, 1964. 5. June 4, 1964: The reason for her admission was a condition of acute diarrhea and as a result of this, she was acutely dehydrated and acidosis and failed to respond to treatment and died June 11, 1964. Without us considering the question of the admissibility of the testimony of the insurance company's doctor, he testified in substance from a hypothetical question, basing his opinion upon a study of the deceased's medical history and medical records. The doctor testified in effect that the child was grievously ill; that her disease was of a substantial nature; that it 792 affected the general soundness and healthfulness of her system which seriously and materially increased the risk to be assumed by the insurer; that the defendant insurance company would not have issued the policy if it had known of the history of convulsions and of the treatment that the child had received from physicians over the five years prior to the issuance of the policy. The treating doctor testified that the cause of death was ulcerative enteritis, that is, an inflammation of the small bowel and this was because of diarrhea. The insurance company's doctor contended that the child had a history of convulsions and therefore not in sound health at the time the policy was issued. In response to the question of whether or not the cause of death had anything to do with the child's history of convulsions the treating doctor testified: "Primarily, I think not. Now, the convulsions that this child had subsequent to its primary admission here, I think, reasonably could be attributed to the primary illness, the cerebellar ataxia the child had, the inflammation of the brain, which probably could have left a residual, which made this child susceptible to convulsions. On the other hand, from our history on the previous admissions, this child doesn't act any different than lots of children that have convulsions at the onset of acute illness, just like they have fever, some children just have an acute illness and have convulsions. If it were not for the fact the child did have the brain inflammation originally, we would not have paid particular, I mean, we would not have thought it unusual that this child did have the convulsions at the onset of severe illnesses, which she had." This doctor did not think that it was considered unusual for the child to be admitted to the hospital five times during her lifetime of five and one half years. The cause of death, ulcerative enteritis which is an inflammation of the bowels caused by diarrhea and intestinal infection has a sudden onset and had no connection with the previous hospitalization periods. Southern Life & Health Ins. Co. v. Grafton, 414 S.W.2d 214, at 218 (Tex.Civ.App.-Tyler 1967). The opinion testimony of experts, although persuasive, is not altogether conclusive. The trial court or the jury may take in consideration the intelligence, learning and experience of the witnesses and the degree of attention each deserves. The Supreme Court in the Britton case supra, stated that medical diagnosis and lay testimony may have an important bearing, or even a controlling effect, on the issue of good health. Here the issue of good health was in dispute. Our courts have been liberal in receiving opinions of ordinary lay witnesses. A witness need not be an expert in medical matters to give an opinion as to the observed physical condition of a person. McCormick & Ray 271, § 1427. The father of the deceased testified that other than when the child was in the hospital and being treated, that between such times, the child appeared to be in good health. He testified that during the time from the last hospitalization until the issuance of the policy that the child was "always well at that time then." The mother testified that "Well, as far as we could tell, she (the deceased child) was normal. She used to help me, you know, carry out the trash and rinse out babies diapers and go to church and play as any other normal child." The question of whether or not the child was not in good health was a question of fact that the trier of facts could determine by consideration of lay testimony as well as that of experts. American Nat. Ins. Co. v. Ferguson, 209 S.W.2d 797 (Tex. Civ.App.-Eastland 1948); Lincoln Income Life Ins. Co. v. Anderson, 409 S.W.2d 555 (Tex.Civ.App.-Amarillo 1966, ref. n. r. e.). In the Britton case the Court in considering the testimony of one of the expert witnesses who testified that the deceased had a continuing type of disease, said: " * * The result is that to hold the good health provision *793 of the policy was breached as a matter of law we would have to take judicial notice that the nature of one or more of the ailments was such as to seriously affect the soundness of Britton's (deceased's) health or to materially increase Great American's (insurer's) risk. These are relative matters, and except in extreme cases should be left for jury determination from evidence introduced on trial." In the case at bar the appellant insurer cites Texas Prudential Insurance Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242 (1957). The same case was cited in the Britton case, supra. In Dillard the proof was that the insurer had established the breach of a good health provision in the policy as a matter of law. The Dillard case and others cited by appellant do not control the decision of the case under the facts before us. We hold that the evidence does not establish conclusively, according to legal standards, that the Rivera child was not in good health when the policy was delivered. Appellant's points are overruled. Judgment of the trial court is affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516359/	420 S.W.2d 283 (1967) STATE of Missouri, Respondent, v. William B. GOOCH, Appellant. No. 52585. Supreme Court of Missouri, Division No. 1. October 9, 1967. Motion for Rehearing or to Transfer Denied November 13, 1967. 285 Norman H. Anderson, Atty. Gen., Jefferson City, Jack L. Eisen, Asst. Atty. Gen., Jolin, for respondent. Russell T. Keyes, Jefferson City, for appellant. Motion for Rehearing or to Transfer to Court En Banc Denied November 13, 1967. HOUSER, Commissioner. William B. Gooch was charged with escape from Missouri State Penitentiary under § 557.351, V.A.M.S., and with the prior commission of a felony under § 556.280. Found guilty and sentenced to 2½ years in the custody of the department of corrections, he has appealed. That part of the information relating to the offense of escape charged that "on the 7th day of June, 1966, at Cole County, Missouri, the defendant, William B. Gooch, was lawfully confined in the Missouri State Penitentiary, an institution under the control of the State Department of Corrections of the State of Missouri, and the said William B. Gooch did unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State." Section 557.351, V.A.M.S., provides that "Any person sentenced to the state department of corrections upon conviction of escaping or attempting to escape from any state institution in which he was lawfully confined, or from the lawful custody of any person while being transported, shall be sentenced to the department of corrections generally for a term of not less than two and not exceeding five years." Defendant, convicted of forgery and sentenced to 3 years confinement in the custody of the department of corrections in an institution designated by that department, was received at Missouri State Penitentiary and assigned to the Renz Farm, a prison farm owned by the State of Missouri. He was transferred to the farm "from the walls." He had been at Renz Farm five months or so when the alleged escape occurred. On June 7, 1966, while defendant was under the jurisdiction of the department of corrections, James Green, an employee of the department, picked up defendant at Renz Farm and took him to the greenhouse located on State Farm No. 1, where defendant was assigned to work. Defendant, a trusty, was left there at 7:30 a.m. with two other prisoners who were on the same work detail. The building was not locked. There were no guards. A prison officer routinely took the trusties to and from the greenhouse to Renz Farm, where they ate and slept. Prisoners were taken there under a standing order of the superintendent of the Renz Farm to work in the greenhouse. At the greenhouse they were "on their own," but were "supposed to stay" there; they were not "supposed to be any place else." At 10 a.m. 286 officer Green returned to the greenhouse to pick up the prisoners and take them back to the farm for their noon meal. Defendant was not present. The other prisoners did not know his whereabouts. Search of the immediate area did not disclose defendant. Bloodhounds led the officers to defendant, who was found 2 to 2½ miles east of the greenhouse, under some brush. When found he was not wearing a prison uniform. He had changed into a blue jacket. He had some clothes in his possession, and a box in which there was a road map of the State of Missouri, a knife, a pair of pliers, several candy bars and some canned meat. When found defendant was off state property, about 1½ or 2 miles east of the boundary line of State Farm No. 1 (the property on which the greenhouse is located). The first question is whether the court should have directed a verdict for defendant for failure of proof. The contention is that he was charged with escape from the penitentiary but that he was not in the penitentiary and did not escape from the penitentiary, that he was assigned to Renz Farm and that under the state's evidence he escaped from State Farm No. 1. Appellant further asserts failure of the state to establish that the penitentiary is a part of the department of corrections, or that the penitentiary is an institution designated by the department for his confinement, or that State Farm No. 1 or the greenhouse located thereon is a part of the penitentiary. State v. Betterton, 317 Mo. 307, 295 S.W. 545, cited by appellant, holds that there is a fatal variance between an information charging escape from the penitentiary[1] and proof of an escape by a convict detained at a state prison farm; that § 3161, RSMo 1919[2] [and not § 3162] was framed to cover such escapes. The Betterton case, however, is no longer controlling in view of the later en banc decision in Ex Parte Rody, 348 Mo. 1, 152 S.W.2d 657, in which it was held that the words "confined in the penitentiary" appearing in § 4307, RSMo 1939, apply to a petitioner who was at a sawmill camp operated by the penitentiary and not in the penitentiary when he escaped (and that he was therefore deprived of the benefits of the three-fourths rule under § 9086, RSMo 1939). The court, referring to the three sections of the statutes on escape, said that "under their provisions any convict held in custody under a commitment for the service of a penitentiary sentence is at least constructively `confined in the penitentiary,' whether he be going to the penitentiary, or in the penitentiary, or outside under guard." Appellant was constructively confined in the penitentiary on June 7, 1966, when he was stationed at the penitentiary greenhouse. When he escaped from the state farm on which the greenhouse was located he escaped from a "state institution in which he was lawfully confined," within the meaning of § 557.351. As a matter of law the penitentiary is a part of the department of corrections. Section 216.020, V.A.M.S. provides that the department of corrections has power to control and jurisdiction over all adult correctional and penal institutions and activities in this state and § 216.365, V.A.M.S. provides that "There shall continue to be maintained as an institution within the department of corrections at the City of Jefferson, in the County of Cole, a state penitentiary * * ." (Our italics.) State's Exhibit 2, a record of the department, shows that defendant was committed to the penitentiary. Further, the penitentiary is an institution "designated by the Department of Corrections." The provision in the sentence and judgment that defendant be confined in the custody of the department of 287 corrections "in an institution or institutions designated by said department" does not require a formal act of designation or certification of the penitentiary as an authorized, qualified and approved place of confinement, in order to punish for escape therefrom. This wording refers to the action of the division of classification and the classification committee in assigning the prisoner under §§ 216.211 and 216.212, V.A.M.S. See the cognate situation and similar ruling in McCullough v. United States, U.S.C.A., 8 Cir., 369 F.2d 548 [2]. We further rule that Renz Farm was designated as a place of imprisonment for defendant and that Renz Farm, State Farm No. 1 and the greenhouse located thereon are operations under the control of the department of corrections and are part and parcel of the penitentiary. There is evidence that defendant was assigned or transferred "from the walls," which in common parlance means from the main penitentiary, to the Renz Farm. The penitentiary record recites that on January 26, 1966 defendant was assigned to "Renz F." That the state prison farms are within the jurisdiction of the department of corrections is manifest. § 216.525, et seq., V.A.M.S. Harry Lauf, records officer employed by the department of corrections, testified that the greenhouse is located on the property commonly known as the "old Women's Prison" and also known as "Old Farm No. 1"; that this is situated adjacent to the east wall of the main penitentiary and is a part of the Missouri State Penitentiary. It is urged that there is no testimony that the defendant "ever left state property or of an escape or attempted escape from any place." Andrew Volmert, corrections officer assigned to the bloodhound team, testified that he did not think that the place where defendant was found was part of the ground of the department of corrections; that from his knowledge of boundaries he would say that the defendant was found about 1½ or 2 miles east of the boundary of Farm No. 1. That defendant was lawfully confined; that he left the greenhouse and departed from state property in violation of orders; that he was found 2 to 2½ miles east of the place where he was supposed to remain; that he was found in hiding; that he had changed into civilian clothes and had in his possession numerous articles of aid and assistance to one who is escaping, constitute sufficient evidence to justify a finding beyond a reasonable doubt that defendant intended to escape and was guilty as charged. The court did not err in overruling defendant's motions for a directed verdict at the close of the state's case and at the close of all the evidence. Appellant's second point is that the court failed to instruct the jury in writing upon all questions of law necessary for their guidance, as required by Criminal Rule 26.02 (6), V.A.M.R., by failing to instruct on the two defenses of lack of intent to escape and double jeopardy. The alleged error was not presented to the trial court in the motion for new trial, and therefore has not been preserved for appellate review. There was an allegation that "the verdict is against the law under the evidence" and appellant seeks a review under that allegation, but this general allegation in the motion for new trial was insufficient to present the question to the trial court. Criminal Rule 27.20 (a); § 547.030, V.A.M. S.; State v. Alberson, Mo.Sup., 325 S.W.2d 773; State v. Ronimous, Mo.Sup., 319 S.W.2d 565; State v. Foster, 335 Mo. 577, 197 S.W.2d 313. Not having raised the point in his motion for new trial, appellant may not raise it in this court for the first time. State v. Caffey, Mo.Sup., 404 S.W.2d 171; State v. Butler, Mo.Sup., 310 S.W.2d 952; State v. Hopkins, 278 Mo. 388, 213 S.W. 126; State v. Perrigin, 258 Mo. 233, 167 S.W. 573; State v. Douglas, 258 Mo. 281, 167 S.W. 552. 288 Appellant's third point goes to the sufficiency of the information, it being urged that the information failed to fully inform defendant of the previous offense with which he was charged, in that it fails to state that the offense was punishable by imprisonment in the penitentiary of the State of Missouri, or that he was sentenced to that penitentiary, or where he was imprisoned. The paragraph of the information relating to the prior commission of a felony charged that defendant had been convicted of forgery in the Circuit Court of Dunklin County, Missouri, "an offense punishable by imprisonment in the penitentiary," on December 13, 1965; that defendant was sentenced to imprisonment for a 3-year term, and that in accordance therewith was "duly imprisoned." This was sufficient to inform defendant of the previous felony conviction with which he was charged. The necessary inference from these allegations is that the charge, sentence and imprisonment referred to the Missouri penitentiary. If in order to answer this charge defendant needed further enlightenment he had ample time and opportunity to move under Criminal Rule 24.03 for a bill of particulars. He had competent and experienced counsel. By his failure to move for a bill of particulars defendant waived any claim he may have had to more specificity in this regard. City of St. Louis v. Capitol Vending Co., Mo.App., 374 S.W.2d 519; State v. Haynes, Mo.Sup., 329 S.W.2d 640. Point IV is that the court "erred in admitting the testimony of Plaintiff's Witness Green, his name not having been endorsed on the information." When defendant's counsel objected on this ground the prosecuting attorney stated to the court that he would have no objection to a continuance. Defendant's counsel demurred to this suggestion, whereupon the court offered to declare a recess to give counsel an opportunity to interview Mr. Green. This was declined. The court then offered to grant defendant "time" and this was declined. No affidavit for surprise was filed by defendant. The type of testimony Mr. Green gave might readily have been contemplated. He was the officer who delivered defendant to the greenhouse and who reported him missing when he went back at 10 a.m. to fetch him for lunch. We find no prejudice to defendant in the action taken; nothing but a reasonable exercise of the trial court's considerable discretion. State v. Thost, Mo.Sup., 328 S.W.2d 36, 38. Appellant's last point is that the court erred in refusing to admit in evidence certain testimony sought to be elicited from defendant's witnesses Tony Lopez and Fred Ryan. Lopez, one of the three prisoners transported to the greenhouse on the morning of the alleged escape, was asked on direct examination whether he had been accused of plotting an escape with defendant. An objection to this question was sustained. Nevertheless the witness answered "Yes, I was accused * ," whereupon the court directed the jury to disregard the answer. Lopez was then asked whether he, Lopez, had been "sent over to the `hole'" after defendant was brought back in the penitentiary. Between objection and ruling sustaining the objection he answered "I was sent to the `hole.'" The prosecuting attorney requested that his answer be stricken and that the jury be instructed to disregard it. No ruling was made on this request. We find nothing prejudicial to the rights of the defendant in either of these rulings. Both bits of evidence were immaterial and inconsequential. Ryan, who worked with defendant, testified that he had a conversation with defendant in the penitentiary after his return concerning defendant's intent on the day in question, but on objection the witness was not permitted to testify further as to the conversation. Appellant made no offer of proof. In his brief appellant states that if permitted to testify this witness "would have testified as to whether Defendant has intended to escape or not." Appellant does not definitely state that the witness would have testified that defendant told him he did not intend to escape, but assuming that 289 he would have so testified, such declarations by a defendant in his own interest, not shown to have been made as a part of the res gestae (he said the conversation was "out in the yard, one day, [while] pitching horseshoes"), were properly excluded as self-serving. The statutes relating to escapes from prison were changed in the Seventieth and Seventy-First General Assemblies. Sections 557.350, 557.360, 557.370 and 557.400, RSMo 1949, were repealed by Laws 1959, H.B. No. 10, § 1, and one new section to be known as § 557.351 was enacted. By Laws 1961, p. 331, section 557.351, RSMo 1959, was repealed and one new section to be known by the same number was enacted in lieu thereof. Although the information in this case follows the language of the first clause of Laws 1959, H.B. No. 10, § 1 more nearly than it follows the latest enactment on the subject, it nevertheless charges the essential facts. The gist of the offense proscribed by § 557.351 as that section is now written is escape or attempt to escape from a state institution in which a person is lawfully confined. While the information does not in terms charge that defendant was a "person sentenced to the state department of corrections", the allegation that defendant was lawfully confined in an institution under the control of that department is a charge of similar import and is the legal equivalent. The information is sufficient to support the judgment of conviction but we suggest that the better practice would be to charge escape in the language of present § 557.351. We find the trial court's finding of a prior conviction, the verdict, and the judgment and sentence proper in form and substance, with the exception that defendant was sentenced to serve the time "to" instead of "in" the custody of the department of corrections. The intention, however, is clear and the misuse of the word "to" is inconsequential. Appellant was represented throughout, both in the trial and appellate proceedings, by a lawyer. He was granted allocution. The punishment is within the legal limits. We find no prejudicial error. Accordingly, the judgment is affirmed. WELBORN and HIGGINS, CC., concur. PER CURIAM: The foregoing opinion by HOUSER, C., is adopted as the opinion of the court. All of the Judges concur. NOTES [1] in violation of § 3162, RSMo 1919 (escape from the penitentiary, while there confined, without breaking prison) [2] (escape from custody of the officers while out of prison under guard)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516342/	420 S.W.2d 830 (1967) 243 Ark. 399 Harold R. CLARK, Appellant, v. GENERAL ELECTRIC CO. et al., Appellees. No. 5-4288. Supreme Court of Arkansas. November 6, 1967. Rehearing Denied December 11, 1967. As Amended December 13, 1967. 831 Michael Heindl, Hot Springs, and Wayne W. Owen and James R. Howard, Little Rock, for appellant. 832 Wootton, Land & Matthews, Roy H. Mitchell, M. C. Lewis, Jr., and William R. Mitchell, Hot Springs, Robinson, Thornton, McCloy & Young, Little Rock, Clayton Farrar, Wood, Chesnutt & Smith, Hot Springs, for appellees. FOGLEMAN, Justice. The principal question in this case requires the determination of priority between a construction money mortgage on the one hand and several liens of materialmen, suppliers and mechanics on the other. In 1964 Morehead Properties, Inc., (hereinafter called Morehead) having in mind construction of a large complex of "garden apartments," acquired certain lands in Hot Springs. Morehead had previously dealt with appellant for materials, supplies and financing in connection with similar construction in Texas. Appellant arranged for both permanent and construction financing for Morehead on the project in question. He accomplished this by guaranteeing the $400,000.00 construction loan by the Exchange National Bank of Dallas and acquiring a commitment for permanent financing by John Hancock Life Insurance Company when construction was completed and the apartments occupied. On April 14, 1965, Morehead executed a proper and valid mortgage on the property to the bank as security for the construction loan. It was not filed for record until April 21, 1965, at 11:21 a. m. It contained a recital that the money was to be advanced to Morehead from time to time. Actually, the entire amount of the loan was disbursed pursuant to preliminary agreement, however, by advances by the bank to appellant from time to time. He, in turn, made advances to Morehead for the payment of various costs incident to the project, with the proposed application of the advances usually specified by Morehead. The latter commenced construction on the project, making contracts with appellees for labor and materials. Morehead became insolvent before the buildings were completed or appellees paid. Appellant then paid the Morehead note upon demand of the bank and took an assignment of the note and mortgage. He also took possession of the apartment complex. Appellees then filed suits to enforce their liens and appellant filed a suit for foreclosure of the construction money mortgage. The suits were consolidated for trial and the chancellor found that the liens of appellees were prior to the lien of the construction money mortgage. The principal contention of appellant is that the trial court erred in holding that the appellees' liens had priority over his mortgage. The court's findings in this respect were based upon the activities of appellee Carroll Pyron, d/b/a Carroll Pyron Construction Company. Pyron was a heavy construction contractor, operating bulldozers and similar machinery. He was employed in October 1964 to clear the land of brush, debris and trees in order for a topographical survey of the premises to be made. This assignment was completed, Pyron billed Morehead and was fully paid. While no agreement was reached, Pyron was told at the time he did this work that Morehead would like to have him do the excavation for the concrete work. In the early part of April 1965 Morehead contracted with Pyron for the leveling of the land for a proposed apartment complex to consist of more than one building. After the clearing in 1964, several large trees and two old houses remained on the site, but these latter had been removed when Pyron first went there in 1965. The old foundations remained, however, and the land itself was of an uneven elevation. Pyron was furnished with a set of plans and building elevations were discussed. An agreement was made for Pyron to clear the property of remaining debris and to grade elevations for the building sites with compensation to be paid on an hourly basis. The latter undertaking was to be accomplished by moving dirt from one place to another on the site so as to bring the sites for the buildings to elevations satisfactory for the laying of concrete slab foundations. 833 On the morning of April 19th Pyron went to the building site with an employee named Terry to commence work. Pyron spent about 45 minutes establishing cut and fill elevations with a transit and an elevation rod. Terry had brought a large bulldozer with which he started moving the foundations of the old houses. That day he worked approximately six hours, during which he removed the foundations of the old buildings and commenced the leveling operation. The condition of the soil after this work would have revealed that it had been "bulldozed over." The machine remained on the job site and was actually not removed therefrom for at least one week. An employee named Taylor went to the property at 7 a. m. on April 21st and spent about thirty minutes with Pyron, becoming oriented to the elevations. He then worked for an hour and a half, using the same machine. Nothing else was done on the apartment site before the filing of the mortgage. Ultimately Pyron completed the leveling work. Shortly prior to May 13th he dug the footings for the concrete foundations. This was the first actual work in connection with building the apartments, other than the bulldozer work. Appellees contend that the work done by Pyron establishes the priority of all their liens, relying upon Ark. Stat.Ann. § 51-607 (1947). They argue that this work constituted "commencement of the buildings or improvements" in the sense of that section of the statute, so that all such liens dated from this "commencement" under the rule announced in Planters Lumber Co. v. Jack Collier East Co., 234 Ark. 1091, 356 S.W.2d 631. Appellees have virtually abandoned their original contention that the work in October 1964 constituted a commencement from which the priority would date, but rely on the work done on April 19th and 21st. We had occasion to determine whether there was a "commencement" of a building sufficient to establish lien priority recently in Mark's Sheet Metal, Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S.W.2d 106. There we held that the work done must be such as to make it obvious that improvements on the property were being commenced or were underway. We said that the clause in question means some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvement is to be made. Reference was made in that opinion to Rupp, Trustees v. Earl H. Cline & Sons, 230 Md. 573, 188 A.2d 146, 1 A.L.R. 3d 815. In that case, the Maryland Supreme Court held that neither the removal of soil from a part of a development site intended for the erection of an apartment building to another part of the site, intended for the construction of cottages, nor the grading and leveling of the apartment site constituted such "commencement" under a similar statute so as to give a mechanic's lien preference over a subsequently recorded mortgage. They relied on their previous decisions holding that commencement of the building is "the first work on the ground which is made the foundation of the building and forms a part of the work suitable and necessary for its construction" (Brooks v. Lester, 36 Md. 65) and that driving of stakes and digging away of soil to level the ground prior to beginning construction were not sufficient (Kelly v. Rosenstock, 45 Md. 389). They had said in the earlier cases that the work must be such that everyone can readily see and recognize it as commencement of a building. This rule is followed by a great majority of the cases in which the question has arisen in states with statutes similar to ours. It is generally held that the mere preparation of the land for the construction is not sufficient. See Annot., 1 A.L.R. 3d 822. Even though not followed as an unqualified rule, actual and visible improvement to establish priority has been held in many of these cases not to begin until such work as excavation for a basement or foundation has begun. National Lumber Co. v. Farmer & Son, Inc., 251 Minn. 100, 87 N.W.2d 32; North Shaker Boulevard Co. v. Harriman Nat'l Bank, 22 Ohio App. 834 487, 153 N.E. 909; Hagenman v. Fink, 19 Pa. C. 660; Roy Bldg. & Loan Ass'n v. King, 17 Pa. D. & Co.R. 83, 22 Del.Co. 297; Davis-Wellcome Mtge. Co. v. Long-Bell Lbr. Co., 184 Kan. 202, 336 P.2d 463; George M. Newhall Engineering Co. v. Egolf, 185 F. 481 (3d Cir.). It has also been held that the labor or materials must be such as could afterward become, or be considered, a component part of the structure. Conn. General Life Ins. Co. v. Birzer Bldg. Co., Ohio Com.Pl, 101 N.E.2d 408, 61 Ohio Law. Abs. 477; Sheridan, Inc. v. Palchanis, 172 So. 2d 872 (Fla.App.1965). At any rate, the weight of authority seems to be that clearing, grading and filling of the land do not constitute the commencement of a building for the purpose of establishing priorities of mechanics' and materialmen's liens. See, Kiene v. Hodge, 90 Iowa 212, 57 N.W. 717; Central Trust Co. v. Cameron Iron & Coal Co., CC, 47 F. 136; New Hampshire Savings Bank v. Varner, 216 F. 721 (8th Cir.); aff'd 240 U.S. 617, 36 S. Ct. 409, 60 L. Ed. 828; Maule Industries, Inc. v. Gaines Const. Co., 157 So. 2d 835 (Fla.App.1963). We hold that the work done in this case by Pyron was not such as to be visible or manifest action on the premises, making it apparent that a building or improvement was being commenced or underway. It was at most a preparatory operation. Appellees contend, however, that there is no evidence that the bank or appellant made any visual inspection of the premises before the construction money mortgage was recorded so they could not have relied upon what they saw. This is analogous to an argument that one who does not examine the public records of mortgages would not be entitled to assert the priority of a mortgage taken by him and filed for record over a subsequently filed mortgage of which he had no notice otherwise. The question is not whether an inspection was made, it is rather what an inspection would have disclosed. Appellees also contend that removal of the old foundation was sufficient to establish the priority, relying upon Pratt v. Nakdimen, 99 Ark. 293, 138 S.W. 974. In that case this court only held that the trial court correctly included the amount paid by a defaulting contractor for the removal of an old building and its foundation from the job site in the total sum of liens against the building for the purpose of fixing the percentage to be distributed upon the lienable claims asserted against the building, after default and completion of the building by the owner. No question of priorities was involved. In that case the court said that this cost was for labor that went into the construction of the new building because it was impossible to build the new without the removal of the old. It must be noted that the contract with the original contractor called for the removal of a three-story building and the construction of a six-story structure. Even if it can be said that the cost of removing the old foundations was a lienable claim, this does not mean that this step establishes the priority of the lien. The statute provides for a lien for work upon a building or improvement [Ark.Stat.Ann. § 51-601 (1947)] but the priority is determined by the "commencement" (§ 51-607). The mere fact that the work was the proper subject of a lien cannot establish priority when it does not give notice of the commencement. The removal of the old foundations would no more give notice that a new building was to be erected than the wrecking and removal of the old building did, yet the lien claimants have not sought to use that date as the date of commencement. It is to be noted that priority was denied by the court in the Rupp case, even though Maryland's lien statute gave a lien for grading, filling and landscaping. Maryland Code (1957) Art. 63, § 1. The point is further illustrated by considering that the fabrication of fittings for the heating and air conditioning system was a proper item for a lien when the system was put in the building involved in Mark's Sheet Metal, Inc. v. Republic Mortgage Co., *835 242 Ark. 475, 414 S.W.2d 106, but this step furnished no notice whatever of the commencement of the building. We cannot say that appellant is entitled to priority for the entire amount of the judgment awarded him, however. Appellees question his entitlement to priority for the cost of the land, brokerage fees paid to Clark, a stand-by mortgage fee, title insurance, taxes and interest. The testimony showed that of the total advanced, the sum of $57,780.00 was for the purchase price of the land and was advanced by Clark to Morehead. This item may properly be considered as secured by appellant's prior lien, as the purpose of the loan and not the use of the proceeds is the determining factor. Sebastian Building & Loan Ass'n v. Minten, 181 Ark. 700, 27 S.W.2d 1011. The present case is distinguishable from Planters Lbr. Co. v. Wilson Co., 241 Ark. 1005, 413 S.W.2d 55, in that there is no evidence here that either Clark or the Exchange Bank ever represented in any way that the purchase price of the lot had been paid, nor did either of them receive or retain any part of the purchase price, as did the construction money lender in the case last cited. However, under the holding of the Wilson case, appellant would not be entitled to priority for his brokerage fee of $4,000.00 or the stand-by mortgage fee of $8,000.00 paid to the insurance company which was to make the permanent loan after completion and occupancy of the building. Appellees also question the disbursements for interest, title insurance and taxes. We need not consider the effect of control of loan disbursements (as we did in the Wilson case) on the general rule that loan purpose, not use, is the key priority factor because the question of lien priority on the remaining items is not dependent thereon. The item of taxes is a proper item for priority as it was paid to protect the property from what was or would be a prior lien. Ashdown Hardware Co. v. Hughes, 223 Ark. 541, 267 S.W.2d 294. We see no reason why the charge for title insurancean outlay for a necessary prerequisite for temporary financingshould not be a proper item. Interest would not be allowable on those sums deducted or paid for brokerage and stand-by mortgage fees (Planters Lbr. Co. v. Wilson, supra) but this appears to have been included in the judgment in favor of appellant and included in the court's decree. We find no reason why payment to Clark for materials and supplies furnished by him or companies in which he had an interest should not be allowed as items properly disbursed under the construction loan. Many other interesting questions are presented on the appeal, as well as on the cross-appeal of General Electric Company which seeks to establish a lien for electric ranges furnished for the apartments. In view of our holding, these questions have become moot. By stipulation of the parties, a commissioner's sale of the property was had pending this appeal. The proceeds of that sale are to be distributed after final determination of this case. At that sale appellant became the purchaser for $340,000.00. He is entitled to priority for an amount in excess of this sum, so there will be nothing for distribution to the lien claimants in any event. Reversed and remanded for entry of a decree pursuant to this opinion, an appropriate order on distribution of the proceeds of sale, and a release of supersedeas bond posted by appellant pursuant to stipulation of the parties.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516366/	420 S.W.2d 230 (1967) William A. COCKRUM, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee. No. 16973. Court of Civil Appeals of Texas, Dallas. September 29, 1967. Rehearing Denied October 27, 1967. 231 Marvin Menaker, Dallas, for appellant. John A. Gilliam, of Thompson, Knight, Simmons & Bullion, Dallas, for appellee. CLAUDE WILLIAMS, Justice. This is an appeal by William A. Cockrum from a take nothing summary judgment in favor of Travelers Indemnity Company in a suit filed by Cockrum to recover medical payments under a family automobile insurance policy. The facts were not in dispute and both parties filed a motion for summary judgment. The sole question presented was the liability vel non of Travelers for the payment of medical payment insurance under the automobile policy. The trial court found that as a matter of law there was no liability and granted appellee's motion for summary judgment. FACTS On February 9, 1965 Travelers Indemnity Company issued its Family Automobile Policy (being a renewal of prior coverage) with William A. Cockrum as the named insured. This policy contained a schedule of coverage on three separate automobiles owned by Cockrum. Car No. 1 was a Cadillac, 1961 model, and was specifically insured for bodily injury liability; property damage liability; medical payments in the sum of $1,000; comprehensive liability; collision and towing. Each separate coverage bore a designated premium charge. Car No. 2 was a 1956 Cadillac and was insured for the same coverages with the exception of medical payments and collision. Car No. 3 was a 1961 Pontiac and was specifically insured against all losses except medical payments. It was undisputed that medical payment coverage was not requested for the No. 3 automobile and none was charged therefor. The policy contained the provision that: "The absence of an entry in any premium space shall mean that such insurance is not afforded with respect to the particular automobile." On May 9, 1965, while the policy in question was in full force and effect, William A. Cockrum's daughter, Barbara Jean, while driving the Pontiac automobile, being the No. 3 car described in the policy, was in collision with another automobile and, as a result of such accident, she was killed. The amount of the funeral expenses incurred as a result of the daughter's death exceeded the sum of $1,000. It was conceded by the insurance company that if there was liability under the policy in question Cockrum would be entitled to recover the sum of $1,000, plus 12 per cent penalty in the amount of $120, and for reasonable attorney's fees. The material portions of the policy of insurance sued upon and which must control the issue of liability are as follows: The term "owned automobile" means "(a) a private passenger * * automobile described in this policy for which a specific premium charge indicates that coverage is afforded, * * ." * * * * * 232 "PART IIExpenses for Medical Services. "Coverage CMedical Payments. "To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services: "Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called `bodily injury', caused by accident, "(a) while occupying the owned automobile, "(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or "(c) through being struck by an automobile or by a trailer of any type; "Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying "(a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; * ." "Definitions. "The definitions under Part I apply to Part II, and under Part II: `occupying' means in or upon or entering into or alighting from. "Exclusions. "This policy does not apply under Part II to bodily injury: "(a) sustained while occupying (1) an owned automobile while used as a public or livery conveyance, or (2) any vehicle while located for use as a residence or premises; "(b) sustained by the named insured or a relative while occupying or through being struck by (1) a farm type tractor or other equipment designed for use principally off public roads, while not upon public roads, or (2) a vehicle operated on rails or crawler-treads; "(c) sustained by any person other than the named insured or a relative, "(1) while such person is occupying a non-owned automobile while used as a public or livery conveyance, or "(2) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in the automobile business, or "(3) resulting from the maintenance or use of a non-owned automobile by such person while employed or otherwise engaged in any other business or occupation, unless the bodily injury results from the operation or occupancy of a private passenger automobile by the named insured or by his private chauffeur or domestic servant, or of a trailer used therewith or with an owned automobile; "(d) sustained by any person who is employed in the automobile business, if the accident arises out of the operation thereof and if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law; "(e) due to war." * * * * * "Conditions. "3. Two or More Automobiles. "Parts I, II and V "When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, * * ." 233 OPINION Appellant and appellee agree that the only question to be resolved by this appeal is one of law, i. e., whether the insurance contract sued upon imposes the legal obligation upon the part of appellee to pay benefits under the medical payment provision of the policy under the admitted facts presented in this record. Appellant, in his sole point of error, contends that since appellant's daughter sustained injuries, which resulted in her death, which were caused by an accident through being struck by an automobile, that the terms of the insurance policy became effective. In support of his contention appellant relies upon the decision of this court in Hale v. Allstate Ins. Co. (Tex.Civ.App., Dallas 1961), 345 S.W.2d 346, and the opinion of the Supreme Court of Texas in answering a certified question, Hale v. Allstate Ins. Co., 162 Tex. 65, 344 S.W.2d 430 (1961). Appellant contends that the trial court erred in failing to sustain his motion for summary judgment as well as committing error in sustaining appellee's motion. Appellee, by appropriate counterpoints, takes the position that the trial court's judgment was correct since at the time the accident occurred appellant's daughter was driving the Pontiac automobile owned by appellant but which was expressly not insured under the medical payment provision of the policy. Appellee argues that since the parties had expressly contracted that no medical payment benefits would be provided on the Pontiac automobile, and no premium charges were made for such coverage on such automobile, there can legally be no liability on appellee for the payment of such coverage. In support of its position appellee relies upon Vaughn v. Atlantic Ins. Co., 397 S.W.2d 874 (Tex.Civ.App., Tyler 1965, writ ref'd n. r. e.), and Gonzales v. Farmers Ins. Exchange, 399 S.W.2d 888 (Tex.Civ.App., Eastland 1966 writ ref'd n. r. e.). We are unable to agree with appellee that either of these cases is applicable under the factual situation here presented. In Vaughn, supra, the insured had a policy of insurance upon each of two automobiles owned by him, one a Ford and the other a Chevrolet. While Vaughn, his wife and daughter, were driving the Ford automobile they were involved in a head-on collision in which Mrs. Vaughn was killed. The insurance company admitted liability on the medical coverage provision of the policy covering the Ford automobile and paid the same. Vaughn attempted to collect medical payment coverage on the Chevrolet automobile, which was not involved in the collision. The insurance policy in that case contained the express exclusion to the effect that medical payment provisions were not payable for bodily injury "sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined as an `owned automobile'". The court in denying recovery, based its decision upon this specific exclusion, saying: "The exclusionary clause here under consideration simply excludes any medical coverage to the insured or members of his family which were sustained while occupying another owned automobile other than an automobile described within the policy. It is without dispute that the Ford automobile involved in the accident in which appellant and his family were injured was owned by the appellant, and it was not covered as an `owned automobile' in the Chevrolet policy because it was not described therein and no premiums were paid thereon." In Gonzales, supra, the insurance company issued a family automobile policy to Gonzales covering a Dart automobile, with medical payment coverage, and a Pontiac automobile, with no medical payment coverage provided. During the policy period a 1954 Oldsmobile automobile was substituted for the Pontiac automobile. Gonzales and his wife were operating the Oldsmobile 234 automobile when it was involved in the collision resulting in injuries and medical treatment. Action was brought to recover under the medical payment provisions of the policy. This policy contained a specific exclusion, as follows: "This policy does not apply under PART II to bodily injury: * * (b) sustained by the named insured or relative (1) while occupying an automobile owned by or furnished for the regular use of either the named or any relative, other than an automobile defined hereunder as an `owned automobile' * * ." The court in denying recovery under the medical payment provisions relied upon the exclusionary clause above recited. In the case under consideration the policy of insurance is entirely devoid of an exclusionary clause similar to that contained in Vaughn and Gonzales. In the absence of such contractual exclusion we must look to the insuring provisions of the policy to determine if the same extend coverage under the factual situation here presented. The policy must be regarded as being separate and distinct as to each of the three described automobiles, namely, the two Cadillacs and the Pontiac. When the policy is thus viewed we immediately arrive at the conclusion that there can be no liability for medical payment coverage as to the Pontiac for the simple reason that the parties expressly did not contract for such coverage to be applicable on this particular automobile. So, we then turn to a consideration of the liability of appellee company with reference to the terms of the policy which it issued to appellant and covering the 1961 Cadillac. Admittedly the insurance company extended medical payment coverage to this policy to the extent of $1,000. Under this policy the insurance company expressly agreed with appellant that it would pay benefits to him, and each relative who sustains bodily injury, including death resulting therefrom, caused by an accident "(a) while occupying the owned automobile * * or (c) through being struck by an automobile * * ." (Emphasis supplied.) Obviously the first insuring agreement relating to accidents which occur "while occupying the owned automobile" is not applicable since appellant's daughter was not occupying the "owned automobile" which is defined as the passenger automobile described in the policy and for which a specific premium charge indicates that coverage is afforded. Such insuring agreement not being applicable we then proceed to the additional insuring agreement (c) which provides that the insurance company will pay medical payments to the insured, or relative, who sustains bodily injury, or death, caused by accident "through being struck by an automobile." Our Supreme Court in Hale v. Allstate Ins. Co., 162 Tex. 65, 344 S.W.2d 430 (1961), considered in great detail the two insuring agreements here under discussion. The insurance company in that case contended that "occupying an automobile" and "being struck by an automobile" are two separate and mutually exclusive coverages provided by the insurance policy. The Supreme Court expressly denied this contention, saying: "We hold that the coverage in the Mercury policy for injuries received `while occupying an automobile' and for injuries received from `being struck by an automobile' are not mutually exclusive, but are overlapping coverages; * ." The contention was advanced in the Hale case that the second coverage "being struck by an automobile" was not applicable because the insured and his family in that case were injured while in an automobile and were not in actual physical contact with the other automobile involved in the collision. Justice Griffin, speaking for the Supreme Court, overruled this contention and held that under the applicable authorities 235 both in Texas and elsewhere the phrase "being struck by an automobile" did not necessitate actual physical contact with the other vehicle in question in order to be applicable. The court said: "We hold that plaintiff was `struck by an automobile' within the meaning of that phrase in Endorsement No. 214 while riding in the Ford pickup which was in collision with another automobile and that the injuries received resulted from the striking by the Hulse automobile with the pickup." The Supreme Court concluded that the medical payment coverage extended to Hale under the provisions of the insuring agreement covering "being struck by an automobile" even though he was occupying a vehicle not expressly named in the insurance policy. Following a careful analysis of the undisputed facts and their application to the specific terms and provisions of the insurance contract between the parties we are of the opinion, and so hold, that the decision of the Supreme Court in Hale, supra, is controlling and that the policy of insurance covering the 1961 Cadillac automobile is applicable. The contract of insurance specifically extended coverage to Cockrum, and his family, for medical payments incurred as a result of an accident "through being struck by an automobile." Cockrum's daughter was struck by an automobile and medical expenses were incurred. As was stated by Justice Barrow of the San Antonio Court of Civil Appeals in Williams v. Employers Mutual Casualty Co., 368 S.W.2d 122 (Tex.Civ.App., San Antonio 1963), medical payment coverage is a comparatively new form of insurance and the liability of the insurer under such a provision is based upon contract and not on negligence. 42 A.L.R. 2d 983. The insurance policy in this case, being the contract between the parties, contains insuring agreements, as well as exclusions, contained in a form prepared by the insurance company. The insurance company is bound by the clearly expressed terms and provisions contained in such contract. While it did not collect a premium on the Pontiac automobile yet it did collect a premium for medical payment coverage on the Cadillac automobile which policy extended benefits to the insured, and his family, while being injured as a result of an accident "through being struck by an automobile." The judgment of the trial court denying recovery to appellant is reversed. Appellant does not ask that we reverse and render the case since the issue of reasonable attorney's fees has not been decided by the trial court. Accordingly, it is the judgment of this court that the judgment of the trial court be reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1516362/	420 S.W.2d 803 (1967) URBAN RENEWAL AGENCY OF the CITY OF SAN MARCOS, Appellant, v. Lela Mae BETHKE et al., Appellees. No. 11541. Court of Civil Appeals of Texas, Austin. November 1, 1967. Rehearing Denied November 29, 1967. 804 Sawtelle, Goode, Troilo, Davidson & Leighton, John W. Davidson, James M. Raines, San Antonio, for appellant. Boyle, Wheeler, Gresham, Davis & Gregory, A. W. Worthy, San Antonio, for appellees. PHILLIPS, Chief Justice. This is a condemnation case arising in the City of San Marcos. Appellant, and plaintiff below, is a governmental agency with the power of eminent domain[1] over real property and the question of the proper award in damages for property taken from appellees under this power is the sole question before this Court. The property sought was for the expansion of Southwest Texas State College. Trial was before a jury in the County Court of Hays County and the jury found the market value of appellees' property to be $75,000. Judgment was entered on the verdict and from that judgment this appeal was taken. We affirm. Appellees' property consists of land and a building situated on the northeast corner of Colorado Street and North Lyndon B. Johnson Drive, both being paved streets in the City of San Marcos. The property fronts approximately 80 feet on Colorado Street and 106 feet on Lyndon B. Johnson Drive with a square footage of approximately 8,445 feet. The service station on the property rents for $250 per month, the cleaning shop for $60 per month, the cafe for $50 per month and the apartment for $65 per month or for a total monthly rental of $425. This property is located in a part of the city that is well located from a business standpoint being some two blocks due north of the courthouse square lying between this square and the College. There is no dispute between the parties that the principal value factor in appellees' property is its location. 805 Appellant is before this Court on eighteen formal points of error, however it states in its brief that these points can be grouped into several main categories. The first of these categories[2] is the refusal of the trial court to admit into evidence the zoning ordinance of the City of San Marcos effective on the date of taking or to permit appellant to examine or cross examine witnesses concerning its provisions applicable to appellees' property thus permitting the jury, in determining market value, to consider and speculate on uses of the property to which it was not reasonably adaptable. Appellant contends that appellees' valuation witnesses based their opinions of market value upon uses which the off-street parking requirements of the zoning ordinance, of which they were admittedly unaware, would either severely restrict or prohibit. We overrule these points. Appellant's position here is that a zoning ordinance was passed prior to the date of the taking of appellees' property. That this ordinance had an off-street parking requirement which provided that if buildings not located in the central business district are altered or demolished, off-street parking must be provided on the basis of one space for each employee and one space for each three hundred feet of building space. That this off-street parking requirement would apply to the subject property if the buildings were altered or demolished. That there was value testimony based on making structural changes and alterations to the building. Appellant's counsel began questioning witnesses concerning the ordinance and as far as this Court can ascertain the ordinance itself was never offered into evidence or received into evidence. Appellant contends that it was offered, however the record does not bear this out although there is evidence that appellant did intend to offer the ordinance, referred to it on numerous occasions and in fact cross examined witnesses concerning the ordinance. Appellant correctly states that the record does not reflect any ruling of the trial court on the admission of the ordinance and the trial court rejected appellant's motion to change the statement of facts to show a ruling excluding the ordinance and certified the statement of facts as filed in this Court. Consequently, we can only assume that the trial court had nothing on which to rule concerning the admissibility of the ordinance. Appellees vigorously objected to the admission of this ordinance on the ground that, since it was enacted as a part of the plan of the City of San Marcos to condemn appellees' land and change its use, it would be unfair and improper to admit it for the purpose of diminishing the value of the land taken. 806 Since the ordinance was not in evidence, it was not improper for the court to have excluded testimony concerning the contents of the ordinance and its relation to the property in question. With respect to the court's sustaining of the objection to appellant's question of a witness as to whether or not there is any off-street parking requirement in San Marcos, no bill of exception was taken to the ruling, consequently nothing tangible has been properly presented for determination by this Court. Johnson v. Poe, 210 S.W.2d 264 (Tex.Civ.App. Galveston 1948, writ ref'd, n. r. e.). It should be pointed out here that counsel through his questioning of the witnesses left little doubt in the minds of the jury that there was in fact an off-street parking ordinance in San Marcos. The trial court correctly sustained objections to questions intending to secure from the witness his construction of the ordinance and his opinion as to its effect. These are questions of law or of mixed law and fact which the trial court properly excluded. 2 McCormick and Ray, Texas Law of Evidence, Sec. 1423, p. 263; Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, (1956). With respect to the court's refusal to allow the witness Moon to testify as to whether the ordinance had caused a certain sale to fall through, we hold that this ruling was correct on the ground that it related to an unaccepted offer of sale. It is well settled that unaccepted offers of sale are inadmissible. See Hanks v. Gulf, Colorado & Santa Fe Ry. Co., 159 Tex. 311, 320 S.W.2d 333, (1959). Appellant's second main category of errors[3] is that of the trial court in permitting appellees to introduce a deed which recited a consideration of $85,000 to the Mauldin Plymouth Agency property diagonally southwest across Lyndon B. Johnson Drive from appellees' property without any evidence of comparability and to allow appellees' counsel in jury argument to hammer on it, together with the court's refusal to grant a mistrial after appellees' counsel asked appellant's valuation witness if he had not appraised the Kercheville Pontiac property directly west across Lyndon B. Johnson Drive from appellees' property for $120,000 without subsequent proof of same thus encircling appellees' property with high dollar sums totally unrelated to the market value of appellees' property. Since appellees' evaluation witnesses did not base their opinions on comparable sales, the above innuendoes were particularly prejudicial since the jury could hardly be expected to exclude from consideration what the court admitted into evidence. It is the position of appellant 807 that these errors were prejudicial beyond repair and individually require a reversal. We overrule these points. With respect to the Mauldin property, the record discloses that appellant's counsel himself elicited from one of appellees' witnesses his reliance on the Arnold-Mauldin sale as a comparable sale and made no objection to his testimony on this ground. Then evidence was adduced from appellant's own witness that the property involved in the Arnold-Mauldin sale was comparable in that the sale was close in time, that the property was diagonally across the intersection from appellees' property, that it was business property improved in part by a gasoline service station. The deed which appellant objects to recites on its face that the total consideration of $85,000 consisted of $65,000 for the land, which included a service station and $20,000 for the business interest which was an automobile agency. This deed was offered in direct rebuttal to the hearsay testimony of one of appellant's witnesses to the effect that he had been told by Mauldin that the sale was of a going business and that the total consideration could not be allocated between the realty and the personalty. The deed reflected that the parties themselves had made the allocation, consequently a fact situation was raised for the determination of the jury. Navar v. State, 344 S.W.2d 188 (Tex.Civ. App. El Paso 1961, no writ); State v. Hamman, 377 S.W.2d 727 (Tex.Civ.App. Houston 1964, no writ). Appellees' argument to the jury that the Mauldin property located diagonally across the street as comparable property was proper inasmuch as the evidence regarding same had been properly admitted. Appellant's point of error number ten is that of the trial court in refusing to grant appellant's motion for a mistrial after appellees' counsel stated without any support to witness A. N. Moon: "Have you never estimated Mr. Kercheville's property across from Mrs. Bethke's to have a value of $120,000.00?" Mr. Moon's answer to this question was that he had not. Under this record, if this was error, it was harmless. Tex.R.Civ.P. 434. We overrule this point. Appellant's points eleven and twelve, briefed together, are the error of the trial court in refusing to permit appellant's expert appraisal witness A. N. Moon, to use the "cost approach" method of appraisal in that it did not allow him to show the consideration paid for the property known as the Texan Cafe; and, in this same respect, the refusal of the court to admit the evidence of appellant's appraisal witness Herman Korff. We overrule these points. In connection with points eleven and twelve, we also overrule appellant's points fifteen and sixteen, briefed together, which complain that there was no evidence of a probative and admissible nature to support the jury's verdict, that such evidence was insufficient and against the overwhelming weight and preponderance of the evidence. The statement of facts in this case consists of 470 pages. The case was well developed on both sides and with a wide range of value testimony having been heard by the jury. As the court states in Hamman, supra, "It is within the province of the trial court to determine whether there is such similarity between tracts as to allow testimony as to the sales price of other tracts. The judge has a great deal of discretion in making this determination. His decision that there is sufficient similarity cannot be reviewed except to determine whether there has been an abuse of discretion," citing cases. Cost approach, broadly defined, involves valuation of the condemned land separately from the improvements as a part of the process of arriving at the cost of reproduction of the whole property. Separate *808 valuation of the land is arrived at by comparison with sales of other lands claimed to be comparable. The witnesses Moon and Korff both testified extensively using what they considered to be the cost approach, giving their opinions as to the value of appellees' land exclusive of improvements, and supporting their opinions by reference to sales of other land claimed to be comparable. With respect to the court's exclusion of Texan Cafe property it is undisputed that this property was totally unimproved whereas the property in question was completely developed and situated in a different part of town. We hold that the court did not abuse its discretion in excluding this evidence. 22 Tex.Jur.2d, Eminent Domain, Section 301. Appellant's point number thirteen is the error of the trial court in allowing appellees' witness, Roland Mansky, to testify to the value of appellees' property since his testimony of value was based on what the property was worth to him, not fair market value. Roland Mansky is a San Marcos businessman. He was appointed by the County Judge to serve as a special Commissioner in this case and did so serve. He has bought and sold real property in the immediate neighborhood of the condemned property and has been consulted by others seeking business sites in San Marcos because of his knowledge of property values. He was acquainted with the condemned property having made an effort to purchase it for his own use, and, having reexamined it in connection with his services as a special Commissioner, he testified that he knew property values in San Marcos and the market value of the condemned property. From our reading of the record, the witness' testimony is not susceptible of the construction placed upon it by appellant. We overrule this point. Appellant's point of error number fourteen is the error of the trial court in allowing E. O. Bethke to testify about the sales price paid for the property known as the "Colloquium Book Store" even though the court rules the witness was not qualified to render an opinion of market value. Here the trial court merely permitted this witness to read from Defendant's Exhibit 25 a deed reflecting the sale of property near the condemned property, and which had just been admitted in evidence without objection, the consideration paid for the property as stated in the deed. We overrule this point. Appellant's point number seventeen is that if none of the above errors, in and of themselves, are sufficient to result in an improper and excessive verdict, the cumulative effect of all of said errors caused the rendition of an improper and excessive verdict. We overrule this point. Appellant's point of error number eighteen is that of the court in failing to direct a remittitur of $41,467.00 as the record reflects an excessive verdict in this amount. Remittitur is appropriate only where the amount of the award exceeds the value placed on the land by any witness, where the record shows passion or prejudice on the part of the jury or when the evidence shows the amount of the award is manifestly excessive. The amount of damages is a question for the jury and unless the award is influenced by the improper elements set out above, neither the trial nor the reviewing court can substitute its judgment of values for that of the jury. 22 Tex. Jur.2d, Eminent Domain, Sec. 319. The judgment of the trial court is affirmed. Affirmed. NOTES [1] Article 1269l-3, Section 16(a) Vernon's Ann.Civ.St. (Urban Renewal Law). [2] Appellant's first five points of error pertinent here are: "(1) The trial court erred in refusing to admit into evidence plaintiff's exhibit 14, a zoning ordinance of the City of San Marcos, which controlled the uses to which appellees' property could be devoted on the date of taking; (2) the trial court erred when it refused to allow appellant's appraisal witness, A. N. Moon, to testify how an applicable zoning ordinance of the City of San Marcos which contained an off-street parking requirement would affect the area of land available for business use on appellees' property and consequently affect the market value of same; (3) the trial court erred when it refused to permit appellant's appraisal witness, A. N. Moon, to show how ordinances containing off-street parking requirements affect land available for business use; (4) the trial court erred when it refused to allow appellant's appraisal witness, A. N. Moon to testify that a prospective sale of property directly across the street from the subject property fell through because of the zoning ordinance which contained a provision for off-street parking and which ordinance also applied to the subject property and (5) the trial court erred when it refused to allow appellant's attorney to cross-examine appellees' witness, Alex Kercheville, about the applicable zoning ordinance in effect at the date of taking and the consideration given it in his opinion of value." [3] Appellant's points of error six through nine pertinent here are: "(6) The trial court erred in admitting into evidence defendant's exhibit No. 26, a deed which reflected the consideration paid in a sale, when the sale, in addition to conveying real estate, conveyed an interest in an automobile agency, together with stock in trade; said automobile agency and real property being situated diagonally across the street from appellees' property; (7) the trial court erred in admitting into evidence the deed in the Arnold to Mauldin sale, which deed reflected the sales price involved in absence of a predicate or testimony by a qualified expert witness that the Arnold to Mauldin property was comparable to appellees' property; (8) the trial court erred in allowing appellees' attorney to argue in closing argument that the consideration recited in defendants' exhibit No. 26 was indicative of the market value of the appellees' property when said sale was the sale of a business interest in an automobile agency and the real property upon which the agency was situated, and (9) the trial court erred in allowing the appellees' attorney to argue in closing argument that the property diagonally across the street from appellees' property was comparable or in his words, `the most comparable to the Bethke property' when the only testimony of comparability of said property came from E. O. Bethke, a witness, held by the court not to be qualified to give an opinion of market value."	01-03-2023	10-30-2013

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