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420 S.W.2d 153 (1967)
Henry L. STAFFORD and Dynadrill, Inc., Appellants,
v.
Mrs. S. A. THORNTON, Appellee.
No. 7721.
Court of Civil Appeals of Texas, Amarillo.
June 19, 1967.
Rehearing Denied September 5, 1967.
*155 Cayton & Gresham, Karl Cayton, Lamesa, Morehead, Sharp, Boyd & Tisdel, Roger C. Henderson, Plainview, for appellants.
Stovall & Stovall, Frank Stovall, Plainview, for appellee.
DENTON, Chief Justice.
Mrs. S. A. Thornton, a widow, brought suit against Henry L. Stafford to recover for damages for land and improvements thereon alleged to have been caused by blasting operations in a nearby caliche pit. Stafford impleaded Dynadrill, Inc., as a third party defendant. The trial court's judgment, based on a jury verdict, was rendered for the plaintiff against Stafford for $40,000.00 plus interest, and judgment was rendered for Stafford over against Dynadrill for the same amount. Both defendants have appealed.
Appellee was the owner of a 320-acre farm in Floyd County. Stafford entered into a contract with the State Highway Department to construct a road in the area and employed Dynadrill to conduct blasting operations in a caliche pit approximately ½ mile west of the property. These blasting operations were conducted at intervals from June 4 to July 20, 1965.
Appellees alleged a cause of action for damages to a brick residence, a frame residence, a barn, one domestic water well, three irrigation wells, and an underground concrete pipe irrigation system connecting the three irrigation wells, was based on the premise appellee is a third party beneficiary under a written contract Stafford held with the State Highway Department; and an alternative ground that the defendants were negligent in causing explosions of such power and intensity as to produce violent shocks to the earth and damage appellee's land and improvements. In response to special issues, the jury found: (1) that appellee's property was damaged as a result of the blasting operations; (2A) that the defendant used more excessive charges of *156 explosives than a person of ordinary prudence would have used under the same or similar circumstances; (2B) that the use of excessive charges of explosives was a proximate cause of the damages; (3A) that the defendant failed to use utmost care not to endanger the property of appellee; (3B) that such failure resulted in the damage to appellee's property. "Utmost care" was defined as "that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances". The jury further found the damages to the Thornton property were permanent; and found the difference between the cash market value of appellee's property immediately before and after the blasting operations was $40,000.00. It was also found the damage was not caused solely by blasting by other contractors not a party to this suit.
Appellants' first group of points of error contend there is no evidence and alternatively, insufficient evidence to support the jury finding excessive charges of explosives were used; and that appellants failed to use utmost care not to endanger appellee's property. In considering the "no evidence" issue, the evidence must be viewed in the light most favorable to the verdict and disregard that which is opposed or contrary to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R. 2d 1114. Robertson v. Robertson, 159 Tex. 567, 323 S.W.2d 938.
As stated, appellee's 320-acre farm was located east of the caliche pit in question. Testimony relative to the exact distances from the pit to the various improvements on appellee's land was indefinite. There was testimony the "improvements" were approximately 2000 feet from the pit. The two residences were located on the west side of the farm and it appears they were approximately ½ mile east of the pit. The three irrigation wells were in the approximate center of the ½ section and were further to the east of the two residences, and were several hundred feet farther from the caliche pit. The blasting operations were performed two or three times a week during the interval from June 4 to July 20, 1965. A new brick home was moved onto appellee's premises prior to the blasting and was occupied by her son and family on June 7, three days after the blasting began. Mrs. Thornton occupied a frame house nearby. Members of appellee's family, a former tenant, and neighbors testified to experiencing the blasts. One testified "it would shake the house"; "You feel the ripple before you hear the blast. Then it seems that the walls of the house would expand and then come together again". Dishes would be rattled and several saw rocks and debris in the air following the blast. Damage to both residences were described after the blasting by several witnesses. These included a cracked foundation, cabinets on walls loosened, cracked bathroom tile, some outside bricks broken, plaster cracked, roof on the brick house sagged in the middle, and cracked concrete flooring in the barn and garage attached to the frame house. The irrigation wells produced approximately ½ the water produced prior to the blasting. Appellee's expert witness, a graduate geologist, examined the property and studied maps of the water levels of the surrounding area and measured the water level of appellee's irrigation wells. He testified that the damage to the wells was caused by the blasting.
The blasting operations were described in detail by the sales representative of the supplier of the explosives, and a Dynadrill employee who was the "shooter" on the job. They described the spacing, depth and diameter of the holes, the amount of the explosives used together with the firing delay pattern used during the operation. Some 30-35 holes were used for each "shot" and 3¾ inch diameter holes were spaced in rows nine feet apart with 12 foot spacing between holes. The amount of ammonianitrate, dynamite and other materials varied from 824 lbs. per shot to approximately 252 lbs.
*157 It is well settled that liability for damages caused by the use of explosives is dependent upon the existence of negligence in the manner of setting up the explosives. Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221. Crain v. West Texas Utilities Co. (Tex.Civ.App.) 218 S.W.2d 512 (Ref.N.R.E.). Standard Paving Co. v. McClinton (Tex.Civ.App.) 146 S.W.2d 466. One test of negligence in a case involving explosives is whether an excessive amount of explosives is used. Universal Atlas Cement Co. v. Oswald, 138 Tex. 159, 157 S.W.2d 636. Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121. This issue was submitted to the jury. The issue included a definition of "excessive" as being the use of a quantity greater "than a person of ordinary prudence in the exercise of ordinary care would have used under the same or similar circumstances". This definition was approved in the Oswald and Kelly cases.
It is appellants' contention the burden is upon the plaintiff to show a standard of care to be exercised by one engaged in the use of explosives and a departure from that standard. Appellants insist there is a total absence of evidence to sustain this burden. In support of its position, appellants rely principally upon Dellinger v. Skelly Oil Co. (Tex.Civ.App.) 236 S.W.2d 675 (Ref.N.R.E.). Indian Territory Illuminating Oil Co. v. Rainwater (Tex.Civ. App.) 140 S.W.2d 491 (Error Dis.). Stanolind Oil & Gas Co. v. Lambert (Tex.Civ. App.) 222 S.W.2d 125. Sinclair Oil & Gas Co. v. Gordon (Tex.Civ.App.) 319 S.W.2d 170. These cases were seismograph explosion cases and present different facts from the case at bar. The Lambert case held the doctrine of res ipsa loquitor was not applicable under the facts and circumstances of that case. In the Gordon case the question was whether the plaintiff had sustained its burden to show the defendant was negligent in exploding charges "too close" to plaintiff's water well. In the Rainwater case there was no finding of negligence. The court held negligence was not shown as a matter of law. In Dellinger, the trial court withdrew the case from the jury and rendered judgment for the defendant. The court held the evidence raised issues of fact and the question of negligence should have been submitted to the jury. These cases do not support appellants' contention.
There was evidence that simultaneously with the explosions in the caliche pit, appellee's house shook and one sitting in a chair in the neighboring house felt as if one would "catch hold of the back of your chair and give you a shake with their hand". Cracks appeared in the brick house and foundation and walls of the frame house and floor of the barn, large rocks "as big as my head or larger" came from the blasts, kitchen cabinets were damaged and the water wells produced much less water of a dirty quality. When the evidence is considered most favorably to the appellee, we believe there was some evidence appellants used more explosives than was reasonably necessary. Kelly v. McKay (supra). Cage Brothers v. McCormick (Tex.Civ.App.) 344 S.W.2d 203 (Ref.N.R.E.). Pelphrey v. Diver (Tex.Civ.App.) 348 S.W.2d 453 (Ref. N.R.E.).
In addition to evidence offered by appellants as to the amount of explosives used, hole spacing, delayed firing patterns and other precautions used, appellants offered other evidence directly in conflict with evidence offered by appellee. A safety engineer inspected and approved the shooting plans; a blastcorder was placed on a neighbor's property which was some 700 feet closer to the pit than appellee's and tests showed no vibrations were recorded at that distance. Mr. William Miller, a Geo-science professor at Texas Technological College and Dr. Leet, professor of Seismology and Geology at Harvard testified for appellants. The latter's qualifications in the field of causes and effects of vibrations produced from explosives were most impressive. Both experts inspected the premises after the blasting. Miller examined the records of area water tables and tested appellee's *158 irrigation wells. His testimony was to the effect the blasting did not damage the wells. Dr. Leet examined appellee's property after the blasting, and after studying the blasting patterns, testified the vibrations caused by the blasting in question did not cause the damage to appellee's property, including the irrigation wells. The jury chose not to accept the opinions of these experts and the other evidence presented by appellants. When all the evidence is considered we are of the opinion there is sufficient evidence to support the jury finding appellants were negligent in using an excessive amount of explosives and that such negligence was a proximate cause of the alleged damages.
Appellants' next contention is the trial court erred in placing the burden upon them to exercise utmost care not to endanger the property of appellee; challenge the fact the State Highway contract imposes such a duty upon it; and asserts appellee is not a third party beneficiary under the contract. Subject to appellants' exceptions previously urged, the parties stipulated the Highway construction contract was entered into by and between Stafford as contractor and the State Highway Department; and that the contract contained provisions set out in the plaintiff's petition. One such material section was: "7.9 Use of Explosives. When the use of explosives is necessary for the prosecution of the work, the contractor shall use the utmost care not to endanger life or property". The question whether appellee is a third party beneficiary under the contract had been decided against appellants' contention. In Collins Construction Co. v. Taylor (Tex.Civ.App.) 372 S.W.2d 548 (Ref.N.R.E.), a contract with identical provisions was involved. Although the court was divided in the result, all justices were of the opinion the plaintiff in that case was a third party beneficiary under the contract. However, the question of the extent of the duty imposed by the contract was not before the court and was not decided.
Although we are of the opinion, and so hold, appellee was a third party beneficiary under Stafford's contract, we are of the further view the contract did not impose a duty to exercise a higher degree of care toward the public than the law itself imposes. No Texas court has passed upon this question. However, in Wymer-Harris Construction Co. v. Glass, 122 Ohio St. 398, 171 N.E. 857, 69 A.L.R. 517, the plaintiff contended a contract with the County Commissioners imposed greater duties upon the contractor in addition to its common law duty to exercise ordinary care. The court held "[s]o we conclude the rule to be that the duty owing toward the public by a contractor in the performance of public work cannot be increased by a contract with a public official, as such, beyond the sum of the legal duty of such public official toward the public and the legal duty of the contractor toward the public". See also McClendon v. T. L. James & Co., 231 F.2d 802 (5th Cir.). Hansen v. Clyde, 89 Utah 31, 56 P.2d 1366, 104 A.L.R. 943. Oliver v. Pettaconsett Construction Co., 36 R.I. 477, 90 A. 764. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551. We think the better reasoned weight of authorities supports this holding. We therefore conclude the trial court erred in submitting the special issues imposing the duty upon appellant to use utmost care not to endanger the property of appellee. However, in view of other jury findings that appellants were negligent in using an excessive charge of explosives, and that such negligence was a proximate cause of appellee's damages, such error was harmless and would not warrant reversal.
Appellant Stafford contends there was no evidence and insufficient evidence to impose liability upon him. This contention relates to the relationship between Stafford and Dynadrill. Appellee filed suit against Stafford as the general contractor engaged in highway contract work and while so engaged, so performed the blasting operation which caused the alleged property damages. Stafford impleaded Dynadrill as a third party defendant, and alleged the latter was acting as an independent contractor. *159 It is undisputed Dynadrill was conducting the blasting operations for Stafford. Under such circumstances there arises a rebuttable presumption that the relationship of master and servant exists. Ochoa v. Winerick Motor Sales Co., 127 Tex. 542, 94 S.W.2d 416. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Sup.Crt.). Therefore, the burden of proof that there was an independent contractor relationship is upon the party asserting its existence as a defense to liability. Taylor B. & H. Ry. Co. v. Warner, 88 Tex. 642, 32 S.W. 868. Ochoa v. Winerick Motor Sales Co. (supra). Davis v. Mendlowitz (Tex.Civ.App.) 252 S.W.2d 996. There is no evidence in this record to either prove or disprove the independent contractor relationship of the parties. The only references made to this relationship were made in questions propounded to various witnesses. These referred to the fact Dynadrill "was doing the blasting for Henry Stafford" and "you were the subcontractor that Mr. Henry Stafford hired to do the blasting. * * *" Affirmative answers to such questions fall far short of sustaining the burden of proving an independent contractor relationship. After all parties had closed Stafford moved that he be permitted to introduce testimony relative to the relationship between the parties. This motion was not timely filed and its refusal was not error. In any event, it cannot be shown Stafford has been harmed. The trial court awarded judgment for Stafford over against Dynadrill for the amount of the judgment awarded appellee.
The next question concerns the damages awarded appellee. Appellee pleaded temporary damages to the two houses, barn, irrigation and domestic wells and underground irrigation systems and in the alternative, alleged the property sustained permanent injuries. The trial court submitted an issue inquiring whether the damage to the appellee's property was temporary or permanent. The jury found they were permanent and were not required to answer the damage issue conditioned upon the injuries being temporary. The jury, having found the appellee's property was permanently damaged, determined the damages by finding the difference between the cash market value immediately before and after the blasting operation. This is the proper measure of damages if the land has been permanently affected. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575. Lone Star Gas Co. v. Hutton (Tex.Com.App.) 58 S.W.2d 19. It is equally settled that the same measure of damages apply for permanent injuries to buildings short of total destruction. Crain v. West Texas Utilities Co. (supra). Houston Natural Gas Corp. v. Pearce (Tex. Civ.App.) 311 S.W.2d 899 (Ref.N.R.E.).
Appellant brings forward numerous points of error attacking the method of submission and lack of evidence to support the findings in addition to excessive damages. The burden of appellants' position is the method used in submitting the damage question deprived the jury of determining whether or not the different alleged damaged improvements were temporary or permanent, and that the manner of submission was contrary to the allegations and proof. In our opinion there was no evidence the injuries to the brick house, frame house and the underground irrigation system were permanent in the sense that they were not repairable. Much of the testimony of the contractor who supervised the building of the brick house dealt with the repairs of that house, and the estimated cost required to place the house in its original condition. The underground irrigation system had been repaired both before and after the blasting at a relatively small cost. Although a geologist testified the damages to the irrigation wells were permanent, the testimony was highly controverted. There was no evidence offered relative to the duration of the damages to the frame house, barn and garage and no testimony was offered concerning cost of repairs to these structures. In fact, neither *160 the barn nor the frame house nor garage were included in the damage issue inquiring if the injuries sustained were temporary.
Although it is settled permanent improvements attached to the realty are considered a part of the realty, the same measure of damages for injuries to improvements and land does not necessarily apply. Damages may be recovered for injuries to improvements attached to the land independently of damages to the realty. Tucker v. Lane (Tex.Civ.App.) 312 S.W.2d 257. The measure of damages for repairable injury to a building is the amount necessary to restore the building to its condition immediately prior to its injury, and interest from the date of injury to the time of trial. Victory Truck Lines v. Brooks (Tex.Civ.App.) 218 S.W.2d 899. Cornell v. American Indemnity Co. (Tex. Civ.App.) 275 S.W.2d 702 (Ref.N.R.E.).
While both measures of damages were submitted to the jury, each was conditioned upon whether the damages to appellee's "property" was temporary or permanent. Under this method of submission, the jury could apply only one measure of damages. This method of submission is not supported by the record. There was probative evidence that the damages to the brick house, frame house, barn and underground irrigation system were temporary and repairable. There was no direct probative evidence these damages were permanent. There was evidence the damages to the three irrigation wells and domestic water well was permanent. There was no evidence the damages to appellee's "property" which included both the realty and improvements was permanent. The court's charge authorized the jury to consider elements of damages which were not supported by the evidence. Appellant's objections on these grounds should have been sustained.
The disposition we make of the case renders it unnecessary to discuss and pass on other points of error appellants have brought forth.
The judgment of the trial court is reversed and the cause remanded.
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420 S.W.2d 912 (1967)
242 Ark. 177
FIRST AMERICAN NATIONAL BANK, Appellant,
v.
CHRISTIAN FOUNDATION LIFE INSURANCE COMPANY et al., Appellees.
No. 5-4168.
Supreme Court of Arkansas.
May 29, 1967.
*913 Spitzberg, Bonner, Mitchell & Hays, Little Rock, for appellant.
Shaw & Shaw, Mena, Wright, Lindsey & Jennings by George E. Lusk, Jr., and Pope, Prat, Shamburger, Buffalo & Ross, by Joseph L. Buffalo, Jr., Little Rock, for appellees.
GEORGE ROSE SMITH, Justice.
This is a suit brought by one of the appellees, Christian Foundation Life Insurance Company, for a declaratory judgment with respect to the validity of certain duplicate bearer bonds ostensibly issued by the First Methodist Church of Mena. That duplicate bonds were outstanding was due to the fraud of the late Lawrence Hayes, former president of Institutional Finance Company, which handled the bond issue as fiscal agent for the church. Parties to the suit include the rival owners of the duplicate bonds, the church and its trustees, the Union Bank of Mena, which acted as paying agent for the bonds, the estate of Hayes, the receiver for Institutional Finance, and the corporate surety upon Institutional Finance's qualifying bond as a securities dealer.
The chancellor apparently viewed the case as being primarily a contest between *914 the appellant, First American National Bank of North Little Rock, which holds $28,800 of the bonds, and the Christian Foundation Life and Charles R. Richards, who purchased respectively $20,000 and $5,000 of bonds that are duplicates of some of those held by First American. The chancellor, without stating a reason for his decision, found that First American's bonds are void and that the duplicates held by Christian Foundation Life and Richards are valid.
We need state the facts only in broad outline. On January 19, 1964, the church adopted a resolution authorizing a $90,000 bond issue for the construction of a new church and employing Institutional Finance as its fiscal agent to market the bonds. On the same day the church treasurer, Bettie Jean Montgomery, in the presence of the pastor and a trustee of the church, affixed her signature to a blank sheet of paper and delivered it to Joe B. Springfield, executive vice-president of Institutional Finance, for use as a facsimile signature upon the bonds.
Two days later Springfield requested a printing company to print the bonds, which were numbered from 1 to 188 and totaled $94,000. (The record does not explain why an extra $4,000 of bonds was printed.) On January 30 the printer delivered the bonds to Springfield. They bore the facsimile signatures of Springfield and Mrs. Montgomery, with no provision for an authenticating manual signature.
Institutional Finance sold $45,000 of the bonds to members of the church but had trouble in finding buyers for all the rest of the issue. On July 3, 1964, Hayes personally borrowed $25,000 from First American National Bank and pledged as collateral, along with other securities, $27,000 (later increased to $28,800) of the Mena church bonds. There is no sound basis for questioning the bank's standing as a good faith purchaser for value, as those terms are defined in the Uniform Commercial Code. Ark.Stat.Ann. § 85-1-201 (Add.1961). Hayes had borrowed money from the bank on a number of occasions. The bank's president, who handled this loan, understood Hayes to be an employee of a Texas dealer in church bonds and was unaware of his connection with Institutional Finance. Nothing in the transaction warned the bank that Hayes did not own the bonds.
On February 1, 1965, Hayes fraudulently ordered the printer to print $25,000 of numbered bonds that included duplicates of some of those pledged to the bank. Later in the month Hayes, in order to complete a sale to Christian Foundation Life, had printed additional bonds in certain larger denominations requested by that insurance company. The duplicate bonds now held by Richards and Christian Foundation Life are among those obtained by Hayes in the two supplemental printings.
We find no merit in the appellant's insistence that its adversaries were not purchasers in good faith because they bought the bonds at discounts of 10 and 15 per cent. We have held that the price paid for a negotiable instrument may be so grossly inadequate as to support a finding of bad faith, Hogg v. Thurman, 90 Ark. 93, 117 S.W. 1070, 17 Ann.Cas. 383 (1909), but there is no proof in this record to indicate that the discounts offered to the appellees were so great as to arouse suspicion. Nor is there evidence to sustain the appellant's argument that the purchasers of the duplicates should have been put upon inquiry by the church's apparent inability to market the entire bond issue within a period of about a year.
Hayes's dishonesty finally became known when duplicate interest coupons were presented to the Mena bank for payment. The paying agent refused to honor the coupons until their validity had been established. Hence this suit.
We think the chancellor should have found all bonds held by bona fide purchasers to be binding obligations of the church. It is plain enough that the church was careless in entrusting its treasurer's *915 facsimile signature to Institutional Finance and in failing to take the precaution of requiring authentication of the bonds by a manual signature. By contrast, the holders of the bonds acquired them in the ordinary course of business and in circumstances entitling them to the protection afforded to bona fide purchasers.
The case is controlled by the pertinent provisions of the Uniform Commercial Code. Before the adoption of the Code the church might have been held liable by contract to one purchaser and in damages to the other, but the draftsmen of the Code point out in their Comment to our § 85-8-202 that the Code simply validates most defective securities in the hands of innocent purchasers, refusing to prefer one such purchaser over another.
Specifically, this controversy falls within § 85-8-205, which provides that an unauthorized signature is effective in favor of an innocent purchaser when the signing is done either by a person entrusted by the issuer with the signing of the security or by an employee of such a person or of the issuer itself. By resolution the church employed Institutional Finance as its fiscal agent to handle the sale of the bonds. The first line of the printed prospectus for the bond issue identified that concern as the issuer's fiscal agent. There can hardly be any serious contention that Hayes's wrongful use of the treasurer's facsimile signature did not fall within the purview of the Code.
We are not impressed by the appellees' argument that the appellant's acquisition of its bonds was in violation of our constitutional declaration that "No private corporation shall issue stocks or bonds, except for money or property actually received or labor done." Ark.Const., Art. 12, § 8. Even if the church is to be considered a private corporation, which we need not decide, it is confronted by the fact that its agent actually received money for the bonds. That the money did not reach the church treasury was not the purchasers' fault.
It is too early at this stage of the litigation to reach a final conclusion about the exact remedies of the bondholders. The church's refusal to pay interest was not absolute, being conditioned upon its uncertainty about the validity of the outstanding bonds. Under the Code it is liable to all bondholders who bought in good faith. It does not follow, however, that all bondholders stand in parity if it becomes necessary for them to foreclose the lien `against the church property. First American's priority in time entitles it, as against the holders of duplicate bonds, to priority of lien, under the equitable maxim that as between-equal equities the first in time must prevail. Miller v. Mattison, 105 Ark. 201, 150 S.W. 710 (1912). If the law were otherwise the security interest held by bona fide purchasers of a bond issue could be diluted by the later wrongful sale of duplicate bonds. The cause must also be remanded for the development of the bondholders' remedy against Institutional Finance and its surety.
Reversed and remanded.
JONES, Justice (dissenting).
I do not agree with the conclusion reached by the majority in this case, nor do I agree with the decision of the chancellor.
Our Uniform Commercial Code, Ark. Stat.Ann. § 85-8-202(3) (Addn.1961), is as follows:
"Except as otherwise provided in the case of certain unauthorized signatures on issue (section 8-205 [§ 85-8-205]), lack of genuineness of a security is a complete defense even against a purchaser for value and without notice."
Just what constitutes the genuineness of a security is not set out in chapter 8 of the Code on investment securities, but § 85-1-201 contains forty-six numbered general definitions, one of which is as follows:
"(18) `Genuine' means free of forgery or counterfeiting."
*916 The First Methodist Church of Mena authorized the Institutional Finance Company to print and sell $90,000.00 worth of bonds. Under this authorization Springfield, who was executive vice-president of Institutional Finance, and who held title to church property in trust to secure the payment of the bonds, fully carried out, and in fact exceeded by $4,000.00, the authority given him by the church. He had bonds printed with consecutive numbers from 1 through 188 in the total amount of $94,000.00. Some of these identical bonds came into the hands of the appellant, First American National Bank, as a bona fide purchaser for value under the Code.
After the entire issue authorized by the church had been printed by Springfield, Mr. Hayes, the president of Institutional Finance, had printed unauthorized duplicates of the bonds authorized by the church and printed by Springfield, and without the knowledge of, or authority from, First Methodist, sold these duplicate bonds to Christian Foundation Life Insurance Company and to C. R. Richards, who were also bonafide purchasers for value under the Code.
It is my view that the duplicate bonds printed without authority and certainly with the apparent intent to defraud, were forged counterfeits of the original bonds and lacked the genuineness of the original authorized bonds, and that their lack of genuineness was a complete defense even against Christian Foundation and Reverend C. R. Richards.
The Commercial Code contains numerous definitions and comments of intention for its use and operation but, it contains no definition of "forgery" or "counterfeit" as would affect the genuineness of bonds. Black's Law Dictionary defines "forge" as follows:
"To fabricate, construct, or prepare one thing in imitation of another thing, with the intention of substituting the false for the genuine, or otherwise deceiving and defrauding by the use of the spurious article. To counterfeit or make falsely. Especially, to make a spurious written instrument with the intention of fraudulently substituting it for another, or of passing it off as genuine; or to fraudulently alter a genuine instrument to another's prejudice."
"Forgery" is defined as:
"The falsely making or materially altering with intent to defraud, any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability."
"Counterfeit" is defined in Black's as:
"To forge; to copy or imitate, without authority or right, and with a view to deceive or defraud, by passing the copy or thing forged for that which is original or genuine."
Over one hundred years ago this court defined forgery as having a fixed legal meaning, "It is the fraudulent making or alteration of any writing to the prejudice of another man's rights, or a false making, malo animo, of any written instrument, for the purpose of fraud or deceit * * * to forge or counterfeit the instrument is to create or make it." Van Horne v. The State, 5 Ark. 349.
Under the majority holding in this case, once authority is given to an unscrupulous agent to print and sell a limited number of bonds over a facsimile signature, the principal or issuer has no further protection from being bound by such individual. A revocation of authority, or even confinement in the penitentiary, would offer no protection. Such agent or ex-agent, would be able to bind his former principal, or the issuer of bonds, for as long as such agent could find innocent purchasers and access to a printing press.
I would reverse the chancellor in this case and hold that the original bonds held by First American are genuine and legal *917 bonds, but that the duplicates sold to Christian Foundation and Reverend Richards are forged counterfeits of the originals and are not genuine but are void as binding obligations of First Methodist.
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420 S.W.2d 289 (1967)
Louis WALLACH, Mollie Wallach, his wife, Shirley Kash and Richard Wallach, Respondents,
v.
Jack JOSEPH and Harold Friedman, Appellants.
No. 51513.
Supreme Court of Missouri, Division No. 2.
May 8, 1967.
Motion for Rehearing or to Transfer Denied June 12, 1967.
Certiorari Denied November 13, 1967.
*290 Stephen A. Boggiano, Boggiano & Hessel, St. Louis, for respondents.
David K. Breed, St. Louis, for appellants.
Motion for Rehearing or to Transfer to Court En Banc Denied June 12, 1967.
Certiorari Denied November 13, 1967. See 88 S. Ct. 335.
DONNELLY, Judge.
This is a suit in equity involving title to real estate located on Lucas and Hunt Road in St. Louis County, Missouri.
On January 16, 1961, plaintiffs Louis Wallach and Mollie Wallach signed a Receipt for Earnest Money, which acknowledged receipt of the sum of $7,100 from defendant Harold Friedman as earnest money and part payment on purchase of the real estate, "which property is this day sold to Harold Friedman, his successors or assigns for the total sum of Sixty-nine *291 Thousand and no/100 ($69,000.00) Dollars." On March 9, 1961, plaintiffs Louis Wallach and Mollie Wallach signed a Warranty Deed naming defendant Jack Joseph as grantee. At the time these documents were executed, the real estate was incumbered by a first deed of trust and a second deed of trust. On November 20, 1962, Louis Wallach and Mollie Wallach conveyed by quitclaim deed to plaintiff Shirley Kash as straw party for plaintiff Richard Wallach. Shirley Kash is a sister of Louis and Richard Wallach.
Plaintiffs brought this suit against defendants to determine title, to reform or set aside the instruments dated January 16, 1961, and March 9, 1961, and to cancel defendants' asserted interests in the real estate. The trial court decreed Richard Wallach to be the owner in fee simple of the real estate and found defendants have no title or interest therein. The trial court in its decree gave defendant Harold Friedman credit for payments and improvements made by him, restoring the parties to their original positions. Defendants appealed to this Court.
The facts are complicated and we shall recite only those which bear on the issues raised on appeal. Prior to the transaction in question, title to the real estate was in Louis Wallach and Mollie Wallach. In January, 1961, Louis Wallach, who operated a salvage yard on the premises, found himself in financial trouble. He was in default on the first deed of trust. Friedman came to see Louis Wallach and they discussed a disposition of the real estate.
According to Louis Wallach, they entered into an oral agreement whereby Friedman was to pay $2,737.14 to avoid foreclosure on the first deed of trust, pay in full an indebtedness of $10,000 secured by the second deed of trust, and advance $10,000 for working capital. He testified that a corporation was to be formed to take title to the real estate, with each owning one-half of the capital stock.
According to Friedman, no such oral agreement existed. He testified that there was no agreement for the formation of a corporation to be equally owned by the parties, and that the transaction was an outright sale as evidenced by the Receipt for Earnest Money and Warranty Deed.
There is an irreconcilable conflict in the evidence as between Louis Wallach and Harold Friedman. Therefore, the testimony of William J. Becker, a practicing attorney in Clayton, Missouri, is important. His testimony on direct examination, in part, is as follows: "Q Did you ever have occasion to meet with Mr. Louis Wallach and Mr. Harold Friedman in connection with this transaction? A Yes, sir. * * * Q Will you tell us what matters were discussed in your office at that time? * * * A Wallach I believe was there first waiting and then Mr. Friedman came in and my recollection is that he had with him an earnest money agreement dated that day, no, I take that back, that was prepared at least in part in my office and they stated that because Mr. Wallach was unable to raise the necessary payment to meet the first mortgage payment at the time and the taxes were delinquent and there was a, one judgment that was a lien on the property outstanding and Wallach run out of cash, operating capital, that he had entered into an agreement with Mr. Friedman whereby they would become partners in this used car parts business or salvage business as it is so-called and that they would transfer the property to a corporation to be formed by them, that Mr. Friedman would furnish the necessary money to pay off or pay up the current taxes and he would make the payment that was now due to the heirs of the estate that held the first mortgage and various other payments which were later reflected in writing which I have here and Lou who put in his equity in the property. Now, they estimated that what Mr. Wallach Mr. Friedman would have to pay up would be about $7100.00 or thereabouts and there was $48,000.00 on the first and $10,000.00 on the second. Now, this was an estimated *292 amount on the second and the first was estimated at $48,000 at that time pretty close. Mr. Friedman insisted that he had to have an earnest money contract in order to make the bank, that the State Bank of Wellston or better, people associated with the State Bank of Wellston who owned the second, the bank didn't own it, I believe called Bond Investment Company controlled by some of the officers of the State Bank of Wellston owned this second and he had to make them believe that he was buying the property in order to, for him to be in a position to settle that second for $10,000.00. Q Where did you get that information, from whom? A From Mr. Friedman, he told me this in very plain unmistakable language. * * * Q Did they discuss just how much money, if any, that Mr. Friedman was to put up in connection with this business enterprise? A Well, that day, Mr. Friedman put up $2737.14 which was delivered to Mr. Obrock for the benefit of the holder of the deed of trust and for the payment of the taxes. A That was to stop foreclosure to be held that day? A Yes, sir, to be held that day and $2281.90 was to cover the foreclosure and $425.00 to cover the back taxes. Q When they were in your office before you went over to the Title Insurance Corporation office to deliver the money to stop the foreclosure, did they tell you that there had been any definite agreement as to just exactly how much money Mr. Friedman was to put up into the business? A Not in addition to these payments that were necessary to clear up the property so that it would be clear of everything but the first and the first would be current, taxes would be currently paid in addition to that one of them said and the other, whichever one said it, the other didn't deny it, that Mr. Friedman was to put in $10,000.00 operating cash into this corporation. I am sure now that I am thinking of it, I am sure it was Mr. Friedman that, he insisted that is what he was going to have to do to make this work. * * * Q Was there anything said about it on January 16 while Friedman and Mr. Lou Wallach were in your office about what was to be done with respect to the second deed of trust on the property? A Mr. Friedman was to pay that off. Q And the property, did they discuss the property to be put in a corporation? A I stated before that that was what they planned to do and each would get half of the stock of the corporation and I was to form the corporation for them. * * * Q I show you Plaintiffs' Exhibit 32 which is your copy, office copy of the earnest money and receipt, there is a consideration inserted there, $69,000.00, you know whether that was inserted by you in the office or was that already in there? A That $69,000.00 is obviously on the typewriter of my office and it was, if I recall, figured up this way; first deed of trust, $48,000.00, second deed of trust, let us say for the time being, $10,000.00, that would give you $58,000.00. The Stockhammer judgment $1000.00, that would give you $59,000 and the $10,000.00 cash to be put in for the corporation of the business, that is roughly it. They arrived at that quick in my office that morning. Q And that is how they arrived at the figure to your knowledge of $69,000.00? A Only purpose of showing the bank. * * * Q Now, do you have any independent recollection of what occurred on the 9th of March, 1961? A Yes, sir. We met again. My recollection is that it was in the title company office and it was not until we got over there thatyou see, there were other details of this agreement to be carried out before the corporation could be formed or the property deeded to the corporation to be formed. There were other moneys to be paid. Now, at that time we prepared another closing statement and my recollection is that it was signed and approved by both Mr. Wallach and Mr. Friedman and each took his signed copy. * * * Q Was there anything said at that meeting on March 9, 1961 about this corporation that was to be formed? A Yes, sir. Q Do you recall what was said then? A That as soon as they could work out the details they would form the corporation. Q Now, was there a deed prepared at that time to this *293 property? A Yes, sir. * * * Q Do you recall when it was signed in your office; on that date was Mrs. Mollie Wallach present? A She came in to sign it I believe the day before. Q Was the deed complete in all respects? A Yes, sir. Q Was the name of Jack Joseph in the deed, do you recall? A No, not when she signed it, because we didn't know his name at that time. Q Do you know when the name of Jack Joseph was inserted in the deed? A It was inserted in the deed. Q Was that done in your office? A In my office on the same typewriter later in the day after Mr. Lou Wallach and Mr. Harold Friedman agreed on Jack Joseph as a straw party. Q Did they discuss that in your presence? A Yes, sir. Q What did they say about Mr. Joseph being a straw party, if anything. A I suggested that we should leave the deed either with Mr. Obrock or someone else and later put the corporation name in it when the corporation was formed, that would probably be the most convenient way to do it, but Mr. Friedman suggested he thought that unless he could get this in his name he didn't think he would have any luck with the holder of the second to settle that for that $10,000.00 figure and he would have to have it in someone's name that he and Lou discussed and I said, well, now, do you want it in your name and give us a private receipt for it which I would have described the whole deal and he said no, he didn't want it in his name. I didn't press for reason on that. Q And who suggested the name of Joseph, do you know? A Mr. Friedman did. Q And he said that he was to act as straw party, is that my understanding? A No, he asked if Joseph would be all right and Lou Wallach said yes, I know him well. Q They weren't conveying this property to Mr. Joseph because he was to be the real owner, were they? A The two of them in my presence, he would be a man who they would both trust to hold the title until the corporation could be formed in the meantime that Mr. Friedman would pay off the second. Mr. Friedman was the man who would be paying the second back rather than Lou Wallach. * * * Q And then would you have anything to do with the deed after it was signed up and Joseph's name was put in there? A I don't know whether the title company man recorded it or Mr. Friedman recorded it. I did not. Q But it was agreed that it would be recorded? A Yes, sir. Q And Mr. Joseph later on would give a deed to the corporation? A That was the understanding and both men trusted him to that extent. * * * Q When was the next occasion that you had any meetings with the parties if you did have a meeting? A Well, I think that I had a number of conversations with Mr. Friedman in the meantime and with Mr. Lou Wallach in the meantime about this matter and the corporation was not formed. The judgment was not satisfied. The note was not paid and the business agreement was never consummated. The whole matter was as we left it on the 9th of March, in the terminology of the lawyer, is what we call non-consummata, is nothing happened after that. * * * Q When you talked to Mr. Friedman what was the general nature of your discussion? A Well, first of all, when he was going to get around to tell me what he wanted in the way of a corporation, whose name on the stock and how much par value and the details about it. I never could get him to, neither could Mr. Lou Wallach. * * * Q I believe there was a time sometime in November of 1962 when the property was again being advertised for sale under foreclosure and I believe Mr. Lou Wallach arranged with his brother to put up the necessary funds to take it over, were you present on that occasion? A I think that you negotiated on behalf of Richard Wallach in my office with me and with Lou. Q And Mr. Richard Wallach did agree to put up the money to stop the foreclosure and upon condition that Mr. Lous Wallach deed the property over to him? A No, that was one of those, what I call a walking deed, you know, he gave him a deed all right but it wasn't to be good unless Lou Wallach failed to pay the money back at a *294 certain time. Q Did he ever pay the money back? A I don't know this. * * * Q Mr. Becker, at the time this earnest money contract was signed by Mr. Wallach and his wife and Mr. Friedman on January 16, 1961 and when this closing statement was prepared, did any of the parties ever tell you there was to be an actual sale of the property? A No, I made that plain. They told me this was an arrangement whereby they would both get into business together as partners."
On cross-examination, Becker testified, in part, as follows: "Q Now then, then Bill, did you discuss with Mr. Friedman the formation of that corporation? A Yes, sir. Q Now, was that sometime after March the 9th or was it prior? A On March 9 before we left my office it was my thought that I would make a deed to Friedman to this property which would be signed by Lou and Mollie Wallach and take back from Friedman a receipt outlining all of the terms of this proposed partnership agreement to be put in the form of a corporation. I so stated to them, then Friedman said, no, we can't do it that way and I didn't press it. I got to put for the time being in the straw party's name. I don't want that property to be in my personal name in the interim. Then I said, well, who is your straw party and after some hesitating and I din't think he would know right off hand and he said, how about Jack Joseph and he looked at Lou, I know him, that's all right with me, Lou said. * * * Q Nothing abnormal about this transaction at all, was there? A Nothing. * * * Q (By Mr. Moore) This quit claim deed from Mollie Wallach and Lou Wallach to Shirley Kash, that's the one that I was talking about? A Yes, sir. * * * Q On the 20th of November, 1962. A That would be the date, yes, sir. Q Now, Mr. Becker, was there any reason for preparation of this deed and the assignment of Lou Wallach's interest to his sister and the brother? A Of course. Q What was that? A First of all that Richard paid the then due payment on the first deed of trust to save it from foreclosure, and second of all, there was this agreement and assignment between that that outlines the consideration, and third, they were brothers, weren't they? A Yes. A That's it. * * * A As to feelings, I don't believe there was any anger between Lou Wallach on the one hand and Harold Friedman on the other until the day we filed this suit as to when Lou Wallach became aware of the fact that this thing wasn't going right. I don't know, but I know that when Mr. Friedman had not paid the Stockhammer judgment and had not paid off the second within two weeks after March 9, then I personally began to look upon the whole transaction with some degree of circumspection. Q What's that mean? A I began to have my doubts about the good intention of your client."
There are two points raised on appeal which were preserved in defendants' motion for new trial: (1) that the trial court erred, under the evidence, in granting equitable relief to plaintiffs; and (2) that the trial court erred in not finding that plaintiffs have an adequate and complete remedy at law.
The issue actually involved here is whether plaintiffs are entitled to be relieved of the legal effect of the earnest money contract and warranty deed on the ground they were induced to execute them because of false representations made by Harold Friedman.
We first recognize that when persons sign a contract and deed they are presumed to know their contents, to have accepted their terms, and that all prior negotiations are merged into the written instruments. However, when there is fraud in the inducement, we give relief and place the parties in status quo. The fraud may be proved by parol evidence. Judd v. Walker, 215 Mo. 312, 114 S.W. 979; Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909. It is also well settled that fraud may be inferred from facts and circumstances and need not be shown by direct evidence. Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Castorina *295 v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297.
In State ex rel. Taylor v. Anderson et al., 363 Mo. 884, 893, 254 S.W.2d 609, at 615, appears a statement particularly appropriate here: "This being a suit in equity, we review the case de novo, weigh the evidence, and determine on the whole record what relief, if any, should be granted. Where, as here, however, there exists an irreconcilable conflict in the evidence on the essential fact issue involved, depending for determination on the credibility of witnesses, a situation prevails wherein the application of the rule of deference to the findings and conclusions of the trial chancellor is especially appropriate and necessary. [Citing cases.] The trial chancellor's opportunity to observe the witnesses and to hear them testify affords him a basis for determining the credibility of testimony which we do not have. A review of the entire record in this case convinces us we should defer to the trial court's conclusion that the testimony of * * * [Louis Wallach and William J. Becker] was true." In our opinion, the oral agreement testified to by Louis Wallach and William J. Becker is established by clear, cogent and convincing evidence.
This Court has recognized that in equity a state of mind may be misrepresented and that this constitutes a misrepresentation of fact upon which actionable fraud may be based giving rise to a constructive trust. Thieman v. Thieman, Mo.Sup., 218 S.W.2d 580; Musser v. General Realty Company, Mo.Sup., 313 S.W.2d 5. It is conceded that defendants refuse to comply with the oral agreement and to recognize plaintiffs' interests therein. The evidence is sufficient to show that Harold Friedman did not intend to perform the agreement when he made it. We believe that the oral agreement by inducement procured the execution of the earnest money contract and the conveyance by deed, constituted a "misrepresentation of the fact of * * * [Friedman's] intention at the time the agreement was made," and justifies the imposition of a constructive trust as to Harold Friedman. Musser v. General Realty Co., supra, 313 S.W.2d 5, 10; Restatement, Restitution, § 166. We are of the opinion that, as to plaintiffs, Jack Joseph was a straw party in the transaction, "one of no substance, one in name only". Houtz v. Hellman, 228 Mo. 655, 669, 128 S.W. 1001, 1005. In any event, under the evidence, he must be charged as a constructive trustee of the property because the execution of the deed was induced by the fraud of Harold Friedman. Restatement, Restitution, § 167; Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 289, 290, 94 S.W. 527, 536.
We hold that, under the clear, cogent and convincing evidence in this case, the defendants, if permitted to retain title to or interest in the real estate, would be unjustly enriched, and that a constructive trust should be imposed in plaintiffs' favor. Restatement, Restitution, § 160; Musser v. General Realty Co., supra; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8; Swon v. Huddleston, Mo.Sup., 282 S.W.2d 18, 25, 26, 55 A.L.R. 2d 205.
There being fraud in this transaction giving rise to a constructive trust, plaintiffs may not be denied equitable relief on the basis that they have an adequate and complete remedy at law. "* * * The right claimed and the relief sought is the subject of original equity jurisdiction, and the case as stated could be determined on its merits only in a court of equity. The court below was right in entertaining the case regardless of whether there was or was not a remedy at law. This being true, it is not necessary to either discuss or determine whether plaintiff did or did not have a remedy at law. * * *." Ellenburg v. Edward K. Love Realty Co., 332 Mo. 766, 774, 59 S.W.2d 625, 628; Stewart v. Caldwell, 54 Mo. 536, 539.
This Court, sitting in equity, de novo, must administer complete justice within the scope of the pleadings and evidence, *296 even though plaintiffs have mistaken the specific relief to which they are entitled. The "doctrine is too well settled to admit of either discussion or dispute, that when a court of equity once acquires jurisdiction of a cause it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties." Real Estate Sav. Inst. v. Collonious, 63 Mo. 290, 295. Plaintiffs are entitled to equitable relief. Sayer v. Devore, 99 Mo. 437, 477, 13 S.W. 201, 204.
The judgment of the trial court is for the right parties, and it is affirmed.
All of the Judges concur.
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916 F. Supp. 1033 (1994)
Becky MONTGOMERY, Plaintiff,
v.
J.R. SIMPLOT COMPANY, a Nevada corporation, Defendant.
Civil No. 93-1130-AS.
United States District Court, D. Oregon.
August 17, 1994.
*1034 Douglas G. Combs, Case & Dusterhoff, Portland, OR, for Plaintiff.
Harry S. Chandler, Christine Kitchel, Stoel Rives Boley Jones & Grey, Portland, OR, David E. Spurling, Boise, ID, for Defendant.
ORDER
ROBERT E. JONES, Judge:
Magistrate Judge Donald C. Ashmanskas filed Findings and Recommendation on June 21, 1994, in the above entitled case. The matter is now before me pursuant to 28 *1035 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S. Ct. 1277, 71 L. Ed. 2d 461 (1982).
Plaintiff has timely filed objections. I have, therefore, given de novo review of Magistrate Judge Ashmanskas's rulings.
I find no error. Accordingly, I ADOPT Magistrate Judge Ashmanskas's Findings and Recommendation dated June 21, 1994 (# 42), in its entirety. Defendant's motion to strike evidence in opposition to defendant's motion for summary judgment (# 35-1) is GRANTED IN PART and DENIED IN PART. Defendant's motion for summary judgment (# 20-1) is GRANTED. Defendant's motion for oral argument (# ___) is DENIED.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATION
ASHMANSKAS, Magistrate Judge:
Presently before the court is defendant J.R. Simplot Company's ("Defendant") motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff Becky Montgomery ("Plaintiff") alleges that Defendant violated the provisions of O.R.S. Chapter 659 by discharging her because of her sex and in retaliation for her filing a complaint with the Bureau of Labor and Industries ("BOLI") and discriminating against her on the basis of her sex in the terms, conditions and privileges of her employment. Plaintiff also asserts claims for intentional infliction of emotional distress and wrongful retaliatory termination of her employment. Defendant seeks summary judgment on all of these claims.
Background
The following is a summary of the facts which the parties agree are not in dispute. Plaintiff was hired by Defendant as a truck driver at Defendant's Hermiston plant. Plaintiff's first day at work was February 12, 1991. As part of Plaintiff's introduction to Defendant's workplace, Plaintiff was provided with a copy of Defendant's Driver Policy Statement (the "Statement"), which Plaintiff read and understood. The Statement provided that "all employment is at the discretion of the company, and employment may be terminated at any time by either the company or the employee with or without cause." The Statement set forth specific conduct which would serve as grounds for immediate termination including, in part: 1) insubordination to supervisors or guards or the use of abusive or profane language; 2) refusal to perform an assigned job or a reasonable amount of overtime; and 3) walking off the job or leaving company property without permission during working hours. The Statement also identified conduct which "may, at the Company's discretion, result in immediate termination of employment or other disciplinary actions; however, repeat violations will, at the company's discretion, usually result in immediate termination of employment." This conduct included excessive absenteeism which was defined in the following manner:
Absenteeism: Unexcused absence will mean absence from the job without prior notice to and consent from the Company. (Calling in does not necessarily mean the absence will be excused. Consent of the appropriate supervisor or leadperson is required for an excused absence.) A doctor's statement does not necessarily classify an absence as excused if absenteeism has become chronic. Three unexcused absences within a 12-month period will be cause for discharge. Employees with a poor attendance record will not be considered for promotion even though otherwise qualified. Chronic absence (8 incidences) for any reason will be cause for discharge.
In addition, sexual harassment is listed as conduct which may result in termination at the discretion of Defendant. "Sexual Harassment is defined in the Statement as: "intimate physical contact, statements, soliciting, intimidating, or otherwise affecting an individual's work, teasing or joking comments *1036 that have sexual connotation." The Statement further provides that "sexual harassment" will not be tolerated and that "all complaints will be thoroughly and impartially investigated."
Shortly after Plaintiff commenced her employment with Defendant, she requested assistance from Dean Dovey, who generally occupied the position of lead person on the night shift. The lead person was responsible for supervising the other drivers on that shift but was not considered "management." Mr. Dovey refused to assist Plaintiff stating that if Plaintiff couldn't do the job on her own, she didn't deserve to have it. Mr. Dovey called Plaintiff a "bitch" and stated that she was taking a job away from a man that could do the job and that Plaintiff belonged in the kitchen or the bedroom.
Plaintiff had another run-in with Mr. Dovey on August 10, 1991, in which Mr. Dovey called Plaintiff a "bitch" and told Plaintiff that she should leave the job. Plaintiff reported Mr. Dovey's conduct to management at this time. Mr. Dovey did not make any inappropriate or discriminatory comments in the presence of Plaintiff after Plaintiff reported him to management.
In February 1992, Andy Williams, Terminal Manager, wrote a memorandum to Plaintiff expressing his concern over her chronic absenteeism (the "Memo").[1] In the Memo, Mr. Williams indicated that Plaintiff had been absent from work 22 times from August 1991 to February 1992 and warned Plaintiff that continued absences could "endanger" her employment.
On April 20, 1992, Plaintiff filed a claim against Defendant with BOLI (the "BOLI Claim"). In the BOLI Claim, Plaintiff alleged that Defendant was discriminating against her on the basis of her sex. Defendant was given notice that Plaintiff had filed the BOLI Claim on or after May 4, 1992.
On June 3, 1992, Mr. Williams issued a "Critical Incident" report indicating that Plaintiff had been absent 45 times since she started her employment with Defendant (the "Report"). The Report again cautioned Plaintiff that the absenteeism must stop, that the disciplinary measures outlined in the Statement would be used to correct the problem and that documentation would need to be provided if a medical problem existed. In addition, Mr. Williams advised Plaintiff that the Employee's Assistance Program was available to her if that would be helpful. Mr. Williams noted on the report that "Becky agreed to work with me on this problem." Plaintiff acknowledged that Defendant's concerns about her frequent absences were legitimate.
Plaintiff was eventually terminated on August 27, 1992. The reason given for her discharge on the "Notice of Action" (the "Notice") was three unexcused absences within a twelve-month period. The Notice indicated that the three unexcused absences occurred on June 11, 1992, June 12, 1992 and August 22, 1992. Plaintiff had been absent from work at least twice in August 1992 prior to her termination and, on at least one of those occasions, had failed to call in to advise Defendant that she would not be at work that day. The decision to terminate Plaintiff was made by Terry Threlfall, the Northwest Regional Transportation Manager, in consultation with Edwin Brandt, the General Manager of Transportation Operations and Stanley Johnson, the Administrative Manager or Human Resources.
Preliminary Procedural Matter
Defendant's summary judgment motion is supported, in large part, by Plaintiff's own deposition testimony. Plaintiff's opposition to the summary judgment is supported by an affidavit signed by Plaintiff on May 25, 1994 ("Plaintiff's Affidavit"). Plaintiff's Affidavit contains information that directly contradicts a number of statements made by Plaintiff in her deposition. Defendant has requested that the court strike Plaintiff's Affidavit as inconsistent, cumulative and confusing.
The Ninth Circuit, as well as the majority of the federal circuit courts, have long held that a party cannot effectively oppose a summary *1037 judgment by contradicting her own deposition testimony with a newly prepared affidavit which creates genuine issues of material fact. Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262 (9th Cir.1991). The court reasoned that:
[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.
Id. at 266 (quoting Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1462 (9th Cir.1985).
The court denies Defendant's motion to strike Plaintiff's Affidavit as cumulative and confusing. The duplicate information, while not necessarily helpful, is not confusing to the court and will not prejudice Defendant in any way. The court grants Defendant's motion to strike the portions of Plaintiff's Affidavit which directly conflict with her deposition testimony and will not consider that evidence in this Findings and Recommendation.
Defendant also moves to strike the affidavits of two former employees of Defendant as well as Plaintiff's exhibits A, C and E. The court has reviewed these documents and has found them to be fairly benign with regard to the outcome of this motion. Consequently, in light of the court's ruling and the fact that the documents complained about are not outcome determinative, the court denies Defendant's motion to strike these documents as well.
Legal Standard
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). Once the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S. Ct. 51, 107 L. Ed. 2d 20 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 631. The court must view the inferences drawn from the facts in the light most favorable to the nonmoving party. Id. at 630-631. However, when the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Products v. Franciscan Ceramics, 818 F.2d 1466, 1470 (9th Cir.1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 698, 699, 98 L. Ed. 2d 650 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id. at 1468.
Discussion
First Claim for Relief Unlawful Employment Practices
In her First Claim for Relief, Plaintiff alleges that:
Plaintiff has been the subject of unlawful employment practices on the part of the defendant in that she was: a) Discharged from her position because of her sex; b) Discriminated against because of her sex in the basis of terms, conditions, and privileges of her employment by the defendant; and c) Because of her complaint to the Oregon Bureau of Labor and Industries concerning Defendant's employment practices, Defendant discriminated against her on the basis of terms, conditions, and privileges of employment and terminated her.
In support of this claim, Plaintiff alleges that:
Beginning in early 1992, and continuing until her termination, Plaintiff Montgomery *1038 suffered verbal abuse and sexual harassment, including, but not limited to, having Defendant, or whoever was in control of the defendant, refer to her as "the bitch," comments regarding how she was taking a man's job away from him and that her place was at home in the kitchen or bedroom. Statements were made by defendant's employees to Plaintiff that females should not be truck drivers. Plaintiff Montgomery was given less work than male drivers with less seniority. Plaintiff Montgomery's absences from work were often categorized as "unexcused" in circumstances in which such absences on the part of male drivers were not so categorized.
Sex Discrimination
The Oregon courts have generally adopted federal law with regard to federal statutory discrimination claims and have applied it to actions filed under O.R.S. Chapter 659. The only exception is that the Oregon courts have rejected the three-part shifting burden created by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). City of Portland v. Bureau of Labor and Industries, 298 Or. 104, 690 P.2d 475 (1984); Callan v. Confederation of Oregon School Administrators, 79 Or.App. 73, 717 P.2d 1252 (1986). The Oregon courts agree with the "objective of enabling the plaintiff to reach the factfinder without producing the direct evidence concerning discrimination that the employer rather than the plaintiff is better able to produce" voiced by the United States Supreme Court in McDonnell. Id. at 77, n. 3, 717 P.2d 1252. However, the Oregon courts have held "that the burden does not shift from the plaintiff in Oregon discrimination actions in which the issue is simply whether the plaintiff's allegation or the employer's denial of discrimination is correct." Id. at 77, 717 P.2d 1252.
In order to survive this motion for summary judgment, Plaintiff must establish a prima facie case of sex discrimination under O.R.S. Chapter 659 by showing that Defendant engaged in adverse employment actions under circumstances which give rise to an inference of discrimination based on Plaintiff's sex. Henderson v. Jantzen, 79 Or.App. 654, 719 P.2d 1322 (1986) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). Plaintiff is not required to provide direct evidence of such discrimination, only sufficient evidence to give rise to an inference of unlawful discrimination. Id.
Plaintiff alleges that she was treated less favorably than male drivers in that she was given less work than male drivers with less seniority and she was assessed "unexcused absences" in situations where male drivers absences were found to be excused. In addition Plaintiff asserts that she was subjected to ongoing offensive remarks and treatment based on her gender.
Work Assignments
Plaintiff explained that on the morning of May 27, 1992, she was advised by Quentin Blinn that there were only 14 loads to drive that day and that the loads were going to be assigned to drivers with more seniority than Plaintiff. Plaintiff dropped by the work site on the evening of May 27, 1992, to check her work schedule and discovered that Max Ellis, a male driver with less seniority than Plaintiff, had worked that morning.[2] While Plaintiff indicated that there were "quite a few times" when a male driver with less seniority got work and she didn't, she was unable to remember any other dates, drivers or circumstances.[3] Plaintiff also testified that there were times when she would work when male drivers with more seniority were not called in.
Unexcused Absences
With regard to the unexcused absences, Plaintiff explained that Bill Mootry asked for an excused absence because his uncle had *1039 died. Plaintiff complained that Mr. Mootry's "uncles were always dying." Plaintiff did not know whether Mr. Mootry's uncle had actually died nor did she explain when and under what circumstances she was denied an excused absence for a death of a relative. Furthermore, Plaintiff did not have any information about Mr. Mootry's attendance record.
Offensive Gender-Based Treatment
Plaintiff also alleges in her complaint that she was subjected to offensive gender-based comments from other employees from January 1992[4] until the date she was terminated. In her deposition, Plaintiff testified that the only individual who made these comments to her was Dean Dovey, the lead person on the night shift and Plaintiff's supervisor when she worked that shift. Plaintiff was only able to remember two specific incidents, which are described below,[5] but testified that Mr. Dover regularly called Plaintiff a "bitch" when she asked Mr. Dover for assistance. In addition, Plaintiff listed a number of co-workers who told her that they had heard Dovey refer to Plaintiff as a "bitch" in Plaintiff's absence.
In February, 1991, a request by Plaintiff for assistance from Mr. Dovey was refused.[6] Mr. Dovey called Plaintiff a "bitch" and told her that she was taking a job away from a man that could do the job and that she belonged in the kitchen or the bedroom. The second incident occurred on August 10, 1991, when Plaintiff and Dovey disagreed about the need for Plaintiff to pick up another load of clay. Mr. Dovey again referred to Plaintiff as a "bitch" and told her that women shouldn't be truck drivers and that she should leave. In August 1991, Plaintiff complained to Quentin Blinn and Andy Williams about Mr. Dovey's behavior and testified that after she made her complaint, Mr. Dovey did not engage in anymore offensive behavior in her presence.
In addition, Plaintiff felt that Quentin Blinn treated her poorly by ignoring her and refusing to answer questions. Plaintiff felt that he was acting this way because he didn't like Plaintiff as a person and didn't want her "out there." Plaintiff was told that Mr. Blinn didn't like her by a number of co-workers but no one, including Plaintiff, ever indicated that Mr. Blinn's dislike of Plaintiff had anything to do with her being a woman. In fact, Plaintiff testified that, in her honest opinion, Blinn's actions were not the result of Plaintiff's sex. Plaintiff testified at her deposition that Andy Williams never did anything that she thought was inappropriate in any way.
Plaintiff also offered statements of David Gallagher and Laurence Dahlin, both ex-employees of Defendant, that Mr. Dovey was rude to Plaintiff and called her a "bitch." In addition, Mr. Gallagher represented that Roger Patton was rude, mean and disrespectful to Plaintiff and was short with Plaintiff when giving her assignments. Laurence Dahlin indicated that Andy Williams had once told him that Plaintiff "was a `fucking cunt' and that Simplot did not need another `fucking cunt on PMS'."
In her opposition to this motion for summary judgment, Plaintiff argues that the fact that she was "unjustifiably suspended" from her job in three instances for insubordination supports her argument of sex discrimination.[7] The only evidence that Plaintiff has that links any of these insubordination reports to her sex is that Dean Dovey referred to Plaintiff as a "bitch" on the day Plaintiff and Mr. Dovey had a disagreement about whether Plaintiff was supposed to pick up *1040 another load of clay. Mr. Dovey wrote an insubordination report on the incident and Plaintiff was suspended for three days by Andy Williams.
Finally, Plaintiff was terminated from her employment with Defendant on August 27, 1992. The decision to terminate Plaintiff was made by Terry Threlfall, who was appointed as the Northwest Regional Transportation Manager in August 1992. Mr. Threlfall consulted with Edwin Brandt, the General Manager of Transportation Operations, and Stanley Johnson, the Administrative Manager of Human Resources with regard to Plaintiff's termination. The basis for Plaintiff's termination was her excessive absences and her failure to improve her attendance after two written warnings. Plaintiff failed to show up for work three times in August 1992 before she was terminated.
Based on the evidence before the court, it is clear that Plaintiff has failed to meet the low threshold of proof required to send her claims for sex discrimination under O.R.S. Chapter 659 to the factfinder. Even viewing the evidence in the light most favorable to Plaintiff, the court can not infer from the evidence presented that Plaintiff was discriminated against based on her gender, either in regard to her work assignments, the characterization of her absences or her termination.
At best, Plaintiff has established that Mr. Dovey disliked Plaintiff, at least in part because she was a woman working as a truck driver, and that he expressed such dislike in an offensive manner on two occasions in 1991. Stray remarks alone are not sufficient to establish discrimination, especially when the remarks are made by nonmanagement personnel. Merrick v. Farmers Ins. Group, 892 F.2d 1434 (9th Cir.1990). Furthermore, once management was notified of Dovey's actions, the offensive conduct stopped.
The only other evidence which would tend to establish an inference of discrimination is the statement Andy Williams made to Laurence Dahlin that Defendant did not need another "fucking cunt on PMS." Plaintiff testified that, in her opinion, Mr. Williams' behavior was appropriate at all times. In addition, Plaintiff offered evidence that Mr. Williams saved Plaintiff's job for her after her third insubordination report on June 4, 1992. Mr. Williams testified that all of Plaintiff's supervisors wanted her terminated and that Mr. Williams convinced them to give her another chance to succeed. Plaintiff was suspended for five days without pay instead of terminated at that time. Mr. Williams support of Plaintiff at this time lessens the effect of any inference the court may have made with regard to the statement that was made by Mr. Williams to Mr. Dahlin. Finally, the court finds it interesting, and somewhat enlightening, that the driver with the most seniority employed by Defendant at the Hermiston plant is a woman.
Plaintiff has failed to present sufficient evidence to establish her prima facie case for sex discrimination. In light of Plaintiff's failure, the court need not consider Defendant's stated nondiscriminatory reasons for Plaintiff's termination.
Retaliation Claim
Plaintiff also alleges that she was discriminated against in retaliation for her filing her BOLI Claim in April 1992. In order to prove a retaliation claim, Plaintiff must establish that she engaged in a protected activity, she suffered an adverse employment decision and there was a causal relationship between the protected activity and the adverse employment decision. Ruggles v. California Polytechnic State University, 797 F.2d 782, 785 (9th Cir.1986). Plaintiff has adequately established the first two elements. However, Plaintiff has failed to establish the necessary causal relationship between her BOLI Claim and Defendant's alleged wrongful behavior and termination.
Plaintiff testified that the only incident she feels was a direct result of her filing the BOLI Claim was the filing of a citizen's complaint by a driver for Defendant. Plaintiff was accused of running a car off the road into the ditch while driving up Three Mile. Plaintiff remembered a white car "whizzing passed me and there's this Mexican lady in the back flipping me off with both fingers." Plaintiff testified that she did not run anyone off the road and that she felt that the complaint *1041 was made falsely and in retaliation for her BOLI Claim. Plaintiff also testified that Mr. Threlfall listened to her side of the story and that she was not disciplined as a result of the incident. This incident was not necessarily detrimental to Plaintiff. In addition, Plaintiff has failed to establish that it was caused by her BOLI Claim.
All of Plaintiff's other complaints existed prior to the filing of the BOLI Claim and, consequently, can not be inferred to be in retaliation for such filing. While Plaintiff's termination did occur after she filed her BOLI Claim, this fact alone is not sufficient evidence of retaliation to survive a motion for summary judgment. In addition, the time which elapsed between the filing of the BOLI Claim and Plaintiff's termination as well as Defendant's decision not to terminate Plaintiff on June 3, 1992, the date of her Critical Incident Report and meeting with Andy Williams for her excessive absences, or June 4, 1992, the date of her third Insubordination Report and subsequent five-day suspension without pay, both of which occurred after the BOLI Claim was filed, supports a finding that Plaintiff's termination was not in anyway related to her filing of the BOLI Claim.
Plaintiff has failed to establish a prima facie case of sex discrimination or retaliation. Defendant's motion for summary judgment on Plaintiff's First Claim for Relief for Unlawful Employment Practices should be granted.
Second Claim for Relief Intentional Infliction of Emotional Distress
In her Second Claim for Relief, Plaintiff alleges Defendant's conduct was extreme and outrageous and that it caused Plaintiff severe emotional distress requiring medical treatment. Under Oregon law, a claim for intentional infliction of emotional distress exists only where the defendant intended to inflict severe emotional distress on the plaintiff, the defendant's acts were the cause of severe emotional distress, and the defendant's acts were an "extraordinary transgression of the bounds of socially tolerable conduct." Madani v. Kendall Ford, Inc., 312 Or. 198, 203, 818 P.2d 930 (1991). It is the defendants' acts, rather than their motives, that must be outrageous. Id. at 204, 818 P.2d 930.
The conduct must be "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Christofferson v. Church of Scientology, 57 Or.App. 203, 211, 644 P.2d 577 (1982) (quoting Restatement (Second) on Torts, § 46, comment d (1965)). The employer-employee relationship is a relevant factor in determining whether conduct is outrageous. Hall v. May Dept. Stores Co., 292 Or. 131, 137, 637 P.2d 126 (1981).
It is true that Plaintiff was found to be suffering from agitated depression in June 1992 and that her doctor recommended that she take a one-month leave of absence from her employment. However, the evidence shows that Plaintiff was suffering from this problem prior to the time she started her employment with Defendant and that Plaintiff was seen by a doctor for depression in March 1991.
In addition, while it may be true that the stress of Plaintiff's employment coupled with the investigation of the BOLI Claim caused Plaintiff's condition to deteriorate, the court can not find that Defendant's actions went beyond the bounds of social decency. Plaintiff complains that she was subject to constant abusive conduct during her employment with Defendant. However, she can only remember two specific incidents of such conduct, both of which occurred nearly one year prior to her medical leave. The fact that Plaintiff can not remember any additional incidents leads the court to believe that she did not suffer to any great degree as a result of the incidents and that such conduct was not sufficiently outrageous to support a claim for intentional infliction of emotional distress.
Plaintiff argues that the fact that she was terminated because of her sex or in retaliation for her filing her BOLI Claim "is an extraordinary transgression of the bounds of social toleration, especially in conjunction with its meritless and fabricated reason for termination that plaintiff had three unexcused absences." The court has found that Plaintiff has failed to present sufficient evidence *1042 to create even an inference that she was terminated because of her sex or in retaliation for the BOLI Claim. In the absence of a showing of discrimination in her termination, Plaintiff's claim for intentional infliction of emotional distress based on her wrongful termination must fail. Defendant's motion for summary judgment on Plaintiff's Second Claim for Relief should be granted.
Third Claim for Relief Wrongful Discharge
Plaintiff alleges that Defendant wrongfully terminated her in retaliation for filing her BOLI Claim. The court has already found that Plaintiff has failed to establish even an inference that Plaintiff's termination was in retaliation for her BOLI Claim. Consequently, Defendant should be granted summary judgment with regard to Plaintiff's Third Claim for Relief as well.
Conclusion
Defendant's motion (20) for summary judgment should be GRANTED. Defendant's motion (35) to strike is GRANTED in part and DENIED in part.
DATED this 21st day of June, 1994.
NOTES
[1] In her deposition, Plaintiff represented more than once that she received this memorandum in February 1992. In her affidavit, Plaintiff represents that she did not receive a copy of the memorandum until May 29, 1992, after Plaintiff filed her BOLI claim.
[2] When asked by Plaintiff why she hadn't been called to work, Mr. Blinn indicated that he attempted to contact Plaintiff by telephone. Plaintiff represents that someone was at home all day on May 27, 1992.
[3] Plaintiff did refer to a male driver that had worked in July, 1992, but Plaintiff had not requested that she be called to work during that period and she did not indicate whether the male driver had less seniority.
[4] The majority of the offensive conduct described by Plaintiff occurred in 1991. The court will assume that the 1992 date in Plaintiff's complaint a typographical error and will consider all of the complained of conduct.
[5] Interestingly, Plaintiff designated only two situations in which Mr. Dovey made these comments, both of which occurred in 1991, prior to the date alleged in Plaintiff's complaint.
[6] Defendant asserts that Plaintiff is prevented from relying on this incident by the one year statute of limitations set forth in O.R.S. 659.040(1). Plaintiff argues that Defendant engaged in a pattern of conduct and that acts which occurred prior to May 1991 may be considered as part of the pattern. Because the court finds that Mr. Dovey's entire course of conduct does not amount to discrimination, Defendant's statute of limitations argument is moot and need not be addressed.
[7] In fact, Plaintiff was suspended on only two occasions.
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519 A.2d 592 (1987)
PIZZA HUT OF AMERICA, INC.
v.
Louis H. PASTORE, Jr.
No. 84-430-M.P.
Supreme Court of Rhode Island.
January 12, 1987.
*593 John S. DiBona, Cranston, for plaintiff.
Richard E. Simms, Warwick, G. Chandler Beals, Providence, for the Children's Place, Ltd.
John Hines, Jr., Legal Counsel for the Liquor Control Admin., Susan D. Hayes, Maura C. Travers, Legal Counsel for Dept. of Business Regulation, William Conley, Jr., City Sol., for the City of east Providence, for defendants.
OPINION
MURRAY, Justice.
This case is before the court on a petition for certiorari to review a decision of the Superior Court affirming the State Liquor Control Administrator's denial of a class-B liquor license to petitioner, Pizza Hut of America, Inc.
In September 1983, the Board of License Commissioners of the City of East Providence granted petitioner a class-B limited alcoholic beverage license for the sale of beer. The Children's Place, Ltd. (Children's Place), a private preschool located within 200 feet of petitioner's business, appealed the licensing to the Liquor Control Administrator. The preschool contends that it is a public or parochial school within the purview of G.L. 1956 (1976 Reenactment) § 3-7-19, as amended by P.L. 1983, ch. 277, § 1. This enactment prohibits the issuance of certain types of liquor licenses to any business located within 200 feet of a public or parochial school.[1] The administrator reversed the grant of the license in a decision dated March 12, 1984.
The petitioner appealed to the Superior Court. The Children's Place intervened as a party defendant. Based on the memoranda of the parties, the trial justice upheld the decision of the Liquor Control Administrator. Although finding that the Children's Place was not a public or a parochial school within the meaning of § 3-7-19, the trial justice reasoned that it was unlikely that the Legislature intended to exclude private-school children from its mandate.
Following this decision, petitioner filed a petition for a writ of certiorari which was granted on December 13, 1984.
The petitioner argues that the trial justice erred in interpreting § 3-7-19. It points out that had the Legislature intended to include all schools in the provision it would have done so. Moreover, petitioner claims that by interpreting the enactment to include private schools, the trial justice has essential rewritten the legislation.
It is a well settled rule of statutory construction that where "the language of a statute is clear and unambiguous, the statute may not be construed or extended but must be applied literally." Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 57 (R.I. 1980); North Providence School Committee v. Rhode Island State Labor Relations Board, 122 R.I. 415, 418, 408 A.2d 928, 929 (1979); Augustine v. Langlais, 121 R.I. 802, 804, 402 A.2d 1187, 1188 (1979). In addition, "`the words used *594 therein must be given their plain and customary meaning.'" Trifari v. Employees' Retirement System of Providence, 485 A.2d 100, 102 (R.I. 1984). Although a particular statutory interpretation may render a statute inapposite to the matter pending, "we may not alter the meaning to make it applicable and promote what we think a more desirable result." Little v. Conflict of Interest Commission, 121 R.I. 232, 237, 397 A.2d 884, 887 (1979). Only in circumstances where a literal interpretation of a statute makes for an absurd result have we departed from this principle. State v. Haggerty, 89 R.I. 158, 161, 151 A.2d 382, 384 (1959).
The intervenor in the instant case proposes that we categorize the Children's Place as a public or parochial school within the meaning of § 3-7-19. A public school is a school which is established and maintained at public expense. Price v. Retirement Board, 110 R.I. 787, 790, 298 A.2d 121, 123 (1972). We have said that a parochial school is a school associated with or sponsored by a religious denomination which provides for religious instruction in addition to compulsory educational requirements. Rice v. Board of License Commissioners of Lincoln, 90 A. 419, 419 (R.I. 1914).
The Children's Place is a privately funded profit-making organization. It does not associate itself with any religious denomination and therefore cannot be classified as a parochial school.
We believe that the Legislature intended to exclude private schools from the protection afforded by § 3-7-19. We are aware of the social intent of the legislation, and yet upon the peculiar facts of this case, we do not believe that this interpretation of the statute leads to an absurd result. If the court has not interpreted the statute in a manner consistent with the legislative intent to promote temperance, further societal response is the exclusive prerogative of the Legislature.
For the reasons stated, the petition for certiorari is granted and the judgment of the Superior Court is hereby quashed. The papers in the case are remanded to the Superior Court with directions to reverse the decision of the State Liquor Control Administrator and to order reinstatement of the decision of the Board of License Commissioners of the City of East Providence granting the petitioner a class-B limited alcoholic beverage license.
NOTES
[1] General Laws 1956 (1976 Reenactment) § 3-7-19, as amended by P.L. 1983, ch. 277, § 1 provides in part:
"Retailers' class B, C and I licenses under this chapter shall not be issued to authorize the sale of beverages * * * in any building within two hundred feet (200') of the premises of any public or parochial school * * *."
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916 F. Supp. 1358 (1996)
Tracy THORNE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF DEFENSE et al., Defendants.
Civil Action No. 95-369-A.
United States District Court, E.D. Virginia, Alexandria Division.
March 4, 1996.
*1359 *1360 *1361 Patrick W. Lee, Luther Zeigler, Amy J. Mauser, Kathryn D. Kirmayer, Mark A. Behrens, Mary Bowman Hauck, Christopher M. Farris, Crowell & Moring, Washington, D.C., for plaintiff.
Janet Reno, United States Attorney General, Frank W. Hunger, Assistant Attorney General, Helen F. Fahey, United States Attorney, Dennis E. Szybala, Assistant United States Attorney, Alexandria, Virginia, David J. Anderson, Vincent M. Garvey, Sylvia T. Kaser, Department of Justice, Washington, D.C. (Hack Wigman, United States Department of Defense, Office of the General Counsel, Washington, D.C., Cdr. Robert P. Monahan, Lt. Susan C. Stewart, U.S. Department of the Navy, Office of the Judge Advocate General, Arlington, Virginia, of counsel), for defendants.
MEMORANDUM OPINION
ELLIS, District Judge.
This case presents the question whether the government's "Don't Ask, Don't Tell" statutory and regulatory plan with respect to military service by homosexuals violates the First Amendment.[1]
I
By all accounts, had Lieutenant Thorne not publicly announced that he was a homosexual, he would be an exemplary Naval Officer. In May of 1989, Thorne began his military career by entering Aviation Officer Candidate School. He quickly excelled, receiving Outstanding Achievement Awards for his academic excellence and his physical training. He was first in his class in each of the basic, intermediate, and advanced portions of his training, was placed on the Commodore's List for academic and flight achievement, and was named top student flight officer.
After completing his tenure at AOCS and earning the designation of Naval Flight Officer, Thorne spent thirteen months training as a bombardier/navigator in the A-6 Intruder. He then joined Attack Squadron VA-65 at the Naval Air Station in Oceana, Virginia, where he continued to excel, impressing his commanding officers with his leadership and aviation skills.
In the spring of 1992, Thorne decided to announce publicly that he was a homosexual. On May 19, 1992 he sent a letter to his commanding officer in which he revealed his intention to disclose his sexual orientation. That night, he appeared on national television on the ABC news program "Nightline" and told the viewing audience that he was gay. As a result, on June 9 Thorne received a Notification of a Board of Inquiry Proposed Action to separate Thorne from the service *1362 because of his statements on television, in accordance with the military's policy regarding service by homosexuals in effect at the time. Under that policy, a member of the armed services would be separated from the armed services if a finding was made that the member (1) engaged in homosexual acts, unless the member proved that the conduct was an aberration unlikely to recur and that his continued service was in the best interest of the military; (2) stated that he was a homosexual or bisexual unless a further finding was made that the member was not a homosexual or bisexual; or (3) married or attempted to marry a person of the same sex unless a further finding was made that the member was not a homosexual. At the Administrative Show Cause Hearing, the Board of Inquiry unanimously recommended that Thorne be discharged.
While Thorne's discharge proceedings were pending, President Clinton directed the Secretary of Defense at the time to review the Department of Defense policy concerning gays in the military. On February 3, 1993, the Secretary issued an interim policy that placed gay and lesbian service members in the process of being discharged because of their sexual orientation on standby inactive reserve status, pending the promulgation of a new policy. Accordingly, the Attorney General suspended Thorne's discharge on April 26, 1993, but nonetheless removed Thorne from active duty and placed him on inactive reserve status.
Thereafter, on July 19, 1993, the Secretary announced a new policy concerning homosexuals in the military. This policy, a precursor to the plan at issue here, allowed homosexuals to serve provided they did not engage in homosexual conduct. Implementing regulations were scheduled to be issued by October 1, 1993. When that date passed without the appearance of the new regulations, the Navy Office of Personnel indicated its intent to return Thorne to active duty. The Secretary of the Navy rescinded that order on November 3, and two weeks later Thorne filed suit in the District Court for the District of Columbia alleging unlawful discharge.
Shortly thereafter, Congress formally enacted the policy contained in the July 19 directive as § 571 of the National Defense Authorization Act for Fiscal Year 1994, Pub.L. No. 103-160, 107 Stat. 1670-73 (codified at 10 U.S.C. § 654). President Clinton signed the policy into law on November 30, 1993. Under this new legislation, popularly known as the "Don't Ask, Don't Tell" plan, a service member will be separated from the armed forces if "the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding, made and approved in accordance with procedures set forth in the regulations, that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in." 10 U.S.C. § 654(b)(2).[2] Congress also directed the Secretary of Defense to issue regulations implementing the new statute. In light of this new legislation, the Assistant Secretary of Defense announced on January 6, 1994 that service members in the process of being discharged on the basis of their sexual orientation, including Thorne, would be reinstated and then reconsidered for discharge under the "Don't Ask, Don't Tell" legislation and its *1363 implementing regulations. Given this, the parties in the District of Columbia suit entered into a stipulation that Thorne would be returned to active duty and that the Navy could again seek to discharge him under the soon-to-be-promulgated regulations, and the suit was voluntarily dismissed. Pursuant to this agreement, Thorne returned to active duty on January 31, 1994 and was assigned to Air-714, Information Systems. Once again, he proved to be an outstanding officer, performing his duties in exemplary fashion. Air-714's commanding officer ranked Thorne Number 1 in the command and recommended Thorne for early promotion, stating that his "accomplishments [were] unparalleled" and that his "leadership vision embraces the very qualities most sought after throughout the fleet."
Pursuant to Congress's direction, the Department of Defense promulgated regulations implementing the policy embodied in 10 U.S.C. § 654 in DoD Directives 1332.14 and 1332.30.[3] Thereafter, on March 29, 1994, Thorne was again notified of an Administrative Show Cause Hearing to be held by a Naval Board of Inquiry on July 11, 1994. At that hearing, the Navy presented no live testimony, but offered several documents, including Thorne's letter of May 19, 1992 to his commanding officer, a transcript of the Nightline broadcast, and statements of two of his squadron mates. Thorne called three witnesses. Commander Luigart, Thorne's commanding officer at the time, testified to Thorne's outstanding service and qualifications. Dr. Lawrence Korb, Director for the Center for Public Policy Education at the Brookings Institute and former Assistant Secretary of Defense, testified that a statement of one's sexual orientation does not indicate a propensity to engage in homosexual conduct and that the asserted policy justifications for the new policy would not be compromised by allowing Thorne to remain in the Navy. Finally, Lieutenant Sutko, a heterosexual, testified that he had known Thorne since October 1989, that he had shared a townhouse with him for a year, that he had never known Thorne to behave in an inappropriate manner, and that he would have no concerns about flying with or sharing close quarters with Thorne. Thorne also offered numerous statements and reports that concluded that the "Don't Ask, Don't Tell" policy, as embodied in § 654, was based on irrational fears and prejudices.
On the record presented, the Board of Inquiry unanimously found that Thorne's statement that he was a homosexual gave rise to a rebuttable presumption that he had a "propensity" to engage in prohibited conduct and that Thorne had failed to rebut that presumption. Accordingly, the Board recommended that Thorne be honorably discharged. That recommendation was transmitted to the Secretary of the Navy, who, on March 7, 1995, accepted the Board's findings and ordered Thorne's discharge. Thorne was discharged on March 9, 1995 and filed this suit on the same day. The matter is now before the Court on the parties' cross-motions for summary judgment.
II
As a threshold matter, the government contends that the Court is without jurisdiction over this case because Thorne has failed to exhaust his administrative remedies. In this regard, Thorne admits he did not present his case to the Navy Board for Correction of Military Records ("NBCMR").
To be sure, litigants are generally required to exhaust all administrative remedies before filing suit in federal court. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51-52, 58 S. Ct. 459, 463-64, 82 L. Ed. 638 (1983). Yet, "[t]he doctrine is not an absolute bar to judicial consideration and where justification for invoking the doctrine is absent, application is unwarranted." Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973). Specifically, exhaustion is excused "if the [administrative] remedies do not provide an opportunity for adequate relief ... or if substantial constitutional questions are raised." Muhammad v. Secretary of the Army, 770 F.2d 1494, 1495 (9th Cir.1985); *1364 see also Von Hoffburg v. Alexander, 615 F.2d 633, 638 (5th Cir.1980); Downen, 481 F.2d at 643 (1973); Walmer v. U.S. Dep't of Defense, 835 F. Supp. 1307, 1311 (D.Kan.1993). Thorne's claim fits this description. First, his claim depends entirely on constitutional questions, and "[r]esolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board." Glines v. Wade, 586 F.2d 675, 678 (9th Cir. 1978), rev'd on other grounds sub nom., Brown v. Glines, 444 U.S. 348, 100 S. Ct. 594, 62 L. Ed. 2d 540 (1980); see also Downen, 481 F.2d at 643 (holding that petitioner was not required to raise First Amendment claim to the Air Force Board for the Correction of Military Records). Second, it is not clear that the NBCMR even has the authority to strike down a military regulation as unconstitutional on its face. See Glines, 586 F.2d at 678 ("The [Air Force BCMR] was never intended by Congress to resolve the essentially legal issues involved in this case."); Walmer, 835 F.Supp. at 1310 (Government "admitted in oral argument that the [Army BCMR] does not have the authority, except on an as-applied basis, to hold a military policy unconstitutional, and that in fact, it is impermissible for the [Army BCMR] to strike down a military policy on its face."). Accordingly, the exhaustion-of-remedies doctrine is inapplicable here and the matter is therefore properly before the Court.
III
A. Conduct or Speech: The Statute
Thorne contends that the "Don't Ask, Don't Tell" plan, both on its face and in the manner in which it is applied, violates the Free Speech Clause of the First Amendment. The government contends that the plan is directed at conduct not speech and therefore does not impinge on Thorne's First Amendment rights. The crucial first step in the analysis, therefore, is to determine whether the plan merely regulates conduct, in which case the First Amendment is not implicated, or whether the plan is in fact a restriction on speech, in which case it must be subjected to the appropriate degree of judicial scrutiny.
The government's position is that the statement "I am gay" merely gives rise to a presumption that the person engages in or has a propensity to engage in certain forms of conduct that are prohibited in the military. The service member then has the opportunity to rebut that presumption by convincing a panel of military officers that he in fact does not engage in, nor does he have a propensity to engage in, the prohibited conduct. The speech to the effect that "I am gay", according to the government, is only relevant insofar as it is evidence of that person's conduct.
Thorne responds that the presumption, both on the face of the "Don't Ask, Don't Tell" statute and accompanying regulations and in the manner in which the statute and regulations are applied, is an irrebuttable one. If he is correct in either regard, then the statutory and regulatory plan in essence dismisses service members who say they are gay, which is plainly a regulation of speech, not conduct. If, however, the presumption is rebuttable, then the plan may properly be deemed to be a regulation of conduct rather than of speech. It is therefore necessary to consider to what extent the presumption is a rebuttable one in order to decide whether the statute is a restriction on speech.
Although Thorne's attack focuses on the implementing regulations, it is useful at the outset to examine the statute, which provides, in pertinent part, that a service member shall be separated from service if there is a finding made that "the member has stated that he or she is a homosexual ... unless there is a further finding ... that the member has demonstrated that he or she is not a person who ... has a propensity to engage in ... homosexual acts." 10 U.S.C. § 654(b)(2) (emphasis added).[4] Closely read, the statute is a tautology and hence the rebuttable presumption it purports to express is illusory, for it cannot be rebutted short of the declarant recanting the original *1365 statement declaring his or her homosexuality. This follows from the plain meaning of the statute's operative terms, namely "homosexual" and "propensity." "Propensity" is defined as a "[d]isposition or inclination to some action, course of action, habit, etc." The Oxford English Dictionary 637 (2d ed. 1989); see also Webster's II: New Riverside University Dictionary 943 (1984) ("An inherent inclination: TENDENCY"); American Heritage College Dictionary 1096 (3d ed. 1993) ("An innate inclination; tendency"). And in common parlance, a person who states he or she is gay or homosexual is declaring that he or she prefers persons of the same gender in sexual matter, that is that he or she has a sexual "inclination or propensity" for persons of the same gender. Indeed, "homosexual" is even defined in the authoritative OED as "[a] person who has a sexual propensity for his or her own sex." The Oxford English Dictionary 345 (2d ed. 1989). Given these definitions, the statute says, tautologically, nothing more than this: a service member who declares his or her homosexuality will be severed from the service unless the member convinces the fact finder that he or she is not a homosexual.[5] In other words, the presumption is irrebuttable absent a recantation.[6] So understood, the statute, on its face, is plainly aimed at speech, not conduct, and is therefore equally plainly a restriction on speech.[7]
*1366 B. Conduct or Speech: The Regulation
Considered in isolation, then, the statute on its face imposes a restriction on speech. But this does not end the matter for the statute should not be read apart from the Department of Defense's implementing regulations, as Congress explicitly provided that the "Don't Ask, Don't Tell" plan embodied in § 654 was to be implemented "under regulations prescribed by the Secretary of Defense," 10 U.S.C. § 654(b), which are contained in Department of Defense Directive 1332.30. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) ("[C]onsiderable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer."). Thorne's facial attack on the plan, then, must encompass both the statute and the implementing Directives. When the statute is considered together with this Directive, the statutory tautology disappears because the Directive defines "propensity" differently from the dictionary definitions cited here. According to the Directive, a "[p]ropensity to engage in homosexual acts means more than an abstract preference or desire to engage in homosexual acts; it indicates a likelihood that a person engages in or will engage in homosexual acts." Dir. 1332.30 at 1-1 (emphasis added). And the Directive goes on to define a "statement that a member is a homosexual or bisexual or words to that effect" as "[l]anguage or behavior that a reasonable person would believe was intended to convey that statement that a person engages in, attempts to engage in, or has a propensity to engage in homosexual acts." Dir. 1332.30 at 2-1. These regulatory definitions make clear that a service member triggers the presumption by making a statement that a reasonable person would believe was intended to convey the statement that the member had a propensity to engage in homosexual acts. Also clear from the Directive's definitions is that the member can then rebut that presumption, without recanting the original statement, by convincing the factfinder that although he has a homosexual orientation, he is not likely to engage in homosexual acts. Because the directive makes a meaningful distinction between an unrecanted statement of homosexual orientation, on the one hand, and a propensity to engage in homosexual acts, on the other, the possibility of rebutting the presumption is, on the face of the directive, no longer illusory. Theoretically, then, a service member could trigger the presumption by stating that he was gay, but then rebut the presumption by showing that he was not likely to engage in homosexual acts. Thus, the entire "Don't Ask, Don't Tell" plan, including the implementing Directive, appears on its face to provide service members with an opportunity to rebut the presumption without having to recant the triggering statement of homosexuality. From this, it follows that the plan is aimed at conduct and is not a speech restriction.
This conclusion does not end the inquiry, for Thorne contends that the manner in which the plan, including the Directive, operates in practice allows no rebuttal of the presumption short of recantation. More specifically, his contention is that although the Directive creates a theoretical possibility of rebutting the presumption without recanting the statement that triggered the presumption, the DOD has applied the Directive in a manner that makes the presumption irrebuttable in practice. Assessing this aspect of Thorne's challenge requires a factual inquiry into the manner in which § 654 and Directive 1332.20 have been implemented in practice.
Unfortunately, the current record is too sparse to permit a confident conclusion on this issue. For its part, the government offered the affidavit of Navy Commander Robert P. Monahan, who is the Assistant Division Director of the General Litigation Division in the Navy's Office of the Judge Advocate General. Monahan states that as of May 15, 1994, discharge proceedings had been instituted against eleven service members *1367 because they had stated they were homosexual or bisexual, and that five of the members had rebutted the presumption. But he does not go on to describe the facts of those cases, so it is impossible to know whether the members rebutted the presumption by recanting their original statements or in some other manner. At the hearing on this matter, counsel for the government admitted she was not familiar with the facts of the five cases, but thought that in one or two of the cases the member rebutted the presumption by testifying "that he was confused about his sexuality and had perhaps decided that he was not inclined or likely to engage in any homosexual conduct because he wasn't really sure what his preference was." Statements of this sort, of course, are essentially recantations.
Although government counsel was unsure about the facts of these cases, a newspaper report reflects that one service member who stated that she was a lesbian was retained even though she did not recant her statement. It appears she was found to have rebutted the presumption merely by testifying that she had not engaged in homosexual activity in the service in the past and would not do so in the future. See Reynolds Holding, Navy Quits Trying to Boot Lesbian Officer, S.F. Chron., June 16, 1995, at A16. This result seems contrary to the intention of the drafters of the "Don't Ask, Don't Tell" plan as that intention is reflected in the committee hearings. Policy Concerning Homosexuality in the Armed Forces: Hearings before the Senate Committee on Armed Services, 103d Cong., 2d Sess. 772 (1993); Assessment of the Plan to Lift the Ban on Homosexuals in the Military: Hearings on H.A.S.C. No. 103-19 Before the Military Forces and Personnel Subcommittee of the House Committee on Armed Services, 103d Cong., 1st Sess. 200 (1993). Nonetheless, the case, if true, supports the notion that the presumption, as a matter of practice, can be rebutted. If the DOD in fact applies the plan in a manner consistent with the definitions in the Directives, then the plan would not implicate the First Amendment, for it would amount to a government regulation aimed at a service member's conduct. The service member's speech would merely serve as the trigger for the process. See Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985) (court upheld against First Amendment challenge a government policy whereby person's statement of intent not to register with the Selective Service System triggered an investigation and possible prosecution).
Yet, whether the DOD in fact administers the plan in a manner that allows the presumption to be rebutted short of a recantation is in doubt in light of a memorandum issued by Judith Miller, general counsel for the DOD, after the decision to retain the lesbian Navy officer. See Rowan Scarborough, Pentagon Memo Removes Winning Defense for Gays, Wash. Times, December 29, 1995, at A3. In that memorandum, Ms. Miller indicated that a service member's argument that her statement of homosexuality was merely a statement of orientation and not of conduct should not be interpreted by administrative boards as a successful defense. If this memorandum accurately reflects the current DOD enforcement policy, then it may well be that nothing short of a recantation of the original statement would cause an administrative board to find that the presumption had been rebutted. In that case, the "Don't Ask, Don't Tell" plan would amount to the rule that if a service member says he is gay, he will be discharged, unless he convinces the board that he is not gay. Because a service member's retention in the services would turn on whether or not he states that he is gay, the plan would amount to a restriction on that member's speech, rather than a regulation of his conduct.
In sum, the current record precludes a confident conclusion concerning whether the "Don't Ask, Don't Tell" plan, as enforced, affords openly gay service members with a meaningful opportunity for rebuttal of a presumption created by speech. Accordingly, by order entered contemporaneously with this Memorandum Opinion, the Court directs the parties to supplement the record with facts to enable the Court to determine the extent to which the presumption is rebuttable in practice without a recantation.
*1368 In any event, it is useful at this point to consider whether the constitutionality of the "Don't Ask, Don't Tell" plan actually turns on the manner in which the plan is applied. The government contends that it does not, because even if the plan amounts to a restriction on speech rather than on conduct, it passes First Amendment muster. Assuming arguendo, that the plan amounts to a speech restriction, the analysis of the plan's constitutionality proceeds in three steps. First, it must be determined whether the restriction is content-based or content-neutral, as this controls the appropriate level of judicial scrutiny. Next, because this is a novel context, the appropriate level of scrutiny must be identified. Finally, the plan must be examined using the appropriate level of scrutiny to ascertain whether it passes muster.
C. Content-Based or Content-Neutral
Assuming, arguendo, that the "Don't Ask, Don't Tell" plan is a speech restriction, the next question is whether the regulation is content-based or content-neutral. The question is significant because if the restriction is content-neutral, it will be subjected to a significantly lower degree of judicial scrutiny than if it is a content-based restriction.
In general, "laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based." Turner Broadcasting System, Inc. v. F.C.C., ___ U.S. ___, ___, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497 (1994). The "Don't Ask, Don't Tell" plan is plainly a content-based restriction because it identifies the speech that triggers the presumption on the basis of the content of that speech. Service members who say, "I am a heterosexual" or who say nothing at all are not subject to dismissal, but those who say "I am a homosexual" are subject to dismissal. See, e.g., Boos v. Barry, 485 U.S. 312, 318-19, 108 S. Ct. 1157, 1162-63, 99 L. Ed. 2d 333 (1988) (plurality opinion) (holding municipal ordinance that determines whether picketing in front of foreign embassies is permitted on the basis of whether the picket signs are critical of the foreign government to be content based).
The government, citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986), contends that the plan is nonetheless a content-neutral restriction because it is aimed not at the speech itself, but at the "secondary effects" of the speech. In Renton, a city ordinance prohibited adult movie theatres from locating within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Although the ordinance placed no restrictions on the location of theatres showing other types of movies, the Supreme Court held that the restriction was properly analyzed as a content-neutral time, place, and manner regulation because it was aimed not at the content of the films shown "but rather at the secondary effects of such theaters on the surrounding community." Id. at 47, 106 S.Ct. at 928. The ordinance was purportedly designed to "prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of life" in the city, and was therefore "justified without reference to the content of the regulated speech." Id. at 48, 106 S.Ct. at 929 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 1830, 48 L. Ed. 2d 346 (1976) (emphasis added)). Similarly, argues the government here, the "Don't Ask, Don't Tell" plan is justified on the basis of the disruptive effect associated with a service member's statement that he is a homosexual, such as impairment of unit cohesion and military preparedness. This argument is unpersuasive; it stretches the "secondary effects doctrine" too far. The Supreme Court has made clear that "[l]isteners' reactions to speech are not the type of "secondary effects' ... referred to in Renton. ... The emotive impact of speech on its audience is not a `secondary effect.'" Boos, 485 U.S. at 321, 108 S.Ct. at 1164 (refusing to apply Renton to ordinance making it unlawful to carry outside a foreign embassy a picket sign displaying a message critical of that foreign government); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 394, 112 S. Ct. 2538, 2549, 120 L. Ed. 2d 305 (1992) (refusing to apply Renton to statute that prohibited the display of a symbol which one knows to arouse anger, alarm, or resentment in others *1369 on the basis of race, color, creed, religion, or gender). Similarly, the government here cannot defend the "Don't Ask, Don't Tell" statutory plan by asserting that it is aimed not at the statement "I am gay," but at the psychological impact that statement has on those who hear it. See Boos, 485 U.S. at 321, 108 S.Ct. at 1164 ("[I]f the ordinance [in Renton] was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate.").
D. Appropriate Level of First Amendment Scrutiny
The next step in the analysis is to identify what level of judicial scrutiny the statute and regulation must survive in order to pass constitutional muster. Ordinarily, content-based speech restrictions are subject to "strict scrutiny," surviving only if the government "show[s] that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 118, 112 S. Ct. 501, 509, 116 L. Ed. 2d 476 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231, 107 S. Ct. 1722, 1728, 95 L. Ed. 2d 209 (1987)). Such restrictions are subjected to this most exacting scrutiny because they "rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." Simon & Schuster, 502 U.S. at 116, 112 S.Ct. at 508. And this is of constitutional significance because "[t]he First Amendment reflects a `profound national commitment' to the principle that `debate on public issues should be uninhibited, robust, and wideopen.'" Boos v. Barry, 485 U.S. 312, 318, 108 S. Ct. 1157, 1162, 99 L. Ed. 2d 333 (1988) (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 720, 11 L. Ed. 2d 686 (1964) (citations omitted)). But this rationale does not apply with equal force in the military context, for the "military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps." Goldman, 475 U.S. at 507, 106 S.Ct. at 1313. Thus, it is well settled that judicial review "of military regulations challenged on First Amendment ground is far more deferential than constitutional review of similar laws or regulations designed for civilian society." Goldman v. Weinberger, 475 U.S. 503, 507, 106 S. Ct. 1310, 1313, 89 L. Ed. 2d 478 (1986).[8]
While it is clear that the traditional strict scrutiny standard is inappropriate in this context, it is unclear exactly what standard should apply. No case has explicitly defined the appropriate level of scrutiny to be applied to a content-based restriction on speech in the military context. The parties commend to the Court standards divined from the Supreme Court's holdings in Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986) and Brown v. Glines, 444 U.S. 348, 100 S. Ct. 594, 62 L. Ed. 2d 540 (1980). Those cases are inapposite, however, because each involved military regulations that were content-neutral.[9] Nor *1370 does it appear appropriate to adopt the First Amendment "intermediate scrutiny" test, which applies to time, place, and manner restrictions, a category of restrictions into which the "Don't Ask, Don't Tell" plan does not fall.[10] And it also seems inappropriate to attempt to apply some level in between, for unlike the traditional three levels of scrutiny in the equal protection context, the tests of strict scrutiny and intermediate scrutiny in the First Amendment context do not represent points along a continuum of judicial review. Rather, the two standards are more different in quality than in degree, reflecting the fact that they apply to two different types of speech restrictions. The strict scrutiny test is applied to restrictions in which the government discriminates on the basis of the content of speech, whereas the intermediate scrutiny test is applied to content-neutral time, place, and manner restrictions. In other words, the intermediate scrutiny standard, unlike its equal protection counterpart, does not represent a more deferential version of the strict scrutiny standard, but is instead a standard fashioned to fit the task of reviewing restrictions different in nature from the restrictions the plan embodies. By contrast, the strict scrutiny standard is fit for reviewing the category of restriction into which the plan falls, but it is not tailored to do so because it takes no account of the plan's military context and the judicial deference this entails. From this, it follows, sensibly, if not inevitably, that the appropriate level of scrutiny should be a moderated version of strict scrutiny.
Strict scrutiny requires a reviewing court to inquire into whether the speech restriction is "necessary to serve a compelling state interest." Simon & Schuster, 502 U.S. at 118, 112 S.Ct. at 509. Moderating that standard somewhat to allow for deference to the military would indicate that instead of being "necessary" to the achievement of government objectives the "Don't Ask, Don't Tell" plan need only "substantially further" those goals. And rather than the governmental interest being "compelling," they need only be "important." This yields the result that a content-based regulation in the military context must substantially further an important governmental interest in order to pass First Amendment muster. Notably, this standard is quite similar to the intermediate scrutiny standard in the equal protection context. See, e.g., Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914 ("substantially related to an important governmental objective"); Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct. 451, 456, 50 L. Ed. 2d 397 (same). Such a resemblance is to be expected, for in the equal protection context, the intermediate scrutiny standard was intended to be a standard of review similar in quality, but more deferential in degree than the traditional strict scrutiny standard applicable to suspect classifications.
E. Application of Heightened Scrutiny
It remains to determine whether the "Don't Ask, Don't Tell" plan survives this moderated heightened scrutiny. The proffered governmental interest for the plan is to maintain military readiness by preserving "unit cohesion." Specifically, the government identifies three aspects of that goal: (i) preserving privacy among service members, (ii) minimizing sexual tension, and (iii) preventing unit polarization. There can be little dispute that these interests are "important," and Thorne concedes as much. The more difficult question is whether the "Don't Ask, Don't Tell" plan "substantially furthers" those interests. For this task, it is necessary to examine the plan in the light of each of the three specific interests identified by the government.
*1371 First, does the "Don't Ask, Don't Tell" plan substantially further the goal of protecting the privacy of service members? The government's position is that it invades the privacy of service members to require them to live, sleep, and shower with those who may find them sexually attractive. While this may be true, the particular statute that Congress chose to enact nonetheless does not substantially further the goal of privacy, for it does not in fact protect the privacy of heterosexuals by keeping "their naked bodies safe in the showers from the stares of homosexuals." Able v. United States, 880 F. Supp. 968, 978 (E.D.N.Y.1995). Gays are allowed to serve.[11] Gays are allowed to shower with heterosexuals. A heterosexual knows that homosexuals are serving and showering in the military. Indeed, heterosexuals do not even have the dubious benefit of being oblivious as to whether their shower mates are homosexual, because the Directive explicitly states that the "rebuttable" presumption is not triggered by "associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals, or marching in a gay rights rally in civilian clothes." DOD Directive 1332.30 at 8-1; see also S.Rep. No. 112, 103d Cong., 1st Sess. 292 (1993). Thus, for example, a heterosexual service member may be required to share bath facilities with a member of the same gender who has been seen marching in a gay rights parade in civilian attire.
The government does not adequately answer this point, relying instead on the congressional testimony of distinguished witnesses to the effect that privacy is threatened by homosexuals serving in the military. But these statements, while they might support an outright ban on gays in the military, do not explain how the privacy of heterosexual soldiers is promoted by a statutory and regulatory plan that simply requires a gay soldier to refrain from speaking the words "I am gay." For example, General Colin Powell was quoted in a Senate Report as stating:
[I]t is very difficult in the military setting, where you don't get a choice of association, where you don't get a choice of where you live, to introduce a group of individuals who are proud, brave, loyal good Americans, but who favor a homosexual lifestyle, and put them in with heterosexuals who would prefer not to have someone of the same sex find them sexually attractive, put them in close proximity, [and] ask them to share the most private facilities together, the bedroom, the barracks, the latrines, and showers.
S.Rep. No. 112, 103d Cong., 1st Sess. 283 (1993). Accordingly, the Senate Committee concluded that in "civilian life people are not compelled to live with individuals who are sexually attracted to persons of the same sex, and the committee finds no military necessity to compel persons to do so in the military." Id. at 281. This, of course, is exactly what the current statute and regulations do compel. A plan that allows gays to serve in the military as this one does contemplates that gays in fact will serve. These comments, and others like them in the legislative history, simply do not explain how or in what way the privacy interests of service members are furthered by the practice of discharging vocal homosexuals while allowing known, yet silent homosexuals to serve.
Second, does the "Don't Ask, Don't Tell" plan substantially further the goal of minimizing sexual tension? The government contends that sexual tension is destructive in the military context because it is distracting. No one can plausibly disagree with this proposition. Indeed, it is for this reason, in part, that the military provides separate barracks for men and women. The government points to testimony that:
With openly gay and heterosexual personnel together, sexual tension would fester 24 hours a day in deployed military units *1372 and ships. Romantic interests, even if unconsummated, would shatter the bonds that add up to unit cohesion.
Bernard E. Trainor & Eric L. Chase, Keep Gays Out, N.Y. Times, March 29, 1993, at A15, quoted in, Policy Concerning Homosexuality in the Armed Forces: Hearings before the Senate Committee on Armed Services, 103d Cong., 2d Sess., 307 (1993) (statement of Sen. Warner). But even granting that sexual tension is destructive of unit cohesiveness, it is hard to see how the "Don't Ask, Don't Tell" plan furthers minimizing sexual tension in the military. The government has not explained how the exclusion of a service member who says "I am gay" while tolerating silent homosexuals serves to reduce or minimize sexual tension in the ranks. Indeed, it may plausibly be argued, that the opposite is true. By the government's own logic, the silent gay will experience some degree of sexual tension, unconsummated though it might be. Indeed, when one considers that soldiers are permitted to march in gays rights parades and engage in other activity that indicates a likelihood that one is gay without triggering the presumption, it is difficult to see how sexual tension is reduced by banning speech that amounts to the three words "I am gay."
Finally, does the "Don't Ask, Don't Tell" plan substantially further the goal of preventing unit polarization? The government argues that when an openly gay soldier is allowed to serve, that soldier's unit polarizes, with those who oppose gays serving in the military on one side, and those who support their service on the other. Such polarization, argues the government, threatens military effectiveness. No doubt polarization of any sort[12] hampers a unit's cohesiveness and hence its military effectiveness. Yet, once again, the "Don't Ask, Don't Tell" plan fails substantially to further the goal of preventing such polarization. The Directive explicitly allows the service of a homosexual who does not disclose his sexual orientation, but who nonetheless reads gay literature, frequents gay bars, and marches in gay rights parades. It also allows the service of one who refuses to reveal his or her sexual orientation, but who nonetheless vociferously advocates for the right of gays to serve. Both of these persons would cause substantially the same degree of debate, unrest, and polarization as that caused by a person who actually stated he was gay. Discharging only those who make the statement, "I am gay" does not substantially further the prevention of unit polarization.
In sum, requiring that service members "Don't tell," while still permitting homosexuals to serve does not substantially further any of the proffered goals of the "Don't Ask, Don't Tell" plan. Accordingly, if the record, as supplemented by the parties, were to reflect that the "Don't Ask, Don't Tell" plan is implemented in practice in such a way as to make the presumption irrebuttable, then § 654(b)(2) and its accompanying regulations would constitute a content-based restriction on speech that fails heightened scrutiny and therefore violates the First Amendment.
An appropriate order will issue.
NOTES
[1] A number of district courts have considered this question, reaching different conclusions on a variety of grounds. Compare Richenberg v. Perry, 909 F. Supp. 1303 (D.Neb.1995) (upholding plan against First Amendment challenge) and Selland v. Perry, 905 F. Supp. 260 (D.Md.1995) (same) and Thomasson v. Perry, 895 F. Supp. 820 (E.D.Va.1995) (same) and Philips v. Perry, 883 F. Supp. 539 (W.D.Wash.1995) (same) with Able v. United States, 880 F. Supp. 968 (E.D.N.Y.1995) (striking plan down as violative of the First Amendment). None proceeds along quite the same path as that followed in this memorandum opinion. Also, no circuit court has yet weighed in on the issue, although the Able case is on appeal in the Second Circuit and the Fourth Circuit has heard the Thomasson case en banc.
[2] The statute also calls for the separation of a service member in the following circumstances:
(1) [T]he member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings, made and approved in accordance with procedures set forth in [the] regulations, that the member has demonstrated that
(A) such conduct is a departure from the member's usual and customary behavior;
(B) such, conduct, under all the circumstances, is unlikely to recur;
(C) such conduct was not accomplished by use of force, coercion, or intimidation;
(D) under the particular circumstances of the case, the member's continued presence in the armed forces is consistent with the interests of the armed forces in proper discipline, good order, and morale; and
(E) the member does not have a propensity to engage in homosexual acts; [or]
(3) [T]he member has married or attempted to marry a person known to be of the same biological sex.
10 U.S.C. § 654(b)(1) & (3). Those aspects of the statutory plan are not at issue in this case.
[3] Directive 1332.14, which applies to enlisted personnel, and Directive 1332.30, which applies to officers, are substantially similar. Because Thorne, as an officer, was governed by Directive 1332.30, only that Directive will be referred to in the course of this opinion.
[4] The statute defines "homosexual act" as "(A) any bodily contact, actively undertaken or passively permitted, between members of the same sex for the purpose of satisfying sexual desires; and (B) any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in an act described in subparagraph (A)." 10 U.S.C. § 654(f)(3).
[5] This tautology was recognized during the legislative debates preceding the statute's enactment. As Representative Roscoe G. Bartlett explained:
[A service member] has to prove that he did not have a propensity. And I looked up propensity in the dictionary, and unless you have a different dictionary, if he doesn't have a propensity, he is not a homosexual. So if he says he is a homosexual, but now to clear himself he has to prove that he, in fact, lied to you about that, he is not homosexual; that is what propensity says.
Assessment of the Plan to Lift the Ban on Homosexuals in the Military: Hearings on H.A.S.C. No. 103-19 Before the Military Forces and Personnel Subcommittee of the House Committee on Armed Services, 103d Cong., 1st Sess. 200 (1993).
[6] The legislative history accompanying the passage of the "Don't Ask, Don't Tell" plan embodied in § 654 supports the conclusion that on the face of the statute only a recantation rebuts the presumption. For example, the Report of the Senate Committee on Armed Services states that:
The committee intends that this provision be interpreted in accordance with the following points ...
....
Second, a member cannot rebut the presumption simply through a promise to adhere to military standards of conduct in the future; nor can the member rebut the presumption by a statement to the effect that he or she has a propensity towards homosexuality but has not acted on it.
Third, if the member in rebuttal offers evidence to the effect that he or she does not engage in homosexual acts or have a propensity or intent to do so that does not shift the burden to the Government. Because the burden remains on the service member throughout the proceeding, the member bears the burden of persuading the fact finder by a preponderance of the evidence that the rebuttal is more credible than the original statement (e.g., by proving that the original statement was made in jest).
S.Rep. No. 112, 103d Cong., 1st Sess. 294 (1993) (emphasis added).
And during the Senate hearings on the "Don't Ask, Don't Tell" statute, Jamie Gorelick, then general counsel for the Department of Defense, confirmed that a declarant who recanted might succeed in rebutting the presumption. She also noted that it was "hypothetically" possible for one to have a homosexual orientation with having a propensity to engage in homosexual acts, but she did not explain during those hearings how a service member could rebut the presumption short of retracting the original statement. When she was asked whether the statement "I am a homosexual but I have no intent or desire to engage in homosexual acts and I have never engaged in homosexual acts" would be enough to rebut the presumption, Ms. Gorelick answered:
It is hypothetically possible that ... a decision-making authority could take that assertion to be sufficient. For example, if that assertion is essentially, I was misunderstood, I did not mean it, it was a joke. I mean it could hypothetically suffice.
In the real instance that I believe you are trying to get at, Senator, in which someone made the statement knowingly and was not drunk or had not lost his or her mind, it seems to me it is very very unlikely that the mere assertion that I am not engaged in acts, I do not have such a propensity or intent, would be sufficient to carry that burden ... which ... is a very high burden....
Policy Concerning Homosexuality in the Armed Forces: Hearings before the Senate Committee on Armed Services, 103d Cong., 2d Sess. 772 (1993).
[7] Under the "Don't Ask, Don't Tell" plan, then homosexual males and females are allowed to serve in the military provided they "don't tell", that is provided they do not state that they are gay. Under the previous plan, homosexuals could not serve; they were barred on the basis of their status, not their speech. Thus, the cases upholding the previous policy against First Amendment challenges are inapposite here. See, e.g., Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994); Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied, 494 U.S. 1004, 110 S. Ct. 1296, 108 L. Ed. 2d 473 (1990).
[8] It is worth making clear that the deference in the particular circumstances of this case is to the judgment of the DOD concerning military matters, including what factors affect military readiness and effectiveness. Yet, in the case of the "Don't Ask, Don't Tell" plan, it may be plausibly argued that the plan was not solely the product of DOD's military judgment, which surely warrants deference, but is instead the product of a political compromise made with one eye on DOD's military judgment and the other on the next election, a circumstance arguably entitled to less, if any, judicial deference. But this notion, while plausible, is too speculative to serve as a basis for a judgment about the proper degree of judicial deference and has played no role in this decision.
[9] In Glines, the Supreme Court upheld on a First Amendment challenge Air Force regulations requiring service members to obtain prior approval from the base commander before circulating petitions on base. The Supreme Court held that the regulation passed constitutional muster because it "restrict[ed] speech no more than [was] reasonably necessary to protect the substantial governmental interest." 444 U.S. at 355, 100 S.Ct. at 599. In Goldman, the Court considered the constitutionality of an Air Force regulation restricting the wearing of non-military headgear. The regulation was challenged by an officer who wished to wear a yarmulke, non-military headgear prohibited by the regulation. The Supreme Court upheld the regulation, stating that the restriction "reasonably and evenhandedly regulate[d] dress in the interest of the military's perceived need for uniformity." 475 U.S. at 510, 106 S.Ct. at 1314.
[10] Under this standard, time, place, and manner restrictions on speech survive First Amendment scrutiny provided they "are justified without reference to the content of speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984)).
[11] History confirms that homosexuals have served as ably, as effectively, and with the same measure of devotion to duty and heroism as have heterosexuals and hence that a person's merit as a soldier, sailor, airman, or marine is independent of the person's sexual orientation. In any event, no opinion is expressed here on whether a person's sexual preference or orientation, by itself and in the absence of proscribed conduct, could constitutionally serve as a basis for exclusion or separation from the military.
[12] Worth noting is that polarization deleterious to a unit's effectiveness could also arise as a result of disagreement among service members over a wide range of issues, including politics, race, ethnicity, and religion. One wonders in this regard whether this polarization contention would be persuasive in support of a "Don't Ask, Don't Tell" plan for Jews or for Muslims. Sexual tension and religious tension are different in nature, but no fair observer of human history could conclude that religious fervor and religious antipathies are less deeply felt and less potentially incendiary than sexual ones. Even so, a "Don't Ask, Don't Tell" plan for religious affiliations would never be proposed or tolerated and it would be instructive to understand why this is so. Perhaps an important reason is the quality of leadership in our society's many institutions. If the leaders of those institutions understood prejudice against homosexuals as a fiction born of ideology, then that view would eventually permeate society and eliminate any potential polarization stemming from the service of openly gay people in the military, just as leadership has helped, and continues to help, to ensure that attitudes among service members about religion and race tend to tolerance, not intolerance and hence to cooperative effort, not polarization.
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415 So. 2d 327 (1982)
Leroy H. SCOTT, Plaintiff-Appellant,
v.
COMMERCIAL UNION INSURANCE COMPANY, Defendant-Appellee.
No. 14882.
Court of Appeal of Louisiana, Second Circuit.
May 10, 1982.
*328 Harold D. Vaught, Shreveport, for plaintiff-appellant.
Cook, Yancey, King & Galloway by John D. Collinsworth, Shreveport, for defendant-appellee.
Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
FRED W. JONES, Jr., Judge.
Finding that an employee was not acting within the scope of his employment when he committed a battery upon plaintiff, the trial judge sustained a motion for a directed verdict filed on behalf of the employer's liability insurer and rejected plaintiff's demands for damages. Plaintiff appealed. Concluding that the trial judge's factual determination was not clearly wrong, we affirm.
Plaintiff's testimony was the only evidence presented at the trial dealing with the factual context of this litigation. It revealed that on March 12, 1974 plaintiff, a Shreveport attorney, visited the business premises of Columbia Equipment Company, Inc., in Bossier City, to check on repairs to his tractor; to confer with George Despot, a company official, about legal matters; and to discuss with Mercer, an employee, his wife's arrearages on a mortgage note held by plaintiff.
Upon learning from Despot that Mercer was the mechanic who had worked on his tractor, plaintiff went back into the shop area to contact that employee, who was pointed out to plaintiff by another worker. Plaintiff testified that he and Mercer began their conversation by discussing the nature of the repairs to the tractor. Deciding to inspect that piece of equipment, the two left the shop and started walking to the lot where the tractor was parked. At that point, plaintiff broached the subject of the delinquent note payments and inquired of Mercer what he and his wife planned to do about the arrearage. Mercer replied that they intended to vacate the mortgaged premises, adding that he knew plaintiff (who was legal counsel for the employer) could get him fired. Plaintiff denied any such intent. Thereupon, according to plaintiff, "out of a clear blue sky" Mercer struck him in the mouth with a can (described as about eight inches high and just smaller in diameter than a standard-sized oil can), causing the injuries for which plaintiff seeks damages.
Although Mercer was originally named as a defendant, he and plaintiff entered into a compromise agreement which resulted in a dismissal of the suit as to that defendant. Trial on the merits as to the remaining defendant, the employer's liability insurer, was had on October 14, 1981.
*329 An employer is liable for a tort committed by his employee if, at the time, the employee was acting within the scope of his employment. La.C.C. Art. 2320; Miller v. Keating, 349 So. 2d 265 (La.1977); LeBrane v. Lewis, 292 So. 2d 216 (La.1974).
An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objectives. Bradley v. Humble Oil & Refining Co., 163 So. 2d 180 (La. App. 4th Cir. 1964).
The particular facts of each case must be examined to determine whether the employee's tortious conduct was within the scope of his employment. Miller v. Keating, supra; Walters v. Sentry Insurance Co., 354 So. 2d 1087 (La.App. 2d Cir. 1978).
In the LeBrane case, supra, a supervisory employee stabbed another employee whom the assailant had just fired and was attempting to evict from the employment premises. Finding the employer vicariously liable, the court reasoned:
"The dispute which erupted into violence was primarily employment-rooted. The fight was reasonably incidental to the performance of the supervisor's duties in connection with firing the recalcitrant employee and causing him to leave the place of employment. It occurred on the employment premises and during the hours of employment.
"In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests. It can thus be regarded as within the scope of the supervisor's employment, so that his employer is liable in tort to third persons injured thereby."
Also see and compare Weysham v. New Orleans Public Service, Inc., 385 So. 2d 19 (La.App. 4th Cir. 1980); Posey v. Fabre, 369 So. 2d 237 (La.App. 4th Cir. 1979).
In this case, plaintiff stated that, just prior to being struck by Mercer, the two were discussing the delinquent status of the note secured by the mortgage on the property of Mercer's wife. Plaintiff candidly admitted in his testimony that this had nothing to do with Mercer's employment. Consequently, we do not find the trial judge committed manifest error in determining that "at the time the blow was struck ... they were discussing personal business" as opposed to an employment-related subject.
Since Mercer's striking plaintiff was "motivated by purely personal considerations entirely extraneous to the employer's interests", his tortious act was not committed within the scope of his employment; his employer is not vicariously liable for that conduct; and the trial judge correctly sustained the defendant insurer's motion for a directed verdict.
Plaintiff's argument on appeal that Despot's consent to plaintiff's discussion of a personal matter on employment premises with Mercer rendered the employer vicariously liable for Mercer's tort is without merit. The granting of this permission was apparently for the convenience of plaintiff and not for the furtherance of the employer's interests. There was no reason for the employer to anticipate that the conversation would provoke a violent reaction by the employee. Therefore, the battery committed by Mercer upon the plaintiff could not reasonably be regarded as "a risk of harm fairly attributable to the employer's business."
For these reasons, the judgment of the district court is affirmed, at appellant's cost.
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420 S.W.2d 882 (1967)
243 Ark. 516
Harold FISHER et al., Appellants,
v.
J. L. BRANSCUM, d/b/a Branscum Moving & Storage Company, Appellee.
No. 5-4328.
Supreme Court of Arkansas.
November 20, 1967.
*883 Louis Tarlowski, Little Rock, for appellants.
Claude Carpenter, Jr., Little Rock, and Reid, Burge & Prevallet, Blytheville, for appellee.
FOGLEMAN, Justice.
Appellants ask that we reverse the trial court's affirmance of an order of the Arkansas Commerce Commission authorizing the transfer of a certificate of public convenience and necessity. This certificate *884 for the transportation of household goods was issued to one Homer Fisher on March 16, 1955. It covered irregular routes between points in Arkansas, but all shipments were required to originate or terminate in Mississippi County. Fisher entered into a contract with appellee Branscum for the sale of these operating rights. The joint application of these parties was resisted by appellants, intrastate common carriers of household goods. Their protest was based upon the assertion that the certificate was dormant for failure to render reasonably continuous service. Consequently they contend that approval of the transfer is inconsistent with the public interest. One of the appellants held a virtually identical certificate which he had leased to Branscum.
Provision for transfer of certificates is contained in Ark.Stat.Ann. § 73-1767 (b) (Repl.1957). Transfer is prohibited when the Arkansas Commerce Commission finds that such action will be inconsistent with the public interest or where it appears that reasonably continuous service has not been rendered under the authority granted by the certificate prior to the application.
After a hearing on November 23, 1966, the Arkansas Commerce Commission approved the transfer. It found that the certificate had not been dormant within the meaning of § 14, Act 397 of 1955 (§ 73-1767). It made a specific finding that Homer Fisher had been ill for a considerable period of time and unable to attend to business such as he normally would have conducted had he not become ill, but that afterwards he had been attempting to carry on his business.
The scope of our review on appeals is governed by § 73-134. This section provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. The circuit court is required to review the order upon the record presented and to enter its finding and order thereon.
In the opinion in Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604, the variable, apparently inconsistent and sometimes confusing statements in some of our opinions with reference to the meaning and application of this statute were harmonized. It is now clear that the review therein provided for is that which we make in chancery cases. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W.2d 372. In doing this, we follow these rules:
1. The trial is de novo upon the record not as if no judgment had been rendered, but for the purpose of determining whether the judgment is against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481; Missouri Pacific RR. Co. v. Williams, 201 Ark. 895, 148 S.W.2d 644; Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604.
2. Neither the findings of the circuit court nor the findings of the Commission are binding on appeal, but we will not upset the findings of the Commission unless they are clearly against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S.W.2d 512; Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S.W.2d 716; Wisinger v. Stewart, supra; Washington Transfer & Storage Co. v. Harding, 229 Ark. 546, 317 S.W.2d 18.
3. In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission's findings because of its peculiar competence to pass upon the *885 fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing. St. Louis S.W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S.W. 1003; Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., supra; Schulte v. Southern Bus Lines, 211 Ark. 200, 199 S.W.2d 742; Wisinger v. Stewart, supra; Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S.W.2d 282; National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S.W.2d 672.
4. The burden is on the appellant to show that the judgment is erroneous. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481.
5. When the evidence is evenly balanced, the Commission's views must prevail. Boyd v. The Arkansas Motor Freight Lines, Inc., supra.
In short, this court's function is to inquire whether the determination of the Commission is contrary to the weight of the evidence. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W.2d 372. In so doing, we must not lightly regard the findings of the Commission. Superior Forwarding Co. v. Southwestern Transportation Co., 236 Ark. 145, 364 S.W.2d 785.
Appellants now urge that the order approving the transfer is not supported by substantial evidence. The basis of their contention is that there was not substantial evidence to show that reasonably continuous service under the authority granted Homer Fisher had been rendered prior to the application for transfer.
Branscum testified that: During the four or five years he had operated under the lease of Beckham's certificate to the extent that it had been necessary for him to purchase additional equipment and to start construction of a new warehouse; the population of the Blytheville area was increasing and industrial plants were moving in; he did considerable business because of the air base at Blytheville, and a lot of civilian moves were going on; to his knowledge, the only certificates for household goods carriers were those issued to Homer Fisher and three of the appellants, one of whom was previously Branscum's lessor. Branscum also testified, over the objections of the protestants, that he had reviewed the books and records of Homer Fisher and made a list of the moves the latter had made outside the city limits of Blytheville in the preceding two or three years. The list showed 23 moves outside the city limits of Blytheville in 1963, 19 in 1964, 17 in 1965, and 24 in 1966. Although he had access to information as to origin and destination, this was not shown on the list and it was very possible that most of the shipments during 1963 may have gone within a radius of a mile of Blytheville. He could not tell whether any of the moves on the list went to Little Rock or Texarkana or any other place in Arkansas. In the books he saw moves to Jonesboro and West Memphis.
Homer Fisher, at the time of the hearing, only owned one truck which he testified had been in operation continuously. He further testified that: He worked out of his home, a telephone there being listed in his name; he had two part time employees; he had no warehouse; he was personally in charge of the operation; he had transported one or two or maybe more shipments between various points and places in Arkansas and Mississippi County in 1966; they originated in Blytheville, one going to Jonesboro and one to West Memphis; he handled 24 or 34 shipments to points around the edge of Blytheville, but outside the city limits, over the preceding two years; he had brought one or two to Little Rock and some to West Memphis during the life of the permit; he had not been able to handle more than a very few shipments during the preceding two years because of illness; *886 he judged that there were five or six shipments under the permit in Mississippi County just outside the edge of Blytheville during the month of September 1966; to the best of his memory he handled movements under the permit in August 1966, but didn't know where they went; he had records that would show movements during each month of 1966, but did not have them with him; he moved one or two to Fort Smith and one to Prescott and moved into Jonesboro in 1966, but couldn't remember any others; the service he had rendered in 1965 had been less because he had been in the hospital most of the time; the bulk of his operations under the permit was conducted in the immediate vicinity of Blytheville; he drove his truck himself; he was advertising in the telephone book, in his front yard and on his truck, and by getting in contact with persons, making solicitations and trying to get business; he was incapacitated from July 1965, up until the first of September, but for the preceding two months he had been up and moving people.
Protestants offered no evidence pertaining to the issues.
We are unable to distinguish this case from Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S.W.2d 118. There the applicant for transfer was authorized to operate as a motor carrier of a wide range of commodities upon designated highway routes extending into every section of the state. It had been unable to exercise its authority to any great extent. It had only one terminal. Its rolling stock consisted of one truck, three tractors and four semi-trailers. It had carried only 39 shipments of freight during its thirteen-month existence, although it advertised for business and never refused any cargo tendered. The Commission found that reasonably continuous service had been rendered and this court affirmed. Language in that opinion which we here deem appropriate is as follows:
"* * * Inasmuch as the Commission's knowledge of its own specialized field is undoubtedly superior to ours, its judgment on a question of fact is not to be set aside unless clearly against the weight of the testimony. Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604. No difficult problems of law were presented to the Commission in this case. Whether there is a need for the whole range of facilities that might be made available under the Atlas certificate is not the question, for the issue of public convenience and necessity was determined when the permit was granted. Nor was Atlas required to show that it had fully utilized the possibilities lying at its disposal; no law or regulation requires that a motor carrier systematically travel over all its territory with trucks that are empty for want of business.
* * * [T]he Commission was warranted in concluding that the Atlas certificate has not been dormant. This little company, with relatively modest assets, held itself in readiness to render service, advertised its existence, and accepted whatever business was offered. Under the statute complaint might have been made that it was not transporting `all the commodities authorized * * * over all the routes authorized', Ark.Stats., § 73-1715; but no such complaint was lodged by the Commission, the public or any competing carrier. In this proceeding the issue is narrowed to whether the company's service has been reasonably continuous; the Commission's affirmative answer is not contrary to the evidence."
In this case, too, the certificate might have been revoked by the Commission upon complaint of any of the protestants, or upon its own motion, on the very ground of appellants' protest. See § 73-1767(a). The fact that no such action was instituted could well be the basis for an inference that appellants' anxiety about the transfer is due to the prospect of a more active utilization of the authority by a healthy proprietor. Appellants argue in *887 their brief that we ought not to permit a change in the competitive situation in Blytheville and say that they are willing for Fisher to continue operations under the certificate. According to the opinion in the cited case, such a change is not a basis for a finding that the transfer is inconsistent with the public interest.
As a point for reversal, appellants allege error in the admission of the lists prepared by Branscum from the Fisher books. Since they were not business records kept in the ordinary course of business, they contend that these exhibits were not inadmissible under either the best evidence rule or Ark.Stat.Ann. § 28-928 (Repl. 1962). Appellants' argument on this point is interwoven into, and forms a part of the basis for, their contention that there is not substantial evidence to support the Commission's findings. Even without these lists, the testimony would have been sufficient to meet the test laid down in the Howard case. Furthermore, it is not always necessary or advisable that boards, commissions and agencies of the nature of the Commerce Commission be required to adhere strictly to the rules of evidence governing courts in jury trials. See Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S.W.2d 291. The necessity for strict adherence to rules of evidence by this Commission has also been eliminated by statute. The Arkansas Commerce Commission came into existence by virtue of Act 132 of 1957 (§§ 73-151 to §§ 73-162). Under that Act all authority, powers, duties, privileges and jurisdiction of the Arkansas Public Service Commission with respect to regulation of carriers were expressly conferred on the new Commission. We have recognized that procedure on appeals from the Commerce Commission is governed by the statutes which applied to the Arkansas Public Service Commission as the successor to the Corporation Commission which, in turn, was the successor to the Railroad Commission. See Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604. By the same process of reasoning, the statute on rules of evidence governing the Public Service Commission while it had jurisdiction of matters pertaining to carriers should be applied. These rules were set out as a part of the same Act which changed the name of the Arkansas Corporation Commission to Arkansas Public Service Commission. Act 40 of 1945. Subsection A of § 2 of that Act (§ 73-127) provides that the Commission shall not be bound by the strict technical rules of evidence, but may exercise such discretion as will facilitate its efforts to ascertain the facts bearing upon the right and justice of the matters before it. We cannot say that the Commission abused its discretion in admitting the evidence attacked.
The uncontradicted evidence offered by appellee is not too insubstantial to support the findings of the Commission. The judgment is affirmed.
HARRIS, C. J., and GEORGE ROSE SMITH and BROWN, JJ., dissent.
DISSENTING OPINION
BROWN, Justice (dissenting).
There is no substantial evidence to show that Homer Fisher rendered reasonably continuous service prior to the application for transfer. To the contrary, his own testimony shows the certificate was practically dormant.
Homer Fisher obtained his permit in 1955. He was authorized as a common carrier to transport household goods over the public highways throughout the State. The only restriction on carriage was "that all shipments must originate or terminate within Mississippi County, Arkansas." The history of his operation for the past four years indicates that practically all of his hauling was confined to Blytheville and the immediate vicinity. In those operations it should be pointed out that he needed no permit from the Commission. Ark.Stat. Ann. § 73-1758 (Repl. 1957). Transportation within a municipality "or within a *888 commercial zone" is exempt from the permit requirements. The term "commercial zone" refers to any municipality and the area outside its corporate limits which is prescribed by the Interstate Commerce Commission as a commercial zone. Under the commercial zone table established by the ICC, the "Blytheville Zone" consists of the municipality and all unincorporated areas within four miles of its corporate limits. Code of Federal Regulations (1942) § 170.16(3).
As to trips outside the city limits of Blytheville, appellee's testimony was to the effect that Fisher made twenty-five such trips in 1963, nineteen in 1964, seventeen in 1965, and twenty-four in 1966. But of these trips, appellee offered proof of only four such trips being made beyond the Blytheville area within the last two years. Those consisted of trips to Jonesboro, Fort Smith, Prescott, and possibly West Memphis. In dscribing all other trips outside of Blytheville city limits, these expressions described the distance of these hauls: "just out of the edge of Blytheville," and "in the immediate vicinity of Blytheville."
The majority opinion gives credit to Homer Fisher for trips made within the commercial zone of Blytheville. Fisher is clearly not entitled to that credit.
The apparent failure of Homer Fisher to render a reasonably continuous service outside the Blytheville zone may well have been caused, in part, by his limited facilities. He possessed only one trucka 1948 model which he acquired secondhand; it had a fifteen foot van-type bed, six to seven feet in width; he had no warehouse; he used his home as his headquarters; and he had two part-time employees. Homer testified that he was in the hospital during part of 1965, indicating that his illness affected his business. However, in that year he was able, according to his testimony, to do more local hauling than during any of the reported four years.
I cannot agree with the majority in making a favorable comparison of this case with Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S.W.2d 118 (1955). Fisher possessed by way of equipment one secondhand truck of ancient vintage; Howard's rolling stock consisted of a truck, three tractors, and four semitrailers. Howard maintained a terminal at Pine Bluff; Fisher operated from his home. In the thirteen months prior to the Commission's hearing in the Howard case, Howard transported thirty-nine shipments into most of the counties in which he was authorized to operate; in a two-year period, Fisher made only four trips under his permit authority.
Finally, I cannot agree with the majority that "when the evidence is evenly balanced the Commission's views must prevail." That statement is taken from an opinion written by Chief Justice Griffin Smith. Boyd v. Arkansas Motor Freight Lines, 222 Ark. 599, 262 S.W.2d 282 (1953). The statement is clearly dictum. It weakens the salutary attempt of the majority opinion to clarify our scope of review. Furthermore, I cannot conceive it to be the law; in hearings before the Commission, one of the parties has the burden of proof. How can we say the burden is met "when the evidence is evenly balanced?"
HARRIS, C. J., and GEORGE ROSE SMITH, J., join in dissent.
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420 S.W.2d 643 (1967)
Robert McELHANEY, Plaintiff in Error,
v.
STATE of Tennessee, Defendant in Error.
Supreme Court of Tennessee.
November 3, 1967.
*644 H. J. Garrett and J. Stanley Rogers, Manchester, Garrett, Shields & Rogers, Manchester, of counsel, for plaintiff in error.
George F. McCanless, Atty. Gen., and Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error. Fred Gilliam, Dist. Atty. Gen., Manchester, prosecuted the case for the State in the trial court.
OPINION
CRESON, Justice.
On September 9, 1966, the plaintiff in error, hereinafter referred to as defendant, was convicted of murder in the second degree and sentenced to serve not more than ten years in the State Penitentiary. The homicide resulted from a two-car automobile accident. Evidence was presented that the defendant, the driver of one of the cars, was under the influence of alcohol to an advanced degree.
A motion for new trial was filed, argued, and overruled. An appeal has been timely perfected to this Court.
The defendant assigns as error, and argues, that the trial judge committed reversible error when he failed to give his written charge to the jury upon their retirement; to be used by them during their deliberation. The record leaves no question but that the charge was merely laid aside after it was read; and it was never given to the jury as it retired to the jury room. The defendant urges that, had the jury had access to the written charge while in the jury room, they would have returned a verdict for one of the lesser offenses embraced in the offense charged, second degree murder. We must concede that this is plausible argument for counsel to make; however, there is obviously inherent in it *645 the element of speculation. The Court has no right to indulge in this.
The defendant's primary contention is one of law and bottomed on the language of T.C.A. § 40-2516, which delineates the manner in which the judge's charge to the jury is to be handled in a felony case:
"40-2516. Charge in writing in felony cases. On the trial of all felonies, every word of the judge's charge shall be reduced to writing before given to the jury, and no part of it whatever shall be delivered orally in any such case, but shall be delivered wholly in writing. Every word of the charge shall be written, and read from the writing, which shall be filed with the papers, and the jury shall take it out with them upon their retirement." (Emphasis added).
This Court has held, numerous times, that the provisions of this statute are mandatory in nature. Because of the prevalence and importance of the problem presented in this case, the Court has deemed it proper to make a critical reanalysis of all prior decisions with reference to the above statute.
Throughout all of our cases, there is to be found no semblance of a disposition on the part of the Court to regard any failure to meet the requirements of this statute, respecting the general charge, as anything but reversible error. Manier v. State (1872) 65 Tenn. 595; Newman v. State (1873) 65 Tenn. 164; State v. Becton (1874) 66 Tenn. 138; State v. Bungardner (1874) 66 Tenn. 163; Duncan v. State (1874) 66 Tenn. 387; Frady v. State (1875) 67 Tenn. 349; State v. Missio (1900) 105 Tenn. 218, 58 S.W. 216; Munson v. State (1919) 141 Tenn. 522, 213 S.W. 916; Humphreys v. State (1933) 166 Tenn. 523, 64 S.W.2d 5; Adcock v. State (1951) 191 Tenn. 687, 236 S.W.2d 88; Pedigo v. State (1951) 191 Tenn. 691, 236 S.W.2d 89; Black v. State (1956) 201 Tenn. 15, 296 S.W.2d 833; Tomlin v. State (1960) 207 Tenn. 281, 339 S.W.2d 10; Taylor v. State (1963) 212 Tenn. 187, 369 S.W.2d 385; Gamble v. State (1964) 215 Tenn. 26, 383 S.W.2d 48; Keith v. State (1966) 218 Tenn. 395, 403 S.W.2d 758; Bolin v. State (1966) Tenn., 405 S.W.2d 768.
The early case of Duncan v. State, supra, is factually identical to the situation presented on this appeal. There, it was held that the failure to have the jury take the written charge with them for deliberation constituted reversible error. That opinion admirably reflects the importance attached to this statute, both by its framers and by the judiciary:
"The primary object of the law is to have the charge so delivered that there can be no misunderstanding between the court and counsel as to the instructions given to the jury, and none by the jury. In practice such differences have frequently arisen, and it has sometimes happened that jurors, after concurring in a verdict, have afterwards sought to have it set aside, upon the plea that the charge of the court was misunderstood." 66 Tenn. 387, 388-389.
Other early cases similarly noted the importance of the statute to the achievement of a fair trial. In Manier v. State, supra, the purpose, intent, and mandatory nature of the statute are succinctly stated:
"The strict observance of this wholesome statute cannot but be beneficial to the public and to the criminal jurisprudence of the State. It was intended to secure to the prisoner and the State a sound exposition of the law, upon careful thought, and to prevent the evil of repeated retrials, with all their attendant burthens of expense and inconvenience, which have resulted from the errors committed in hasty, extemporaneous charges; and it was also intended to expedite the trial of criminal causes, by putting an end to disputation among the jurors as to what the oral charge was, and their frequent return into court to be recharged on points not remembered or comprehended by all; and it is at last but a necessary provision in order that the jury, who are the props of the law, may the better *646 understand the law." 65 Tenn. 595, 603-604.
The same may be said of the opinion in State v. Bungardner, supra:
"It has always been a most serious practical objection to trial by jury, that, being unlearned in the law, unfamiliar with its technical language and its rules, juries are almost of necessity liable to have but an indistinct recollection of what was given them in charge by the court. This difficulty has been met by this statute, and, if complied with, juries may always certainly know and have before them, plainly written out, the rules of law which they are called upon to apply in the particular case." 66 Tenn. 163, 165.
The State recognizes that the situation presented on this appeal falls within the well chosen language of T.C.A. § 40-2516, but urges that the application of the harmless error statute, T.C.A. §§ 27-116 and 27-117, excuses reversal.
The analysis made of all the cases dealing with T.C.A. § 40-2516 reveals that the only case to actually apply the harmless error statute to escape finding reversible error is Munson v. State, supra. There, the regular charge was in writing and was given to the jury. The charge stated that if the jury convicted the defendant of voluntary manslaughter, they would fix his punishment at from two to ten years. The jury returned from its deliberation and requested further instructions on this point. The trial judge replied, orally, that the jury had nothing to do with fixing the punishment, because the law fixed it at confinement from two to ten years on a conviction of voluntary manslaughter. On appeal it was argued that this corrective statement had to be in writing. This Court said that any error in this regard would constitute a mere technicality and thus be cured by applying the harmless error statute.
It must be noted here that, in the case at bar, this Court is speaking of the general charge to the jury containing the rules of law which the jury is called upon to apply in the particular case. In the case last cited, the Court dealt only with the mechanical format of the verdict which the jury should return.
In every other case in this State in which a violation of T.C.A. § 40-2516 was asserted as error, and in which this Court chose to overrule the assignment, the Court has painstakingly pointed out that the statute was not intended to cover the precise situation presented in this case. Those situations, in which the provisions of T.C.A. § 40-2516 were found not to be determinative, were (1) where the trial judge gave oral instructions on the required format of the verdict which the jury was to deliver, Taylor v. State, supra, Gamble v. State, supra; (2) where the trial judge made oral statements during the trial in ruling on evidentiary matters raised by objections from counsel, State v. Becton, supra, Bolin v. State, supra; and (3) where the trial judge made oral statements to the jury instructing them not to consider matters of parole in formulating their verdict, Keith v. State, supra.
Thus, in all of the cases in which this Court has refused to reverse for alleged violation of T.C.A. § 40-2516, the subject matter complained of was entirely collateral to the general charge. They were not statements or restatements of the substantial points of law embodied in the general charge as a guide to the jury in the determination of the guilt or innocence of the defendant.
We have reached the conclusion that when a violation of T.C.A. § 40-2516 appears, the Court must first decide the threshold question of whether the situation presented is one which is properly within the ambit of the language of the statute. Where it is found that the statute encompasses the particular situation disclosed by the record to have occurred in the trial process, this Court will reverse. *647 This, without regard to any inquiry with respect to the harmless error statute.
If the situation in issue is determined to be error outside the limits of this statute, that is, collateral to the general charge of the basic substance of the case, the Court may reverse or affirm, dependent on just how egregious the error may be regarded. It is in these situations that the harmless error statute may be utilized, where appropriate.
In the case now before us, the jury was not provided with the written charge when they retired, nor was it given them at any time during their deliberation. The situation thus presented falls directly within the mandate of the last clause of T.C.A. § 40-2516.
It is suggested by the State that the defendant waived his rights under T.C.A. § 40-2516 by failing to advise the trial judge that the jury did not have the written charge in their possession. At the bar of this Court, defendant's counsel stated that they never knew, nor had any way of knowing, that the jury was not in possession of the written charge. In the case of Humphreys v. State, supra, cited and relied upon by the State, the holding of the Court is that the rights under the statute were not waived in that case though it was attempted. We do not hold that the provisions of this statute are so sacrosanct as to be beyond the reach of a proper waiver. However, from time immemorial in the jurisprudence of this State, waiver has been defined and applied as expounded in Masson v. Anderson (1873) 62 Tenn. 290:
"The abandonment or waiver of a right important to parties cannot be made out by uncertain implication, but ought clearly to appear. To constitute such a waiver of a benefit, there must be a clear, unequivocal, and decisive act of the party, an act which shows a determination not to have the benefit intended." 62 Tenn. 290, 304.
No knowing waiver by the defendant of this statutory right involved in the present case can, in any wise, be derived from this record.
The duty of assuring that the charge is submitted to the jury and taken out with them upon their retirement is committed to only one man the trial judge. The trial judge in this case has not performed that duty.
The judgment herein is therefore reversed and the case remanded for a new trial.
BURNETT, C. J., and DYER, CHATTIN and HUMPHREYS, JJ., concur.
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420 S.W.2d 679 (1967)
Tommie Lou MOSLEY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
November 10, 1967.
James R. Odell, Joseph D. Harkins, III, Lexington, for appellant.
Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
WADDILL, Commissioner.
Appellant was convicted of the crime of rape and sentenced to ten years' servitude in the state penitentiary. The sole ground for reversal of the conviction is that the trial court erred in excluding the testimony of James Gay, a psychologist, concerning the mental condition of the prosecuting witness at the time of the alleged rape.
The record reflects that for several months prior to May 11, 1966, the date of the alleged offense, Geraldine Eden, the prosecuting witness, had been staying in the home of Elihu Asher where she was employed as a full-time baby-sitter. Geraldine, who is 27 years of age, testified that during the evening of May 11, 1966, the Ashers had left their residence to go bowling. Appellant, an acquaintance of Geraldine and a relative of Asher entered the Asher home for the purpose of staying overnight. Geraldine stated that after the Asher children went to bed, appellant tried *680 to make love to her and when she resisted his amorous advances he forcibly tied her hands behind her back, pushed her down on a couch, removed her underclothing and raped her.
Appellant, age 54, testified that upon his arrival at the Asher residence Geraldine informed him that she wanted to talk with him before he retired. He had waited only a short time when Geraldine came over and sat beside him on a couch where they immediately began making love and Geraldine voluntarily submitted to sexual intercourse with him as she had on several previous occasions. He stated that following the intercourse they went to the kitchen and Geraldine prepared a snack for them. When they were later questioned that night as to their conduct, appellant stated that much to his surprise Geraldine claimed he had raped her.
Appellant urges that the court erred in refusing to permit the jury to consider, for the purpose of impeaching Geraldine's credibility, the testimony of Doctor Gay concerning Geraldine's mental condition. Doctor Gay has obtained a Ph D degree in psychology and has been licensed by the state of Kentucky as a clinical psychologist. (KRS 319.010 defines the practice of clinical psychology to include the administration of tests for the purpose of psychological diagnosis, classification and evaluation and recognizes services involving the reeducation, guidance or readjustment of the patient.) He is a member of the American and Kentucky Psychological Associations and is presently the psychologist in charge of the Fayette County Program, a special program at Eastern State Hospital for outpatient treatment.
Doctor Gay, who is in charge of the treatment of Geraldine's mental disorder, testified, by way of avowal out of the presence of the jury, that Geraldine had entered a state hospital for mental treatment during October 1961. At that time she was complaining that her father and brothers had molested her sexually during her adolescence. She was discharged from the hospital in January 1962 and readmitted for treatment on a voluntary basis during 1964. She has been treated by Doctor Gay since September 1965.
While Doctor Gay believed that Geraldine was in a state of remission at the time of the alleged rape, it was his opinion that she is schizophrenic and is an immature individual. She could not tolerate frustration, was easily disturbed and had a guilt complex. Doctor Gay stated that schizophrenia is a complex phenomenon, that it is a disturbance of behavorial effect and thinking which has not been found to be caused or related to any physical or organic condition, but it has a psychiatric origin, i. e. an emotional basis. He further stated that one of the manifestations of schizophrenic reaction is fantasies and when asked whether Geraldine's fantasies extend to the area of sex, he answered, "In this particular case I think it does."
Since the Commonwealth relied upon the uncorroborated testimony of Geraldine to establish its case against appellant, the principal question at issue had reference to the credit to be given to the testimony of Geraldine. Therefore, Doctor Gay's testimony may have had an important impact on the jury as it tended to impeach Geraldine's credibility.
It is our opinion that the proffered testimony of Doctor Gay was relevant and competent and should have been received, not in extenuation of rape, but for its bearing upon the question of the weight to be accorded Geraldine's testimony. For this reason the court should admonish the jury that the expert testimony should be considered by it only for the purpose of affecting the credibility of this witness, if it does so.
Generally a witness may be impeached only as specified in our Rules of Civil Procedure (CR 43.07). However, the modern trend is to permit the jury to consider expert testimony in the field of *681 mental disorders and relax the rule in sex offense cases. Ballard v. Superior Court of San Diego County, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 P.2d 838; People v. Neely, 39 Cal. Rptr. 251. McCormick in his treatise on Evidence, Section 45 at page 99, observes:
"* * * Naturally, the use of psychiatric testimony as to mental disorders and defects suggests itself as a potential aid in determining the credibility of crucial witnesses in any kind of litigation. In one type of case, namely that of sex offenses, the indispensible value of this kind of testimony has been urged by Wigmore, and other commentators, and such testimony has been widely received by the courts. * * *."
Also see III Wigmore, Evidence, 3rd Ed. 1940, Sections 924a, 931, 932, 935, 997b, 998b, which includes a thorough compendium supporting the view of admitting in evidence expert testimony.
In State v. Armstrong, 232 N.C. 727, 62 S.E.2d 50, the importance of permitting an accused to impeach a witness for the state was pointed out as follows:
"* * * It is always open to a defendant to challenge the credibility of the witnesses offered by the prosecution who testify against him. * * *.
"What could be more effective for the purpose than to impeach the mentality or the intellectual grasp of the witness? If his interest, bias, indelicate way of life, insobriety and general bad reputation in the community may be shown as bearing upon his unworthiness of belief, why not his imbecility, want of understanding, or moronic comprehension, which go more directly to the point? * * *."
A similar conclusion was reached by the United States District Court in United States v. Hiss, 88 F. Supp. 559, wherein it was observed:
"The existence of insanity or mental derangement is admissible for the purpose of discrediting a witness. Evidence of insanity is not merely for the judge on the preliminary question of competency, but does to the jury to affect credibility. * * *."
Also see Giles v. State of Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737, which concerns itself with the prosecution's suppression of evidence relating to the credibility of the prosecution's witnesses.
We conclude that the jury was entitled to hear and consider the testimony of Doctor Gay and that its exclusion constituted prejudicial error in the case.
The judgment is reversed with directions to grant appellant a new trial.
WILLIAMS, C. J., and EDWARD P. HILL, MILLIKEN, STEINFELD, PALMORE and OSBORNE, JJ., concur.
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916 F. Supp. 262 (1995)
Al GOLDSTEIN and Media Ranch, Inc., Plaintiffs,
v.
MANHATTAN CABLE TELEVISION, INC., The City of New York, William Squadron, Defendants.
No. 90 Civ. 4750 (LBS).
United States District Court, S.D. New York.
September 20, 1995.
Norwick & Schad, New York City (Kenneth P. Norwick, of counsel), Goldbergh & Spitzer, New York City (Vlad G. Spitzer, of counsel), New York Civil Liberties Union Foundation, New York City (Arthur Eisenberg, Marjorie Heins, of counsel), for Plaintiffs.
Cravath, Swaine & Moore, New York City (Stuart W. Gold, Marc E. Ackerman, Rebecca L. Cutler, of counsel), for Defendant Time Warner Cable of New York City.
Matthew E. Fishbein, Acting United States Attorney for the Southern District of New York, New York City (William J. Hoffman, Asst. U.S. Attorney, of counsel), Intervenor.
SAND, District Judge.
Plaintiffs Media Ranch, Al Goldstein, Kee-Byrd Productions, Robin Byrd, Gay Cable Network, and Lou Malleta produce programs designed to be televised over cable television systems. Defendant Time Warner Cable of New York City transmits cable television programming pursuant to a franchise granted in 1990 to its predecessor in interest, Manhattan Cable Television, by Defendant The City of New York. Defendant Thomas Dunleavy is the Deputy Commissioner of the New York City Department of telecommunications and Cable Television. Before this Court is a motion by Plaintiffs for a preliminary injunction to prohibit Time Warner Cable of New York City from scrambling plaintiffs' *263 programming.[1] For the reasons set forth below, we grant the motion.
BACKGROUND
This case, when originally commenced in 1990, rested principally on the 1984 Cable Act. The original plaintiffs, Media Ranch and Al Goldstein produce a late-night, sexually oriented program entitled "Midnight Blue" that is cablecast on Defendant Time Warner Cable of New York City's leased access Channel 35. Midnight Blue is a magazine-type program devoted to providing adult entertainment and feature programs on both sexual and non-sexual issues. Al Goldstein and Media Ranch challenged Manhattan Cable's (Time Warner's predecessor in interest) practice of pre-screening the content of "Midnight Blue" and the resulting instances where the pre-screening led to Manhattan Cable's refusal to cablecast portions of the program. Plaintiffs further contended that the pre-screening practice violated New York Executive Law § 829 which prohibits cable television companies from censoring any program presented over a leased access channel. Upon these claims, plaintiffs moved for summary judgment in November 1991. Defendants cross-moved for summary judgment.
While these motions were sub judice, Congress enacted the 1992 Cable Act which directly affected the degree of editorial control a cable operator could exercise over its leased access programming. Section 10 of the 1992 Cable Act amended § 612(h) of the 1984 Cable Act by allowing cable operators to censor indecent programming based upon the content of the programming. § 10(a) provides:
This subsection shall permit a cable operator to enforce prospectively a written and published policy of prohibiting programming that the cable operator reasonably believes describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.
Section 10(b) directed the Federal Communications Commission to promulgate "regulations designed to limit the access of children to indecent programming" for cable operators who did not prohibit indecent programming under § 10(a). § 10(b) contains three government directives. First, it requires cable operators to place all indecent programs (as identified by the program providers) on a single channel. Second, it requires cable operators to block the single channel unless the subscriber requests access to the channel in writing. Third, § 10(b) requires programmers to inform cable operators if the program would be indecent as defined by Commission regulations.
Petitions for review challenging the constitutionality of § 10 were submitted to the United States Court of Appeals for the District of Columbia Circuit in February 1993. In the spring of 1993, the D.C. Circuit stayed § 10 pending disposition of the petitions. Alliance for Community Media v. FCC, Nos. 93-1169 and 93-1171 (D.C.Cir. April 7, 1993); Alliance for Community Media v. FCC, Nos. 93-1270 and 93-1276 (D.C.Cir. May 7, 1993). On November 23, 1993, a panel of the D.C. Circuit held that the provision of § 10(a) that authorized cable companies to ban completely indecent programming from leased access channels violated the First Amendment. The panel further held that § 10(b)'s segregation and blocking regulations were impermissibly under-inclusive. Alliance for Community Media v. FCC, 10 F.3d 812 (D.C.Cir. 1993).
Thereafter, the Court of Appeals sitting en banc, vacated the panel's judgment. On June 6, 1995, a divided Court held that any censorship under § 10(a) was entirely voluntary, without coercion, significant encouragement or joint participation by the federal government and therefore, no state action was present upon which to ground a constitutional claim. The Court also upheld the constitutionality of § 10(b) finding its directives narrowly tailored to further a compelling government interest. On July 10, 1995 the Court of Appeals stayed its mandate pending *264 the filing of petitions for writs of certiorari in the Supreme Court. By August 9, 1995, all Alliance petitioners had filed their certiorari petitions. The Government papers are expected to be submitted during this coming October 1995. Alliance for Community Media v. FCC, 56 F.3d 105, 117 (D.C.Cir.), petition for cert. filed, 64 U.S.L.W. 3104 (N.D.Cal.1995) (No. 95-227).
By agreement among counsel in the original Al Goldstein and Media Ranch v. Manhattan Cable Television, et al. case, and with the approval of this Court, the cross-motions for summary judgment that were pending prior to the enactment of the 1992 Act were withdrawn and further litigation of the action was held in abeyance pending the decision of the D.C. Circuit Court.
After the D.C. Circuit's en banc decision upholding the constitutionality of § 10, Time Warner announced on July 17, 1995 that it will institute a new indecency policy. Commencing October 1, 1995, Time Warner will scramble the signal of leased access programming that it considers indecent. See Plaintiff's Order to Show Cause for a Temporary Restraining Order, Exhibit B. Scrambling will occur even though the "indecent programs" are scheduled for viewing only "during late-night and overnight hours." Access to such "indecent programming" may only be gained by submitting a written request containing a statement that the viewer is the cable subscriber and is at least 18 years old.
Citing constitutionality concerns over Time Warner's Scrambling policy, § 10's impact upon that policy, and its direct conflict with New York Executive Law § 829, plaintiffs have petitioned this Court for a preliminary injunction to maintain the status quo and to enjoin the implementation of Time Warner's scrambling policy pending the Supreme Court's action with respect to the certiorari petitions.
DISCUSSION
We find the questions posed by this motion to be close and complex. The Court of Appeals for the District of Columbia, sitting en banc and having the benefit of a prior panel opinion, took eight months from the time of oral argument before deciding the Alliance case.[2] The Alliance Court split four to seven, wrote four opinions, and ultimately concluded that the constitutional issues before it were so close and of such magnitude that it stayed its mandate pending action by the Supreme Court on the certiorari opinions filed in the Alliance[3] case and stayed as well the F.C.C. regulations adopted pursuant to the statute.
This Court has been given only since September 18th, when it heard over four hours of oral argument, receiving briefs and affidavits as late as September 19th, in which to consider this motion. Moreover, circumstances compel a virtually immediate decision by this Court if the parties are to be afforded an opportunity to seek appellate review[4] and to advise the 290,000 subscribers to Time Warner's cable service of what will, in fact, occur by the October 1st date unilaterally and arbitrarily set by that company.
We do not purport, in that narrow time frame, to have determined definitely what should be the ultimate resolution on the merits of the several questions posed. Although the decision which we now announce represents the conscientious views of this Court after intensive study of the question, it does not and cannot reflect the serious scholarship and contemplation which the questions raised warrant.
In reaching our conclusion, we recognize the various conflicting considerations which are operative here. These include the presumption which exists in favor of the constitutionality of the statute, the deference which this Court must pay to the Federal Communication Commission's interpretation of the statute upon which Time Warner so heavily *265 relies, the fact that preliminary injunctive relief is an extraordinary remedy and that where, as here, issues affecting the public interest are presented, parties seeking such relief must satisfy a heavier burden. At the same time, we take into consideration that the serious and substantial claims raised by the plaintiffs relate to First Amendment rights and that such claims are granted special care and consideration by the Courts.
Balancing all of these factors, we find that the balance is tilted in favor of the movants. This conclusion is bolstered by the fact that Time Warner itself stipulated with the principal movant herein not to change voluntarily the terms and conditions upon which it carried "Midnight Blue" without further order of the Court. Time Warner neither sought nor obtained such further order prior to announcing and implementing its proposed actions. Yet, independent of the issues arising by virtue of the stipulation, we believe that the plaintiff has satisfied the greater burden of persuasion necessary for injunctive relief which affects the public interest. Medical Society of the State of New York v. Toia, 560 F.2d 535 (2d Cir.1977).
In light of the time restraints and the extensive exposition of the constitutional issues in Alliance, we refrain from a detailed discussion of the merits of those issues here. Suffice it to say, we find that for the reasons set forth in the dissenting opinion of Judge Wald in Alliance, plaintiff has demonstrated a likelihood of success of the merits. We limit our discussion at this point to two respects in which plaintiff's case differs and, we believe, is stronger than that of the petitioners in Alliance.
Time Warner takes the position that it purports to act solely pursuant to § 10(a) which gives the cable operator permission to enforce a policy of prohibiting programming from its leased accessed channels and that this action is independent of the scrambling requirements contained in § 10(b). Indeed, Time Warner's proposed action does not comply with § 10(b) in that Time Warner itself rather than the programmer determines in the first instance whether the program is indecent. Time Warner, with support from the FCC and the United States, takes the position that since the Supreme Court has said in Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345-346, 106 S. Ct. 2968, 2979, 92 L. Ed. 2d 266 (1986) that the power to ban casino gambling necessarily includes the lesser power to ban casino advertising, the power to ban indecent programs, pursuant to § 10(a), includes the power to carry the programming, subject to conditions other than those contained in § 10(b). Although under Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we give great deference to the views of the FCC, we have difficulty in accepting the proposition that § 10(b) can be rendered totally inoperative by the expedient of the cable operator saying in essence: "We will not carry the indecent programs except we will carry the programs under the following conditions which we have unilaterally determined and which may be more or less restrictive than those called for by § 10(b)." Indeed, Time Warner claims that this is what Congress intended. That assertion is not supported by the language or legislative history of the statute.
Although Time Warner takes the position, as we have just stated, that it is not bound by § 10(b) or the stayed FCC regulations thereunder, it acknowledges that its proposed practices are so close to the § 10(b) requirements that it believes the FCC would find them acceptable if those regulations become effective. One respect in which Time Warner's proposed procedures follow those of § 10(b) is that it requires scrambling unless the subscriber affirmatively requests that the programs not be scrambled. Thus, the consequence of inertia or the failure to receive the reply card is that scrambling results.
In Alliance, as the majority explicitly noted, 56 F.3d 105 at 127, fn. 23, no claim was advanced that persons would refrain from affirmatively requesting the programming for fear of stigmatization. But precisely that claim is strenuously raised here, especially on behalf of those whose programs are targeted to gay and lesbian audiences. Indeed, at oral argument, plaintiff's counsel asserted that there might well be no objection raised to a procedure in which scrambling took *266 place as the result of a mailing of a reply card rather than the failure to mail such a card.
We do not decide the "stigmatization issue" here but content ourselves with noting that it is a serious claim, which makes plaintiff's overall likelihood of success on the merits stronger than if its claims were limited to those raised in Alliance. Cf. Lamont v. Postmaster General, 381 U.S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965) (holding unconstitutional a statute which required the Postmaster not to deliver mail which was "communist political propaganda" unless the addressee returned a card requesting its delivery. Under postal regulations, any request to stop delivery of such mail would be honored). We note again that Alliance involved petitions to review and that the Alliance court was not faced with, and made no determination, respecting the appropriateness of injunctive relief pending Supreme Court action on the pending certiorari petitions.
We turn now to the "stipulation issue."
The litigation before this Court has been pending since 1990. The parties agreed, and the Court accepted their agreement, that this case should be held in abeyance pending the resolution by the Court of Appeals for the District of Columbia of the closely related issues presented in the Alliance case. From time to time, this Court has raised with the parties the question whether this case should not be dismissed because it served no purpose independent of the Alliance case, but at the urging of both parties, the case has been kept on the Court's docket, though dormant, and there is no question that the Court has jurisdiction over these motions.
To regulate their relationship during this hiatus, the parties entered into a stipulation which was submitted to the Court and "So Ordered" on November 30, 1990. That stipulation read in pertinent part:
10. The parties will conduct themselves consistent with their prior course of dealing.
11. Defendant will cablecast "Midnight Blue" on its cable system on an interim basis until this Court renders a final judgment on plaintiff's claims, ...
In 1992, Congress passed the legislation at issue here and in Alliance. Time Warner claims that the action which it proposes to take is entirely voluntary on its part and acknowledges that it was free to take the proposed action at any time since the effective date of the statute in 1992.
Time Warner, however, took no such action until August of this year because, consistent with the views expressed to this Court and the understandings which motivated the stipulation, the parties awaited the outcome of the Alliance case.
But the Alliance case has not been resolved. The Court of Appeals for the D.C. Circuit has stayed its mandate and petitions for certiorari are pending. The D.C. Circuit has itself recognized the tentativeness of its decision. See p. 5, fn. 3 supra.
The en banc decision in Alliance was announced on June 6, 1995. After conferences among counsel for the parties, Time Warner on August 1, 1995, advised plaintiffs that it would not accede to their request that it withhold action pending the Supreme Court's action with respect to the pending certiorari petitions although such action is expected to take place within the next month or so. Time Warner immediately embarked on the mailing of 290,000 notices and reply cards to its subscribers. It did so, however, with the knowledge that this motion would be made.
Time Warner did not seek any order from this Court relieving it from the terms of its 1990 stipulation prior to its announcement of its proposed actions and the mailing of the 290,000 cards. We find unpersuasive Time Warner's contention that it did not believe the proposed scrambling of "Midnight Blue" would be in violation of the stipulation and order. This argument is predicated on changes that had been made with respect to the channel on which the program was carried before the stipulation was executed.
Both parties to the stipulation wanted assurance that without further order of the Court, presumably to be sought after Alliance was definitely resolved, the status quo would be maintained.
*267 We emphasize that this is not an instance in which a change of law frustrates the parties' intent or renders adherence to a prior court order illegal or more onerous. The principal thrust of Time Warner's claim on the merits is the voluntary nature of the action which it proposes. We repeat that there is no special significance to the October 1st date which Time Warner has selected to commence scrambling. Indeed, as was discussed at oral argument, there are a number of significant problems arising by virtue of the selection of that date, including the fact that many of Time Warner's subscribers were away on vacation when the notice and reply cards were mailed. (Scrambling will occur, according to Time Warner's plans, whenever a card requesting continued unscrambled receipt of the programming is not returned. Thus, the consequence of not receiving and responding to the card is that scrambling occurs.)
Surely, the Court is aware of Time Warner's strong interest in demonstrating to those in government and elsewhere who have decried the availability of "indecent programming" on home cable sets, that it is doing all that it can do to address the problem. And it is clearly more convenient to point to the federal courts rather than elsewhere for the reason why more immediate action is not taken. Nevertheless, we find no basis for Time Warner to disregard unilaterally the terms of the agreement it itself sought and into which it entered.
At oral argument, counsel for Time Warner in essence sought for the first time to be relieved from the stipulation. In an affirmation of Stuart W. Gold, Esq., counsel for defendant dated September 19, 1995 and received in Chambers late in the afternoon that day, Time Warner applied to the Court to amend the 1990 Order. In the covering letter of Mr. Gold accompanying that affirmation, he states: "If the Court believes that defendant should submit a formal motion on notice on this issue, we are prepared to do so."
We decline to entertain the informal application to be relieved of the stipulation at this time and in this procedural context. If and when such application is formally made to the Court, consideration can be given, not under the self-imposed time pressures Time Warner has created, to the merits of such application, giving full weight to such factors as the underlying purposes of the stipulation, the imminence of Supreme Court action, and other relevant factors.
We turn now to the circumstance that the stipulation discussed above relates only to "Midnight Blue" and that Time Warner proposes to scramble all "indecent programming" including programs produced by entities not party to that stipulation. We were advised at oral argument that similarly worded stipulations were entered into with other program producers but they are not in the record in this case and the motion presently before the Court relies only on the single stipulation cited above.[5] We were also advised by counsel for Time Warner that if this Court were to grant the motion solely as to "Midnight Blue", it would broadcast that program unscrambled and would scramble all others. We find this to be an extremely difficult position for Time Warner to maintain.
First, Time Warner has often and vigorously cited "Midnight Blue" to be the prime example of outrageous indecent programming. See, e.g., Alliance for Community Media v. FCC, 56 F.3d at 117. To continue to carry this program unscrambled and to scramble other less indecent programs would be inequitable and confusing.
Second, Time Warner would be compelled to notify its subscribers that contrary to the previous announcement which had been mailed to them, this one, most "indecent," program would not be scrambled. Thus, all of the costs and alleged adverse consequences of a deviation from Time Warner's prior announcement would be present whether one program or all were transmitted in unscrambled fashion. And the need for parental monitoring, if any, of what programs *268 children watch in the late hours of the night would continue to be required so long as "Midnight Blue" was carried unscrambled. In the September 19th affirmation of Mr. Gold, the problems of scrambling all indecent programming except "Midnight Blue" are further explicated:
Moreover, subscribers who do not want to receive plaintiff's indecent programming, including those who are parents, will have to use the locking device in their converter to program out Channel 35 during the hour on Saturday and the hour on Monday when "Midnight Blue" is cable-cast. Since the converter locking mechanism only locks out the entire channel, and cannot be programmed to switch on or off by the hour, subscribers who want to watch other programming on Channel 35, but do not want to receive plaintiff's indecent programming, will have to continuously program and reprogram the converter.
For these reasons, we believe that all movants, not merely the producers of "Midnight Blue," should receive like treatment on this motion.
We next address the question whether movant has shown irreparable injury, and note Time Warner's contention that its proposed scrambling will not result in harm to the plaintiff because over 50,000 subscribers have requested unrestricted access to plaintiff's programming. As a consequence, Time Warner contends it is "highly unlikely that plaintiff will suffer any loss of viewers or advertising revenue as a result of implementation of the policy." Affirmation of Stuart W. Gold, Esq., para. 5. We think, for the purposes of this motion, plaintiff has demonstrated a sufficient potential for sustaining irreparable injury when it shows that its maximum audience would be diminished from 290,000 to 50,000.
Time Warner's claim that no such injury would result is predicated on the assumption that all of the 50,000 who returned the card would, in fact watch, and its judgments as to advertisers' positive response to an audience which has gone to the trouble of requesting that the programming be received. Plaintiffs have submitted an affidavit from an advertiser asserting that he would discontinue advertising if scrambling will occur. Declaration of Ben Levine, Sept. 14, 1995. We accord scant weight to this declaration. Mr. Levine is both an advertiser and a program producer. More importantly, we note that this controversy is not so much whether there will be scrambling of indecent programs but the terms and conditions upon which such scrambling will take place, and as to which subscribers the programs will be scrambled. But we believe that in the context of the free speech claims raised herein, plaintiffs have sustained their burden of showing both a likelihood of success on the merits and irreparable injury.
We have alerted the Clerk of the Court of Appeals to the fact that an emergency application may be made to that Court for appellate review of this determination.
We will hear the parties with respect to a bond at a hearing on September 20, 1995.
In sum, we conclude that Time Warner may not voluntarily scramble plaintiff's programs at this time because, among other reasons, Time Warner has previously committed itself not to alter its carrying of plaintiff's programs prior to events which have not yet transpired.
Motion Granted.
So Ordered.
NOTES
[1] Various other motions relating to intervention and the filing of an amended complaint were granted during oral argument on September 18, 1995. See transcript. The City of New York moved orally for its dismissal from these proceedings and the Court reserved decision on that motion and it is not addressed here.
[2] Alliance came before the Court on petitions for review of two orders of the F.C.C. and did not present any questions of injunctive relief.
[3] Issuance of a stay reflects that Court's conclusion that "substantial questions" of constitutional law are presented. See F.R.A.P. 41(b); D.C.Cir. Rule 41(a)(2). Stern & Gressman, Supreme Court Practice, 674 (7th ed. 1993).
[4] The Court of Appeals does not sit on September 25, 1995.
[5] The reason why this position was being taken was not made explicit. We note, however, that the several programmers are in competition and that their interests and arrangements with counsel may differ.
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420 S.W.2d 635 (1967)
TRANSPORT INSURANCE COMPANY, Appellant,
v.
Marlin WHEELER et al., Appellees.
No. 22.
Court of Civil Appeals of Texas, Houston (14th Dist.).
October 18, 1967.
Rehearing Denied November 15, 1967.
*636 Butler, Binion, Rice, Cook & Knapp and Tom Alexander and Jonathan Day, Houston, for appellant.
Brown, Kronzer, Abraham, Watkins & Steely and W. James Kronzer and Fulbright, Crooker, Freeman, Bates & Jaworski and Charles D. Boston, Houston, for appellee.
BARRON, Justice.
Marlin Wheeler, plaintiff in the trial court, filed suit against defendant, Transcontinental Gas Pipeline Corporation, an alleged third-party tort-feasor, for personal injuries. Defendant filed an answer and Wheeler's compensation carrier, Transport Insurance Company, intervened to recover its subrogation interest. Intervenor had paid workman's compensation benefits to Wheeler. On December 12, 1966, the case was assigned for trial and the plaintiff failed to appear, either in person or by attorney. On the same date intervenor and defendant compromised intervenor's alleged claim for subrogation arising as a result of Wheeler's injuries for $1,500.00, and the trial court announced a dismissal of the plaintiff's lawsuit for want of prosecution. The court's judgment recites that this action was taken on December 12, 1966, but the judgment was not signed and entered until January 10, 1967. This judgment was termed a "final judgment" and was signed and "approved and agreed to" by intervenor's and defendant's respective attorneys.
On January 6, 1967, plaintiff filed a motion to reinstate his original cause of action against Transcontinental, and on January 10, the same day intervenor's compromise judgment was signed, the trial court entered a separate order granting plaintiff's motion for reinstatement of his third-party action. The trial court reinstated the cause only as to plaintiff, Wheeler.
On April 7, 1967, the trial court entered a "final judgment" whereby Wheeler's cause of action against Transcontinental and one Hayes was compromised for the sum of $4,482.00. The prior settlement between intervenor and defendant was referred to in the judgment of April 7.
Intervenor apparently dissatisfied with the compromise judgment after reinstatement of Wheeler's cause of action and eventual settlement of Wheeler's claim with Transcontinental on April 7, 1967, filed a motion for new trial on April 26, 1967, claiming no notice of a setting of the case and entry of the judgment in favor of Wheeler. The trial court, considering the motion improper, refused to act on the motion and denied intervenor leave to file the same. Exception and notice of appeal were made and entered of record to the trial court's action on May 3, 1967. Notice of appeal was also filed on May 11, 1967. Petition for writ of error and writ of error bond were filed by intervenor on May 29, 1967.
At the outset we are faced with the problem of jurisdiction. There are, in effect, three parties to this action: The plaintiff, Wheeler; the defendant, Transcontinental Gas Pipeline Corporation; and the intervenor, Transport Insurance Company. On January 10, 1967, a judgment was entered and agreed upon by which intervenor was awarded $1,500.00 in settlement of its subrogation interests. This *637 judgment was necessarily interlocutory, because Wheeler's case was reinstated upon the docket of the court, leaving the controversy between Wheeler and Transcontinental undisposed of. No appeal could be had from the compromise judgment without a severance of that phase of the case ordered by the trial court. There was no severance sought by the parties or ordered by the trial court. In the absence of an order of severance, a party against whom such an interlocutory judgment has been rendered has his right of appeal when and not before the same is merged in a final judgment disposing of the whole case. In the judgment of April 7, 1967, the first judgment of settlement was fully referred to by recitation therein that the sum of $1,500.00 had been paid in settlement of the intervention to Transport Insurance Company, and "* * * such total amount paid in full and final settlement of all claims, intervention, subrogation and causes of action herein." We therefore hold that the judgment of January 10, 1967, was interlocutory, and did not become final for purposes of appeal until April 7, 1967, when all matters were disposed of. Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959).
Intervenor's right to appeal, therefore, did not become effective until all issues were disposed of on April 7, 1967.
While subdivision 5 of Rule 329b, Texas Rules of Civil Procedure makes an exception in a case of this type by permitting a motion for new trial to be filed and acted upon within the 30-day period a trial court continues to retain control of its judgments, appellant made no effort to perfect its appeal by filing an appeal bond. Instead, intervenor resorted to an application and bond for writ of error. The appellant (or petitioner for writ of error) had sufficient time and opportunity to perfect an appeal. It filed a motion for new trial 19 days after the entry of the final judgment setting out adequate grounds for the trial court, within its descretion, to grant the motion. On May 3, 1967, (still within time) intervenor obtained an order from the trial court refusing to proceed further. Notice of appeal was given from that order. But still no appeal was perfected. An appeal ordinarily will lie from an order refusing a motion for new trial of this type. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (Syl. 7), (1961). We must, therefore, dismiss the appeal. The writ of error bond is insufficient as an appeal bond. Yellow Cab Corporation of Dallas v. Hill, 111 S.W.2d 1193 (Tex.Civ. App.), no writ history.
Appellees, Wheeler and Transcontinental, contend that writ of error jurisdiction to this court is unavailable to Transport Insurance Company for the reason that Transport was not a "party" to this action on April 7, 1967. While Transport removed itself from the case by compromise judgment on January 10, 1967, for all practical purposes so far as this record reveals, such judgment was not final until April 7, 1967. Since that judgment was interlocutory until April 7, we hold that Transport was a party of record to this action on the date of final judgment and was required to take notice of its entry and effect. J. M. West Lumber Co. v. Lyon, 53 Tex. Civ. App. 648, 116 S.W. 652, err. ref.; Banks v. Crawford, 330 S.W.2d 243, 246 (Tex.Civ.App.), err. ref., n.r.e.; Chapa v. Wirth, 343 S.W.2d 936 (Tex.Civ.App.), no writ history; 41 Tex.Jur.2d, p. 538, Sec. 19.
The motion to reinstate Wheeler's action was filed on January 6, 1967, four days before the entry of Transport's compromise judgment on January 10, and Transport was bound to take notice of such motion and was charged with knowledge of the action subsequently taken by the trial court. The record fails to show that appellant was misled by any affirmative act of Wheeler and Transcontinental, which might require actual notice. Cf. Box v. Associates Investment Co., 352 S.W.2d 315 (Tex.Civ. App.), no writ history.
*638 While both judgments, the interlocutory judgment of January 10 and the final judgment of April 7, were compromise judgments and not the result of conventional trials, appellant, of course, did participate in the matters affecting its phase of the case by agreeing to the compromise, and signing and approving it and receiving the money. The judgment of April 7 did not, so far as this record reveals, affect the rights of appellant other than to render appellant's judgment of January 10 final. The April 7 judgment was not rendered against or in favor of appellant, Transport. Article 2249a, governing review by writ of error, was intended to cut off the right of appeal by writ of error by those who participate in the hearing in open court in the trial that leads to final judgment, but the statute was not intended to cut off such rights of those who have no notice that a judgment has been rendered against them after the judgment has been rendered. No judgment was ever rendered against Transport in this case. Moreover, the legislative purpose was to take away the right of appeal by writ of error from those who should reasonably use the more speedy method of appeal. Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941). Here intervenor participated in the "trial" and chose the wrong remedy. It cannot appeal by writ of error under such circumstances. Art. 2249a, Vernon's Ann.Civ.St.; Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. Sup.1965).
What we have said has no relation to the right of intervenor, Transport Insurance Company, to a proper attack upon the judgment in the trial court, by way of bill of review or other remedies to which it might be entitled in a proper proceeding where the issues may be effectively developed. See McEwen v. Harrison, supra; 4 McDonald, Texas Civil Practice, Sec. 18.24 et seq. This record, including the possible equities involved, is in no condition for appellate review by appeal or writ of error by intervenor.
The motions to dismiss are granted, and the appeal and application for writ of error are dismissed at intervenor's cost.
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420 S.W.2d 725 (1967)
Marcus Denison BECK, Appellant,
v.
The STATE of Texas, Appellee.
No. 40783.
Court of Criminal Appeals of Texas.
November 15, 1967.
*726 H. Edward Johnson, Fort Worth (Court Appointed), for appellant.
Frank Coffey, Dist. Atty., Jack Neal and Roland H. Hill, Jr., Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
The offense is Burglary with Intent to Commit Theft; the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., twelve (12) years confinement in the Texas Department of Corrections.
Appellant vigorously challenges the sufficiency of the evidence to sustain his conviction.
The record reflects that the office of the Hobbs Trailer Company in the City of Ft. Worth was broken into and entered on Sunday evening, October 9, 1966, sometime after 6 p. m. A cigarette machine in such building was broken into and it was estimated that approximately $70.00 to $80.00 in quarters, nickels and dimes was taken therefrom; a brown leather bag with "Hobbs" written thereon was also removed from the premises.
On October 9, 1966, at approximately 5:30 p. m. while on his way home, Ben Hamrick, a trucking company operator and a former employer of the appellant, saw him on the North Main viaduct in Ft. Worth. Some forty-five minutes later Hamrick, becoming concerned about his trucks and recent thefts therefrom, returned to the scene and observed appellant in the 700 block of North Main near the burglarized premises carrying a brown leather bag.
Upon stopping the appellant, Hamrick observed the bag appellant had in his possession was marked with the name "Hobbs." When Hamrick inquired of appellant if he had been stealing, the appellant admitted that he had, but denied stealing from Hamrick. Appellant left the scene when Hamrick sought to detain him until the police were called. When appellant reached the front of his former employer's nearby premises, Hamrick, who had gone around the building, struck him with a billy club causing appellant's head to bleed profusely. Appellant then ran, a nearby car dealer called the police, and appellant was apprehended a few blocks away. A search at the time of appellant's arrest revealed he was in possession of seventy-two dollars and twenty-two or twenty-three cents in coins, mainly in nickels, dimes and quarters. It was elicited from the arresting officer by defense counsel that appellant had told the officer that he had collected the nickels, dimes and quarters in a poker game at a cafe. However, the appellant could not locate the cafe for the officer or recall the names of the persons with whom he had played poker.
The brown leather bag with blood on it was found near the scene of the arrest and the burglarized premises in tall Johnson grass and returned to the Hobbs Trailer Company.
Appellant did not testify but called one witness, a bookkeeper for a handbill distributor. She related that she did not know the appellant, but her records reflected that a Marcus D. Beck was paid in cash $7.00 in the week of September 21, 1966; $17.28 in the week of September 28, 1966; and $21.00 in the week of October 5, 1966.
The court charged the jury on the law of circumstantial evidence.
We conclude that the evidence is sufficient to support the jury's verdict.
*727 In Todd v. State, 170 Tex. Crim. 552, 342 S.W.2d 575, this Court, speaking through Judge Dice, said:
"The evidence shows a burglary of the house in question by someone. The proof of appellant's possession of the property recently stolen from the house, under the facts and circumstances shown, is sufficient to support the jury's verdict finding him guilty. 4 Branch's Ann.P.C., 2nd ed., page 866, sec. 2537 and Bernadett v. State, 166 Tex. Crim. 621, 317 S.W.2d 747."
In his next ground of error appellant contends the trial judge erred in failing to submit to the jury in his charge on the issue of guilt or innocence either or both of the affirmative defensive issues raised by the evidence and accounting for the appellant's possession of the large number of coins found on his person at the time of his arrest.
Appellant concedes in his brief that he did not request any such defensive charges of the court, and the record does not reflect that the appellant presented any objections or requested charges to the court in writing, as required by Articles 36.14 and 36.15, Vernon's Ann.C.C.P. Therefore, appellant's complaints to the charge are not properly before us for review. Morgan v. State, 170 Tex. Crim. 412, 341 S.W.2d 438; Foster v. State, 170 Tex. Cr.R. 61, 338 S.W.2d 458; Hurst v. State, 168 Tex. Crim. 427, 328 S.W.2d 447.
We further observe that even if the jury had believed that appellant's success at poker or his work payments or both accounted for his possession of a large number of coins at time of his arrest, this would not have entitled him to an acquittal in view of the other evidence presented, particularly his admission that he had been stealing, and his possession of the brown leather bag.
Appellant's second ground of error is overruled.
In his last ground of error appellant questions the authority of the trial court under the circumstances to have submitted the case to the jury at the penalty stage of the proceedings under the provisions of Article 62, V.A.P.C.
The indictment was drafted under the provisions of Article 63, V.A.P.C. After a finding of guilty by the jury of the primary offense, the appellant requested the same jury assess the punishment. Prior to such proceedings it appears the appellant moved to quash that part of the indictment alleging two prior non-capital felony convictions for the purpose of enhancement. The motion was granted as to the Tennessee conviction alleged in the third paragraph of the indictment allegedly styled The State of Texas vs. Marcus Denison Beck, but was otherwise denied. Appellant objected contending that the court's action materially altered and changed the indictment returned by the Grand Jury, and that as amended the indictment would not suffice "as the basis for conviction on any count[1] of repetition."
The action of the court in sustaining in part appellant's motion to quash was not an unauthorized amendment of the indictment. Urtado v. State, 167 Tex. Crim. 318, 319 S.W.2d 711. See also Epperson v. State, 168 Tex. Crim. 557, 330 S.W.2d 445.
Thereafter at the penalty stage of the proceedings only the second paragraph of the indictment alleging a Texas felony theft conviction was read to the jury.
It appears to be appellant's position that an indictment originally drawn under Article 63, supra, is sufficient to sustain a conviction either as a habitual criminal or for the primary offense alleged, but not otherwise. We cannot agree. See Fairris v. State, 171 Tex. Crim. 416, 350 S.W.2d *728 935. If it be appellant's contention that the prior Texas felony theft conviction was not an offense of like character or one of the same nature as the primary offense of burglary with intent to commit theft to sustain a conviction under Article 62, supra, we call attention to Bowie v. State, Tex. Cr.App., 401 S.W.2d 829. There this Court said:
"Felony theft and burglary, committed with the intent to commit theft, are offenses of like character and of the same nature within the meaning of Article 62, Vernon's Ann.P.C. Reynolds v. State, 116 Tex. Crim. 83, 311 S.W.2d 848."
See also 1 Branch's Anno.P.C., 2nd Ed., Sec. 698, pp. 680, 682.
At the penalty stage of the proceedings appellant's five previous felony convictions from Texas, Tennessee and North Carolina were introduced.
The judgment is affirmed.
NOTES
[1] Allegations as to prior convictions do not constitute "counts" in the indictment. Square v. State, 145 Tex. Crim. 219, 167 S.W.2d 192.
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726 S.W.2d 192 (1987)
BRYAN INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
Dan B. LAMOUNTT and Chalon Jones, Individually and D/B/A Cha Cha Enterprises, Ltd., and University National Bank, Appellees.
No. A14-86-481CV.
Court of Appeals of Texas, Houston (14th Dist.).
January 29, 1987.
*193 Albert M. Walker, Jr., Austin, for appellant.
Chalon Jones, College Station, for appellees.
Before BROWN, C.J., and ROBERTSON and CANNON, JJ.
OPINION
ROBERTSON, Justice.
This is a suit for collection of delinquent ad valorem taxes, penalty, interest and attorney's fees. The trial court entered judgment that the taxpayers were liable only for the base amount of the taxes, absolving them of liability for penalty, interest and attorney's fees. The issue before us is whether the appellees rebutted the prima facie case established by appellant. We hold they did not and reverse.
From the brief record before us it appears that lots 42, 43, 44 and 45 of the Cole Addition to the City of Bryan were owned by N.E. McLennan. Appellee Jones acquired a portion of each of the lots in 1978 and those parts were assessed in his name. In 1981 appellee Jones and another individual purchased the remainder of lots 44 and 45, but they did not render the property, nor did the appraisal district "pick up the transfer." The result was that this property continued to be assessed in the name of N.E. McLennan. Appellees then built two four-plexes on the portion of lots 44 and 45 they had purchased in 1981. In 1983, when closing on the permanent financing, appellee Jones requested a tax certificate from the tax assessor/collector in order to determine the amount of taxes due. The tax certificate showed certain 1980 and 1981 taxes were due on part of lots 42-45 of the Cole Addition "[r]endered in the name of Chalon Jones." However, the 1982 taxes on part of lots 44 and 45 assessed in the name of N.E. McLennan had not been paid and were not included in the certificate. On November 1, 1984, appellee Jones discovered the 1982 taxes on part of lots 44 and 45 had not been paid. He then made an inquiry at the tax office contending an error had been made. Finally, sometime in January 1985 appellee offered to pay the taxes, but refused to pay penalty, interest and attorney's fees. Suit was filed, and eventually, the city and county agreed to waive the penalty, interest and attorney's fees, but the school district refused, contending it had no authority to do so. At the conclusion of trial, and in response to appellees request that the court "do the fair thing," the trial court found: (1) "that the Defendants have offered to pay the base amount of said taxes without penalty and interest," and (2) "that Plaintiff is not entitled to penalties and interest." Accordingly, the court ordered appellees to pay only the base amount of taxes.
In its first point of error appellant contends "the trial court erred in granting judgment for the appellees for the reason that appellant established a prima facie case which was not rebutted by appellees." We agree.
Tex.Tax Code Ann. § 33.47 (Vernon 1982) provides that the delinquent tax roll constitutes prima facie evidence that the amount of tax alleged to be delinquent is the correct amount. Delinquent taxes incur penalties and interest pursuant to Tex.Tax Code Ann. § 33.01 (Vernon 1982). Additionally, § 33.48(a)(4), Tex.Tax Code Ann. (Vernon 1982), provides for the recovery of "reasonable attorney's fees approved by the court and not exceeding 15 percent of the total amount of taxes, penalties, and interest."
By introducing into evidence the delinquent tax rolls, appellant made out a prima facie case and was entitled to judgment in the absence of any proven defense. Duval County Ranch Co. v. State, 587 S.W.2d 436 (Tex.Civ.App.San Antonio 1979, writ ref'd n.r.e.), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed. 2d 800 (1981).
We have not been favored with a brief by appellees. Apparently, they do not now, nor did they in the trial court, assert any defense other than "equity." While the *194 trial judge did not give any basis for his ruling, he may have relied upon Tex.Tax Code Ann. § 33.011 (Vernon Supp.1987), which provides:
The governing body of a taxing unit may provide for the waiver of penalties and interest on a delinquent tax if an act or omission of an officer, employee, or agent of the taxing unit caused the taxpayer's failure to pay the tax before delinquency and if the tax is paid within 21 days after the taxpayer knows or should know of the delinquency. (emphasis added).
It would appear that the discretion to forgive penalties and interest lies with the taxing unit and not the court. However, even if the court has such discretion, it is abundantly clear that appellees did not offer to pay the taxes within twenty-one days after learning of the delinquency. Therefore, the court erred in failing to enter judgment for penalties, interest and attorney's fees, in addition to the taxes due. Since the amount of attorney's fees to be assessed must be determined by the trial court, we must remand the case.
The judgment of the trial court is reversed and the cause is remanded for further proceedings in accordance with this court's opinion.
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916 F. Supp. 1090 (1996)
JOHNSON COUNTY AIRPORT COMMISSION, Plaintiff,
v.
PARSONITT COMPANY, INC., Defendant.
Civ. A. No. 95-2159-EEO.
United States District Court, D. Kansas.
February 5, 1996.
*1091 Mark D. Hinderks, Stinson, Mag & Fizzell, Overland Park, KS, Ellen S. Goldman, Stinson, Mag & Fizzell, Kansas City, MO, for plaintiff.
James O. Neet, Jr., Shook, Hardy & Bacon, Kansas City, MO, Bill J. Hays, Shook, Hardy & Bacon, Overland Park, KS, for defendant.
MEMORANDUM AND ORDER
EARL E. O'CONNOR, Senior District Judge.
This matter is before the court on defendant's Motion to Dismiss all four counts of plaintiff's complaint (Doc. # 5) and plaintiff's Motion For Leave to File First Amended Complaint (Doc. # 9). For the reasons set forth below, defendant's motion to dismiss will be granted as to Count I and denied as to Counts II, III, and IV. Plaintiff's motion to amend will be granted.
Factual Background
Plaintiff, Johnson County Airport Commission, is a public commission organized and appointed by the Board of County Commissioners of Johnson County, Kansas. Plaintiff alleges in its complaint that it leased certain *1092 real property and improvements at the Johnson County Industrial Airport to defendant, Parsonitt Company, Inc., for an industrial glove dry cleaning business. Three underground storage tanks located adjacent to the leased property were allegedly used by defendant to store perchloroethylene and other dry cleaning solvents.
Plaintiff alleges that defendant caused releases of hazardous substances into the environment in two ways. First, by improperly storing and disposing of solvents at the leased property, and second, by spilling perchloroethylene in connection with an August 1988 boil-over in the vapor recovery system. Plaintiff alleges that the soil and groundwater at the leased property and adjacent parcels are contaminated as a result. Plaintiff has allegedly incurred response costs required by the Kansas Department of Health and Environment ("KDHE") in connection with this contamination.
Discussion
I. Standards for a motion to dismiss
A complaint may not be dismissed for failure to state a claim upon which relief may be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir. 1989), cert. denied, 493 U.S. 820, 110 S. Ct. 76, 107 L. Ed. 2d 43 (1989). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. Id. The issue in reviewing the sufficiency of a complaint 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 (1974).
II. Defendant's Motion to Dismiss Count I
Defendant asks the court to dismiss plaintiff's cost recovery claim under section 107 of The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9607, arguing that, as a potentially responsible party ("PRP")[1], plaintiff is foreclosed from asserting such a claim.
CERCLA provides two types of legal actions by which parties can recoup costs associated with hazardous waste cleanup cost recovery actions under section 107(a)[2], and contribution actions under section 113(f)[3]. United States v. Colorado & Eastern *1093 R.R. Co., 50 F.3d 1530, 1535 (10th Cir. 1995) ("CERC"). Section 107(a) imposes liability on PRPs regardless of fault. See County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1515 (10th Cir.1991). By contrast, in a contribution claim under section 113(f), "the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9613(f)(1).
In Count I of the complaint, plaintiff seeks recovery of its response costs pursuant to section 107(a)(1), (2) and (3). Plaintiff asserts that defendant is responsible for plaintiff's response costs due to defendant's alleged status as: (1) the present operator of the site, (2) the operator at the time of the release of hazardous substances, and (3) the party that arranged for disposal of hazardous substances owned or possessed by defendant. Defendant counters that plaintiff's own status as a section 107 liable party precludes it from asserting a claim against defendant under that section. We agree.
In CERC, the Tenth Circuit held that when one PRP sues another to recover expenditures incurred in cleanup and remediation, the claim is one for contribution and is controlled by section 113(f). CERC, 50 F.3d at 1536. See also United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1176, 130 L. Ed. 2d 1128 (1995) (treating claim by liable party for reimbursement of costs as contribution action and holding that only parties not themselves liable under CERCLA may bring cost recovery actions under section 107(a)).
The CERC court's approach to the issue of cost recovery suits between PRPs focused on the section 107(a) status of the parties. "There is no disagreement that both parties are PRPs by virtue of their past or present ownership of the site...." CERC, 50 F.3d at 1536 (emphasis added). Under CERC, PRPs are barred from bringing section 107 cost recovery actions.[4]Id. at 1534. In short, any claim that would reapportion costs between PRPs is "the quintessential claim for contribution." Id. at 1536.
CERCLA section 107(a) liability is established if: (1) the site in question is defined as a "facility" in section 101(9); (2) a release or a threatened release of a hazardous substance occurred at the site; (3) response costs were incurred as a result of the release or threatened release; and (4) the party in question is a responsible person under section 107(a). See United States v. SCA Servs. of Ind., Inc., 865 F. Supp. 533, 543 (N.D.Ind.1994). In the instant case, plaintiff is a liable party under the following facts, as alleged in plaintiff's complaint: (1) the site at issue is a "facility" because dry cleaning solvents were stored and used on the property; (2) a release was caused at the site by improper storage and disposal practices and a boil-over of perchloroethylene; (3) plaintiff incurred response costs; and (4) plaintiff owned the site at the time of the release. These allegations are similar to those that created PRP status for the complaining parties in CERC. See CERC, 50 F.3d at 1536.
*1094 Under the broad language of CERC, PRP status by virtue of ownership is the critical factor. Id. at 1536. Plaintiff attempts to narrow this broad language by latching onto the Tenth Circuit's ruling that, on the facts before the court, Act-of-God and Act-of-Third-party defenses were mooted by admissions of PRP status and section 107 liability. CERC, 50 F.3d at 1539. We disagree with plaintiff's assertion that this ruling makes such an admission a prerequisite to establishing PRP status.[5]
Plaintiff points to a recent case in this court for the proposition that PRPs that have not been adjudicated liable should be allowed to assert a section 107 cost recovery claim. Hawks v. City of Coffeyville, No. CIV. A. 93-2555-KHV, 1995 WL 353378 (D.Kan. Apr. 10, 1995). In denying a defendant's motion to dismiss a section 107 claim, the court said, "defendants have not shown as a matter of law that [plaintiff] is a liable party [PRP] under Section 107." Id. at *1. The context of Hawks appears to indicate that the court was addressing a factual dispute involving PRP status. In contrast, the plaintiff in the instant case pleads facts that make it a PRP as a matter of law i.e., that plaintiff leased property to defendant at which, as a result of defendant's perchloroethylene spill, soil and groundwater is contaminated.
Although plaintiff argues that, as a governmental entity, it is entitled to assert a section 107(a) claim, its status as a Kansas "commission"[6] does not equate with such a right. Compare 42 U.S.C. § 9601(21) with 42 U.S.C. § 9601(27) ("commission" specifically included in CERCLA definition of "person," while not included in definition of "State"). See also City of Heath v. Ashland Oil, Inc., 834 F. Supp. 971, 977 (S.D.Ohio 1993) (finding that a municipality is not a "state" for purposes of 42 U.S.C. § 9607(a)(4)(A) because "[m]unicipality is specifically included in the definition of `person' and is not found in the definition of `state'"); Town of Bedford v. Raytheon Co., 755 F. Supp. 469, 475 (D.Mass. 1991) (same); City of Philadelphia v. Stepan Chem. Co., 713 F. Supp. 1484, 1488-89 (E.D.Pa.1989) (same); Washington State Dept. of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 800-01 (9th Cir.1995) (state-wide agency properly defined as "state," as distinguished from "municipalities" having only local authority). As a CERCLA defined "person," and not a "State," plaintiff is barred from asserting a section 107 claim.
Because plaintiff is not a "State," this court does not reach the issue of how CERC impacts the rights of "States" to bring section 107 actions. Were plaintiff a CERCLA "State," the impact of that designation would be unclear. See, e.g., FMC Corp. v. United States Dep't. of Commerce, 29 F.3d 833, 840 (3d Cir.1994) ("[G]overnment is liable in the same manner and to the same extent as any non-governmental entity.").
Our view, that the Tenth Circuit intended that its CERC holding be broadly applicable, is consistent with interpretations by other district courts. One court distinguished CERC from the case before it on two grounds: (1) that the response costs at issue in CERC were not voluntarily incurred, and (2) that the CERC defendants had already settled their liability with EPA. Ekotek v. Self, 881 F. Supp. 1516, 1521 (D.Utah 1995). There the court concluded that the "decisive point" of CERC was the plaintiff's "status as a responsible party ... `by virtue of ... past or present ownership of the site.'" Id. (quoting CERC, 50 F.3d at 1536). Citing the "broad language" of CERC as compelling this conclusion, the court said: "That it is the plaintiff's status as a PRP ... which is controlling may be seen in the [Tenth Circuit's] simple and straightforward approach to the issue, and its conclusion that `claims between *1095 PRPs to apportion costs between themselves are contribution claims pursuant to 113 regardless of how they are pled.'" Id. (quoting CERC, 50 F.3d at 1539).
Similarly, in Bancamerica Commercial Corp. v. Trinity Industries, 900 F. Supp. 1427 (D.Kan.1995), the court said "when one potentially responsible party sues another to recover expenditures incurred in cleanup and remediation, the claim is one for contribution and is controlled by § 113(f)." Id. at 1450 (citing CERC, 50 F.3d at 1536). In sum, we are compelled by the broad language of CERC to hold that plaintiff's section 107 claim should be dismissed.
III. Plaintiff's Motion For Leave to File a First Amended Complaint
Plaintiff requests leave to file a First Amended Complaint to bring a section 113 claim for contribution against defendant for defendant's allocable share of the response costs. Defendant objects, arguing that plaintiff's section 113(f) claim is premature. Defendant contends that plaintiff must have incurred liability under section 107 to bring a section 113 claim. We disagree.
Plaintiff has allegedly done investigative work which was acknowledged and approved by the KDHE in the Consent Agreement. It is well established that investigation costs and costs associated with determining how to solve contamination problems are recoverable response costs under CERCLA. See, e.g., Key Tronic, ___ U.S. at ___, 114 S.Ct. at 1967 (identifying other PRPs may constitute a necessary cost of response); Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 711 (D.Kan.1991) (groundwater testing potentially recoverable); Brewer v. Ravan, 680 F. Supp. 1176, 1179 (M.D.Tenn.1988) (on-site testing and water monitoring are recoverable costs).
Defendant argues that plaintiff does not presently have a section 113(f) claim because the complaint does not state that a section 106 or section 107 civil action has been filed against plaintiff. Nothing in the language of section 113(f) restricts contribution actions to parties who have incurred liability under section 107. To the contrary, the statute provides that "nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under § 9606 or § 9607 of this title." See, e.g., Mathis v. Velsicol Chem. Corp., 786 F. Supp. 971 (N.D.Ga.1991) ("The statute by its plain terms and meaning prevents Plaintiffs from maintaining a defense concerning the pendency of a civil action under CERCLA."). Accordingly, the court finds that for good cause shown, plaintiff's motion for leave to amend should be granted.
IV. Defendant's Motion to Dismiss Count II
Count II of plaintiff's complaint seeks declaration of its rights and legal relationship with defendant pursuant to 28 U.S.C. §§ 2201 and 2202. Plaintiff prays for a declaratory judgment that defendant is obligated to pay for all future investigative and remediation costs at the facility. Defendant contends that plaintiff is not entitled to a declaratory judgment against defendant because it has no valid claim under CERCLA and because no controversy exists which merits judicial determination.
Under 28 U.S.C. §§ 2201 and 2202, the court's jurisdiction is premised "on the existence of a case or controversy." Blinder Robinson & Co. v. U.S. S.E.C., 748 F.2d 1415, 1418 (10th Cir.1984) (citing North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404, 30 L. Ed. 2d 413 (1971)), cert. denied, 471 U.S. 1125, 105 S. Ct. 2655, 86 L. Ed. 2d 272 (1985). The test is whether, under the facts and circumstances alleged, there is a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Preiser v. Newkirk, 422 U.S. 395, 402, 95 S. Ct. 2330, 2334, 45 L. Ed. 2d 272 (1975).
Defendant's argument that dismissal is appropriate because plaintiff has no section 107 claim misses the mark. Plaintiff has a valid and present claim under CERCLA section 113(f).
*1096 V. Defendant's Motions to Dismiss Counts III and IV
In its Complaint, plaintiff asserts a claim for indemnity pursuant to the terms of an ongoing Lease Agreement between plaintiff and defendant (Count III), and a claim for declaratory judgment affirming defendant's obligations under the Lease which include defendant's continuing obligation to indemnify, protect, defend, and save Landlord and the County harmless from liability and costs arising from damage to the property (Count IV). Defendant seeks dismissal of both counts, arguing: (1) the underlying claim over which this court would have original jurisdiction is subject to dismissal, and (2) the court lacks compelling reasons in favor of exercising supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). See Dow v. Terramara, Inc., 835 F. Supp. 1299, 1303 (D.Kan. 1993) (citing Thatcher Enterp. v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (following the rule that state claims should be dismissed because notions of comity and federalism demand that a state try its own lawsuits)).
By ruling that plaintiff has a CERCLA § 113(f) claim against defendant, this court has removed the premise of defendant's first argument. Additionally, plaintiff's breach of contract claims under Counts III and IV are related to the alleged hazardous releases that gave rise to the section 113 claim. There is ample justification for the court to exercise supplemental jurisdiction over Counts III and IV.
IT IS THEREFORE ORDERED that defendant's Motion to Dismiss (Doc. # 5) is granted as to Count I and denied as to Counts II, III, and IV.
IT IS FURTHER ORDERED that Plaintiff's Motion For Leave to File First Amended Complaint (Doc. # 9) is granted.
NOTES
[1] The term "potentially responsible party" or "PRP" is sometimes used by litigants or courts to refer to section 107(a)'s enumeration of parties that will be liable for cleanup costs. See Steven Baird Russo, Contribution Under CERCLA: Judicial Treatment After Sara, 14 Colum.J.Envtl.L. 267, 269 (1989).
[2] CERCLA section 107(a) [42 U.S.C. § 9607(a)] provides in pertinent part:
Liability
(a) Covered persons; scope
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances,
* * * * * *
(4) ... shall be liable for
(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan....
[3] CERCLA section 113(f) [42 U.S.C. § 9613(f)] provides in pertinent part:
Civil proceedings
(f) Contribution
(1) Contribution
Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607 of this title.
[4] We note that in Key Tronic Corp. v. United States, ___ U.S. ___, 114 S. Ct. 1960, 128 L. Ed. 2d 797 (1994), the Supreme Court appeared to permit PRPs to assert section 107(a) claims. Key Tronic presented the question of "whether attorney's fees are `necessary costs of response' within the meaning of § 107(a)(4)(B)." Id. at ___, 114 S.Ct. at 1963. In deciding that issue, the Court characterized § 107 and § 113 as "similar and somewhat overlapping remed[ies]." Id. at ___, 114 S.Ct. at 1966. Moreover, the Court referred to § 107 as "impliedly authoriz[ing] private parties to recover cleanup costs from other PRP's." Id. at ___, 114 S.Ct. at 1967 (emphasis added). We believe that what was said in Key Tronic was in different context from the instant case. Although Key Tronic was decided prior to CERC, the Tenth circuit did not mention or discuss Key Tronic. We must assume that the circuit did not consider Key Tronic controlling on the question.
[5] Moreover, these defenses have not been raised by plaintiff in the instant case. In fact, plaintiff pleads facts foreclosing the availability of the Act-of-Third-party defense. Plaintiff states that defendant and plaintiff entered into a lease agreement covering the contaminated site at which defendant later spilled perchloroethylene. See Complaint ¶ 6 and ¶ 8. Section 107(b)(3) explicitly limits the Act-of-Third Party defense to situations in which a third party's act or omission occurs outside any contractual relationship with the party that is otherwise a PRP. 42 U.S.C. § 9607(b)(3).
[6] Plaintiff was created under K.S.A. 3-301 et. seq., which authorizes operation, maintenance, and care of county airports by commissions appointed by boards of county commissioners.
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360 Pa. Super. 66 (1987)
519 A.2d 994
Joni MAGEE, Appellant,
v.
Richard MAGEE.
Supreme Court of Pennsylvania.
Submitted July 7, 1986.
Filed January 8, 1987.
*67 John V. Ryan, Norristown, for appellant.
Idee C. Fox, Philadelphia, for appellee.
Before WIEAND, TAMILIA and ROBERTS, JJ.
TAMILIA, Judge:
This appeal was taken by the former wife from the dismissal of an equity complaint to enforce a separation agreement.
Appellant alleges the agreement was not incorporated into the divorce decree and concerns matters agreed upon other than support of the children as the support matters were subject to court order. The court granted appellee/husband's preliminary objection, agreeing with the appellee the issues were being considered in a pending support proceeding.
The age old issue presented here is whether matters subject to a separation agreement, and overlapping with issues involving a support order, should be heard in different branches of the court. Judge John Meade determined that the issues presented by a complaint in equity were more properly issues of law to be determined in an action in assumpsit. Further, he indicated that since issues raised in the equity complaint, relating to college expenses, medical expenses and arrearages, were the same issues subject to *68 disposition in a concurrent proceeding before Judge Rosenwald in the Family Court, the equity action should be consolidated with the support action. He failed, however, to produce an Order to that effect and simply granted the preliminary objection and dismissed the complaint.
While no Opinion was filed by the trial court, nor did we receive a brief from appellee, the issues are clearly raised by appellant/wife and thoroughly discussed on the record during hearing on the preliminary objection.
While the agreement provides for its enforcement in equity, parties cannot confer jurisdiction by their own action. The proper remedy to enforce a separation agreement is an action in assumpsit. In Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985), we said:
. . . [A]greements, whether they be separation, antenuptial, postnuptial or support, are instruments of contract in which the court has no involvement. None of the elements of due process, court review and appealability are involved in agreements such as these, which are private undertakings between two parties, each having responded to the "give and take" of negotiations and bargained consideration. As such, they are governed by the law of contracts. Steuart v. McChesney, [498 Pa. 45, 444 A.2d 659 (1982)], Brown v. Hall, [495 Pa. 635, 435 A.2d 859 (1981)], Litwack v. Litwack, [289 Pa.Super. 405, 433 A.2d 514 (1981)], VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). This means, of course, they are not modifiable unilaterally; a court cannot remake or modify such an agreement as it would be the taking of property without due process of law. Also, such an agreement is solely enforceable by an action in assumpsit. (citations omitted). . . .
Id. 347 Pa.Superior Ct. at 300, 500 A.2d at 843.
. . . Thus, it is apparent there are three types of agreements possible in Pennsylvania law: 1) separation agreements unrelated to any court involvement, 2) support agreements inherent in the support procedures and resulting in a court order incorporating an agreement (Pa. *69 R.C.P. 1910.11, 1910.12), and 3) voluntary alimony agreements, entered into prior to the divorce but incorporated in the divorce decree. (See 23 P.S. § 401, 502, 503 and Pa.R.C.P. 1920.31, allowing support proceedings, and Pa. R.C.P. 1920.52, which follow rules as to civil actions and not support).
The effect is that a separation contract is not enforceable pursuant to court procedures under the support rules or the Divorce Code; support agreement orders are enforceable pursuant to the support rules, and alimony agreements incorporated in a decree are enforceable through the Divorce Code. This includes in personam actions for support under 48 P.S. § 132, which are enforced by proceedings pursuant to § 1910.20-1910.23, as with other civil support actions. There is one exception in that any order for support, against either husband or wife, can be enforced by an in rem proceeding pursuant to 48 P.S. § 133, 136-141. See Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979).
Id. 347 Pa.Superior Ct. at 305, 500 A.2d at 845.
If the action had properly been captioned in assumpsit, the overlapping jurisdiction between the matters complained of and the proceeding in the Family Court Division on the same issue would require, for the sake of judicial economy and to avoid conflicting and unreasonable orders, that they be consolidated in one court to be determined by one judge. Since we do not have before us the record in the support proceeding, we cannot determine if there is an overlap which would require an election of remedies.
We have experienced similar, almost insoluable, difficulties with other facets of family law. See Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986) (partition and equitable distribution to be consolidated); Gantz v. Gantz, 338 Pa.Super. 528, 488 A.2d 17 (1985) (bifurcation in divorce and property distribution); Hollman, supra (jurisdiction in separation agreements). The legislative intent, derived from Article V of the Pennsylvania Constitution, establishing divisions of the court through which jurisdiction *70 shall be exercised, as reflected by the Divorce Code of 1980, 23 P.S. 101 et seq. and Pa.R.C.P. 1910 et seq., requires that we consolidate such matters whenever possible. While the Divorce Code speaks of the jurisdiction for matters relating to divorce, custody and property rights lying in the Court of Common Pleas, § 101, § 301 and § 1910.4 of Pa.R.C.P. require all actions of support to be brought in the Domestic Relations Section. The Constitution and accompanying schedule to the Judicial Article assigns that jurisdiction to the Family Court Divisions of the Court of Common Pleas of Philadelphia provides:
Sched. Art. 5
§ 16
(q) The court of common pleas through the family court division of the court of common pleas shall exercise jurisdiction in the following matters:
(i) Domestic Relations: desertion or nonsupport of wives, children and indigent parents, including children born out of wedlock; proceedings for custody of children; divorce and annulment and property matters relating thereto.
The Family Court Division has all the powers that can be exercised by a court of common pleas. The need to have all matters relating to family problems directed to this specialized division is obvious, particularly when there are different claims relating to the same issue, as is the case here. Obviously, the Family Division judge is equally competent to decide the action in assumpsit, if properly brought, relating to support, medical expenses and education, founded on contract law under a separation agreement, as he is to determine the same matters under statutory and common law, pursuant to a complaint in support.[1]
*71 The request of the court below, by letter dated March 14, 1986, to have the case remanded to the court below for further consideration, is denied, as consolidation of the equity (assumpsit) action with the support action pending in the family court, will provide an adequate review of all matters complained of. We are, however, remanding the case to the court below with directions that the complaint be transferred to Judge Rosenwald to be considered on its merits as an assumpsit matter with appropriate consideration being given to the effects, if any, of the pending support action.
Case remanded for further consideration consistent with this Opinion.
Jurisdiction relinquished.
WIEAND, J., files concurring and dissenting opinion.
WIEAND, Judge, concurring and dissenting:
Joni Magee filed a complaint in equity seeking to enforce against Richard Magee the terms and provisions of a separation agreement. Richard Magee, the defendant, filed preliminary objections raising questions of jurisdiction in which he alleged that the plaintiff had an adequate remedy at law. In response to these preliminary objections, the trial court dismissed the complaint. The plaintiff appealed.
The trial court's order was clearly erroneous and must be reversed.[1] Pa.R.C.P. 1509(c) provides as follows:
(c) The objection of the existence of a full, complete and adequate nonstatutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.
This rule is controlling of the issue now before us. In accordance therewith, I would reverse the order dismissing the complaint and remand for further proceedings.
*72 Having reached this conclusion, I find it unnecessary and also inadvisable to establish a general rule, as the majority appears to do, that "[t]he proper remedy to enforce a separation agreement is an action in assumpsit." (Opinion at p. 68). In some instances a money judgment may be an entirely inadequate remedy. Similarly, I do not join the majority's direction to the trial court to order consolidation of the assumpsit action with the support action pending in the Family Court Division. Consolidation of actions is discretionary with the trial court, see Pa.R.C.P. 213(a), and I would not attempt to advise the court in advance with respect to the manner in which that discretion should be exercised.
NOTES
[1] While, in Hollman, supra, we have limited our discussion to matters which sound in assumpsit, we do not mean to limit the application of our findings to that form of action. Many matters subject to separation agreements and domestic relations court proceedings are based in equity, as indicated here, and they are equally cognizable in Family Court Division as opposed to Civil Division proceedings.
[1] Even the trial judge has suggested that the case should be remanded for further consideration.
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70 Md. App. 58 (1987)
519 A.2d 1327
WILLIAM C. EWACHIW, JR.
v.
DIRECTOR OF FINANCE OF BALTIMORE CITY.
No. 637, September Term, 1986.
Court of Special Appeals of Maryland.
January 19, 1987.
Certiorari Denied June 4, 1987.
Lawrence A. Melfa, Towson, for appellant.
Suzanne A. Hutton, Asst. City Sol. (Benjamin L. Brown, City Sol. and William R. Phelan, Asst. City Sol. on the brief), Baltimore, for appellee.
Argued before MOYLAN, BLOOM, ROBERT M. BELL, JJ.
MOYLAN, Judge.
The Maryland General Assembly in 1970[1] enacted a comprehensive statute designed to control trafficking in controlled dangerous substances. As part of its "full court press" against the illicit drug traffic, it provided for the forfeiture to the State of all money or currency found to have been used or intended for use in connection with the drug traffic. As we turn our appellate review to one such instance of forfeiture, it is helpful to begin with Md. Ann. Code, Art. 27, § 276 (1982 Repl.Vol. & 1986 Supp.), which sets out the purpose of the comprehensive law and provides guidelines for interpreting and construing that law. After declaring that the illicit drug traffic has "a substantial and detrimental effect on the health and general welfare of the people of the State of Maryland" and stating the purpose of the law "to prevent [this] abuse which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State of Maryland," subsection (b) of that section provides:
"The provisions of this subheading shall be liberally interpreted and construed so as to effectuate its general purpose as stated hereinabove."
With those interpretative guidelines firmly in mind, we turn to the case at hand. The appellant, William C. Ewachiw, Jr., was the resident of the premises at 818 South Streeper Street in Baltimore City, when that premises was searched on November 10, 1981, pursuant to a validly issued search and seizure warrant. The police found a wide variety of equipment and paraphernalia associated with both the use and manufacture of controlled dangerous substances. There was also seized a sum of $14,175 in cash. The appellee, the Director of Finance of Baltimore City, petitioned to have the cash forfeited under the specific provisions of Article 27, § 297(a)(6), which provides, in pertinent part:
"(a) Property subject to forfeiture. The following shall be subject to forfeiture and no property right shall exist in them:
...
(6) All money, coin, or currency which has been used or intended for use in connection with the illegal manufacture, distribution, dispensing or possession of controlled dangerous substances or controlled paraphernalia. All money, coin, or currency which is found in close proximity to contraband controlled dangerous substances, controlled paraphernalia, or forfeitable records of the importation, manufacture, or distribution of controlled dangerous substances are presumed to be forfeitable under this paragraph. The burden of proof is upon a claimant of the property to rebut this presumption."
Following a full hearing in the Circuit Court for Baltimore City on September 6 and September 30, 1985, and January 24, 1986, Judge Milton B. Allen issued a Memorandum Opinion and Order on February 19, 1986, ordering the forfeiture. Upon this appeal from that decision, the appellant raises the following four contentions:
1. That the decision of Judge Allen that the cash was found in "close proximity" to the contraband drugs and/or paraphernalia was clearly erroneous;
2. That § 297(a)(6) as applied in this case was an unconstitutional deprivation of the due process of law guaranteed by the Fourteenth Amendment;
3. That the case should have been dismissed because of the failure of the appellee to prosecute within the required statutory period; and
4. That the appellee failed to allege and prove that the Petition for Forfeiture was filed within the 90-day period required by § 297(b)(4).
We turn our attention first to the fact finding of Judge Allen that the cash was, indeed, properly subject to forfeiture. What the appellant, in spinning his appellate argument about what the evidence reveals, stubbornly refuses to recognize is that, in assessing whether a trial judge's fact finding is clearly erroneous, we take that version of the facts most favorable to the State and, further, draw all inferences in favor of the State that can reasonably be drawn from those already favorable facts. Defense testimony, because it may be utterly disbelieved by the fact finder, is at this stage utterly discounted. Two such spurious arguments have been raised by the appellant here.
The evidence showed the appellant to be the lessee of 818 South Streeper Street. The appellant, to be sure, testified that he sublet the basement of his premises to others and that a wide variety of people had free access to his house, but the fact-finding trial judge was under no obligation to believe any of this self-serving testimony. The assessment of the legal sufficiency of the evidence will be made not simply on the basis of the appellant's being knowledgeable about and responsible for all illicit activities going on in his house but upon the basis of the appellant's being the sole and exclusive occupant of that house.
The appellant's testimony as to the source of the $14,175 in issue was not only capable, from our appellate point of view, of being utterly disbelieved but was actually disbelieved by Judge Allen. In his Memorandum Opinion and Order, Judge Allen pointed out that the appellant's contention in this regard "carries little weight." Judge Allen found that, contrasted with the strong circumstantial case for the State, "Mr. Ewachiw's self-serving statements to the contrary strain the credulity of this Court."
The affirmative case for the State was a strong one. From the basement of 818 South Streeper Street, the police seized twelve nonconventional smoking pipes commonly used to abuse controlled dangerous substances such as marijuana and PCP, film canisters which are commonly used for distributing hashish and PCP, a hemostat, cigarette rolling papers, straws and pipe cleaners, glass bottles with residue, plastic vials with various types of suspected controlled dangerous substances, clear capsules, white tablets, hypodermic needles and a syringe, a burnt spoon with residue, rubber bands, other spoons with residue, a hot plate, a vacuum chamber, plastic bags with white powder, and a motor oil can with a clear liquid smelling like alcohol.
Moving up from the basement to the living room/dining room area, the police found straws with residue, green-brown seeds, bright green residue in a vial, a metal clamp glass beaker stopper, goggles, and Noxene paper. More significantly, they found metal chips of the type used as a filter in producing PCP. In addition, they found a Physicians' Desk Reference and a notebook with detailed instructions for manufacturing PCP.
As yet a further indication that this type of paraphernalia and equipment was overflowing the appellant's entire home, the police recovered from the kitchen a plastic bottle with residue, two jars of clear liquid, and a piece of plastic hose containing a clear liquid.
Various representative examples of the suspect substances and suspect residue were analyzed by the crime laboratory and were found to be marijuana, methamphetamine, phencyclidine (PCP), and cocaine.
Following the incriminating trail upstairs, the police found in the appellant's second-floor bedroom another hot plate, a chemical supply catalog, two chemistry books, a plastic labware catalog, and a magazine describing illicit drugs. Several of the chemistry books were in Mr. Ewachiw's name.
In that same bedroom, the bulk of the money was found sitting on top of the dresser. The bills were in increments of $100 wrapped with rubber bands. The bundles containing $100 each were, in turn, wrapped in increments of $1,000. Detective Marcus testified that "there were approximately twelve bundles." Recovered from the dresser was actually a total of $13,200. An additional $975 was seized from the appellant's wallet.
Detective Marcus testified, moreover, that in his experience, "in dealing with narcotics drug trafficking and so forth, a thousand dollars is [the] approximate amount of money that is used to purchase an ounce of PCP." Under all of the circumstances, Judge Allen's conclusion that the seized cash had "been used or intended for use in connection with their illegal manufacture" followed ineluctably. In arguing the absence of "close proximity," the appellant seems to fixate obtusely on the fact that narcotics were found in the basement and the money was found in a second-floor bedroom, two floors away. He conveniently forgets the wealth of incriminating data, most especially the metal chips and the detailed instructions for manufacturing PCP, found on the first floor. This alone, if it were necessary, cuts the distance in half. He is equally forgetful that the trail of chemical supply catalog, labware catalog, and chemistry books (for which no credible innocent explanation was offered) leads right on upstairs to within touching distance of the cash itself. The very wrapping pattern of "$100 bundles" and "$1,000 bundles of bundles," itself a significant circumstance, literally envelops the seized cash itself. As Chief Judge Gilbert pointed out for this Court in Bozman v. Office of Finance, 52 Md. App. 1, 4-5, 445 A.2d 1073 (1982), aff'd, 296 Md. 492, 463 A.2d 832 (1983):
"The breadth of the term `close proximity' deliberately has not been defined by either Maryland appellate court. Were we to undertake a delineating of `close proximity,' it is almost a foregone conclusion that in any future searches, monies will always be found outside the area embraced by our definition. We shall not, therefore, attempt to define `close proximity.' Instead, we shall treat the term with the same deference afforded `fraud' and `a quantity sufficient to indicate an intent to distribute.' We liken `close proximity' to Justice Stewart's comment on pornography. We do not define it, but we know it when we see it. In short, we shall determine `close proximity' on a case-by-case basis.
`Close proximity' as used in Md. Ann. Code art. 27, § 297(a)(6) must be understood with reference to the legislative purpose. Judge Digges, in Prince George's County v. Blue Bird Cab Co., Inc., 263 Md. 655, 662, 284 A.2d 203, 207 (1971), observed that the Legislature's purpose in adopting the forfeiture provisions was an `attempt not only to curtail drug traffic in this [S]tate, but to discourage such a blight from continuing in the future.'" (Footnotes omitted).
The fact finding of Judge Allen on the ultimate merits of the forfeiture itself was not clearly erroneous.
The appellant's second contention is a bit muddled, but we will try to state what we sense to be its thrust. The appellant is focusing upon the second and third sentences of § 297(a)(6) and claiming that they represent an unconstitutional deprivation of due process of law. The second sentence sets out the legislatively created presumption that when money is found in close proximity to contraband drugs or paraphernalia, that money is presumed to be forfeitable; it is thus presumed to have "been used or intended for use in connection with" the illicit drug operation. The third sentence casts upon the defendant in the forfeiture proceeding the burden "to rebut this presumption."
In arguing that the use of a presumption in that fashion constitutionally runs afoul of In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the appellant is essentially arguing that although a Thayer-Wigmore presumption, casting upon a criminal defendant a mere burden of production, may be constitutional, a Morgan presumption, casting upon a criminal defendant the heavier burden of ultimate persuasion, is never constitutionally permitted. The appellant's argument would seem to say further that the legislatively created presumption in this case is more than a Thayer-Wigmore presumption, simply shifting to him the burden of production. The appellant's thesis is that when he offered an explanation for the presence of the cash in his bedroom and on his person, that represented a prima facie case that the case was not "used or intended for use in connection with" the illicit drug traffic and that that should have dissipated or "burst the bubble" of the presumption. The State would thereby have been divested of all possible reliance upon the presumption and would have been required to prove the illicit use or intended illicit use by the requisite burden of persuasion just as it was required to prove all other elements of the case. If the final sentence of the subsection casts any burden of ultimate persuasion upon the defendant, that statutory provision, so the appellant's thesis runs, would be unconstitutional.
There is more difficulty in stating the appellant's contention than in answering it. There is both a factual answer and a legal answer. Factually, it is obvious that Judge Allen never relied upon a presumption of illicit use arising from a predicate fact of close proximity. His Memorandum Opinion and Order makes it clear that he found, as a matter of fact, the illicit use directly from the affirmative evidence offered by the appellee. Based upon the pervasive presence of drugs, paraphernalia, and equipment; upon the metal chips and the direction book for making PCP; upon the chemistry books and pharmaceutical catalogs; and upon the very wrapping pattern of the cash itself, Judge Allen made his findings of fact upon the ultimate merits:
"This Court is persuaded that the money found in the Ewachiw residence was intended for use in connection with violations of narcotics laws and is, therefore, subject to forfeiture.
* * * * * *
Viewing the evidence as a whole, this Court finds the cash to be intended for use in connection with violations of narcotics laws."
Even if we were to assume, arguendo, that the legislatively created presumption was unconstitutional, it simply played no role in this case whatsoever.
The legal answer is that this is not a criminal case. In re Winship, supra, and all of its progeny, including Mullaney v. Wilbur, supra, Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), and Connecticut v. Johnson, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983), are concerned only with criminal prosecutions. Permeating the entire discussion in In re Winship is the special protection given to defendants facing conviction for a violation of the criminal law. The holding of In re Winship, which is the doctrinal point of departure for this entire body of law, is that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. at 1072, 25 L.Ed.2d at 375 (emphasis supplied). By way of contrast, it is clear that the proceeding under this forfeiture statute is a civil in rem action. Prince George's County v. Blue Bird Cab Company, 263 Md. 655, 284 A.2d 203 (1971). The action is not in personam against Ewachiw himself; it is in rem against the alleged contraband per se.
If the statute casts, as it clearly seems to, the burden of ultimate persuasion upon the owner of the property subject to forfeiture to provide an explanation for the presence of the cash which is not only theoretically believable but which is actually believed by the fact finder, that burden would be compatible with the tone and stated purpose of the forfeiture statute. Indeed, in commenting upon the deliberate harshness of the forfeiture law, Judge Digges noted, for the Court of Appeals, in Prince George's County v. Blue Bird Cab Company, supra, at 263 Md. 662, 284 A.2d 203:
"We agree that in some ways this is a harsh law; however, it is within the Legislature's power to decide whether such a forfeiture provision is desirable. Its purpose is to attempt not only to curtail drug traffic in this state, but to discourage such a blight from continuing in the future. Historically, decisive action has been required to prevent any plague from spreading. In the present case the Legislature has clearly indicated its purpose for this act. It is to control the proliferation of dangerous drugs in our society and it is a noble purpose, but an arduous task. The measures that have been taken are not out of step with the great weight of authority."
A Morgan-type presumption, moreover, has always been appropriate in civil proceedings. Quite fittingly, it casts upon the party with the greatest access to the information the burden of being forthcoming with all available information. If circumstances cast a cloud of suspicion over the money, as the proximity of the money to clear evidence of socially unacceptable behavior did here, it is not inappropriate to require the appellant to dispel that cloud of suspicion to the ultimate satisfaction of the fact finder. In Plummer v. Waskey, 34 Md. App. 470, 485, 368 A.2d 478 (1977), we spoke directly to this issue:
"This due process limitation on the operation of legal presumptions, however, does not operate in the civil arena. There, unhindered by the due process clause, the burden of ultimate persuasion as well as the burden of producing evidence may be allocated to either party on any particular issue as the emerging common law deems appropriate and fair. A presumption in the other tradition the Morgan tradition that remains in the case and that does not disappear like the bursting bubble is appropriate in the civil law."
The distinction between procedural devices which are forbidden in the criminal law but are not only permitted but sometimes logically compelling in the civil law was one we made in Evans v. State, 28 Md. App. 640, 708 n. 40, 349 A.2d 300 (1975):
"What emerges is that the use of a presumption in the Morgan tradition may remain perfectly appropriate for civil litigation, where burdens even of ultimate persuasion may shift back and forth throughout the course of a trial. It is not inappropriate in such civil litigation to require a person asserting a position to bear the burden of proving that position. `The proponent of an issue bears the burden of that issue.' Nor is it inappropriate to adjust the burden of persuasion where facts are `peculiarly within the knowledge' of one of the parties. McCormick, Evidence (1954), at 675. Such a tradition, however, is not appropriate as a model for criminal law."
That the Due Process Clause of the Fourteenth Amendment does not intrude upon the procedural and evidentiary devices deemed appropriate for handling civil litigation in the state courts could not be more clear. The appellant argues that the forfeiture action threatens him with the deprivation of "property" within the contemplation of the Due Process Clause; so, of course, under that line of reasoning, might every action over the control of property and every action in damages known to the civil law. The Due Process Clause, if applicable, would preclude the use of the ordinary civil burden of persuasion, but the Court of Appeals has regularly held the "mere preponderance of the evidence" to be the appropriate burden of persuasion in these forfeiture proceedings. Prince George's County v. Blue Bird Cab Company, 263 Md. at 659, 284 A.2d 203. The Due Process Clause, if applicable, would give the appellant a protection against double jeopardy, but it has regularly been held that an owner of property can suffer forfeiture even after the owner has been found not guilty of the underlying criminal offense. United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976); State v. Greer, 263 Md. 692, 284 A.2d 233 (1971). The Due Process Clause, if applicable, would give the appellant here a constitutional right to trial by jury, but the State is not required by the Federal Constitution to provide a trial by jury in civil cases. United States Constitution, Amendment VII. The Due Process Clause, if applicable, would give the appellant here a Sixth Amendment right to counsel, but that is obviously not available. The Due Process Clause, if applicable, might strike down, under Eighth Amendment proportionality analysis, the forfeiture of a Rolls Royce used to facilitate the possession of a lone marijuana cigarette; yet such is permitted under the stern provisions of the Maryland forfeiture law. State v. One (1) 1982 Plymouth, 67 Md. App. 310, 507 A.2d 633 (1986).
It is clear that the decision as to the wisdom of this procedural device is one resting in the hands of the Maryland General Assembly unfettered by the Federal Fourteenth Amendment. In taking that "decisive action [that] has been required to prevent any plague from spreading," Prince George's County v. Blue Bird Cab Company, 263 Md. at 662, 284 A.2d 203, the Legislature has deliberately sought to strengthen the State's hand, not only by permitting forfeiture upon a bare preponderance of the evidence, but by giving the State the benefit of a presumption and requiring the owner of the property to rebut that presumption. As we pointed out in Bozman v. Office of Finance, supra, 52 Md. App. at 5-6, 445 A.2d 1073:
"Recognizing the great degree of difficulty that would confront the prosecution if it were required to prove that monies found in a search of premises were directly attributable to proscribed activity, the General Assembly wisely eliminated that burden by declaring that monies in `close proximity to contraband controlled dangerous substances or controlled paraphernalia' were forfeited unless, after a hearing on a petition for forfeiture, the court shall find that the monies seized were not in close proximity to contraband." (Footnote omitted).
In this case, as we have pointed out, the State did not need the benefit of the presumption; where needed, however, it is available. The General Assembly has spoken. That, for our purposes, is controlling.
The appellant's third contention is that the Petition for Forfeiture should have been dismissed for lack of prosecution under Maryland Rule 2-507. The contention lacks merit in several regards. In the first place, we are not dealing with a procedure established for the benefit of civil defendants but rather with a management device created primarily for the benefit of the court system itself, enabling it to clear its cluttered dockets of obvious dead wood. In discussing the origins of Maryland Rule 530 (the predecessor of Rule 2-507), Judge Digges explained, in Mutual Benefit Society of Baltimore v. Haywood, 257 Md. 538, 539, 263 A.2d 868 (1970):
"For far too many years the courts of Maryland have been plagued by the onslaught of an ever increasing backlog of cases. And only after many years of experimentation, persuasion, arm twisting and the utilization of the local and this Court's rule making powers has the judiciary been able to check one of the most frustrating ironies of the crowded docket. By creating a statewide dismissal rule (Maryland 530) we were confident that we could at least focus on the dead case, the case left unprosecuted for years at a time, whose mere presence in the mainstream of pending cases created such a paper logjam that our courts were unable to give due attention to cases that still exhibited the vital signs of life."
In arguing an alleged lack of diligence on the part of the appellee for failing to locate the appellant at a time when he was being detained somewhere within the vast "archipelago" of the Maryland correctional system, the appellant treats Rule 2-507 as tantamount to the Sixth Amendment right of a criminal defendant to a speedy trial, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), or the statutory right of a Maryland criminal defendant to a trial within the legislatively determined period. State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979). The analogy is simply inapt; we do not assess the Court's effort to regulate its caseload under Rule 2-507 by the same standards applicable to a criminal defendant's claiming of a constitutional or statutory right to a speedy trial. Neither in terms of the underlying purpose of the respective rules nor in terms of the intended beneficiaries of the respective rules is there any parallel. The obligation upon the State to locate and to bring to trial a criminal defendant has no counterpart in the procedural contest between civil litigants, who are treated by the law as being equally well advantaged.
Judge Digges, in Stanford v. District Title Insurance Company, 260 Md. 550, 554-555, 273 A.2d 190 (1971), reiterated the theme that the central purpose of the Rule is not to benefit the individual litigant but "to clear the docket" of abandoned and forgotten suits so that the judicial machinery may operate more efficiently:
"Rule 530 is the device by which the most intolerable delays, delays which have mounted up to five and six years and beyond in some sections of this country, and, indeed, in this state, can be ultimately eliminated."
The precise commencement of this forfeiture action was on March 28, 1983, the day on which the Petition for Forfeiture was filed with the clerk of the court. On the issue of dismissal for lack of prosecution, nothing matters that happened prior to that date. The appellant's continuous references to the fact that the case "arose out of an incident on November 1, 1981," are no more than flights of immaterial rhetoric. The timeliness of the commencement of the action is a distinct issue and is, indeed, a separate appellate contention. It has nothing to do, however, with the prosecution of an action once commenced. The resolution of this particular issue would be identical whether the forfeiture petition had been filed on the same day as the underlying search and seizure or had been filed twenty years later. Our point of departure is March 28, 1983, and nothing that went before has the remotest relevance to the matter at hand.
Rule 2-507(c) provides that, "An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry...." Once the present action was "subject to dismissal" under the Rule, the clerk, as is required by subsection (d), served "notice on the parties" that "an order of dismissal" would be entered within thirty days unless appropriate action was taken. The clerk sent such notice on April 6, 1984. Within the thirty-day period provided by subsection (e), the plaintiff-appellee appropriately filed a Motion to Suspend. Since the literal thirtieth day, arguably May 6, 1984, fell on a Sunday, the appellee had until May 7 to file the Motion to Suspend. The motion was filed on May 7. On May 23, 1984, Judge Thomas Ward granted a one-year suspension of Rule 2-507.
Initially fatal to any argument the appellant makes with respect to the propriety of this order is the fact that the appellant never objected to it. Nothing is, therefore, preserved for appellate review. In the alternative, it would be equally fatal to the appellant's argument that no record of the proceeding before Judge Ward has been produced by the appellant. As the Court of Appeals emphatically pointed out, in Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 400, 384 A.2d 737 (1978), in reversing a decision by this Court, "The burden of producing the record of any proceeding is upon him who would attack its sufficiency." The Court of Appeals there held, at 282 Md. 401, 384 A.2d 737:
"The Court of Special Appeals noted with particularity that the trial judge made no stenographic record nor did he outline his reasons for his action. Without question, the better practice for any trial judge when exercising his discretion under Rule 530 is to set forth the basis for his ruling on the record, with unmistakable clarity, orally or by memorandum opinion. However, it is the responsibility of the aggrieved party, the party claiming abuse, to preserve his objection for review."
On the failure of the appellant to rebut the presumptive validity of Judge Ward's action, we hold, as did the Court of Appeals, 282 Md. at 401-402, 384 A.2d 737:
"He was the most knowledgeable party as to the ultimate effect of the court's ruling on his defense. If he felt abused, he had only to preserve the basis for his contention by requesting the court to record its reasons for review. However, he made no such request and now, instead, invites the appellate court to rule in a vacuum. No court can perceive the subtlety of a trial court's judgment or understand the balancing factors employed by it from a silent record."
Again ignoring his failure to preserve the point for appellate review, the appellant argues that the suspension of the rule for the period of one year was, ipso facto, an abuse of discretion on the part of Judge Ward. We are informed that one year is the customary extension granted in these cases by the Circuit Court for Baltimore City. For Judge Ward to have done what is regularly done by his colleagues in Baltimore City hardly qualifies as a clear abuse of discretion. As the Court of Appeals noted, in Stanford v. District Title Insurance Company, supra, 260 Md. at 555, 273 A.2d 190, "That decision, whatever it may be, rests in the sound discretion of the trial judge and we will only invade his province on appeal in extreme cases of clear abuse." Indeed, in reviewing the decisions of the Court of Appeals on the merits of dismissal for lack of prosecution, we note that that Court has invariably upheld the decisions of the trial judge, whether granting the dismissal or denying the dismissal, as falling within the appropriate discretionary range.
Upon timely motion by the plaintiff-appellee, Judge Joseph H.H. Kaplan granted, on May 1, 1985, an additional ninety-day extension. Once again, the appellant failed to note any timely objection to that action. The fact that he did file an objection to a subsequent third extension does not serve to revive the reviewability of the merits of the first or second extensions. Once again, by way of alternative rationale, the appellant has produced no record from which we could rebut the presumptive validity of Judge Kaplan's ruling.
Within the ninety-day extension period, the plaintiff-appellee again moved, on July 18, 1985, for a further extension. Because the only trial date counsel could agree upon was not available to the court, Judge Hilary Caplan, on August 6, 1985, granted an additional sixty-day extension. Indeed, this third extension appears clearly to have been for the convenience of the court in managing its calendar. In no event do we perceive any clear abuse of discretion. Stein v. Maryland State Police, 62 Md. App. 702, 491 A.2d 603 (1985).
The appellant's final contention goes to the timeliness of the commencement of this action. Section 297(b)(4) provides that all forfeiture "proceedings relating to money or currency ... shall be instituted within 90 days from the date of final disposition of criminal proceedings which arise out of Article 27, § 276 through § 302 inclusive." There is no impediment here. The criminal charges against the appellant, arising out of the search and seizure of his house on November 10, 1981, were nolle prossed on January 26, 1983. The Petition for Forfeiture, which commenced the present action, was filed on March 28, 1983, sixty-one days later. This was well within the ninety-day period provided by the statute.
The appellant has suffered a convenient lapse of memory in this regard. In the seventh paragraph of his Answer to Petition, he does not allege, but simply raises the possibility, that the forfeiture petition was not timely filed:
"The Defendant agrees that eventually the charges against him were Nolle Pros. He does not remember the specific date but believes that this Petition for Forfeiture was filed after ninety (90) days from final disposition of the criminal charges in this case and should therefore be dismissed pursuant to the terms of Article 27, Section 297(b)(2)."
Recognizing the insubstantiality of his factual predicate, the appellant has shifted gears upon appeal and now argues that the petition was flawed, as a matter of pleading, for failing to allege a timely filing within the ninety-day period. The appellant cites no case law supporting this strained proposition. Indeed, the clear thrust of Bozman v. Office of Finance, 52 Md. App. 1, 445 A.2d 1073 (1982), and Bozman v. Office of Finance, 296 Md. 492, 463 A.2d 832 (1983), is to the contrary. Those cases held that it is not necessary to prove or to allege that a "final disposition" of the criminal charges has ever taken place, let alone that the forfeiture petition was brought within a ninety-day period after such "final disposition." In dealing with the very provision of § 297(b)(4) now under review, Chief Judge Gilbert held for this Court, 52 Md. App. at 10, 445 A.2d 1073:
"The statute does not, in our view, require that the governmental agency affirmatively prove as part of its case that it commenced proceedings within 90 days of `final disposition.' On the contrary, the 90-day period is likened unto a statute of limitations and, as with limitations, must be specially pleaded and demonstrated. It is, in essence, an affirmative defense. Since the record in the instant case fails to show when `final disposition' occurred, if in fact it has, we are unable to say that the forfeiture was not begun within the statutory time frame."
As "an affirmative defense," the alleged non-timeliness of the filing was a matter to be "specially pleaded and demonstrated" by the appellant. It was not for the appellee to plead and to prove timely filing; it was for the appellant to plead and to prove non-timely filing. This, he has not done.
Since the merits of this resolution stand out so prominently, we need not remind the appellant that he did not raise the issue of the adequacy of the pleading below; there, in contrast with his argument here, he dealt with the merits of the timeliness of the filing and not with the adequacy of the pleading. Paragraph 8 of his Answer to Petition read:
"By way of affirmative defense, the Defendant specifically alleges that the provisions of Article 27, Section 297(b)(2) have been violated, in that the Petition was not filed within ninety (90) days from the date of final disposition of criminal proceedings, from which the forfeiture arose."
In affirming the judgment of forfeiture, we advert again to the clear purpose of § 297, so aptly characterized by the Court of Appeals, in Prince George's County v. Blue Bird Cab Company, supra, 263 Md. at 662, 284 A.2d 203:
"Its purpose is to attempt not only to curtail drug traffic in this state, but to discourage such a blight from continuing in the future. Historically, decisive action has been required to prevent any plague from spreading."
The "full court press" will be maintained.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
NOTES
[1] By Ch. 403 of the Acts of 1970, rewriting §§ 276-302 of Article 27.
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69 Md. App. 755 (1987)
519 A.2d 806
IN RE ZEPHRIN D.
No. 528, September Term, 1986.
Court of Special Appeals of Maryland.
January 14, 1987.
George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender on the brief), Baltimore, for appellant.
Norman Smith, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Yolanda Gelpi, Asst. State's Atty. for Baltimore City on the brief), Baltimore, for appellee.
Submitted before BISHOP, ROSALYN B. BELL, and POLLITT, JJ.
ROSALYN B. BELL, Judge.
Zephrin D., a juvenile, was found delinquent, and a judgment of restitution was ordered against his mother for damages to the vehicles he stole and for the cost of a rental car for the owners while their vehicles were being repaired. This appeal questions whether the trial court erred in including the cost of a rental car as a part of the restitution order.
Zephrin was charged with stealing and defacing a 1984 Mazda automobile belonging to Jeffrey Wilson and a 1985 Mazda automobile belonging to Angela Sykes.[1] The facts provided to us in the record are minimal since Zephrin admitted his participation in these offenses. Each victim submitted a Claim for Restitution listing the damages to his and her separate property and expenses incurred as a result of Zephrin's unauthorized use of their vehicles. One of the expenses both victims listed was the cost of a rental vehicle used while their own cars were being repaired. Sykes listed the rental cost as $309.43. Wilson indicated that his insurance covered all of his rental cost except a $50 deductible that he paid.
The juvenile master recommended restitution against Zephrin's mother in the amounts of $841.73 payable to Wilson and $536.14 payable to Sykes. These amounts included the costs of the rental cars. Pursuant to Rule 911(c), Zephrin filed exceptions to the juvenile master's recommendations, challenging the restitution for the rental expense and requested a hearing on the record in the Circuit Court for Baltimore City. At the hearing Zephrin's counsel conceded Sykes's rental cost as $309.43. Neither party was able to obtain Wilson's rental cost. The court denied the exception. On appeal Zephrin contests the inclusion of the cost of Sykes's rental car in the restitution order.[2]
Maryland Cts. & Jud.Proc.Code Ann. § 3-829 (1974, 1984 Repl.Vol.) governs the restitution available to victims of delinquent acts. The section provides in pertinent part:
"(a) The court may enter a judgment of restitution against the parent of a child, or the child in any case in which the court finds a child has committed a delinquent act and during the commission of that delinquent act has:
(1) Stolen, damaged, or destroyed the property of another;
(2) Inflicted personal injury on another, requiring the injured person to incur medical, dental, hospital, or funeral expenses.
"(b) Considering the age and circumstances of a child, the court may order the child to make restitution to the wronged party personally.
"(c)(1) A judgment rendered under this section may not exceed:
(i) As to property stolen or destroyed, the lesser of the fair market value of the property or $5,000;
(ii) As to property damaged, the lesser of the amount of damage not to exceed the fair market value of the property damaged or $5,000; and
(iii) As to personal injuries, inflicted, the lesser of the reasonable medical, dental, hospital, funeral, and burial expenses incurred by the injured person as a result of the injury or $5,000."
Appellant contends that special damages, or those out-of-pocket expenses that flow from the loss suffered but which are not necessarily expected, Gilbert, Gilbert & Gilbert, Maryland Tort Law Handbook § 25.1.1 (1986), are not within the plain meaning of subsection (c)(1)(ii). The State argues that the purpose of the restitution statute is to compensate victims of juvenile offenses and thus the Legislature intended subsection (c)(1)(ii) to be given its ordinary tort meaning to include special damages. The State also asserts that our decision in In re Appeal No. 321, 24 Md. App. 82, 329 A.2d 113 (1974), is controlling. Since we agree with appellant that special damages are not recoverable under subsection (c)(1)(ii), we will consider each of the State's arguments in turn.
STATUTORY CONSTRUCTION
1. Plain Meaning
Under the common law in Maryland, absent proof of agency, parents are not vicariously liable for the wrongful acts of their minor children. In re: James D., 295 Md. 314, 317, 455 A.2d 966 (1983). Section 3-829 alters this rule by imposing liability on the juvenile's parent(s) where the child committed a delinquent act that caused injury to another. Exclusive of personal injury, the statute provides for some restitution to the victim where the juvenile either permanently deprived the victim of the property by stealing it or destroying it, or where the juvenile merely damaged the property. Since the statute is in derogation of the common law, it must be strictly construed. Dillon v. Great Atlantic & Pacific Tea Co., 43 Md. App. 161, 166, 403 A.2d 406 (1979).
Section 3-829(c)(1)(ii) provides that "[a]s to property damaged," recovery may be had for the "amount of damage" in a limited fashion. Appellant posits that since subsection (c)(1)(ii) expressly speaks "to property damaged," only the amount for that actual property damage is recoverable. Focusing on the phrase "amount of damage" in subsection (c)(1)(ii), the State argues that all amounts expended by a victim as a result of a delinquent act are recoverable. Were we to accept the State's position, we would read the modifying phrase "[a]s to property damaged" out of the statute. "[A] statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory." Police Comm'r v. Dowling, 281 Md. 412, 419, 379 A.2d 1007 (1977). Since the phrase "amount of damage" refers to the phrase "[a]s to property damaged," the plain meaning of the language under subsection (c)(1)(ii) provides restitution only for actual physical damage to the property.
To construe the phrase "amount of damage" in subsection (c)(1)(ii) to include special damages would create an inconsistency in the statute between subsections (c)(1)(i) and (ii). Where the victim's property is not recoverable because it was stolen or destroyed, the victim is limited under subsection (c)(1)(i) solely to receiving either "the lesser of the fair market value of the property or $5,000." Special damages such as the cost of a rental vehicle, new license fees and higher insurance premiums are not available to these victims. Subsection (c)(1)(ii) differs from subsection (c)(1)(i) because it contains the additional phrase "amount of damage." The State proffers that we should construe this phrase to provide compensation for both actual property damage and additional out-of-pocket loss. To do so, however, would grant broader recovery for additional expenses to the victim who needs only to repair his or her damaged property, while a similar recovery would not be available to the victim who must completely replace his or her stolen or destroyed property. This would be absurd and we should avoid imposing a construction on a statute that leads to results that are unreasonable, illogical or contrary to common sense. Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 583, 414 A.2d 1246 (1980). In conclusion, based on the plain meaning of subsection (c)(1)(ii), the phrase "amount of damage" excludes any out-of-pocket expenditure besides that for actual physical damage to the property itself.
2. The Statutory Scheme
When construing one provision of a statute which is part of a statutory scheme, the legislative intent must be determined from the entire statute. Bridges v. Nicely, 304 Md. 1, 10, 497 A.2d 142 (1985). The scheme the Legislature has constructed to effectuate the purpose behind § 3-829 supports our conclusion that special damages are not available under subsection (c)(1)(ii).
Section 3-829 serves a dual objective. See In re: John H., 49 Md. App. 595, 598, 433 A.2d 1239 (1981), aff'd, 293 Md. 295, 443 A.2d 594 (1982). It provides for compensation to victims who have been injured or whose property has been stolen, damaged or destroyed as a result of a minor's wrongful acts. In re: John H., 49 Md. App. 595, 598, 433 A.2d 1239 (1981). The statute is also penal in nature since liability arises "as a consequence of a presumed neglect of parental responsibilities." In re Appeal No. 321, 24 Md. App. at 85, 329 A.2d 113. Admittedly, full compensation to the victim would accomplish both these goals.
Certain restrictions on amount, substance and source of restitution built into the legislative scheme of § 3-829 indicate, however, that full tort recovery was not contemplated. For example, unlike in a cause of action sounding in tort, damages recoverable under § 3-829 are restricted in amount to a total limit of $5,000 for all acts arising out of a single incident. § 3-829(c)(2). The statute also contains limitations on the type of recoverable damages. As to personal injuries, only medical, dental, hospital, funeral and burial expenses incurred are recoverable. There is no provision under § 3-829 for an award for those ordinary tort damages such as pain and suffering, loss of income or future losses and future medical expenses.
Finally, the legislative scheme restricts the available sources of restitution in several ways. The Court has construed the term "parent" in § 3-829(a) to mean mother or father, and not to include other parties standing in loco parentis. See, e.g., In re Ramont K., 305 Md. 482, 505 A.2d 507 (1986) (grandmother excluded); In re Arnold M., 298 Md. 515, 471 A.2d 313 (1984) (State excluded). See also 59 Op.Att'y Gen. 356, 362 (1974) (foster parent excluded). The term "parent" "does not include the father or mother of a child where the child has been removed from their [sic] care and custody by court order and is not residing in their [sic] home at the time of the incident for which recovery is sought." In re: James D., 295 Md. at 316, 455 A.2d 966. Hence, neither the party with custody who is not the mother or father or a mother or father without custody will be required to pay restitution.
Even where the parent is liable, the court has discretion to deny a claim for restitution where the parent establishes an inability to pay. See, e.g., In re Appeal No. 769, 25 Md. App. 565, 580-81, 335 A.2d 204 (1975). It is also within the court's discretion whether to order the delinquent child, rather than his or her parent, to pay restitution. § 3-829(a). There is no such discretion available to a court in a civil tort proceeding where fault and damages have been established.
Finally, the statute does not create a civil cause of action for the victim on a theory of vicarious tort liability. The victim may not even bring suit under § 3-829; the State's Attorney determines whether to file the victim's petition for restitution. Hart v. Bull, 69 Md. App. 229, 516 A.2d 1043 (1986). The victim may seek recovery on his or her own initiative from a juvenile in a civil suit, see Hart, 69 Md. App. at 234, 516 A.2d 1043, but as the Court in In re Arnold M. suggested, "it [is] not realistic to believe that the juvenile would satisfy a judgment of restitution." In re Arnold M., 298 Md. at 519, 471 A.2d 313 (quoting from the juvenile court).
Considering together all the restrictions incorporated into the legislative scheme for effectuating restitution to victims of a juvenile's delinquent acts, it is pellucid that the Legislature never intended to "make whole" the victim. If the Legislature wanted to provide for full recovery, it would not have placed a dollar limit on the restitution payment or a limit on the source of payment, nor would the Legislature have excluded compensation for those elements of damage ordinarily recoverable in an award for negligence or intentional tort. In the same vein, it would not have granted discretion to the juvenile court to consider the ability to pay before ordering an award.
We do not believe the Legislature intended to turn the juvenile court with its special concerns and functions into a forum for damage suits. Accordingly, absent an express authorization from the Legislature, we decline to extend the phrase "amount of damage" in § 3-829(c)(1)(ii) to include recovery for the cost of a rental car where the victim's vehicle was damaged.
IN RE APPEAL NO. 321
The State relies on our holding in In re Appeal No. 321 to suggest that the phrase "amount of damage" should be interpreted to include special damages. There we held that a parent's liability under the restitution statute is not limited to the proportion of damage caused by that parent's child. In re Appeal No. 321, 24 Md. App. at 84, 329 A.2d 113. We reasoned that "[n]othwithstanding the right to such contribution the restitution so ordered should assure the injured of payment within the prescribed limit in a manner comparable to the liability of a joint tort-feasor." In re Appeal No. 321, 24 Md. App. at 84, 329 A.2d 113 (emphasis added). Relying on the emphasized portion, the State suggests that general tort principles of recovery apply to the restitution statute. The issue before us in the case sub judice was not addressed in In re Appeal No. 321 and thus the case is of no assistance to the State.
Moreover, in upholding the constitutionality of § 3-829, this Court on another occasion specifically noted that "[t]he vicarious liability imposed by the subject statute is quite limited." In re Sorrell, 20 Md. App. 179, 187, 315 A.2d 110, cert. denied, 271 Md. 740 (1974). Although the issue of special damages was not before us in In re Sorrell, we construed the statute as imposing only "limited strict vicarious liability both for property damage and for medical expenses stemming from personal injuries." 20 Md. App. at 186, 315 A.2d 110. Since liability under § 3-829 is so limited, we conclude recovery for damage is restricted to actual physical property damage.
Section 3-829 is a unique statutory creature. The statute allows the victim recovery in certain situations for his or her losses from the juvenile's parent(s). This recovery would not otherwise be available under the common law in Maryland. A determination of restitution is also much more expedient under § 3-829 than would be recovery in a civil suit. See § 3-829(d). In exchange for these privileges, the statute is not a mirror of principles underlying damages in tort; it limits recovery in amount, substance and source. In conclusion, we hold that a restitution award under § 3-829(c)(1)(ii) can include recovery only for actual damage to the victim's property. Reimbursement for the cost of a rental car is not available under the statute.
JUDGMENT REVERSED.
COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.
NOTES
[1] Zephrin was also charged with other offenses unrelated to this appeal.
[2] No appeal was taken as to the cost of Wilson's rental car. Hence, the court's denial of the exception as to the restitution owed Wilson remains in effect.
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916 F. Supp. 985 (1996)
Frank DIELSI, Plaintiff,
v.
Peter FALK, Chris Seiter, Vince McEveety, MCA Universal City Studios, ABC Television (KABC), and Does 1 through 100, inclusive, Defendants.
No. CV95-8079 ABC (BQRx).
United States District Court, C.D. California.
January 23, 1996.
*986 *987 Salomone & Rapp, Richard T. Ferko, Woodland Hills, CA, for plaintiff.
Leopold, Petrich & Smith, Louis P. Petrich, Los Angeles, CA, for defendants.
ORDER RE:
1.) PLAINTIFF'S MOTION TO REMAND;
2.) DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD, FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION
COLLINS, District Judge.
Plaintiff's motion to remand for lack of subject matter jurisdiction and Defendants' motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action came on regularly for hearing before this Court on January 22, 1996. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Plaintiff's motion is GRANTED in part. Plaintiff's First, Second, Third, and Fourth Causes of Action are hereby REMANDED to state court. Defendants' motion to dismiss is also GRANTED in part. Plaintiff's Fifth and Sixth Causes of Action are hereby DISMISSED without prejudice.
I. Procedural Background
The Plaintiff in this case, FRANK DIELSI, was a speech coach for Defendant PETER FALK on the television series "Columbo." As more fully described below, Plaintiff asserts that he wrote a potential script for "Columbo," entitled "Never Trust a Gambler." Plaintiff then submitted the script to Defendant CHRIS SEITER, then the show's producer. The script was never specifically accepted or rejected. However, as further discussed below, Plaintiff alleges that Defendants later used his script as the basis for an episode of "Columbo" entitled "Strange Bedfellows." On October 20, 1995, Plaintiff filed a Complaint against Defendants Falk, Seiter, VINCE McEVEETY, MCA UNIVERSAL CITY STUDIOS ("Universal"), ABC TELEVISION (KABC) ("ABC"), and DOES 1 through 100, inclusive, for breach of contract, breach of confidence, fraud, negligent misrepresentation, conversion, and negligence. Plaintiff prays for compensatory damages in the amount of $1.25 million, exemplary damages, costs, and attorneys' fees.
Defendant Universal received a copy of Plaintiff's Complaint on October 24, 1995. Defendant Chris Seiter was served with a copy of the Complaint on November 19, 1995. On November 24, 1995, Defendants Universal and Seiter attempted to file a Notice of Removal. The clerk initially accepted Universal's removal notice, assigning the case the file number 95-8051. However, upon further review, the clerk ultimately rejected Universal's filing, because the face of the removal notice differed from the face of Plaintiff's Complaint. In drafting its Notice of Removal, Defendants failed to list "MCA Universal City Studios" as a Defendant in the action (even though Universal drafted the removal notice and was listed at the top of the document).
On November 27, 1995, Defendants Universal and Seiter filed an amended Notice of Removal, listing "MCA Universal City Studios" *988 as a Defendant in the action. On November 28, 1995, Defendant ABC was first served with a copy of Plaintiffs Complaint. Apparently, Defendants Peter Falk and Vince McEveety have never been served with Plaintiff's Complaint. On December 20, 1995, Defendant ABC joined in Defendants Universal's and Seiter's Notice of Removal. On December 20, 1995, Defendants filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. On January 8, 1996, Plaintiff filed an Opposition. On January 16, 1996, Defendants filed a Reply. In addition, on December 27, 1995, Plaintiff filed a motion to remand for lack of subject matter jurisdiction. On January 8, 1996, Defendants filed an Opposition. Plaintiff did not file a Reply.
II. Plaintiff's Allegations
In his Complaint, Plaintiff alleges as follows:
1.) Plaintiff was employed as a speech coach for Defendant Peter Falk on the television series "Columbo." (Compl. ¶ 1)
2.) Before April 1994, Plaintiff was told by Defendant Chris Seiter, the producer for "Columbo," that new scripts were needed for the show. (Compl. ¶ 10).
3.) In April 1994, Plaintiff completed a television script specifically for "Columbo," entitled "Never Trust A Gambler." Plaintiff submitted this script to Seiter. (Compl. ¶ 11).
4.) In May 1994, Seiter told Plaintiff that he wanted to speak with Plaintiff about his script. (Compl. ¶ 12).
5.) In June 1994, Seiter told Plaintiff that he "loved" the script, but that he wanted certain changes. (Compl. ¶ 14).
6.) Plaintiff heard nothing from Seiter until September 1994, when he was hired to work as Falk's speech coach for the "Columbo" episode called "Strange Bedfellows." (Compl. ¶ 15).
7.) After "Strange Bedfellows" was completed, Plaintiff realized that the episode was in fact based on Plaintiff's script "Never Trust A Gambler." (Compl. ¶ 16).
8.) "Strange Bedfellows" was copied from Plaintiff's script. Defendants did not have their idea for "Strange Bedfellows" until Plaintiff had submitted his script to Seiter. (Compl. ¶ 17).
9.) After the release of "Strange Bedfellows," Plaintiff demanded that Defendants compensate him for his work and give him proper credit. (Compl. ¶ 18).
10.) Defendants refused to compensate Plaintiff or give him any credit for his work. (Compl. ¶ 19).
11.) Plaintiff, at the request of Seiter, submitted his script to Defendants with the full expectation that he would be compensated for its use if Defendants decided to use it. Also, Defendants clearly understood that Plaintiff would be given credit for his work if they used his script. Accordingly, an implied contract existed between Plaintiff and Defendants, which Defendants breached. (Compl. ¶ 22).
12.) Defendants accepted the submission of Plaintiff's script in complete confidence, and on the understanding that the idea would not be used without Plaintiff's consent. Defendants breached that confidence. (Compl. ¶ 25).
13.) Defendants made many misrepresentations of fact to Plaintiff. Defendants represented to Plaintiff that they would compensate him for his work, when, in fact, they had no intention of compensating Plaintiff for his script. Defendants represented to Plaintiff that they would not use his script, when, in fact, they did use his script for "Strange Bedfellows." Defendants wilfully concealed from Plaintiff that they were developing and producing a "Columbo" episode based on "Never Trust A Gambler." (Compl. ¶ 29).
14.) At the time the misrepresentations were made, Plaintiff was ignorant of the falsity of the representations, believed they were true, and acted in reasonable reliance on them. (Compl. ¶ 30).
15.) Defendants have been guilty of oppression, fraud and malice, and have acted in conscious disregard for Plaintiff's rights. (Compl. ¶ 32).
16.) Defendants have unlawfully and wrongfully converted for their own use the "Never Trust A Gambler" script in producing *989 and distributing the "Columbo" episode "Strange Bedfellows." (Compl. ¶ 37).
17.) The appropriation was without Plaintiff's consent and for Defendant's pecuniary gain and profit. (Compl. ¶¶ 38-39).
18.) Defendants breached their duty of care to Plaintiff by failing to acknowledge that "Strange Bedfellows" is based upon "Never Trust A Gambler," and by failing to account for the monies due to Plaintiff from "Strange Bedfellows." This breach has damaged Plaintiff's reputation and hurt his ability to continue developing his career in the entertainment industry. (Compl. ¶ 43).
19.) Plaintiff seeks compensatory damages from all Defendants. In addition, Plaintiff seeks exemplary damages, costs, and attorneys' fees from Defendant Chris Seiter. (Prayer for Relief).
III. Discussion
As stated above, Plaintiff has filed a motion to remand for lack of subject matter jurisdiction, and Defendants have filed a motion to dismiss Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action. Both motions address the issue of whether Plaintiff's state law claims are preempted by federal copyright law. Because both motions involve interlinking issues of federal jurisdiction, the Court will address both motions together.
A. Timely Removal
Because Defendants did not successfully file their Notice of Removal until November 27, 1995 (more than 30 days after Defendant Universal received a copy of the Complaint), Plaintiff first asserts that removal was not timely.[1]
Under 28 U.S.C. § 1446(b), a notice of removal must be filed "within 30 days after receipt by defendant, through service or otherwise, of a copy of the initial pleading ..." Defendants argue that the 30 day period begins when a Defendant is properly served with a copy of the Complaint. However, a majority of courts hold that the 30 day period begins when a Defendant receives a copy of the Complaint. See, e.g., Tech-Hills Assoc. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 968 (6th Cir.1993) ("We hold that the removal period is commenced when the defendant has in fact received a copy of the initial pleading that sets forth the removable claim."); Lofstrom v. Dennis, 829 F. Supp. 1194, 1196 (N.D.Cal.1993) (the "better reasoned position" is that the 30 day period begins on receipt); Uhles v. F.W. Woolworth Co., 715 F. Supp. 297, 298 (C.D.Cal.1989) (following the receipt rule). The Court concludes that the "receipt rule" is the better reasoned position, for it more closely follows the wording of the statute. Section 1446(b) states that removal must be performed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]" (emphasis added). Thus, under § 1446(b), the "receipt" need not be by official "service."
Thus, because Universal received a copy of Plaintiff's Complaint on October 24, 1995, its Notice of Removal was due on November 24, 1995. On November 24, 1995, Defendant attempted to file its Notice of Removal. The clerk initially accepted the removal notice, and assigned a case number. However, upon further review, the clerk ultimately rejected Universal's filing, because the face of the removal notice differed from the face of Plaintiff's Complaint. In drafting its Notice of Removal, Defendants failed to list "MCA Universal City Studios" as a Defendant in the action (even though Universal drafted the removal notice and was listed at the top of the document). According to the clerk, Defendants' Notice of Removal violated Local Rule 3.4.9(d), which states that "[t]he names of the parties shall be placed below the title of the Court and the left of center, and single spaced.... In all documents, after the initial *990 pleadings, the names of the first-named party only on each side shall appear[.]"[2]
On November 27, 1995, Defendants Universal and Seiter filed an amended Notice of Removal, listing "MCA Universal City Studios" as a Defendant in the action. Plaintiff contends that this amended Notice of Removal was untimely, and that this Court should remand pursuant to 28 U.S.C. § 1446(b). However, Defendants' amended removal notice was untimely only because the clerk refused to file the original notice, which was tendered on November 24, 1995.
Under Federal Rule of Civil Procedure 5(e), "[t]he clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices." In this case, the clerk refused to file Defendants' Notice of Removal because of a merely technical violation of Local Rule 3.4.9(d). This Local Rule governs the format of the title page of a document, so therefore it falls within the ambit of Federal Rule 5(e). On its face, Rule 5(e) "mandates that the clerk accept pleadings for filing even when the pleading technically does not conform with form requirements of the Federal Rules of Civil Procedure or local rules." McClellon v. Lone Star Gas Company, 66 F.3d 98, 101 (5th Cir.1995); see also Turner v. City of Newport, 887 F. Supp. 149, 150 (E.D.Ky.1995) ("a document is deemed filed when it is in the actual or constructive possession of the Clerk"). The rule is evidently meant to divest the power of clerks to deny filings for reasons of purely technical form. As stated by the Advisory Committee on the Rules, "[t]his is not a suitable role for the office of the clerk, and the practice exposes litigants to the hazards of time bars.... The enforcement of these rules and of the local rules is a role for a judicial officer." Rule 5(e), Advisory Committee Notes.
Therefore, Under Federal Rule 5(e), the clerk's office should have accepted Defendants' Notice of Removal, despite the technical violation of Local Rule 3.9.4(d). Rule 5(e) "usurped the clerk of court's ability to choose to reject or accept" the Notice of Removal. McClellon, 66 F.3d at 102. Therefore, under Rule 5(e), Defendants' Notice of Removal should have been considered filed as of November 24, 1995, "until such time that the court ordered the clerk of court to strike the pleading from the record[.]" Id. at 102. Because of the extremely technical nature of Defendants' violation of Local Rule 3.9.4(d), the Court declines to order the pleading stricken. Accordingly, Defendants' Notice of Removal shall be deemed filed as of November 24, 1995. Therefore, Defendants' Notice of Removal is timely under 28 U.S.C. § 1446(b).
B. Copyright Preemption
Plaintiff also asserts that this Court should remand this case for lack of subject matter jurisdiction. On the face of Plaintiff's Complaint, no federal claim is stated. However, Defendants assert that Plaintiff's state law tort claims are completely preempted by federal copyright law, and therefore actually "arise under" federal law. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 24, 103 S. Ct. 2841, 2854, 77 L. Ed. 2d 420 (1983) ("If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law.").
Under 17 U.S.C. § 301(a),
... all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... and come within the subject matter of copyright ... whether created before or after that date, and whether unpublished, are governed exclusively by this title.... [N]o person is entitled to any such right or equivalent right in any work under the common law or statutes of any state.
Accordingly, "[c]opyright preemption is both explicit and broad[.]" G.S. Rasmussen & Assoc. v. Kalitta Flying Service, 958 F.2d 896, 904 (9th Cir.1992), cert. denied, 508 U.S. *991 959, 113 S. Ct. 2927, 124 L. Ed. 2d 678 (1993). A state law is preempted by federal copyright law if (1) the work at issue comes within the subject matter of copyright; and (2) the state law rights are "equivalent to rights within the general scope of copyright[.]" Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 977 (9th Cir.1987); see also Trenton v. Infinity Broadcasting Corp., 865 F. Supp. 1416, 1427-28 (C.D.Cal.1994) (stating same standard).
Both parties agree that Plaintiff's First and Second Causes of Action for breach of contract and breach of confidence are not preempted by federal copyright law. However, there is an issue as to Plaintiff's Third, Fourth, Fifth, and Sixth Causes of Action for fraud, negligent misrepresentation, conversion, and negligence.
1. Plaintiff's Third and Fourth Causes of Action for Fraud and Negligent Misrepresentation
Plaintiff asserts that because his fraud and negligent misrepresentation causes of action involve the "extra element" of a misrepresentation, they are not "equivalent" to federal copyright claims. In Valente-Kritzer Video v. Pinckney, 881 F.2d 772, 776 (9th Cir.1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 879, 107 L. Ed. 2d 962 (1990), the Ninth Circuit stated that a fraud cause of action founded on an allegation that the defendant "misrepresented its intent to perform [a] contract" was "qualitatively different" from a copyright claim because of the additional element of misrepresentation. See also Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.01[B](1)(e) (1995) (because of the additional element of misrepresentation, "there is no preemption of the state law of fraud"); Goodman v. Lee, 1994 WL 710738, *4 (E.D.La. Dec. 20, 1994) ("courts have consistently held that fraud claims relating to copyright disputes which require plaintiff to establish the element of misrepresentation are not pre-empted by federal copyright law."). In their concurrently filed motion to dismiss, Defendants attempt to distinguish Valente-Kritzer. Defendants argue that Plaintiff's fraud claim really is a disguised copyright infringement claim because Plaintiff alleges that Defendants fraudulently promised not to make unauthorized use or copies of Plaintiff's work. And indeed, "[i]n so far as ... state claims are restatements of ... copyright infringement claims, they are preempted by federal copyright law." Litchfield v. Spielberg, 736 F.2d 1352, 1358 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S. Ct. 1753, 84 L. Ed. 2d 817 (1985); see also Wharton v. Columbia Pictures Industries, Inc., 907 F. Supp. 144, 145 (D.Md.1995) (fraud and misrepresentation claims preempted; they were "`equivalent' to the right to prepare derivative works because each concerns the central allegation that Defendants plagiarized [plaintiff's] copy-righted screenplay.").
This is a close case, because Plaintiff's misrepresentation causes of action stray dangerously close to restating copyright claims. Plaintiff's fraud and negligent misrepresentation claims center on three main allegations. First, Plaintiff asserts that Defendants "represented to [him] that they were interested in his submission of a television script and that they would compensate [him] for" his work in developing "Never Trust A Gambler," "when, in fact, at the time of making such representations, defendants never intended to compensate plaintiff for such a script." Compl. ¶ 29(a). Second, Plaintiff asserts that Defendants "falsely represented to plaintiff that they would not use plaintiff's script when, in fact, defendants did develop and produce a television show" that was based upon Plaintiff's script. Compl ¶ 29(b). Third, Plaintiff asserts that Defendants "wilfully concealed from plaintiff that they were developing and producing a `Columbo' episode based upon `Never Trust A Gambler' so as to deprive plaintiff of his fees and credits[.]"
The gravamen of these allegations is that Defendants fraudulently promised to honor Plaintiff's rights as an author his purported copyright rights and then actually violated those rights. Simply alleging that Defendants violated Plaintiff's rights as an author is "equivalent" to a copyright claim under § 301(a). However, Plaintiff adds an additional element that Defendants fraudulently promised not to violate his authorship rights. *992 As such, the Ninth Circuit's ruling in Valente-Kritzer governs this case.[3] Therefore, Plaintiff's fraud and negligent misrepresentation causes of action are not preempted by federal copyright law.
2. Plaintiff's Fifth Cause of Action for Conversion
Plaintiff asserts that Defendants have "unlawfully and wrongfully converted for their own use the "Never Trust A Gambler" script in producing and distributing the "Columbo" episode "Strange Bedfellows." Compl. ¶ 37. However, Plaintiff alleges that he gave a copy of his "Never Trust A Gambler" script to Chris Seiter; the tangible manuscript was not taken from Plaintiff. Rather, Plaintiff alleges that Defendants wrongfully copied the ideas expressed in the "Never Trust A Gambler" script and then converted them for their own use.
Generally, the copying and distribution of literary intangible property does not state a claim for conversion. See Witkin, Summary of California Law, Torts, § 613. Rather, "[t]he infringement of property rights in a literary or artistic production is a distinct tort (plagiarism)." Id.; see also Nimmer & Nimmer, Nimmer on Copyright, § 1.01[B](1)(i) ("The torts of conversion and trespass relate to interference with tangible rather than intangible property[.]"). Thus, Plaintiff's conversion claim seems more properly a claim for plagiarism or misappropriation. Regardless of how it is cast, however, Plaintiff's Fifth Cause of Action is clearly preempted by federal copyright law because it makes the crucial allegation that Defendants have wrongfully used and distributed Plaintiff's work of authorship. Under the second prong of the Del Madera test, this allegation is clearly equivalent to a copyright claim. It does not add any additional element to the essential claim that Plaintiff's ideas were misappropriated by Defendants. Such a claim is "part and parcel" of a copyright claim. Del Madera, 820 F.2d at 977; see also Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985), cert. denied, 479 U.S. 820, 107 S. Ct. 86, 93 L. Ed. 2d 39 (1986) (Plaintiff "did not allege a state law claim of conversion to recover for the physical deprivation of the notes. Instead he sought to recover for damage flowing from their reproduction and distribution. Such reproduction interferes with an intangible literary or artistic property right equivalent to copyright."); Nimmer & Nimmer, Nimmer on Copyright, § 1.01[B](1)(f)[iii] (citing Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980)) (if a claim is "but another label for reproduction," it is "a preempted right `within the general scope of copyright'"). Therefore, Plaintiff's conversion claim is preempted by federal copyright law.
3. Plaintiff's Sixth Cause of Action for Negligence
Plaintiff also alleges that Defendants negligently failed to acknowledge that "Strange Bedfellows" is based upon "Never Trust A Gambler," and negligently failed to compensate Plaintiff for his script. But this claim merely recharacterizes a copyright infringement claim as one for negligence. Because the essential allegation is still that Defendants unlawfully copied Plaintiff's ideas, it is still a copyright infringement claim. Moreover, recharacterization of the claim as one of "negligence" does not add a legally cognizable additional element because a general claim for copyright infringement is fundamentally one founded on strict liability. See Religious Technology Center v. Netcom *993 On-Line Communication Services, Inc., 907 F. Supp. 1361, 1370 (N.D.Cal.1995) ("copyright is a strict liability statute"); Singer v. Citibank N.A., 1993 WL 177801, *5 (S.D.N.Y. May 21, 1993) (copyright infringement is a tort that generally does not require scienter). The alteration of the required mental state does not add an "additional element" under Valente-Kritzer. Therefore, Plaintiff's negligence claim is preempted by federal copyright law.
C. Propriety of Removal
The Court rules above that federal copyright law preempts Plaintiff's Fifth And Sixth Causes of Action for conversion and negligence. Furthermore, under governing principles, copyright law "completely" preempts equivalent state claims. See Rosciszewski v. Arete Associates, Inc., 1 F.3d 225, 232-33 (4th Cir.1993). Generally, federal preemption acts as a defense to a plaintiff's action, so therefore it "does not appear on the face of a well-pleaded complaint." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 1546, 95 L. Ed. 2d 55 (1987). Consequently, the preemption "does not authorize removal to federal court." Id. However, in certain circumstances, "the preemptive force of [federal law] is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for the purposes of the well-pleaded complaint rule.'" Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987) (quoting Metropolitan Life, 481 U.S. at 65, 107 S.Ct. at 1547). Although there is no Ninth Circuit authority on point, a common law claim preempted by federal copyright law is clearly completely preempted under these principles. "Congress has clearly indicated that state-law claims which come within the subject matter of copyright law and which protect rights equivalent to any of the exclusive rights within the scope of federal copyright law ... should be litigated only as federal copyright claims." Rosciszewski, 1 F.3d at 232; see also 28 U.S.C. § 1338 (federal courts have exclusive jurisdiction over copyright claims). Therefore, preempted copyright claims can be removed to federal court. See also Patrick v. Francis, 887 F. Supp. 481, 484-85 (W.D.N.Y.1995) (following Rosciszewski).[4]
D. The Effect of 17 U.S.C. § 411(a) on Plaintiff's Preempted Copyright Claim
Under the principles discussed above, this Court does have removal jurisdiction over Plaintiff's copyright claim under 28 U.S.C. § 1441. However, as Defendants point out in their concurrently filed motion to dismiss, Plaintiff's copyright claim is procedurally defective. Under 17 U.S.C. § 102(a), "[c]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression[.]" Thus, even though not federally registered, Plaintiff's script, a work of authorship, is protected by the copyright laws. However, under 17 U.S.C. § 411(a), "no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with [the copyright laws]." The only exceptions to this rule are for visual artists (see 17 U.S.C. § 106A(a)) and for foreigners covered by the Berne Convention.[5] As an American script writer, Plaintiff fits in neither of these exceptions. Furthermore, Plaintiff has not alleged that he has applied to register his copyright. Indeed, in his brief in opposition to Defendants' motion to dismiss, Plaintiff fails to address the impact of § 411(a) at all.
*994 Plaintiff's failure to plead that he has applied for a copyright registration deprives this court of subject matter jurisdiction over his copyright claim. "Before a court can have jurisdiction to entertain an infringement action, the prior registration requirement of 17 U.S.C. § 411(a) must be met[.]"[6]Cable News Network v. Video Monitoring Services, 940 F.2d 1471, 1480 (11th Cir.1991), vacated on other grounds, 949 F.2d 378 (11th Cir. 1991); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); Jefferson Airplane v. Berkeley Systems, Inc., 886 F. Supp. 713, 715 (N.D.Cal. 1994) ("Such registration is a jurisdictional prerequisite to a suit for infringement."). Therefore, the Court must dismiss Plaintiff's copyright claim (without prejudice) for lack of subject matter jurisdiction.[7]
This case presents an intriguing jurisdictional puzzle which no reported federal copyright case has squarely addressed.[8] Because federal copyright law completely preempts Plaintiff's Fifth and Sixth Causes of Action, this case was properly removed to federal court. However, after exercising its removal jurisdiction, the Court concludes that it must dismiss the claim for lack of subject matter jurisdiction under 17 U.S.C. § 411(a). This appears paradoxical, but it is the only result that makes sense. If the Court simply remanded the copyright claim to state court for lack of subject matter jurisdiction, this order would be meaningless because under 28 U.S.C. § 1338, federal courts have exclusive jurisdiction over copyright claims.[9]
Furthermore, a defendant "does not waive jurisdictional challenges by removing the case to federal court." Schwarzer, et al., Federal Civil Procedure § 2:1034 (citing Pennebaker v. Kawasaki Motors Corp., 155 F.R.D. 153, 157 (S.D.Miss.1994)). Thus, in analogous contexts, federal courts have granted removal jurisdiction over completely preempted claims, but then dismissed (not remanded) on the basis of unrelated quasi-jurisdictional deficiencies. For example, federal courts are often presented with removed state claims that are completely preempted by the Employee Retirement Income Security Act ("ERISA"). In such a case, the federal court will exercise removal jurisdiction. Then, the Court is presented with the question of whether the plaintiff has exhausted his or her administrative remedies. If exhaustion is not futile, a federal court will refrain from exercising jurisdiction on ripeness grounds and dismiss the preempted ERISA claim without prejudice.[10]See, e.g., Franklin H. Williams Ins. Trust v. Travelers Ins. Co., 847 F. Supp. 23 (S.D.N.Y.1994), rev'd. on other grounds, 50 F.3d 144 (2d Cir.1995) (accepting removal jurisdiction but *995 then dismissing for failure to exhaust); Harrison v. California Care, 1994 WL 69469 (N.D.Cal. Feb. 14, 1994) (same result); Diaz v. Texas Health Enterprises, Inc., 822 F. Supp. 1258 (W.D.Tex.1993) (same result); Spicer v. Louisiana Power & Light Co., 1993 WL 133765 (E.D.La. Apr. 21, 1993) (same result).
Thus, while there are no reported cases that address this issue in the precise context of 17 U.S.C. § 411(a), the Court follows the jurisdictional logic expressed by courts confronted by unexhausted ERISA claims. Accordingly, Plaintiff's Fifth and Sixth Causes of Action are completely preempted by federal law, and thus removed to federal court. However, because the preempted copyright claim is jurisdictionally defective under § 411(a), the Court dismisses the copyright claim without prejudice pursuant to Federal Rule 12(b)(1).[11]
E. Remaining State Law Causes of Action
Because the Court dismisses Plaintiff's federal copyright claim without prejudice, Plaintiff's First, Second, Third, and Fourth Causes of Action for breach of contract, breach of confidence, fraud,[12] and negligent misrepresentation[13] (all of which are governed by state law) are hereby REMANDED to state court pursuant to 28 U.S.C. § 1367(c)(3) (federal court may decline to exercise supplemental jurisdiction over state claims if original federal claim is dismissed).
III. Conclusion
For the reasons discussed above, the Court ORDERS as follows:
1.) Plaintiff's Motion to Remand is GRANTED in part. Plaintiff's First, Second, Third, and Fourth Causes of Action are hereby REMANDED to state court;
2.) Defendants' Motion to Dismiss is GRANTED in part. Plaintiff's Fifth and Sixth Causes of Action are hereby DISMISSED without prejudice.
SO ORDERED.
NOTES
[1] Under 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)." See Northern California District Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir.1995). Plaintiff filed his motion for remand on December 27, 1995, 30 days after Defendants' Notice of Removal was actually filed. Therefore, Plaintiff's motion to remand is timely.
[2] Defendants contend that they did not actually violate Local Rule 3.4.9(d). Arguably, Plaintiff's state court Complaint was the initial pleading. However, Defendants' Notice of Removal was the initial pleading in federal court.
[3] The Court notes that the Ninth Circuit's Valente-Kritzer holding creates results that may conflict with the federal concerns motivating copyright law. In essence, a plaintiff may always avoid copyright preemption by further alleging the additional element that a defendant fraudulently promised not to violate his or her authorship rights. Under Valente-Kritzer, this is true even though the main focus of the action will be on the nature of the author's rights and the extent to which the defendant violated them the main concerns of federal copyright law, which under 28 U.S.C. § 1338, is an area of exclusive federal jurisdiction and evident national concern. Additionally, under the California law of promissory fraud, the facts concerning the alleged violation itself will serve as much of the evidence going to the alleged fraud. See Miller v. National American Life Ins. Co. of California, 54 Cal. App. 3d 331, 339, 126 Cal. Rptr. 731 (1976) (the refusal to follow through on a promise gives rise to a permissible inference of fraud). Regardless, this Court is, of course, bound by the Valente-Kritzer holding.
[4] In their Notice of Removal, Defendants also alleged that Plaintiff's claims were preempted by the Labor Management Relations Act. However, as Plaintiff points out, there is no allegation that he was employed to write a script for "Columbo," and Defendants have not shown exactly how this case would require this Court to interpret any applicable Collective Bargaining Agreement. In their Opposition to Plaintiff's motion to remand, Defendants do not address LMRA preemption at all. Instead, Defendants rely solely on their copyright arguments. The Court therefore presumes that Defendants have dropped their LMRA preemption argument.
[5] The Berne Convention allows foreigners who have not registered to sue for copyright infringements occurring after March 1, 1989. Nimmer & Nimmer, Nimmer on Copyright § 7.16[B](1)(b).
[6] Registration to meet the requirements of § 411(a) is not a particularly onerous burden. For the purposes of filing an infringement action, "the effective date of a copyright registration is the day on which an application, deposit, and fee ... have all be received by the Copyright Office." 17 U.S.C. § 410(d). Thus, Plaintiff can satisfy the § 411(a) requirement by merely filing an application for registration with the Copyright Office. Nimmer & Nimmer, Nimmer on Copyright § 7.16[B](1) n. 39. Once the Copyright Office receives Plaintiff's application, he can bring a claim for copyright infringement. The receipt of Plaintiff's application satisfies § 411(a)'s jurisdictional requirement, whether or not the application is granted or denied, and whether or not the application precedes or follows the alleged infringement. Id. Actual registration (not just an application) of the copyright is required for Plaintiff to recovery statutory damages and attorney's fees (see 17 U.S.C. § 412), but it is not necessary for the imposition of an injunction. Nimmer, § 7.16[C](3).
[7] Because the procedural defect in Plaintiff's copyright claim is jurisdictional, Defendants' motion to dismiss is more properly cast as a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
[8] At the hearing, Defendants cited the Court to Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946) and Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088, 1091 n. 5 (9th Cir.1994), stating that they were dispositive of this issue. The Court disagrees, finding them not specifically on point.
[9] In fact, if the Court were to remand to state court for lack of subject matter jurisdiction generally, its ruling concerning copyright preemption itself could arguably be unenforceable as an advisory opinion.
[10] For the general ERISA exhaustion requirement, see generally Diaz v. United Agricultural Employee Welfare Benefit Plan and Trust, 50 F.3d 1478, 1483 (9th Cir.1995).
[11] However, as discussed in footnote 6 above, the jurisdictional defect in Plaintiff's copyright claim is easily cured.
[12] For Plaintiff's guidance, the Court offers the following advice if he intends to refile his fraud claim together with a copyright claim in federal court. Under Federal Rule of Civil Procedure 9, Plaintiff must plead a fraud claim with "particularity[.]" "[A]llegations of fraud [must be] specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). "A pleading `is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.'" Neubronner v. Milken, 6 F.3d 666, 671 (9th Cir.1993) (quoting Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 866 (9th Cir.1977)). The fraud complaint should generally set out the time, place, and content of alleged misrepresentations, who made the statements, why they were false, as well as set forth specific facts to show the defendant's knowledge of material falsity. In re GlenFed, Inc. Securities Litigation, 42 F.3d 1541 (9th Cir.1994) (en banc). In short, mere conclusory allegations of fraud, such as those described in Plaintiff's current Complaint, are insufficient under Rule 9.
[13] Because Plaintiff's negligent misrepresentation claim was indeed defective, however, the Court also offers this further guidance. Before re-filing any such claim, Plaintiff is directed to three basic principles of California negligent misrepresentation law. First, an action for negligent misrepresentation cannot be founded upon a false promise. See Tarmann v. State Farm Mutual Automobile Ins. Co., 2 Cal. App. 4th 153, 156, 2 Cal. Rptr. 2d 861 (1991). Second, Plaintiff must plead that Defendants intended to induce him to rely on their negligent misrepresentations. See Fox v. Pollack, 181 Cal. App. 3d 954, 962, 226 Cal. Rptr. 532 (1986); Cal.Civ.Code § 1710. Third, a negligent misrepresentation cause of action will not lie for an implied representation or for negligent concealment of information, absent a duty to reveal that information. Byrum v. Brand, 219 Cal. App. 3d 926, 942, 268 Cal. Rptr. 609, (1990); Wilson v. Century 21 Great Western Realty, 15 Cal. App. 4th 298, 306, 18 Cal. Rptr. 2d 779 (1993).
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726 S.W.2d 198 (1987)
Oscar Eduardo Martinez GARZA, Relator,
v.
Honorable Naomi HARNEY, Respondent.
No. 07-86-0012-CV.
Court of Appeals of Texas, Amarillo.
January 30, 1987.
*199 Mark L. Mosley, Chambers & Mosley, Amarillo, for relator.
Jerry D. McLaughlin, Amarillo, for party in interest.
Before DODSON, COUNTISS and BOYD, JJ.
COUNTISS, Justice.
This is an original mandamus proceeding. Tex.R.Civ.Pro. 383; Tex. Gov't Code Ann. § 22.221 (Vernon Pamph.Supp.1986). Relator Oscar Eduardo Martinez Garza ("Garza") has petitioned this Court for a writ of mandamus directing respondent, The Honorable Naomi Harney, to rescind *200 temporary orders entered by her in a domestic controversy. We conditionally grant the writ in part and deny the writ in part.
Garza and the other real party in interest in this case, Shelley Elizabeth Taylor ("Taylor"), were husband and wife residing in Monterrey, N.L., Mexico. Two minor children, a son and a daughter, were born of the marriage. In early 1983, Garza and Taylor mutually petitioned the First Court of Family Affairs, First Judicial District of Monterrey, for a divorce and related relief. In August 1983, the court granted the divorce. The court also ordered the parties to abide by various mutual agreements concerning their property and children. Among other things, Taylor received what appears to be temporary custody of her children, but was ordered not to remove them from the Monterrey area. Garza was given extensive visitation rights. The Mexican court planned to enter final custodial orders after various psychological studies were completed.
In June 1985, while the custody matter was still pending in the Monterrey court,[1] Taylor moved with the children to Randall County, Texas. Garza then filed a petition in the 251st District Court of Randall County seeking to enforce the Mexico orders and compel the return of the children to Mexico. Taylor filed a counterclaim asking for a temporary injunction, and ultimately, modification of the Mexican decree.
Respondent granted the temporary injunction pending final orders, permitting the children to remain with Taylor in the United States and substantially limiting Garza's access to the children.
By this suit, Garza contends the district court in Randall County had neither the jurisdiction nor the power to enter a temporary order and alter the Mexican decree, that by doing so the district court abused its discretion and that we should by writ of mandamus correct that abuse by requiring the district court to rescind its temporary order and dismiss Taylor's counterclaim.
At the outset, we note that mandamus is an extraordinary remedy. Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941). Its office is to execute, not to adjudicate; therefore, unless relator clearly shows a legal right to the performance by respondent of the duty sought to be enforced, Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939), or a clear abuse of discretion, Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959), the writ will not issue. This Court cannot entertain an application for writ of mandamus to resolve a fact question. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709, 714, reh'g denied, 121 Tex. 467, 51 S.W.2d 1113-14 (1932).
Garza seeks relief under the Uniform Child Custody Jurisdiction Act, Subchapter B of Title 2 of the Family Code, Tex.Fam.Code Ann. §§ 11.51-11.75 (Vernon 1986). The initial question is whether the Act applies to a proceeding in a foreign nation. By § 11.73, the "general policies" of the Act "extend to the international area."[2] Under that section, a decree of a similar court in another nation where basic due process was observed, is to be recognized and enforced by Texas courts. Tex. Fam.Code Ann. § 11.73 (Vernon 1986).
Under the record before us, the Mexican court functions like a Texas court handling domestic matters. Both Garza and Taylor appeared voluntarily before that court and it is obvious that the court observed basic due process. Thus, we hold the Act applicable to this case.
Garza contends that, under the Act, the district court had neither the jurisdiction nor the power to render the order in question. *201 In order to analyze his contentions, we must review certain sections of the Act. Section 11.53, the jurisdictional section, permits a Texas court with general jurisdiction over custody matters to make a custody determination by initial decree or modification decree if one of four possible jurisdictional bases exists. Those four bases are commonly referred to as the (1) home state, (2) significant connection, (3) emergency, and (4) default bases.[3] Even if a jurisdictional base exists, the Texas court may not be able to determine or modify custody, however. For instance, section 11.56 says the Texas court may not exercise its jurisdiction if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons. Additionally, under section 11.64(a), a Texas court may not modify the decree of a court of a sister state unless:
(1) it appears to the court of this state that the court that rendered the decree does not have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and
(2) the court of this state has jurisdiction.
Thus, the first substantive question is whether the trial court had jurisdiction of this case under § 11.53. The only jurisdictional ground mentioned in the trial court's temporary order,[4] or relied on by Taylor, is the third ground, the "emergency" ground. That ground is satisfied if (1) the child is physically present in Texas, and (2) has either been abandoned or "it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child...." Tex.Fam.Code Ann. § 11.53(a)(3)(B) (Vernon 1986).
But, says Garza, there is no evidence of either element of the ground. We will treat Garza's argument as a legal insufficiency contention and, applying the standard mandated by Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), we will examine the record for any probative evidence to support the court's action, ignoring all contrary evidence.
*202 The first element, the physical presence of the children in Texas, was alleged by Garza in his pleadings and admitted by Taylor's counsel during the taking of Taylor's deposition.[5] That is sufficient to establish the element.
The second element, actual or threatened mistreatment, abuse, or neglect, or a serious, immediate question about the children's welfare, was the subject of considerable testimony by Taylor. In discussing Garza's relationship with their daughter, she testified that he had "many times pushed and shoved and battered my little girl and he was very often psychologically abusive to her." Taylor said the daughter would come home bruised, with marks on her arms and chest and would be frightened and crying and asking why her father did not love her. She also testified that her move to the United States was because of a culmination of those incidents.
When asked about her son, however, Taylor testified she was not alleging that Garza physically abused him. The evidence of physical abuse was centered on, and limited to, acts of violence by Garza toward his daughter, and also toward Taylor when they lived together.
As quoted above, under section 11.53(a)(3)(B), the emergency order can be rendered upon evidence that the child "has been subjected to or threatened with mistreatment or abuse".... Certainly the evidence just discussed proves that fact and supports the district court's finding that emergency orders were needed to protect the daughter. Therefore, we conclude that both elements of the emergency base have been established for her and that the district court's finding concerning the daughter is supported by the evidence.[6]See Marcrum v. Marcrum, 181 N.J.Super. 361, 437 A.2d 725, 727-28 (App.Div.1981); cf. Milner v. Kilgore, 718 S.W.2d 759 (Tex. App.Corpus Christi 1986, no writ) (trial court lacked jurisdiction where allegations of a serious and immediate question concerning the welfare of a child were filed after the jurisdictional hearing); Soto-Ruphuy v. Yates, 687 S.W.2d 19 (Tex.App. San Antonio 1984, no writ) (allegation consisted of father's affidavit "based on hearsay upon hearsay" and record contained no evidence of physical or emotional harm requiring immediate action).
We cannot reach that same conclusion about the son, however. There is no evidence of any emergency concerning him and no indication, or contention, that he needs emergency protection. Thus, to that extent, the district court's finding has no evidentiary support. It follows that the court did not have jurisdiction to render a temporary order concerning the son.
Resolution of the jurisdictional question does not, however, resolve the case. Under sections 11.56 and 11.64, a Texas court may have jurisdiction of a custody dispute and still not have the power to act if a court of a sister state (or nation, under section 11.73) has jurisdiction of the matter. It is undisputed under this record that the proceeding contemplated by sections 11.56 and 11.64 is pending in a Mexican court. Thus, the final question is whether the Texas court should have taken action.
We initially note that a trial court has broad discretion in issuing orders for the immediate protection of a child. McElreath v. Stewart, 545 S.W.2d at 958; Milner v. Kilgore, 718 S.W.2d at 762. After carefully analyzing the few authorities pertinent to the facts before us, we have concluded *203 that the district court was empowered to act, but only on a short term, temporary, emergency basis. We do not construe the foregoing statutes to bar a court from making emergency orders to protect a child. Rather, we agree with, and adopt, the interpretation of the emergency grant of jurisdiction stated in Hache v. Riley, 186 N.J.Super. 119, 451 A.2d 971 (Ch.Div.1982). In that case, the New Jersey court pointed out that a court could exercise emergency jurisdiction under the Uniform Act whenever there was a potential for immediate harm. It emphasized, however, that exercise of the emergency jurisdiction "does not take on the same characteristic or implications as the exercise of jurisdiction under other provisions of the act." Id. 451 A.2d at 975. The court then held:
Assumption of emergency jurisdiction is an assumption of temporary jurisdiction only; it is meant solely to prevent irreparable and immediate harm to children and, absent satisfaction of other UCCJA jurisdictional prerequisites, does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody disposition.
In reaching that conclusion, the court quoted Professor Bodenheimer:
There are, of course, legitimate occasions for the exercise of emergency jurisdiction. However, this special power to take protective measures does not encompass jurisdiction to make a permanent custody determination or to modify the custody decree of a court with continuing jurisdiction. Emergency jurisdiction confers authority to make temporary orders, including temporary custody for a limited period of time, pending proceedings in the state with regular jurisdiction under the Act. [Bodenheimer, "Interstate Custody; Initial Jurisdiction and Continuing Jurisdiction under the UCCJA," XIV Fam.Law Q. No. 4 (Winter 1981); footnotes omitted.]
We reach the same conclusion here. The emergency involving the daughter permitted the district court to enter a temporary order for the daughter's protection until proper steps are taken in the original forum state to adequately protect the daughter. The district court cannot, however, take any other action that would change the orders of the Mexican court.
We assume that Judge Harney will vacate her order insofar as it touches the son and will vacate the order concerning the daughter when she is satisfied that steps have been taken by the Mexican court to adequately protect the daughter. The writ will issue only if she fails to do so.
NOTES
[1] Mrs. Taylor testified by deposition that the custody issue had not been finally resolved and was still pending before the Mexican court.
[2] § 11.73. International Application
The general policies of this subchapter extend to the international area. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
[3] As pertinent here, Section 11.53(a) states:
(a) A court of this state that is competent to decide child custody matters has jurisdiction to make a child custody determination by initial decree or modification decree or order if:
(1) this state:
(A) is the home state of the child on the date of the commencement of the proceeding; or
(B) had been the child's home state within six months before the date of the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(2) it appears that no other state would have jurisdiction under Subdivision (1) of Subsection (a) of this section and it is in the best interest of the child that a court of this state assume jurisdiction because:
(A) the child and his parents or the child and at least one contestant have a significant connection with this state other than mere physical presence in this state; and
(B) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;
(3) the child is physically present in this state and:
(A) the child has been abandoned; or
(B) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child; or
(4) it is in the best interest of the child that this court assume jurisdiction and:
(A) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with Subdivision (1), (2), or (3) of this subsection; or
(B) another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child.
[4] The trial court found that the custodial rights should be altered "for the safety and welfare of the children."
[5] Taylor's counsel said: "Let me be of some help to you, though. We will have noyou have got allegations of residence in Randall County for purposes of giving jurisdiction to this particular lawsuit and we will not quarrel with you or we will not challenge jurisdiction with you on that, counsel."
We presume the trial court construed the statement as an admission of the element.
[6] We observe that under section 11.53(a)(3)(B), there are two reasons for emergency orders: (1) if it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected, or (2) there is a serious and immediate question concerning the welfare of the child. Our decision is based on the first ground. For a construction of a ground similar to the second, see McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977).
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726 S.W.2d 241 (1987)
JUAN A--- and Patricia A---, Appellants,
v.
DALLAS COUNTY CHILD WELFARE, Appellee.
No. 05-86-00025-CV.
Court of Appeals of Texas, Dallas.
February 23, 1987.
*242 Brenda J. Garrett, J. Thomas Sullivan, Lana Johnson, Carol Vaughan, Dallas, for appellants.
Ellen A. Abbott, Dallas, for appellee.
Before STEWART, ROWE[1] and BAKER[2], JJ.
STEWART, Justice.
The Texas Department of Human Resources (State) brought suit to involuntarily terminate the parent-child relationship between four year old R.A. and his natural parents, Patricia and Juan A___ (Patricia and Juan). After a nonjury hearing, the judge entered a decree terminating Patricia's and Juan's parental rights. Patricia and Juan bring separate appeals. We hold that the trial court properly terminated Patricia's and Juan's parental rights and affirm.
As Patricia attacks the sufficiency of the evidence, the facts or lack thereof developed at trial become paramount. Accordingly, we develop the facts at length.
*243 The incident giving rise to these termination proceedings occurred on January 31 when R.A., aged four, received third degree burns on his feet, hands and buttocks. Patricia was not present when the burns occurred; however, when she returned home, Juan told her that R.A. received the burns while taking a bath. Patricia and Juan telephoned Parkland Hospital to determine the appropriate treatment, and they initially treated R.A.'s burns themselves.
At trial, Patricia testified that she knew she should have rushed R.A. to the hospital when she first saw the burns and wanted to do so; however, she testified that the reason she did not was because she was afraid of Juan. She testified that (1) Juan had beaten her on many occasions, sometimes in front of their four children, (2) she knew Juan had a prior conviction for assault, (3) Juan had struck another of their children with a belt, (4) Juan had slapped the same child across the porch on another occasion, (5) Juan was under a prison sentence at the time of trial because a jury had found him criminally guilty of injuring R.A., and (6) she believed that Juan could have hurt R.A. intentionally if Juan had been in a bad temper that day. A Dallas County intake worker added that Patricia was aware of another incident in which Juan kicked one of their children in the neck and in the head. Other reasons she gave for not taking R.A. to the hospital were that Juan would not let her and that she was afraid that Juan would get in trouble.
Approximately two weeks later, during which time R.A. was bedridden, and a full two or three days after noticing that one of R.A.'s toes was coming off, Patricia took R.A. to the Dallas/Fort Worth Medical Center. The nurse who initially treated R.A. testified that his toes had webbed and had to be separated by running a blade between them. When she asked R.A. why he had not gotten out of the tub, she said that R.A. responded, "My daddy wouldn't let me out."
The physician who treated R.A. testified that R.A. had full-thickness burns and that it was necessary to amputate several of R.A. toes, some of which could have been saved had R.A. been treated immediately. He testified that by the time he saw R.A. the burns were already two to three weeks old. He further stated that a parent should have realized immediately that R.A.'s burns were not minor burns and that neither Patricia nor Juan evidenced the proper concern for their injured child.
Regarding the nature of the burns, the same physician stated that Patricia and Juan's account of the burns was completely inconsistent with his findings, which were that burns as deep as R.A.'s required a prolonged exposure to very high temperature water and that a normal childone that was not a paraplegic or quadriplegic or one that had any sensation in his limbs could not injure himself in this way. A Dallas County Child Welfare intake worker testified that she had visited the home where the injury occurred and observed that the bathtub was a common bathtub and that she, therefore, saw no reason why R.A. could not have stepped out of the tub if he had wanted to.
A psychologist clinically interviewed Patricia and administered some objective tests, including an adult intelligence test. He testified that the tests indicated Patricia functioned in the borderline range of intellectual functioning and her verbal skills were significantly lower than her performance skills. He added that Patricia had a paranoid personality structure, poor reality testing, and strong dependency needs. In his opinion, Patricia was not able to provide a consistent environment for R.A. and it was unlikely that she would be able to protect R.A. in the future.
A psychological associate at the Child Guidance Clinic interviewed R.A. and administered to him a psychological examination. The associate stated that R.A. appeared attached to his family but that R.A. was unmanageable, uncooperative, and needed a consistent routine environment.
The trial court found that both Patricia and Juan knowingly placed and knowingly allowed the child to remain in conditions that endangered the physical and emotional *244 well-being of the child. TEX.FAM.CODE ANN. § 15.02(1)(D)(Vernon 1986). [hereinafter cited as FAM.CODE]. The court further found that both Patricia and Juan engaged in conduct that endangered the physical and emotional well-being of the child and that both knowingly placed the child with persons who engaged in conduct that endangered the physical and emotional well-being of the child. FAM.CODE § 15.02(1)(E). Finally, the decree states that termination of the parent-child relationship between both parents and the child would be in the best interest of the child. FAM. CODE § 15.02(2).
Actions breaking the link between a parent and child "can never be justified without the most solid and substantial reasons." State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900). Indeed, the due process clause of the United States Constitution requires the State to prove its allegations by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re G.M., 596 S.W.2d 846, 847 (Tex.1980).
In her point of error two, Patricia contends that there was insufficient evidence establishing by clear and convincing proof the trial court's 15.02(1)(E) findings. If the State proved by clear and convincing evidence either that Patricia engaged in conduct that endangered the physical or emotional well-being of the child or knowingly placed the child with persons who engaged in such conduct, the requirements of section 15.01(1)(E) are satisfied.
When deciding factual sufficiency points, we must consider all the evidence in deciding the question. Garza v. Alviar, 395 S.W.2d [821] at 823. The requirement of clear and convincing evidence is merely another method of requiring that a cause of action be supported by factually sufficient evidence. State v. Turner, 556 S.W.2d 563 (Tex.1977), cert. denied, 435 U.S. 929, 98 S. Ct. 1499, 55 L. Ed. 2d 525 (1978). The clear and convincing evidence standard is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803 (Tex.Civ.App.Houston [1st Dist.] 1980, writ ref'd n.r.e.). As the trier of fact, the trial judge is in the best position to observe the witnesses and weigh the probative force of the evidence. See, e.g., In the Interest of J.D.H., 661 S.W.2d 744, (Tex.App.Beaumont 1983, no writ); Smith v. McLin, 632 S.W.2d 390 (Tex.App.Austin 1982, writ ref'd n.r.e.).
We first address whether Patricia herself engaged in conduct that endangered the physical or emotional well-being of R.A. Although Patricia did telephone Parkland Hospital in order to learn how best to treat R.A.'s burns, the physician who treated R.A. stated that a parent should have immediately recognized that R.A.'s burns were not minor. Furthermore, Patricia admitted wanting to take R.A. to the hospital immediately upon seeing the burns, which illustrates that she recognized the severity of the burns but nevertheless failed to act. Even after noticing one of R.A.'s toes was falling off, Patricia failed to act for several days. There was evidence that some of R.A.'s toes could have been saved if Patricia had acted immediately. We hold that Patricia's failure to act under these facts is conduct that endangered the physical well-being of R.A. and that the trial court's finding to this effect is supported by clear and convincing evidence. This finding alone is sufficient to support the judgment under section 15.02(1)(E). Consequently, we need not address Patricia's contention that the evidence is insufficient to support the trial court's finding as to the second prong of section 15.02(1)(E) that she knowingly placed the child with other persons who engaged in conduct endangering R.A. Patricia's second point of error is overruled.
Because termination is justified under section 15.02(1)(E), we likewise need not address Patricia's first point of error attacking the trial court's findings under section 15.02(1)(D). Patricia does not attack the trial court's finding that termination of her parental rights is in the best interest of the child.
*245 Both Patricia and Juan urged error because the trial court failed to file specific findings of fact to support the judgment. We sustained these points in our earlier opinion wherein we abated this cause for the trial court to file specific findings under sections 15.02(1)(D) and (E). Therefore, we now address Juan's remaining two points of error.
In Juan's second point of error, he contends that the trial court improperly admitted evidence of Juan's conviction for injury to a child 14 years of age or younger. The conviction is based upon the same conduct that is the subject of this suit and was on appeal at the time of the nonjury hearing. Juan first relies upon rule 609(e) of the Texas Rules of Evidence,[3] which excludes convictions that are on appeal. Juan argues that rule 609 governs admissibility of convictions for criminal offenses; that rule 609(e) excludes convictions on appeal; that there is no other provision of the Texas Rules of Evidence authorizing use of nonfinal convictions; and consequently, this conviction was inadmissible for any purpose. The State responds that rule 609 governs admissibility of convictions only for purposes of impeachment; that Juan's conviction is relevant to the issue of best interest of the child and, therefore, is generally admissible under rule 402; and that the State specifically offered and the trial court specifically admitted the conviction, not to impeach Juan, but as direct evidence on the issue of best interest.
Specifically, the State argues that the nonfinal conviction is admissible as a fact in Juan's personal history and is relevant to the issue of best interest because, at the time of trial, Juan was in prison serving a fifty year sentence as a result of the conviction. We agree that Juan's imprisonment is a "circumstance" affecting Juan's ability to parent and to provide for the emotional and physical needs of his child because he was unavailable to meet his child's needs directly. Although it may be relevent to the determination of best interest, imprisonment per se is not a ground for termination. FAM.CODE § 15.02(1); see Texas Department of Human Resources v. J.T.H., 700 S.W.2d 718 (Tex.App.Corpus Christi 1985, no writ); H.W.J. v. State Department of Public Welfare, 543 S.W.2d 9 (Tex.Civ.App.Texarkana 1976, no writ). Yet, the fact of imprisonment may be proved without the introduction of the conviction causing the imprisonment as, indeed, it was in this case. Juan testified without objection that he was currently in prison. His attorney did not object until the State sought to introduce the reasons for his imprisonment, i.e., his conviction for the same conduct that was one of the grounds for termination of his parental rights.
The State has cited no authority, other than rule 402, to support its contention that this nonfinal conviction is admissible in evidence. Rule 402 provides that all relevant evidence is admissible. The exception in that rule states that relevant evidence is inadmissible if a constitution, a statute or another rule of evidence so provides. The State concedes that the conviction is inadmissible under rule 609(e) but contends that because the conviction was offered to attack Juan's character, rather than to impeach his credibility, rule 609 is inapplicable. We disagree. We hold that rules 609 and 803(22)[4] provide the only authority under the Texas Rules of Evidence for admitting a prior felony conviction and unless a conviction meets the requirements of those rules, it is inadmissible. Neither allows the admission of a conviction on appeal. Juan's second point of error is sustained.
In his third point of error, Juan asserts that the trial court erred in admitting his prior final conviction for assault. He relies on rule 609(a) which provides: "For the purpose of attacking the credibility of a witness, evidence that he has been *246 convicted of a crime shall be admitted if elicited from him or established by public record but only if the crime was a felony or involved moral turpitude,...." TEX.R. EVID. 609(a) (Vernon Supp.1986). An assault conviction is a class A misdemeanor, not a felony, TEX.PENAL CODE ANN. § 22.01 (Vernon 1974), and is not a crime involving moral turpitude. Young v. State, 96 Tex. Crim. 197, 256 S.W.2d 925 (1923). The State again argues that the assault conviction is relevant to the issue of best interests of the child, and, thus, generally admissible under rule 402 and that, because the conviction was offered to prove Juan's propensity for violence and not for impeachment purposes, rule 609 does not apply. Again, we disagree. Neither rules 609 nor 803(22) applies to misdemeanor offenses. Because Juan's prior conviction for assault is a misdemeanor and does not involve moral turpitude, it is not admissible under rule 609(a), and it is not admissible under rule 803(22) because that rule only applies to felony convictions. Juan's third point of error is sustained.
Having ruled that the trial court erred in admitting these two convictions we must now determine whether the errors require reversal of the judgment because they amounted to such a denial of Juan's rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment. TEX.R.APP.P. 81(b)(1) (formerly TEX.R.CIV.P.ANN. 434 (Vernon 1985)). We have reviewed the record and conclude there was more than ample admissible evidence to support the trial court's finding that it was in R.A.'s best interest to terminate Juan's rights. Consequently, we hold that the erroneous admission of these convictions was harmless error in this trial before the court.
The judgment is affirmed.
NOTES
[1] The Honorable Gordon Rowe, Justice, succeeded the Honorable Cynthia Hollingsworth, Justice, at the expiration of her term on December 3, 1986.
[2] The Honorable James A. Baker, Justice, participated in this cause by assignment in place of the successor to the Honorable John C. Vance, Justice, who retired effective December 31, 1986.
[3] All subsequently cited rules, unless otherwise indicated, are the Texas Rules of Evidence.
[4] Rule 803(22) admits evidence of a felony conviction "entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere),... to prove any fact essential to sustain the judgment of conviction. The pendency of an appeal renders such evidence inadmissible."
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105 N.J. 14 (1987)
519 A.2d 322
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DENNY VALENTIN, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued September 22, 1986.
Decided January 13, 1987.
*15 Jeffrey L. Menkin, Deputy Attorney General, argued the cause for appellant (W. Cary Edwards, Attorney General of New Jersey, attorney).
Morton L. Anekstein, Assistant Deputy Public Defender, argued the cause for respondent (Alfred A. Slocum, Public Defender, attorney).
The opinion of the Court was delivered by GARIBALDI, Justice.
This appeal concerns the interpretation of the word "volunteers" in N.J.S.A. 2C:29-3b(4). Specifically, we must decide whether a defendant who in response to a law-enforcement officer's inquiry gives a false name thereby violates N.J.S.A. 2C:29-3b(4), which proscribes "volunteer[ing] false information to a law enforcement officer."
I
This case arises in the context of a motor vehicle stop. On April 9, 1985, a state trooper stopped a car driven by defendant, Denny Valentin, for a routine motor vehicle violation. The car was registered to Dollar-Rent-A-Car of Florida. The company had reported the car stolen by Valentin, the lessee, after he failed to return the vehicle. The company was seeking to prosecute the defendant.
When Valentin was stopped, the state trooper asked for his name, and he replied "Ramon Velez." The trooper then issued *16 a motor vehicle summons and released Valentin. Shortly thereafter the same trooper stopped Valentin for another motor vehicle infraction. This time Valentin gave his own name. The trooper however remembered that Valentin had given a different name on the prior occasion. Hence he was prosecuted on two counts: receiving stolen property in violation of N.J.S.A. 2C:20-7; and hindering his own apprehension by "volunteering" the name of Velez on the first occasion in violation of N.J.S.A. 2C:29-3b(4).
Defendant filed a motion in the trial court to dismiss count two of the indictment. The motion asserted that because defendant merely responded to the officer's questions, he did not "volunteer" false information within the meaning of N.J.S.A. 2C:29-3b(4). Specifically, defendant argues that the statute in question prohibits taking the initiative in providing false information to law-enforcement officials, not merely responding to an inquiry. The State asserts that this interpretation is too narrow and that the word "volunteer" includes practically any deliberate advance of information not technically required by law, whether or not made in response to a law-enforcement officer's inquiry.[1]
The trial court found that "[o]ne who is questioned by an armed law enforcement officer, has not `taken the initiative' and affirmatively volunteered information but has merely responded to police questioning." Accordingly, he granted defendant's motion to dismiss. The Appellate Division affirmed, similarly concluding that "to be guilty under N.J.S.A. 2C:29-3b(4), the actor must take the initiative in providing the false information. He cannot be culpable if he responds falsely to a question by a law enforcement officer." State v. Valentin, 208 N.J. Super. 536, 540 (1986).
*17 The majority of the Appellate Division expressly overruled State v. Alexander, 198 N.J. Super. 594 (Law Div. 1984), certif. den., 102 N.J. 303 (1985), which had held that one "volunteers" information when responding to police-initiated inquiries. Instead, the majority followed State v. D'Addario, 196 N.J. Super. 392, 396 (Law Div. 1984), which held that to be culpable the actor must take the initiative in giving false information or must offer to give it without solicitation.
In his concurring opinion, Judge Shebell did not agree with the majority that the legislature had intended such a limited scope for N.J.S.A. 2C:29-3b(4). Nevertheless, he concurred in the judgment because he concluded that the legislators "ha[d] not enacted their intention with sufficient clarity to allow application of the statute to any persons other than those `who take the initiative in throwing the police off the track.'" 208 N.J. Super. at 541. Pursuant to Rule 2:2-2(b) and Rule 2:5-6(a), we granted the State's motion for leave to appeal the judgment of the Appellate Division, 104 N.J. 372 (1986), and now affirm.
II
N.J.S.A. 2C:29-3b(4) provides:
b. A person commits an offense if, with purpose to hinder his own apprehension, prosecution, conviction or punishment, he:
* * * * * * * *
(4) Volunteers false information to a law enforcement officer.
Our most rudimentary guide in this case is the doctrine that penal statutes must be strictly construed. In re Suspension of DeMarco, 83 N.J. 25, 36 (1980); State v. Carbone, 38 N.J. 19, 24 (1962); State v. Gantt, 101 N.J. 573, 592 (1986) (Handler, J., concurring); 3 Sands Sutherland, Statutory Construction ¶ 59.03 at 6-7 (4th ed. 1974).
"The rule that penal statutes are to be strictly construed has at its heart the requirement of due process. No one shall be *18 punished for a crime unless both that crime and its punishment are clearly set forth in positive laws." In re Suspension of DeMarco, supra, 83 N.J. at 36. Penal statutes must be sufficiently definite so that ordinary people can understand what conduct is prohibited. Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983). As the United States Supreme Court stated in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972):
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
Penal laws cannot be extended by implication or intendment. Where more than one reasonable interpretation may be made, or where the language is ambiguous and the ambiguity is not manufactured by the defendant the construction must be drawn against the state. State v. Carbone, supra, 38 N.J. at 23-24; Sutherland, supra, ¶ 59.03 at 6-7.
With these principles in mind, we focus our inquiry in this case on the meaning an ordinary citizen would ascribe to the word "volunteer" in N.J.S.A. 2C:29-3b(4). Certainly one "volunteers" information when he "blurts it out" or otherwise advances it without prompting. However, most people do not believe that one "volunteers" responses to a law-enforcement officer's inquiry. See, e.g., The Random House Dictionary of the English Language 1600 (9th ed. 1983) (defining volunteer: "to offer [oneself or one's services] for some undertaking or purpose[;] ... to give, bestow, or perform without being asked ..."). In this case, the State reasons that because a person has a constitutional right to refuse to answer inquiries by law-enforcement officials, any responses to such inquiries are consensual and, therefore, "volunteered." We disagree.
*19 Although the defendant was not constitutionally or statutorily compelled to answer the state trooper, an ordinary person stopped for a motor vehicle violation does not think he is "volunteering" answers to a law-enforcement officer's inquiries. Few persons under such circumstances think that they can refuse to answer. On the contrary, most believe that failure to respond will only lead to further involvement with the police officer. 3 W. LaFave, Search & Seizure, ¶ 9.2, at 52-55 (1978). See generally United States v. Mendenhall, 446 U.S. 544, 544-57, 100 S.Ct. 1870, 1871-73, 64 L.Ed.2d 497, 509-11 (1980) (recognizing the substantial assertion of governmental authority involved when a law-enforcement officer stops an automobile and the likelihood that a citizen would feel constrained to respond to the officer's questions).
In this case defendant was signaled by a state trooper to pull over and stop. His compliance with that signal cannot be characterized as a voluntary choice. Nor can his subsequent response to the officer's inquiry of his name. The fact that defendant had the choice to supply either a true or false name does not negate the practical imperative to respond that was created by the officer's inquiry. An ordinary citizen would not consider such an essentially mandated response to be "voluntary," and thus simply could not anticipate that N.J.S.A. 2C:29-3b(4) would apply in such a case. See State v. Lee, 96 N.J. 156, 166 (1984); In re Suspension of DeMarco, supra, 183 N.J. at 36. In this context, therefore, the word "volunteer" is too ambiguous to justify a conviction.
III
When, as in this case, a statutory term is subject to more than one interpretation we look beyond its plain language to determine the legislature intent. State v. Butler, 89 N.J. 220, 227 (1982). Our inquiry into the historical context and legislative history of N.J.S.A. 2C:29-3b(4) firmly supports our narrow *20 construction of the word "volunteer" in that statute. See State v. D'Addario, 196 N.J. Super. 392 (Law Div. 1984).
In 1981 the Legislature amended N.J.S.A. 2C:29-3 by enacting subsection b which prohibits hindering one's own apprehension, prosecution or conviction by, inter alia, "volunteer[ing] false information to a law enforcement officer." N.J.S.A. 2C:29-3b(4). This provision traces exactly the language of N.J.S.A. 2C:29-3a(7),[2] which prohibits hindering the apprehension, prosecution or conviction of another by "volunteer[ing] false information to a law enforcement officer."
In Perez v. Pantasote, Inc., 95 N.J. 105, 116 (1984), we articulated "the general rule that a word or phrase should have the same meaning throughout the statute in the absence of a clear indication to the contrary." Just as "a comparative analysis of the language of a contemporaneous statute may, because of contrasting language applicable to similar subject matter, be indicative of an intent or purpose on the part of the Legislature to provide different treatment," Malone v. Fender, 80 N.J. 129, 136 (1979), citing Smith v. Township of Hazlet, 63 N.J. 523, 527 (1973), so is the use of the same language indicative of the Legislature's intent to provide the same treatment. Therefore, the Legislature's use of the identical phrase "volunteers false information to a law enforcement officer" in N.J.S.A. 2C:29-3a(7) and 3b(4) is strong proof that those provisions were meant to proscribe the same types of conduct.
The scant legislative history of the 1981 amendment also indicates that N.J.S.A. 2C:29-3a(7) and b(4) should be construed similarly. See Statement to Senate Committee Substitute for S. *21 1537 at 7 (Jan. 2, 1981) (explaining that the amendment merely broadened the prohibition against hindering another's apprehension, conviction, or prosecution to similarly prohibit hindering one's own apprehension, conviction or prosecution). Both sections derived from the former Code's prohibition against acting as an "accessory after the fact," N.J.S.A. 2A:85-2 (repealed Sept. 1, 1979). See II Commentary: Final Report of The N.J. Criminal Law Revision Commission (hereinafter New Jersey Commentary) 283 (1971); N.J.S.A. 2C:29-3 source note.[3] The new Code broke from the traditional accomplice theory, which had formed the basis of N.J.S.A. 2A:85-2, and followed the Model Penal Code, which bases liability for hindering prosecution on an obstruction of justice theory. New Jersey Commentary, supra, at 283; N.J.S.A. 2C:29-3 source note. The commentary to the parallel provision of the Model Penal Code explicitly states that "volunteering false information" does not include "giving ... false answers to inquiries initiated by the police." Model Penal Code § 242.3 commentary at 235 (1985). This provision
proscribes only the borderline case of volunteered misinformation to the police which is not covered elsewhere. This provision is intended to reach those who take the initiative in throwing the police off the track. [Id.]
The Model Code Commentary explains that the exclusion of false answers to law enforcement officials from the scope of this section represented
a delicate policy judgment, premised in part on the fear that a wider reach for this subsection would invite abusive charges by police against persons interviewed in the course of investigating crime. [Id.]
*22 The commentators noted that other sections of the Model Code were better suited to implement a "penal policy with respect to unsworn false statements to the police." Id.
The drafters of the New Jersey Penal Code similarly recognized the danger that might arise from a broad construction of the word "volunteer" in N.J.S.A. 2C:29-3:
With regard to non-cooperation with police investigations, it should be borne in mind that the law provides means of compelling testimony under oath, and that a penal policy with respect to unsworn false statements to police has been laid down in other Sections of the Code with advertence to the danger of abusive charges being brought by police against persons interviewed in the course of investigating crime. The borderline case of `volunteered' misinformation to the police, dealt with in [N.J.S.A. 2C:29-3a(7)] would not be covered elsewhere and is intended to reach those who take the initiative in throwing the police off the tract.
[New Jersey Commentary at 285 (1971) (emphasis added).]
Even if it is less explicit than the commentary to the Model Code, the New Jersey Commentary is similarly unequivocal in its displacement of "unsworn false statements" made in response to law enforcement investigations from the scope of N.J.S.A. 2C:29-3. Both commentaries make it clear that the Legislature intended that sections other than N.J.A.C. 2C:29-3 prohibit false responses to questioning by law enforcement officers.
IV
We do not hold that any response to a law-enforcement officer's inquiry cannot be a violation under this act or that an offense occurs only if the suspect speaks first. In part, whether an offense occurs depends on the nature and degree of misinformation. Just as a mere exculpatory "no" is not the type of information prohibited under the statute, neither is the mere misstatement of defendant's name. However, if after misinforming the police of his name the suspect proceeded, for example, to advise the police that he observed the perpetrator *23 and that he knew that he had returned to Florida, N.J.S.A. 2C:29-3b(4) would certainly be operable.
Moreover, we do not hold that N.J.S.A. 2C:29-3b(4) is vague or unconstitutional. We hold only that it is sufficiently ambiguous to preclude its application to this defendant in this context without a clarifying amendment. We acknowledge this decision may make police work more difficult (although we believe that some of the fears expressed by the State are unfounded).[4] Nevertheless, the Legislature's use of the exact same language in two sections of the same statute and the drafters' stated awareness of the danger of unwarranted prosecution by the police of people for giving false unsworn statements during a police investigation compel our conclusion that the legislature did not intend the word "volunteer" in N.J.S.A. 2C:29-3b(4) to have a different meaning and greater scope than the word "volunteer" in N.J.S.A. 2C:29-3a(7). Moreover, in light of the common assumptions about the meaning of the word "volunteer," we are convinced that the statute did not give defendant fair warning of its potential applicability in this case. Thus, we conclude that this defendant did not "volunteer," under N.J.S.A. 2C:29-3b(4), the false name he gave in response to the state trooper's inquiry. We therefore affirm the judgment of the Appellate Division.
CLIFFORD, Justice, dissenting.
If lawyers and judges would just learn to talk the way regular folks do, we would avoid a good many problems. Like, for instance, this case.
*24 When asked his name, defendant was confronted with three choices: he could remain silent (I agree that maybe he did not know that, and that maybe, for those who put a high priority on not irritating law-enforcement people, silence is not such a good approach anyway); he could tell the trooper his name; or he could make up or "borrow" a name. Defendant took the last course: he gave false information. Nobody asked him to do that. Nobody extracted the phony name. Nobody coerced defendant into proffering a bogus identification he volunteered it. He made up his answer. He lied. His intention was to avoid detection and to send the police off on a wild goose chase.
One need not be a lawyer or wordsmith or semanticist to understand that a statute proscribing the volunteering of false information to a law-enforcement officer is violated when Denny Valentin, wanted on a stolen vehicle charge, tells a state trooper that his name is Ramon Velez. I do not think the crowd down at the corner newsstand would have nearly the trouble with this simple, eminently sensible statute that this Court has.
I would reverse and remand to the trial court with an order to reinstate count two of the indictment.
For affirmance Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 6.
For reversal and remandment Justice CLIFFORD 1.
NOTES
[1] The State does distinguish the case where the defendant simply responds to police questions with an exculpatory denial of implication in the crime. In such cases the State admits that the statute is not applicable. See State v. Daniels, 165 N.J. Super. 47, 51 (App.Div.), certif. denied, 81 N.J. 349 (1979).
[2] N.J.S.A. 2C:29-3a(7) provides
a. A person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for an offense he:
* * * * * * * *
(7) Volunteers false information to a law enforcement officer.
[3] The State argues without citation that the predecessor statute to N.J.S.A. 2C:29-3 was N.J.S.A. 2A:148-22.1 (repealed Sept. 1, 1979), which prohibited the "knowing and willful giving of false information to any law enforcement officer.... with respect to the commission of [an offense]." N.J.S.A. 2A:148-22.1, however, was the basis for the current prohibition on "False Reports to Law Enforcement Authorities." See N.J.S.A. 2C:28-4 source note.
[4] The State warns that our decision may allow a criminal to "effectively hinder his own prosecution by lying to police, provided that he waits for the officer to initiate their verbal exchange." It seems unlikely that a criminal on the run would wait for an exchange with police. More likely he would try to avoid such contact, and if forced into it, would not correctly identify himself regardless of the applicability of N.J.S.A. 2C:29-3b(4). We are even less impressed by the State's fear that our construction of the statute will allow a criminal falsely to implicate innocent parties by giving their names instead of his own.
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916 F. Supp. 478 (1996)
Henry MINISCALCO, Donna Miniscalco, Miniscalco Corp., Plaintiffs,
v.
Conrad GORDON, James B. Speers, Bridgeport Materials Inc., Defendants.
Civil A. No. 95-2972.
United States District Court, E.D. Pennsylvania.
February 26, 1996.
*479 Robert H. Dickman and Lorraine Gazzara Romolini, Goldberg and Dickman, Philadelphia, PA, for plaintiffs.
Michael T. Sellers, Kardos, Rickles, Sellers & Heley, Newtown, PA, and Gene A. Foehl, Media, PA, for defendants.
MEMORANDUM AND ORDER
ANITA B. BRODY, District Judge.
Plaintiffs, Henry and Donna Miniscalco and Miniscalco Corporation, brought this action claiming deprivation of their civil rights in violation of 42 U.S.C. § 1983, intentional infliction of emotional distress, and abuse of process. Defendant Conrad H. Gordon has filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons that follow, I will grant Gordon's motion in part and deny it in part. The other two defendants, James B. Speers and Bridgeport Materials, Inc. ("Bridgeport"), have also filed a motion to dismiss. Their motion will be addressed separately at a later date.
BACKGROUND
Plaintiffs' complaint alleges the following: In April of 1994, Bridgeport, acting through its officer and agent, James B. Speers, filed a civil complaint against "Henry Miniscalco, Individually DBA Petroleum Technologies" in Montgomery County, Pennsylvania. (Complaint at ¶ 10, emphasis added.) At a *480 hearing on the complaint, the state court district justice, acting sua sponte, amended the designation of the defendant to read "H. Miniscalco Inc., DBA Petroleum Technologies." (Complaint at ¶ 11, emphasis added.) On or about November 4, 1994, he signed an Order of Execution against "H. Miniscalco, Inc. DBA Petroleum Tec" and gave it to defendant Conrad H. Gordon, a constable of the Commonwealth of Pennsylvania, for service and levy. (Complaint at ¶ 12, emphasis added.) Gordon, acting for or on behalf of the other defendants, altered the document or caused it to be altered so that it appeared to be issued against "H. Miniscalco, IND, DBA Petroleum Tec." He then purported to levy upon and seize personal property belonging to the individual plaintiffs and posted notices of levy and sale. (Complaint at ¶¶ 13-14.)
Plaintiffs list four causes of action in the complaint. In the first, the two individual plaintiffs claim a violation of their civil rights pursuant to 42 U.S.C. § 1983. In the second, the corporate plaintiff claims a violation of its civil rights pursuant to 42 U.S.C. § 1983. In the third, the individual plaintiffs claim intentional infliction of emotional distress under the common law of Pennsylvania. In the fourth, all the plaintiffs claim abuse of process under the common law of Pennsylvania.
DISCUSSION
A. The Legal Standard
In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991). In deciding whether to grant the motion, I must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir.1989). The issue in a 12(b)(6) motion is not whether the plaintiffs will ultimately prevail, but rather whether they would be entitled to relief under any set of facts consistent with the claims set forth in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232-33, 81 L. Ed. 2d 59 (1984).
B. The Corporate Plaintiff
The complaint alleges nothing suggesting that the corporate plaintiff, Miniscalco Corporation, suffered any actual damage or legal wrong as a result of defendants' alleged misdeeds. While the complaint alleges in conclusory terms that the corporate plaintiff suffered a deprivation of its constitutional rights and was required to spend substantial sums of money to defend itself and its property, the facts of the complaint do not support these allegations. The claims of the corporate plaintiff will therefore be dismissed without prejudice.
C. Intentional Infliction of Emotional Distress
The United States Court of Appeals for the Third Circuit has predicted that the Pennsylvania Supreme Court will recognize the tort of intentional infliction of emotional distress. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir.1979); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 85 (3d Cir.1987). While the Supreme Court of Pennsylvania has not yet formally recognized the tort,[1] the Pennsylvania Superior Court has adopted Section 46 of the Restatement (Second) of Torts, which sets it out. See Stoddard v. Davidson, 355 Pa.Super. 262, 513 A.2d 419, 422 n. 1 (1986).
The tort has three elements: "the conduct must be `extreme and outrageous', be `intentional or reckless', and cause severe emotional distress." Wisniewski, 812 F.2d at 85 (quoting Chuy, 595 F.2d at 1273). The standard of the Restatement is difficult to meet:
It has not been enough that the defendant has acted with an intent which is tortious *481 or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Restatement (Second) of Torts § 46, comment d. As noted by the Third Circuit, Pennsylvania courts have been reluctant to find conduct so outrageous as to permit recovery for this tort. Clark v. Township of Falls, 890 F.2d 611, 623 (3d Cir.1989).
In this case, the plaintiffs allege that they suffered from "anxiety, distress, discomfort and embarrassment" as a result of the defendants' actions. (Complaint at ¶ 18.). In addition, they allege in a conclusory fashion that the conduct of the defendants was "extreme and outrageous," "intentional and reckless," that it "caused Plaintiffs severe emotional distress," and that it "constitutes intentional infliction of emotional distress under the laws of the Commonwealth of Pennsylvania." (Complaint at ¶¶ 28-31.). Defendant Conrad claims the allegations in the complaint do not support a claim of intentional infliction of emotional distress. While it may turn out that plaintiffs cannot sustain their claim, at this stage in the litigation, I cannot say that there are no facts they could prove consistent with the allegations in the complaint that would support their claim. I will therefore deny defendant's motion to dismiss plaintiffs' claim for intentional infliction of emotional distress.
D. Abuse of Process
Plaintiffs state in their complaint, "The actions of Defendants in altering or causing to be altered the execution documents constituted an abuse of process and a misuse of process under the common law of the Commonwealth of Pennsylvania."[2] (Complaint at ¶ 33.) Defendant contends there is no cause of action for abuse of process because he was given an order of execution based on a valid judgment, and "[]there is no cause of action for abuse of process ... if [defendant] merely carried out the process to its intended conclusion." (Defendant's motion to dismiss, unpaginated.)
Defendant correctly states the law, but to survive a motion to dismiss, plaintiff need only allege facts that, if proven, would state a cause of action. In this case, the complaint alleges that Gordon was given an order of execution based on a valid judgment, but that he failed to carry it out to its intended conclusion. Instead, acting for and on behalf of the other defendants, he allegedly altered the order or caused it to be altered, served it on an authorized recipient, and initiated a levy on and sale of his property. Gordon argues there is no cause of action because he "merely carried out the process to its intended conclusion;" however, the complaint alleges that he did not carry out the process to its intended conclusion and that he acted with improper motive, thereby alleging the elements necessary to state a cause of action for abuse of process. Gordon's motion to dismiss this count must therefore be denied.
In arguing that plaintiffs' abuse of process claim should be dismissed, Gordon also contends that the law requires a person to incur a direct deprivation of property to sustain the claim. The opinion he cites for his position, Denenberg v. Am. Family Corp. of Columbus, Ga, 566 F. Supp. 1242, 1249 (E.D.Pa. 1983), has been superceded by an opinion of the Pennsylvania Supreme Court holding that seizure or deprivation of property is not an indispensable element of the tort of abuse of process. McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1026 (1987).
E. The Section 1983 Claim
Defendant, in his motion to dismiss, appears to be claiming absolute immunity because he was acting in his official capacity pursuant to an order issued by a district *482 justice. He cites Meyer v. Curran, 397 F. Supp. 512, 519 (E.D.Pa.1975), in which this court held that a private individual who was deemed to have acted under the direction of a state official who was clothed with absolute immunity enjoyed the immunity of that state official.[3] Defendant also cites Winterhalter v. Three Rivers Motors Co., 312 F. Supp. 962, 963 (W.D.Pa.1970), in which the court held that police constables who served a warrant issued to them by a magistrate, acted "as an arm of the judicial power and are ... immune from suit under the Civil Rights Act." However, in those cases, there was no allegation that the defendant had failed to carry out his duties faithfully and as the official intended. The question in this case is whether judicial immunity attaches to a constable who, acting as the arm of the court in carrying out an order of execution, allegedly altered that order so as to thwart the intention of the district justice and pervert the judicial process. Defendant has cited no authority holding or even suggesting that a constable acting in this manner is immune from suit under section 1983, and I know of none.[4]
Finally, the defendant has moved to dismiss the complaint on the ground that the statute of limitations has expired. He does not mention the issue in his memorandum of law, however, and complaint does not contain the information which would allow the relevant calculations to be made.
CONCLUSION
As indicated in the foregoing, I will grant defendant's motion in part and deny it in part, and will dismiss a portion of the complaint with leave to amend.
NOTES
[1] Several months after the Third Circuit decision in Wisniewski, the Pennsylvania Supreme Court used section 46 of the Restatement (Second) of Torts in deciding that the plaintiff had not met with its requirements. It stated that it had "never had occasion to specifically adopt section 46," and it "left to another day the question of the viability of section 46 in Pennsylvania." Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 988-89 (1987).
[2] Plaintiffs are apparently unaware that misuse of process has been codified in Pennsylvania, 42 Pa.C.S.A. § 8351-54, and that, in any case, it is not applicable to the facts they allege. It refers to the wrongful initiation of process, not its perversion after it was properly issued, as does abuse of process. See McGee v. Feege, 517 Pa. 247, 535 A.2d 1020 (1987).
[3] Meyer v. Curran may no longer be good law. In Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 937 (3d Cir.1984), cert. denied, 469 U.S. 871, 105 S. Ct. 221, 83 L. Ed. 2d 150 (1984), the United States Court of Appeals for the Third Circuit stated that the Supreme Court had by implication rejected the reasoning of Meyer in Dennis v. Sparks 449 U.S. 24, 29-31, 101 S. Ct. 183, 187-88, 66 L. Ed. 2d 185 (1980).
[4] Defendant may have intended to claim qualified immunity in addition to absolute immunity, but he failed to argue it.
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726 S.W.2d 182 (1987)
SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant,
v.
BOYCE IRON WORKS, INC., Appellee.
No. 14612.
Court of Appeals of Texas, Austin.
January 28, 1987.
Rehearing Denied March 25, 1987.
*183 Robert J. Hearon, Jr., Graves, Dougherty, Hearon & Moody, Austin, for appellant.
Todd Wade, Brown, Maroney, Rose, Barber & Dye, Austin, for appellee.
Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.
SHANNON, Chief Justice.
Appellee Boyce Iron Works sued appellant Southwestern Bell Telephone and others[1] in the district court of Travis County for property damages resulting from a fire. After a trial to a jury, the district court rendered judgment for Boyce for $229,596.88 in actual damages, $110,937.99 for prejudgment interest, $500,000 in "additional" damages, and attorney's fees. This Court will reverse the judgment and here render judgment that Boyce take nothing from the telephone company.
The Boyce Iron Works offices burned during the early morning hours of October 10, 1981. The fire started during a burglary of the premises. Boyce's offices were served by a "silent" burglar alarm system installed in 1974 by Master Burglar Alarm. A silent alarm system is one which, when triggered, does not make noise but instead shows an interruption in a circuit on the alarm company's control panel at its offices. The alarm company's equipment and relays at Boyce were connected to the alarm company's office through a private line circuit provided by the telephone company.
*184 On Friday, October 9, 1981, at 4:30 p.m., the monitoring equipment indicated an unknown problem with the Boyce alarm system. Lloyd Ligon, president of the alarm company, attempted to test for the problem. The cause of the problem could have been in the alarm company's equipment or in the telephone line, although Ligon thought that it was in the telephone line. Ligon did not proceed on to Boyce's premises to check the connection between the alarm system and the telephone line or to check the alarm equipment. Although Ligon thought the problem was in the telephone line, he did not report the problem to the telephone company.
Meanwhile, by 5:00 p.m. Boyce's employee had informed L.W. Spillar, Jr., Executive Vice President of Boyce, of the problem in the Boyce alarm system. Spillar sent the employee home, closed the office, and, instead of reporting the problem to the alarm company or to the telephone company, went to pick up his wife from work. Spillar then returned to the office at 5:30 p.m. and called the alarm company to report the problem just before 6:00 p.m.
At that time, Ligon told Spillar that he thought the problem was in the telephone line and that Ligon could call the telephone company to report the problem but, in his personal opinion, he "didn't think it would do any good" and that there would be no response from the telephone company before Monday. Although Ligon offered to go out to Boyce's office to look at the system, Spillar replied that there would be no point in the trip to the office if the problem were in the telephone line. Instead, Spillar suggested that he call Ligon again the following morning about the alarm. Ligon did not call the telephone company to report the problem, nor did Spillar insist that the telephone company be notified, nor did Spillar, himself, report the problem to the telephone company. Early the next morning Spillar received a telephone call that there was a fire at Boyce's office and when he arrived the office was ablaze.
Boyce's scheme for burglar protection was further thwarted since the security service employed by Boyce failed to patrol Boyce's premises during the evening of October 10.
In its suit against the telephone company and the alarm company, Boyce asserted that the malfunction of the alarm system made possible the burglars' entry into its premises. The alarm system failed to function, pleaded Boyce, "because of a defect in that part of the system supplied by Bell to [Boyce]." After pleading that a defect in the telephone company's equipment caused the alarm system to malfunction, Boyce then asserted that the telephone company was liable for its damages based, among other things, upon theories of negligence and violations of the Deceptive Trade Practices Act.
The jury answered special issues that the telephone company represented that its service had "characteristics, uses or benefits which it did not have"; that the telephone company represented that its service was of a "particular standard, quality or grade, when it was of another"; and that the telephone company engaged in an "unconscionable course of conduct" and that such course of conduct was "done knowingly"; and that such action was a producing cause of Boyce's damages. Finally, for such knowing conduct, the jury assessed the telephone company $500,000 as "additional damages."
With respect to Boyce's cause of action for negligence, the jury answered that the telephone company's conduct was negligent and that such negligence was a proximate cause of Boyce's damages.
An examination of the charge and the judgment makes clear that the district court rendered judgment predicated upon the jury's answers to the Deceptive Trade Practices issues.
The telephone company attacks the judgment by many points. We find it unnecessary to discuss more than three complaints: (1) that Boyce failed to obtain a finding that a defect in the telephone equipment played a part in the malfunction of the alarm system; and (2) and (3) that there is no evidence, or insufficient evidence, in support of the jury's finding that the telephone *185 company's misrepresentations or its course of conduct were a "producing cause" of Boyce's damages.
Boyce pitched its lawsuit against the telephone company upon the premise that a defect in the telephone equipment caused the alarm system to malfunction. Because the telephone company's liability for negligence or for violation of the Deceptive Trade Practices Act hinged upon whether or not its equipment was defective, Boyce's threshold burden was to obtain a finding that a defect in the telephone equipment played a part in the malfunction of the alarm system.[2]
The telephone company complains that Boyce never discharged its immediate burden of obtaining the seminal finding that the telephone equipment was defective. That complaint, although not solemnized by formal point of error, appears throughout the telephone company's brief and argument, and, accordingly, is sufficient to call this Court's attention to the question raised. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (Tex.1943).
In defense of the judgment, Boyce advances the novel waiver thesis that the telephone company "failed to request a separate issue inquiring as to whether there was a problem with the line." The burden of proof is on the plaintiff to establish its case. Boyce, of course, and not the telephone company, was interested in, and would have been benefited by a factual determination that the telephone company's equipment was defective. Accordingly, the burden was on Boyce, and not the telephone company, to request a special issue and obtain an affirmative finding that the telephone equipment was defective. Hodges, Special Issue Submission in Texas § 71, p. 179 (1959 and Supp.1969). Boyce concedes, as it must, that it did not request the submission of a special issue on that subject. The rules, of course, do not require the defendant to request the submission of the plaintiff's issues. Rodriguez v. Higginbotham-Bailey-Logan Co., 172 S.W.2d 991 (Tex.Civ.App.1943, writ ref'd).
Had the evidence been conclusive that the telephone equipment was defective, Boyce would not have been required to request the submission of a special issue. The proof, however, was not conclusive. By 4:30 Friday afternoon, Ligon, the president of the alarm company, knew that there was a problem with the Boyce alarm system. The problem was either in his company's alarm equipment or in the telephone company's equipment. Without going to Boyce's premises, Ligon attempted to test for the problem. Although Ligon concluded that the problem was in the telephone equipment, he admitted on cross-examination that the trouble could have been either in the telephone equipment or in his company's equipment.
Boyce argues, finally, that the defective equipment issue was an omitted issue, supported by some evidence, which was deemed found in favor of the judgment. Tex.R.Civ.P.Ann. 279 (1977). An issue constituting a complete and independent ground of recovery is waived unless requested in substantially correct form. An "independent ground of recovery" is the total of all the facts necessary for a litigant to recover. Omitted issues, constituting only a part of a complete and independent ground and being merely supplemental or incidental to other issues submitted and answered, are deemed found in support of the judgment. Hodges, Special Issue Submission in Texas, §§ 74, 76 (1959 and Supp.1969), Tex.R.Civ.P.Ann. 279 (1977). A party may prevent omitted issues from being deemed found in support *186 of the judgment by proper objection to the omission. Hodges, supra at 219.
The determination that a defect in the telephone equipment played a part in the malfunction of the alarm system does not, itself, constitute an independent ground of recovery. Instead, its affirmative determination is a necessary part of both the negligence and Deceptive Trade Practice causes of action. Accordingly, this Court has concluded that the issue of the defective equipment is an "omitted" issue and is therefore a deemed finding within the meaning of Rule 279.
The telephone company insists, however, that the issue may not be deemed found in support of the judgment because it objected to the failure of the district court to submit the omitted issue. We disagree. The telephone company relies upon its objection to special issue one which inquired "whose negligence, if any, was a proximate cause of the occurrence in question at Boyce Iron Works." The telephone company complained, in part, that special issue one "... can allow the Jury to determine that somehow Southwestern Bell was negligent because its line is down, but there has been no evidence that there was any problem with the line in this case, or, if there was one, that it was due to the negligence." This Court is satisfied that the quoted objection did not apprise the district court that the telephone company was objecting to the district court's failure to submit a special issue inquiring whether the telephone equipment was defective. The telephone company's complaint, not being meritorious, is overruled.
The telephone company claims further that the judgment of the district court is erroneous because there is no evidence, or alternatively, insufficient evidence, in support of the jury's answers to special issue number three: that the telephone company misrepresented its services or engaged in an unconscionable course of conduct and that such conduct was a producing cause of Boyce's damages.
In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (Tex.1950). In reviewing factual sufficiency points of error, the reviewing court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The telephone company's employees never had any discussion with Boyce concerning the installation of the private telephone circuit line which connected Boyce's office with the alarm company's office. The only transaction between the telephone company and the alarm company consisted of the alarm company's order for the circuit line. In connection with that order, there was no evidence of any discussion of service requirements or obligations between the telephone company and the alarm company.
Boyce, however, does not contend that the telephone company misrepresented its services to appellee Boyce, but relies, instead, upon claimed misrepresentations by the telephone company in an administrative proceeding before the Public Utility Commission in a dispute between the telephone company and the Texas Alarm Signal Association. Boyce advances the unusual claim that such representations made during the course of an administrative hearing in which neither it nor the alarm company was a party constitute evidence in support of the jury's answers.
In its brief, Boyce claimed that in the agency hearing the telephone company made the following false and misleading representations concerning its burglar alarm service: that it provided good service; that repair of burglar alarm lines was a high priority item; and that it would repair burglar alarm lines after hours in case of emergency, rare emergency, genuine emergency, or when the customer insisted or became very insistent. Boyce contended, to the contrary, that the telephone company's burglar alarm repair service was not good; repair of these lines was not a priority service and Bell had a *187 statewide company policy that it would not make repairs after hours, regardless of the situation.
This Court has encountered considerable difficulty in verifying record support for Boyce's assertion that the telephone company made such representations in the agency hearing. Most of the record references in Boyce's brief do not support the asserted proposition, while other record references support the proposition, at best, only tangentially. For purposes of this opinion, however, this Court will assume that there is record proof that the telephone company made the representations in the agency hearing.
Boyce additionally fails to cite any authority for its premise that such representations made in an agency proceeding are even actionable pursuant to the Deceptive Trade Practices Act. Although this Court doubts that such representations are actionable, we will assume so for purposes of determining the "producing cause" question.
This Court has concluded that there is no evidence that any misrepresentation in the hearing or "course of conduct" by the telephone company was a producing cause of Boyce's actual damages. The district court defined "producing cause" in approved terms as meaning "an efficient, exciting, or contributing cause, which, in a natural sequence, produced the occurrence. There can be more than one producing cause." Rourke v. Garza, 530 S.W.2d 794 (Tex.1976); see also Weitzel v. Barnes, 691 S.W.2d 598 (Tex.1985).
Several producing causes of the fire appear of record: the failure of Boyce's and the alarm company's executives to inform the telephone company of the malfunction of the alarm system; the failure of the security company to patrol Boyce's premises; and, of course, the criminal conduct of those who broke into Boyce's offices. However, Boyce has not shown, nor has this Court discovered, proof that the telephone company's course of conduct or alleged misrepresentations in the agency hearings produced or contributed to the occurrence of the fire which destroyed Boyce's property.
The commercial transaction which necessarily serves as the foundation for Boyce's Deceptive Trade Practice suit was its purchase of the protective service offered by the alarm company. As previously written, the alarm company's equipment at Boyce was connected to its office through a private line circuit provided the alarm company by the telephone company. Boyce never had any discussions with the telephone company concerning the installation of the private line circuit. The contact between the alarm company and the telephone company was limited to the alarm company's order for the circuit line. There was no proof that Boyce chose the alarm company because it was Southwestern Bell which furnished the circuit line. Further, there was no proof that Boyce had even heard of any representations, much less misrepresentations, made by the telephone company in the agency hearing. Likewise, we know of no proof that the telephone company's course of conduct in any manner caused Boyce to choose the services of the alarm company over another company. There is no proof that any representation or any course of conduct by the telephone company influenced Boyce's purchase of the alarm company's protective services. See MacDonald v. Texaco, Inc., 713 S.W.2d 203 (Tex.App.1986, no writ). It follows that neither the telephone company's representations asserted in the agency hearing nor its course of conduct were the producing cause of Boyce's actual damages.
In addition, this Court has considered all of the evidence, much of which has been previously detailed. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Without repeating our previous discussion of the record, this Court has concluded that, had it been necessary to reach the telephone company's point asserting that the evidence was insufficient to support the jury finding that the telephone company's misrepresentations or its course of conduct was a "producing cause" of Boyce's damages, this Court would have sustained it. Calvert, "No Evidence" and "Insufficient *188 Evidence" Points of Error, 38 Tex. L. Rev. 361, 371 (1960).
Boyce asserts by cross-point that the district court erred by failing to render judgment for it predicated upon the jury's answers to the negligence issues. First, it should be observed that Boyce obtained precisely the judgment it requested. Boyce did not move for judgment based on the negligence issues. Instead, in its motion for judgment Boyce moved that the judgment "include actual damages, prejudgment interest, additional damages and attorneys' fees." Boyce's requested relief may be obtained only by a judgment predicated upon the Deceptive Trade Practice issues. Second, Boyce made no complaint to the district court of any error in the judgment. The trial court should be afforded an opportunity to correct any errors that it might have made in the judgment. Accordingly, to complain of the judgment on appeal by crosspoint, an appellee is required to bring those errors to the court's attention in some manner whether by filing exceptions to the judgment, notice of appeal, or motion for new trial. West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960); Saenz Motors v. Big H. Auto Auction, Inc., 653 S.W.2d 521, 526 (Tex.App.1983), aff'd, 665 S.W.2d 756 (Tex. 1984); State Bar of Texas Appellate Procedure in Texas § 15.16 (2d ed.1979). The crosspoint is overruled.
The judgment is reversed and judgment is here rendered that Boyce take nothing.
GAMMAGE, J., not participating.
NOTES
[1] Boyce also sued Master Burglar Alarm and United Security, a security service which was under contract to Boyce.
[2] Boyce's sine qua non burden to establish that the telephone company equipment was defective is akin to that of the plaintiff in those relatively rare suits in which the identity of the tort-feasor or wrongdoer is unknown. In those suits, the plaintiff must obtain a threshold cause-in-fact-finding that it was the defendant who piloted the plane or drove the automobile which injured the plaintiff. Estate of Whistler v. Shoemaker, 502 S.W.2d 237 (Tex.Civ.App.1973), aff'd, 513 S.W.2d 10 (Tex.1974). Likewise, in a worker's compensation case, the worker must obtain an initial fact finding, if disputed, that he sustained an injury. See State Bar of Texas, 2 Tex. Pattern Jury Charges 15 (1970).
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916 F. Supp. 821 (1996)
Kathleen VAILE a/k/a Kathleen A. Clementi, Plaintiff,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant.
No. 95 C 605.
United States District Court, N.D. Illinois, Eastern Division.
February 26, 1996.
*822 *823 Ashley S. Rose, Law Offices of Ashley S. Rose, Glen Ellyn, IL, for plaintiff.
Michele Marion Fox, United States Attorney's Office, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
Pursuant to 42 U.S.C. § 405(g), Kathleen Vaile a.k.a. Kathleen A. Clementi ("Vaile") appeals the final decision of the Commissioner of Social Security, Shirley S. Chater ("Commissioner"),[1] denying Vaile's application for Supplemental Security Income ("SSI") under sections 1602 and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a and 1382c(a)(3)(A). Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[2]
RELEVANT FACTS
The Court begins with a broad overview of the facts, and then reviews the evidentiary record adduced at the hearing in detail. Vaile is a 44 year-old woman who alleges that she became disabled on October 22, 1991, due to back problems. (R. 34). She attended high school through the tenth grade but did not graduate; however, she earned her general equivalency diploma (GED) in 1992. (R. 65, 128, 202). Her full scale I.Q. of 80, which provides an assessment of general intelligence and general occupational and scholastic aptitude, places her in the "low average" classification. (R. 131).
She maintains that her principal impairment is severe back pain, the consequence of a degenerative joint disorder in her lower back. She also complains of chronic knee pain and severe headaches. The onset of *824 Vaile's impairment dates from November 1988, when she fell and injured her back while working as a nurse's aide. (R. 34, 96, 98, 108). After the accident, she continued to experience intermittent back pain. (R. 96). As a nurse's aide, a portion of her job duties involved assisting patients from their beds to chairs and carts, and back again. (R. 65-66). This included lifting patients who weighed up to 250 pounds. Id. In 1991, Vaile returned to work as a nurse's aide, but had to stop working after three days because her back gave out and she could no longer lift patients due to severe back pain. (R. 61, 65-66, 203). She visited the Family Medicine Clinic complaining of intermittent back pain. (R. 96). An examination revealed that she had full back motion. Id. She was diagnosed with lumbar strain. Id.
Vaile filed an application for SSI on December 19, 1991, with a protected filing date of October 22, 1991. (R. 34-37). Her application was initially denied on May 21, 1992 (R. 39-40), and denied on reconsideration on August 26, 1992, (R. 53). Following a hearing on January 10, 1994, Administrative Law Judge John M. Gough ("ALJ") issued a decision denying SSI benefits on May 27, 1994. (R. 14-27). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied review. (R. 3-4). Vaile then filed a complaint for judicial review, pursuant to 42 U.S.C. § 405(g). The Court now considers the record in this case to determine whether the ALJ's decision is "both supported by substantial evidence and based on the proper legal criteria." Ehrhart v. Secretary of Health and Human Services, 969 F.2d 534, 538 (7th Cir.1992).
A. Vaile's Testimony
Vaile testified at the administrative hearing without the assistance of counsel or a non-attorney advocate. (R. 193). Vaile was 41 years old at the time of the hearing. (R. 195). She is five feet tall and weighs about 155 pounds. (R. 196). She did not graduate from high school, but recently earned her GED. Id. In 1991, she enrolled in courses at a community college but stopped attending due to headaches and back pain. (R. 88). She lives in an apartment with her 15 year-old son. (R. 208).
Vaile was last employed in 1990, when she worked part-time for three months at a senior citizen center cleaning homes of the elderly. (R. 202-203). Before cleaning homes, Vaile was employed as a nurse's aide from at least 1983 until back pain forced her to stop working in that capacity in 1991. (R. 65-66). The back pain began in 1988 after she fell while at work. (R. 34, 96, 98, 108). She experiences pain in her lower back and in both legs. (R. 203-204). About once a week, her back "locks up"; she describes the sensation as "a shooting pain that goes up and down the legs" followed by numbness." (R. 204). For her back pain, she takes Flexeril, a muscle relaxant. (R. 198). As a result of her back pain, she sleeps poorly at night getting only three to four hours of sleep. (R. 197). Because she becomes tired each afternoon, she takes a nap for about an hour and a half. Id.
Vaile experiences severe headaches which have occurred each day for at least the past two years and which she attributes to a side effect of the Flexeril. (R. 198, 204-205). For relief, she takes non-prescription Tylenol, which typically alleviates the pain after a couple of hours. (R. 205). Vaile also experiences problems with her left knee, which "locks up" in cold weather and swells as a consequence of breaking it in 1991. (R. 207). She does not wear a brace or support for her back or knee. Id. Nor does she perform exercises for her back or knee or use assistive devices when walking. Id.
When asked about her abilities to perform various tasks at home, Vaile stated that she does cooking, dishes, bedmaking and dusting; her teenage son vacuums, washes floors and removes the trash. (R. 209). When climbing the stairs to her second-floor apartment, she experiences considerable back pain. Id. When asked to describe her daily activities, Vaile testified that she mostly reads, receives visitors and attends church services twice weekly. (R. 210-212). Once in a while, she goes out to dinner with a friend or attends church functions. (R. 212). Vaile testified that she can only sit for 20 to 30 minutes at one time and stand in one place for 15 minutes, *825 at most. (R. 207). In addition, she has difficulty walking four blocks at one time. (R. 208)
B. Vaile's Medical Records
Family Medical Clinic
On March 4, 1991, Vaile was seen at the Family Medical Clinic. The report states she complained of intermittent back pain that she has had for several years. (R. 96). She was diagnosed as suffering from lumbar strain and was prescribed Naprosyn. Id.
Dr. Seghers
Vaile was examined by Dr. Victor Seghers, M.D. ("Seghers") on March 31, 1992, at the Heart of Texas Cardiovascular Center in conjunction with her SSI application. (R. 98). Seghers' records result from his disability evaluation of Vaile. Id. Vaile reported "some pain in her low back with some pain radiating down the legs with some numbness in her legs and chronic low back pain." Id. Seghers' physical examination revealed a normal range of motion in her back with no significant abnormalities. (R. 99). Examination of the lumbosacral spine showed "very early osteoarthritis with early osteophytes mostly at T10-11, otherwise normal and negative x-rays." Id. His impression was "very early degenerative arthritis of the LS spine." Id.
Upon examination of Vaile's left knee, Seghers noted "[t]he left knee is at normal with significant narrowing of the joint space and obliteration of the joint space between the tibia and the femur." Id. His impression was that there was an abnormal knee x-ray with some post-traumatic arthritis. Id. Seghers further commented that Vaile is going to school and managing quite well. Id.
Dr. Joseph
During 1992, Vaile visited Dr. Rosamma Joseph, M.D. ("Joseph"), a neurologist. On April 20, 1992, Joseph evaluated Vaile. In reporting Vaile's history, Joseph noted the following: Vaile reported that she has had headaches "for a long time but they got significantly worse ever since she hurt her low back in 1988." (R. 112). She also experienced nausea and lightheadedness with the headaches which might result in some noise and light intolerance. Id. She complained of constant pain and discomfort in her lower back, but a CT scan of the lumbosacral spine was reportedly negative. Id.
Joseph's examination revealed the following: "low back shows increased lordosis, she was very irritable on palpation of the low back in the midline and paraspinally. No spasm was appreciated. [Range of motion] of the back was diminished to about 75% in all directions." (R. 114). His overall impressions were: "1) Chronic, recurrent headaches with features of muscle contraction headaches, most likely due to chronic stress and muscle tension. 2) Chronic low back pain referred into the legs with numbness and weakness of the legs, rule out herniation." (R. 115). Joseph advised that an exercise program and weight loss might be beneficial. Id.
On May 13, 1992, Joseph saw Vaile for a follow-up and re-evaluation. (R. 101). He reported that the Vaile "had an EMG nerve conduction study done including both legs and paraspinal muscles which was essentially within normal limits." (R. 101, 110-111). Joseph also reported Vaile had an MRI scan of the lumbosacral spine done at Metroplex Hospital on May 5, 1992, showing mild, diffuse spondylosis and a mild diffuse bulging disc at 3-4 level, but this did not appear to be a disc herniation. (R. 101). At the L4-5 level, "there was moderate bulging of the disc causing mild impression of the thecal sac. The nerve roots appear to be free but small amount of compression of the existing L5 root could not be ruled out." Id.
Joseph reported that Vaile "can do light duty, sedentary job but should preferably avoid heavy, strenuous activities to the back which may further deteriorate her condition." (R. 102.) At that time, Joseph noted that there was no evidence Vaile's condition was surgically correctable. Id. Since she could not take anti-inflammatory medications, he prescribed Robaxin and Pamelor for her headaches and back pain. Id. Joseph referred her for physical therapy for two weeks and scheduled a re-evaluation in four weeks. Id.
*826 During a follow-up visit on June 11, 1992, Joseph noted that Vaile "has arthritis," and that her range of low back motion was 75 percent. (R. 125). His impressions were: 1) chronic low back pain associated with degenerative disease of the lumbosacral spine, 2) chronic left knee pain, 3) recurrent headaches with features of muscle contraction and migraine, and 4) dizziness associated with headaches. Id.
On April 13, 1993, Joseph completed a work prescription report. (R. 124) Joseph opined that Vaile could walk between ½ and 1 mile, sit and stand 25-50% of the time, and lift 10 to 20 pounds. Id. Vaile should not walk up stairs and should perform only limited bending. Id.
Dr. Rudd
On February 3, 1993, M. David Rudd, Ph.D. ("Rudd"), a psychologist, assessed Vaile's general intellectual and emotional functioning, and obtained data to assist in vocational counseling and guidance. (R. 127). Vaile revealed that she was divorced and has two children; received AFDC food stamps, Medicaid, and housing support; and had been unemployed for approximately the past three years. Id. She was motivated for retraining or schooling and wanted to study to be a social worker. (R. 128). She operated a household, routinely sleeps approximately 8 hours a day, and "effectively engages in the full spectrum of activities required for independent living and self-sufficiency." (R. 130).
Vaile appeared to have suffered chronic depressive symptomatology of varying intensity since late adolescence. (R. 132). Intellectual and academic testing suggested limited and below average skills, indicating the need for basic skill development. Id. Based on his testing and evaluation, Rudd made the following recommendations: (1) adult education classes to address limited academic skill; (2) vocational and general occupational interest testing and counseling to assist in both identifying and clarifying her interests and ensuring that current interests match intellectual/academic skill level; (3) counseling to assist her in dealing with current stressors, chronic depressive symptomology, and self-image/efficacy issues; and (4) consultation with a psychiatrist to address any potential need for medication (either at present or if she experienced an acute exacerbation of reported symptomatology). Id.
Rudd stated that in general, Vaile appeared to be performing consistent with her assessed level of intellectual functioning. Id. She was highly motivated to pursue a degree in social work and would appear to possess the basic skills necessary. Id. However, her assessed skills are limited and below average. Id. Her full scale I.Q., which provides an assessment of general intelligence and general occupational and scholastic aptitude, was of 80, which placed her in the "low average" classification. (R. 131). However, she did not qualify for a formal diagnosis of a learning disability. (R. 132). Without additional assistance or tutoring, it is likely that college level work will prove too difficult for her, particularly given a somewhat rigid, perseverative approach to problem-solving. (R. 130).
Dr. Vancura
Dr. Stephen J. Vancura, M.D., reviewed Vaile's lumbosacral MRI scan performed at Metroplex Hospital on May 5, 1992. (R. 103). Based on his evaluation, he reported indications of disc degeneration and desiccation. Id. He found mild degenerate facet disease at all levels. Id. However, he concluded that there was no disc herniation at any level. Id.
C. Vocational Expert's Testimony
Vocational expert Dr. D. Wilson Manning ("VE") was present throughout Vaile's hearing and testified that, according to Vaile's testimony, Vaile could perform light work. (R. 216-217). The VE based his determination on a hypothetical posed by the ALJ:
Assume ... a younger individual with a limited education ... with a good ability to read, write and use numbers, that the individual from a physical standpoint would be limited to work activity of a light nature, with restrictions limiting her to standing no more than 50 percent of the day, ... sitting no more than 50 percent of the day and walking a half to one mile, that the individual would not be able to crouch, *827 crawl, but could occasionally bend and stoop, that as the individual were to perform such activity they might be expected to experience a mild to occasionally moderate level of symptomatology, including pain, but not such as would interfere with the performance of the work activities as I've described them. Further, ... [assume] that the full-scale score would be used, which would limit the individual to simple routine repetitive work activity, that the individual should be prohibited form working around the public ... that there would be a fair ability to work with co-workers and to respond appropriately to supervisors, ... that the work activity involved would need to be of a low-stress level, .... Now, assuming all of those factors, would such an individual be capable of performing any of the claimant's past relevant work activity?
(R. 216-217).
The VE determined that the hypothetical person was incapable of performing Vaile's past work as a nurse's aide, but was capable of performing production-type work, such as assembling and hand packaging. (R. 217-218). The VE also testified that there were hundreds of these jobs in the Waco, Texas region, and thousands in the state and national economy. (R. 218).
APPLICABLE STANDARDS
A. Statutory and Regulatory Framework
Under Title XVI of the Social Security Act, a disabled person is eligible for SSI benefits if that person meets certain requirements pertaining to income. 42 U.S.C. § 1381a (1995). The Act defines "disabled" as "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...." Id. § 1382c(a)(3)(A). A "physical or mental impairment" is further defined as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(C). A claimant is under a disability "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." Id. § 1382c(a)(3)(B).
Social Security regulations outline a fivestep inquiry to be followed when determining whether a claimant is disabled: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment or combination of impairments severe? (3) Does the impairment meet or exceed any of the list of specific impairments that the Secretary acknowledges to be so severe as to preclude substantial gainful activity? (4) If the impairment has not been listed by the Secretary as conclusively disabling, is the claimant unable to perform his former occupation? and (5) If the claimant cannot perform the past occupation, is the claimant unable to perform other work in the national economy in light of his age, education and work experience? See Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 20 C.F.R. § 404.1520.
"A negative conclusion at any step (except for step three) precludes a finding of disability. An affirmative answer at steps one, two or four leads to the next step. An affirmative answer at steps three or five results in a finding of disability." Shields v. Sullivan, 801 F. Supp. 151, 155 (N.D.Ill.1992). Upon reaching the fifth step, the rules in the Medical Vocational Guidelines of Regulation Part 404, Subpart P, Appendix 2 (the "Grid") must be considered. Id. The Grid incorporates a claimant's age, education, and work experience as well as the claimant's residual functional capacity ("RFC") to determine what work the individual is able to perform. Id. "RFC is expressed in terms of a claimant's maximum sustained work capacity for either `sedentary,' `light,' `medium,' heavy,' or `very heavy' work as those terms are defined by 20 C.F.R. § 404.1567." Id. In determining if work is available for the claimant in the *828 national economy, the ALJ may use a VE. 20 C.F.R. § 404.1566(e). If work is available, then a finding of not disabled must result. See 20 C.F.R. § 404.1566(b).
B. Standard of Review
Section 405(g) of the Social Security Act provides that a district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). Also, "the findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive." Id. Thus, the function of the reviewing court is to determine if the ALJ's decision is supported by substantial evidence. Substantial evidence means "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994), (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). Consequently, a reviewing court will not "reevaluate the facts, reweigh the evidence, or substitute [its] own judgment for that of the Secretary." Id. at 689.
ANALYSIS
Vaile presents five arguments, only two of which this Court need reach on review.[3] First, Vaile contends that her waiver of counsel at the administrative hearing before the ALJ was invalid, and that she did not knowingly waive her right to counsel. Second, she contends that the ALJ did not develop a full and fair administrative record. Specifically, Vaile points to medical records not contained in the administrative record. The Commissioner argues that Vaile's waiver of counsel was valid, and that even if Vaile's waiver of counsel were invalid, ALJ sufficiently developed the record such that there were no significant omissions.
A. Right to Representation
Vaile contends that her waiver of counsel was invalid. This Court agrees. Vaile has a statutory right to counsel at her disability hearing. See 42 U.S.C. § 406; 20 C.F.R. § 404.1700. If properly informed of that right, however, she may waive it. Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). To ensure a valid waiver of counsel, the Seventh Circuit requires the ALJ to explain to a pro se claimant: "(1) the manner in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency arrangement, and (3) the limitation on attorney fees to 25 percent of past due benefits and required court approval of the fees." Id.; see also Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.1991).
In the instant case, the record reveals that the ALJ did not make any serious effort to discuss let alone fully discuss any of these important matters. The extent of the ALJ's conversation with Vaile concerning her right to counsel was as follows:
ALJ: Now, I see that you're here this morning without an attorney or a representative. You were advised of your right to counsel at the time of your Notice of Hearing. Do you understand that right?
CLMT: Yes
ALJ: And is it your desire to go forward at this time without the assistance of a representative or attorney?
CLMT: Yes
It is evident from the above colloquy that the ALJ did not comply with the clear dictates of Binion and Thompson; indeed, the ALJ ignored all three requirements. The importance of explaining these requirements to a claimant takes on additional significance when the claimant possesses limited education or intelligence. In such circumstances, the ALJ should explain the right to counsel and the role of an attorney in the administrative hearing in even greater detail and with increased attention toward ensuring that the claimant fully understands these *829 issues. See Smith v. Secretary of Health, Educ. and Welfare, 587 F.2d 857, 860-61 (7th Cir.1978). Here, Vaile's tenth grade education and her low average I.Q. of 80 should have apprised the ALJ that a greater explication of the role and availability of counsel was necessary. The ALJ not only failed to fulfill this increased responsibility, he failed to comply at all with the requirements articulated by the Binion court. In view of those requirements, the Court has no choice but to conclude that the ALJ did not provide Vaile with the information necessary to enable her to intelligently decide whether to retain counsel or proceed pro se. Accordingly, Vaile's waiver of her statutory right to counsel was invalid because it was not undertaken on a knowing and intelligent basis.
Finding that Vaile's waiver of her statutory right to counsel was invalid does not end the inquiry, however. The Court must go on to consider whether the ALJ failed to develop a full and fair record. Only if that is the case would Vaile be entitled to a remand. See Smith, 587 F.2d at 860; Binion, 13 F.3d at 245 (discussing and reaffirming Smith).
B. Adequacy of the Record
When a claimant's waiver of her right to representation is invalid, the ALJ has a heightened duty to develop a full and fair record. Thompson, 933 F.2d at 588. "Failure to fulfill this special duty is good cause to remand for gathering of additional evidence." Id. at 585. Vaile contends that remand is necessary because the ALJ failed to adequately develop the record.
In Binion, the court described the ALJ's duty to develop the record: "[t]he ALJ's duty to develop the record fully and fairly where the claimant proceeds without counsel is met if the ALJ probes the claimant for possible disabilities and uncovers all of the relevant evidence." Binion, 13 F.3d at 245. "[W]here the disability benefits claimant is unassisted by counsel, the ALJ has a duty `scrupulously and conscientiously [to] probe into, inquire of and explore for all of the relevant facts.'" Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.1975), quoted in Smith, 587 F.2d at 860. If a valid waiver was not obtained, the burden is on the Commissioner to show that the ALJ adequately developed the record. Binion, 13 F.3d at 245. Once the Commissioner shows that the record was developed fully and fairly, the claimant is given the opportunity to rebut this showing by demonstrating prejudice or an evidentiary gap. Id.
Having thoroughly reviewed the administrative record, the Court cannot conclude that the Commissioner has met her burden of establishing that the ALJ adequately developed the record, particularly in light of the ALJ's heightened responsibility in this case. While the Court discusses several deficiencies in the record below, the Court does not regard any one deficiency alone as necessarily sufficient to require a remand; however, viewing the deficiencies as a whole, the Court finds that the ALJ did not adequately develop the record.
Most troubling to the Court is the lack of discussion or inquiry by the ALJ of missing medical records. This omission appears particularly egregious in light of the fact that Vaile apprised the ALJ that some medical records were missing at the onset of the administrative hearing:
ALJ: Do you have any objections to Exhibits 1 through 25 being put into the record at this time?
CLMT: Well, all I know is that there's some doctor's records that are missing.
ALJ: Well, that may be. But that doesn't go to whether these documents are admissible. See, I
CLMT: Uh-huh.
ALJ: can't consider them unless they're admitted into the record
CLMT: Okay.
ALJ: formally
CLMT: All right.
ALJ: So I need to ask you first if you have any objections to any of those documents being placed into the record.
CLMT: No, uh-uh.
ALJ: All Right. Exhibits 1 through 25 will be admitted into the record at this time without objection.
ALJ: We'll get into the area of records
*830 CLMT: Okay.
ALJ: as we go along. All right.
During the 37 minute hearing, however, the ALJ never returned to or discussed the missing records. The ALJ failed to query Vaile about which medical records she believed to be missing. At a minimum, the ALJ should have made this inquiry to ensure a fully developed record. See Nash v. Shalala, No. 93 C 5997, 1995 WL 88935, at *9-10 (N.D.Ill. Mar. 2, 1992) (ALJ's failure to inquire into missing medical records precluded a finding that ALJ developed a full and fair record). Because the ALJ did not conduct this inquiry, the ALJ could not be certain that all Vaile's medical and treatment records had been obtained. Id. at *9.
Although the Court is aware that "how much evidence to gather is a subject on which [courts] generally respect the Secretary's reasoned judgment," Luna v. Shalala, 22 F.3d 687, 692 (7th Cir.1994), the Court does not read this proposition broadly to permit an ALJ to completely disregard known sources of medical evidence. This is especially true where, as here, the ALJ has been informed of missing medical records and has the opportunity to question the claimant directly about the omissions. Missing records may produce evidentiary gaps. Prejudice may result if an ALJ fails to elicit all of the relevant information from a claimant. Binion, 13 F.3d at 245. In this case, the ALJ failed to sufficiently probe the facts regarding the missing records so as to satisfy the duty to present a full record.
Besides the missing records Vaile spoke of, there are additional medical records not included in the administrative record. Whether these records are the same records Vaile spoke of, contain some overlap or are entirely different, is unknown. A letter dated January 17, 1992, was sent by Disability Examiner Patricia Correll to Dr. Mark Lane, Vaile's treating physician, requesting a host of clinical diagnostic reports and evaluations since January 1990. (R. 97). These medical records were not made part of the record. Although the ALJ may have assumed that no new information would be contained in these early records, it was impossible for him know whether this assumption was correct.
The importance of clinical diagnostic reports in assessing disability is clear. In his review of the MRI scan administered on May 5, 1992, Dr. Vancura notes that "the history offered originally states that the patient has a previous lumbar CT. The patient seems to think she has only had a previous head CT. We have no previous lumbar CT examination. If there is a previous lumbar CT anywhere, I would like to know this and compare it with the current study." (R. 104). Whether a previous lumbar CT scan exists and whether Lane's records contain probative material evidence is unknown. The hearing transcript reveals that the ALJ made no inquiries concerning this information. The ALJ's duty to fully and fairly develop the record in this case requires, at the very least, that some effort be made to evaluate the relevance of these records.
In addition, records were requested from Dr. Frank Gemma ("Gemma") for 1992. (R. 121). Gemma's records were not made a part of the record nor was Vaile asked about any treatment by Gemma at the hearing. Also, on June 11, 1992, Dr. Joseph reports that Vaile was referred to Dr. Sevilla ("Sevilla") for management of back and knee pain. (R. 125). It appears that the ALJ made no effort to determine whether Sevilla had any pertinent medical records bearing on Vaile's alleged disability. Nor did the ALJ even inquire who Sevilla was or if Vaile had ever been diagnosed or treated by him. Admittedly, there is no other reference to Sevilla in the record, but this reference to Sevilla in Joseph's report seems to warrant, at the very least, some minimal inquiry into whether Sevilla evaluated Vaile. This inquiry is particularly important in light of the lack of medical records pertaining to Vaile's alleged disability after June 11, 1992. Certainly, if Vaile were seen by Sevilla, that physician's medical records might contain probative evidence.
A letter requesting medical documents was also sent to Tanya Morgan, a counselor at the Texas Rehabilitation Commission, but these records were not made part of the record. (R. 147). At the hearing, Vaile informed the ALJ that she had been evaluated by Morgan in 1993 and that Morgan told her *831 that a disability letter would be sent to her. (R. 213). The full discussion between the ALJ and Vaile on this point is as follows:
Q: All right, Is there anything else you can think of that I haven't asked you about that you wanted to tell me concerning your claim for disability?
A: Well, I talked to the Texas Rehab.
Q: Uh-huh.
A: And they were supposed to submit some papers.
Q: Well, as a matter of fact, we contacted Texas Rehab. And they never responded.
A: Yes. And I have talked to her, Tanya Morgan.
Q: Yes, that's
A: And she says
Q: who we wrote the letter to.
A: She told me she was going to close my case out.
Q: What records is it they have that
A: Just about them trying to send me to school and they couldn't she told me she couldn't see that I could go to school or that I could work at the present time. And I asked her if she would send me a letter. And I have not heard from her. She said she was supposed to send a disability letter and somebody had contacted her. But she never said anything more.
Q: When did you work with TRC?
A: This past year.
Q: '93?
A: Yeah, '93.
Q: Okay. Did you go for an evaluation?
A: Yes, I did.
Q: Okay. And who did you see when you went for the evaluation?
A: You mean as far as
Q: The TRC evaluation.
A: It was just Tonya Morgan. I dealt with her.
Q: Okay.
A: Okay.
Q: All right. Is there anything else you can think of that you wanted to tell me?
A: That's about it.
Q: Okay.
As stated, Vaile consulted and was evaluated by Morgan in 1993. (R. 213-214). According to Vaile, Morgan said Vaile could not currently attend school or work. (R. 214). Morgan also reportedly was to send Vaile a "disability letter." Id. Such evidence would be very pertinent to a disability analysis and require further inquiry. Nash, 1995 WL 88935 at *10. However, the ALJ failed to pursue this avenue of inquiry.
Based on the foregoing discussion, the court concludes that the record contains "significant omissions" that warrant remand. See Luna, 22 F.3d at 692; Nash, 1995 WL 88935 at *9. The ALJ should have taken additional steps to assure that the record was more fully and fairly developed by acquiring the missing and additional records, and exploring the medical evidence. At the very least, the ALJ should have questioned Vaile more thoroughly to elicit further information about the missing records. The fact that Vaile was not represented by counsel at the hearing is particularly significant in this respect. An attorney might have significantly assisted Vaile by questioning witnesses about her recent medical history and encouraging the ALJ to obtain the missing medical records. "Although the [ALJ] is not legally required to explicitly pass judgment on every piece of evidence, this Court believes that the better practice is to briefly address all the evidence militating in favor of a finding of disability and relied on by the applicant since it is almost inevitable that the decision ... will be appealed to the federal district court." Cunningham v. Shalala, 880 F. Supp. 537, 551 n. 15 (N.D.Ill.1995).
Given the inadequacies of the record already discussed and the heightened responsibility of the ALJ to develop a full and fair record in the absence of a valid waiver of counsel, the Court finds this case must be remanded for further development of the evidentiary record. Consequently, the court need not reach Vaile's additional arguments that the ALJ's decision was not supported by *832 substantial evidence, that certain credibility determinations by the ALJ were patently incorrect, and that the ALJ employed an improper hypothetical question.
CONCLUSION
For the reasons stated above, the decision of the ALJ is reversed and remanded[4] for further development of the evidentiary record consistent with this opinion.
NOTES
[1] This action was originally brought against Health and Human Services Secretary ("Secretary") Donna Shalala. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, § 106(d), 108 Stat. 1464, 1476-77 (1994), the Commissioner of Social Security is substituted for Secretary as the named defendant and is referred to as such throughout this opinion.
[2] Technically speaking, motions for summary judgment are procedurally improper vehicles for a decision on the merits of this complaint, which challenges the completeness of the administrative record. See Garcia v. Califano, 463 F. Supp. 1098, 1100 (N.D.Ill.1979); see also Milton v. Harris, 616 F.2d 968, 975 (7th Cir.1980) (summary judgment procedures not proper where claimant challenges the completeness of the record).
The Tenth Circuit has noted that "summary judgment" may be inappropriate at the district court level in social security cases for two reasons. First, since the district court acts as an appellate court when reviewing these cases, the purpose of summary judgment to avoid consideration of nontriable issues is not served because the decision has already occurred at the agency level. Hamilton v. Secretary of Health and Human Servs., 961 F.2d 1495, 1501 (10th Cir.1992) (Kane, J., concurring). Second, the district court does not apply summary judgment standards. Id. When a district court reviews an individual social security case, the court's review is limited to a determination of whether the record contains substantial evidence to support the agency's decision, and whether the agency applied the proper legal standards. Id.; Ehrhart v. Secretary of Health and Human Servs., 969 F.2d 534, 538 (7th Cir.1992).
It is this standard we apply here, not the familiar summary judgment standard of "genuine issue of material fact" employed under Rule 56 of the Federal Rules of Civil Procedure. Essentially, we treat the Commissioner's motion for summary judgment as a motion for an order affirming the Commissioner's decision, and Vaile's motion as a motion for an order reversing the Commissioner's decision. See Garcia, 463 F.Supp. at 1100-01.
[3] The other arguments were that the ALJ's decision was not supported by substantial evidence, that certain credibility determinations by the ALJ were patently incorrect, and that the ALJ employed an improper hypothetical question. In light of our decision below, it is unnecessary to reach these arguments here.
[4] This is a "sentence four" remand and hence a final order under Melkonyan v. Sullivan, 501 U.S. 89, 97-102, 111 S. Ct. 2157, 2162-66, 115 L. Ed. 2d 78 (1991).
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916 F. Supp. 1024 (1996)
WINNER'S CIRCLE OF LAS VEGAS, INC., A Nevada Corporation, Plaintiff,
v.
AMI FRANCHISING, INC., a Texas Corporation, L & H Development, Inc., a Nevada Corporation, Does I through XX, and Roe Corporations, I Through XX, Inclusive, Defendants.
No. CV-S-95-1191-PMP (RLH).
United States District Court, D. Nevada.
February 15, 1996.
*1025 Erven T. Nelson, Victoria L. Nelson, Daniel D. Heaton, Alverson, Taylor, Mortensen, Nelson & Sanders, Las Vegas, NV, for plaintiff.
Lance P. Maiss, Beckley, Singleton, Jemison & List, Reno, NV, for AMI Franchising.
Dean Y. Kajioka, Kajioka & Christiansen, Las Vegas, NV, for defendants.
ORDER
PRO, District Judge.
There are several motions pending before the Court. Plaintiff Winner's Circle of Las Vegas, Inc. ("Winner's") filed its Motion to Remand; Motion to Strike Defendant AMI's Motion to Dismiss or in the Alternative, to Change Venue (# 4A) on December 22, 1995. Defendant AMI Franchising, Inc. ("AMI") filed its Opposition to Motion to Remand and Motion to Strike (# 8) on January 4, 1996. Winner's filed its Reply (# 14) on January 16, 1996.
Also before the Court is Defendant AMI's Motion to Dismiss or in the Alternative, to Change Venue (# 2), filed December 11, 1995. Winner's filed its Opposition (# 4A) on December 22, 1995. AMI filed a Reply (# 10) on January 5, 1996.
Also before the Court is Defendant L & H Development, Inc.'s ("L & H") Motion to Dismiss (# 13), filed January 12, 1996. Winner's filed its Opposition (# 18) on January 29, 1996. L & H filed its Reply (# 20) on February 8, 1996.
I. Background
Defendant AMI Franchising, Inc. ("AMI") is a Texas corporation with its principal place of business in Texas. AMI licenses the service mark "Alta Mere" in conjunction with its retail concept known as "Alta Mere Window Tinting and Auto Alarms" stores. On May 22, 1995, AMI and Plaintiff Winner's Circle of Las Vegas, Inc. ("Winner's"), a Nevada corporation with its principal place of business in Nevada, entered into an AMI Franchising, Inc. Franchise Agreement ("Franchise Agreement") in which AMI agreed to provide training and support relating to the opening of a franchise. In August 1995, a dispute arose between the parties whereby each party claimed that the other breached the Franchise Agreement.
On November 8, 1995, Plaintiff Winner's filed its Complaint in Nevada state court against Defendant AMI alleging various causes of action including breach of the Agreement and fraud. That Complaint listed fictitious Defendants in addition to AMI.
On December 7, 1995, AMI filed its Notice of Removal (# 1) on the basis of the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1441(b) and 28 U.S.C. § 1332.
On December 15, 1995, before AMI filed an answer, Winner's filed its First Amended Complaint (# 3), adding a Defendant, L & H Development ("L & H"), a Nevada corporation. Winner's then filed its Motion to Remand on December 22, 1995.
II. Motion to Remand
AMI properly removed this case as at the time of the removal the lawsuit was between citizens of different states, the amount in controversy exceeded the jurisdictional requirement, and AMI, as the Defendant, was not a citizen of the State of Nevada. 28 U.S.C. § 1332; 28 U.S.C. § 1441. It is undisputed, however, that the presence of L & H as a named Defendant in this lawsuit would divest the Court of jurisdiction over this matter. Yniques v. Cabral, 985 F.2d 1031, 1034 n. 1 (9th Cir.1993); see 28 U.S.C. § 1332. However, the parties disagree as to the way the Court should cure this defect; Winner's requests the Court remand this *1026 action, and AMI requests the Court (1) "deny" joinder and allow the action to continue, or (2) dismiss the claims against L & H.
Under Rule 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." However, although Winner's may have thought its amendment proper since it was filed "as of right," Rule 15(a) cannot be used to deprive the Court of jurisdiction over a removed action.[1] 6 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure: Civil § 1477 (2d ed. 1990); see also Lyster v. First Nationwide Bank Financial Corp., 829 F. Supp. 1163, 1165 (N.D.Cal.1993).
Both parties assert that 28 U.S.C. § 1447(e) applies to the Court's analysis in its disposal of the pending motion. That section states as follows:
If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.
28 U.S.C. § 1447(e). In this statute Congress has chosen to provide several remedies when a Plaintiff requests leave to amend his complaint to add additional parties whose presence would destroy diversity.
There are several unreported district court cases that apply § 1447(e) as a standard for discretionary review after the party amends the complaint to join a party before the defendant serves a responsive pleading when a plaintiff's motion to remand is pending. See Lehigh Mechanical, Inc. v. Bell Atlantic Tricon Leasing Corp., 1993 WL 298439 (E.D.Pa.1993); Musick v. John Hancock Distributors, Inc., 1994 U.S.Dist. LEXIS 10262 (W.D.Mich.1994). In disposing of the motion to remand, the courts in both cases determined that joinder would have been proper under § 1447 and therefore that remand should be allowed. See Lehigh Mechanical, Inc. v. Bell Atlantic Tricon Leasing Corp., 1993 WL 298439; Musick v. John Hancock Distributors, Inc., 1994 U.S.Dist. LEXIS 10262 (W.D.Mich.1994). The Court finds these cases persuasive in disposing of the present motion to remand and will use § 1447(e) as a standard for the review of the attempted joinder in disposing of Winner's Motion to Remand (# 4A). This is necessary to avoid a party's manipulation of the lawsuit in order to divest the Court of subject matter jurisdiction. See, e.g., Jacks v. Torrington Co., 256 F. Supp. 282, 287 (D.S.C.1966) ("the continued jurisdiction of a federal court after proper removal will not be allowed to be determined at the whim and caprice of the plaintiff").
The Ninth Circuit has looked to the language of § 1447(e) and reasoned that the language indicates that Congress, when it enacted the section in 1989, intended district courts to have a choice between the options enumerated in § 1447(e) and the options already existing under Fed.R.Civ.P. 19. Yniques, 985 F.2d at 1035 (citing Sweeney v. Westvaco Co., 926 F.2d 29, 42 (1st Cir.1991), cert. denied, 502 U.S. 899, 112 S. Ct. 274, 116 L. Ed. 2d 226 (1991)). As the Ninth Circuit explains:
Section 1447(e) and Rule 19 in combination expand the district court's options for dealing with an attempt to join a necessary, non-diverse party where the case has been removed to federal court. The court may: (1) deem the party "indispensable" and dismiss the case; (2) deem the party not indispensable and continue its jurisdiction over the lawsuit without joinder; or (3) allow joinder and remand the case to state court.
*1027 Id. (emphasis in original). The Ninth Circuit then went on to hold that section 1447(e) "allows a district court, once it has permitted the joinder of a non-diverse party, only to remand the case to state court." Id. at 1036.
In considering whether to allow joinder under § 1447(e), the Court should consider the following factors:
(1) the extent to which the joinder of a nondiverse party is sought merely to defeat federal jurisdiction; (2) whether plaintiff has been dilatory in asking for amendment; (3) whether plaintiff will be significantly injured if amendment is not allowed; (4) any other factors bearing on the equities.
Tillman v. CSX Transportation, Inc., 929 F.2d 1023, 1029 (5th Cir.1991), cert. denied, 502 U.S. 859, 112 S. Ct. 176, 116 L. Ed. 2d 139 (1991); see also Desert Empire Bank v. Ins. Co. of North America, 623 F.2d 1371, 1375-76 (9th Cir.1980) (setting forth similar factors the Court should consider in deciding whether to permit joinder, and noting that the plaintiff's motive in joining nondiverse defendants is important when evaluating removal cases).
A. Purpose or Motive
Winner's original Complaint alleged various claims for relief including a claim for relief for fraud, and a claim for relief for breach of contract (the Franchise Agreement). Winner's alleged the following in its original Complaint:
27. Upon the further advice of AMI, Winner's processed VISA and Master Card receipts totalling approximately Three Thousand Dollars ($3000.00) through the Sahara outlet. To date, the Sahara outlet has retained and refused to turn over the Three Thousand Dollars ($3000.00), despite repeated requests and demands.
28. Upon information and belief, and thereon alleged, the Sahara outlet is owned and operated by AMI.
Complaint (# 1). Winner's does not mention this transaction in its claim for relief based on fraud. See Complaint (# 1), ¶¶ 54-61.
In its Amended Complaint (# 3), Winner's alleges the following in its general allegations:
28. Upon the further advice of AMI, Winner's processed VISA and Master Card receipts totalling approximately Three Thousand Dollars ($3000.00) through the Sahara outlet, which is owned by Defendant L & H Development, Inc. To date, the Sahara outlet has retained and refused to turn over the Three Thousand Dollars ($3000.00), despite repeated requests and demands.
Amended Complaint (# 3). Winner's then states a claim for relief for fraud/conversion ("Fourth Claim for Relief"), and further alleges the following:
55. AMI and certain unknown Does entered into the Agreement with Winner's, assuring Winner's that Defendants would perform their duties as set forth in the Agreement. Furthermore, at AMI's direction, L & H and certain unknown Does obtained possession of $3,000.00 in credit card slips from Winners, assuring Winner's that the slips would be processed and the money turned over to Winners.
56. The assurances made by Defendants were, in fact, false. In truth, AMI and certain unknown Does intended from the outset to fail to perform their duties under the Agreement so as to cause Winner's franchise to fail, whereupon Defendants would take over the operations of the franchise, which had been established at Winner's expense. Moreover, AMI, L & H, and certain unknown Does intended from the outset to retain the $3,000.00 in credit slips without turning over $3,000.00 cash to Winners.
Amended Complaint (# 3). Thus, Winner's added a claim for fraud and conversion in the amount of $3,000.00, and named both AMI and L & H, alleging that L & H obtained the credit slips at the direction of AMI.
AMI asserts that Winners' motivation in adding L & H as a party is less than exemplary in light of the "minimal claim" alleged against L & H. Specifically, AMI asserts that Winners' fraud/conversion claim against L & H is unrelated to the parties' conduct with respect to and performance under the Franchise Agreement, the subject of the lawsuit.
*1028 Indeed, the claim against L & H relates only to the alleged conversion of $3,000.00. L & H was not a party to the Franchise Agreement at issue in this action, and there are no further claims against L & H relating to the fraud alleged in conjunction with AMI's performance under the Franchise Agreement.
However, the facts which underlie the claim for fraud/conversion were pled in the original Complaint. To the extent that Winner's added a new claim based on these facts, that amendment was proper under Rule 15(a).
Furthermore, to the extent that AMI asserts that Winner's claim against L & H is too small for the amount in controversy requirement of the district courts and further evidences Winner's motive to add L & H solely to defeat federal jurisdiction, the Court finds this assertion meritless. It is true that unrelated claims against multiple defendants may not be aggregated to reach the amount in controversy requirement. Libby, McNeill & Libby v. City Nat. Bank, 592 F.2d 504, 510 (9th Cir.1978) (court does not have jurisdiction over unrelated claims against separate defendants). However, as the Ninth Circuit has stated:
[T]he tests for aggregating claims of one plaintiff against claims of multiple defendants and of multiple plaintiffs against one defendant are essentially the same: the plaintiff's claims against the defendants must be common and undivided so that the defendants' liability is joint and not several.
Libby, McNeill & Libby, 592 F.2d at 510 (quoting United States v. So. Pac. Transp. Co., 543 F.2d 676, 683 n. 9 (9th Cir.1976)) (internal quotations omitted). Winner's alleges a fraud/conversion claim against both AMI and L & H, acting in concert, so that Winner's claim against AMI and L & H is common and undivided.
Finally, Winner's represents that it only added L & H as a Defendant when it determined that L & H, and not AMI, actually owned the Sahara outlet. AMI does not counter this assertion, and clearly does not meet its heavy burden in establishing that Winner's fraudulently joined L & H. See Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991). The Court therefore finds that this factor weighs in favor of Winner's.
B. Other factors
AMI does not assert that Winner's was dilatory in filing the Amended Complaint. Indeed, Winner's filed its Amended Complaint less than six weeks after it filed its original Complaint, and before Defendant AMI answered the Complaint. The Court finds that consideration of this factor weighs in favor of Winner's.
Furthermore, Winner's asserts that it will pursue its claims against L & H should that party be dismissed from the lawsuit. This would result in an inconvenience to Winner's by litigating its claims against L & H in a separate forum. The only prejudice AMI would suffer if the joinder of L & H is approved by the Court is the remand of the case to state court, away from AMI's preferred forum. The Court finds that this factor weighs in favor of Winner's.
Moreover, even were the Court to analyze this problem under Fed.R.Civ.P. 21, the result would be the same. Rule 21 permits a change in the parties due to misjoinder "at any stage in the action."[2] Fed.R.Civ.P. 21. Rule 21 applies in actions removed to the federal court. See Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure, Civil § 1682 (2d ed. 1986 and 1995 Supp.).
Parties are misjoined when they fail to satisfy either of the preconditions for permissive joinder of parties set forth in Rule 20(a). See Michaels Bldg. Co. v. Ameritrust *1029 Co., 848 F.2d 674, 682 (6th Cir.1988); Jonas v. Conrath, 149 F.R.D. 520, 523 (S.D.W.Va.1993). In other words, Rule 21 applies when either (1) the claims asserted by or against the joined parties do not arise out of the same transaction or occurrence or (2) do not present some common question of law or fact. Michaels Bldg. Co., 848 F.2d at 682; Jonas, 149 F.R.D. at 523. Because the fraud/conversion claim asserted against AMI and L & H arise out of the same transaction or occurrence and present common questions of law or fact, the parties were not misjoined.
The Ninth Circuit has determined that once the Court has permitted the joinder of a non-diverse party, § 1447(e) permits the Court only to remand the case to state court. Yniques, 985 F.2d at 1036. Accordingly, as the Court has determined that joinder was proper in this instance, pursuant to § 1447(e) the Court will remand the case to state court.
IT IS THEREFORE ORDERED THAT Plaintiff Winner's Circle of Las Vegas, Inc.'s Motion to Remand; Motion to Strike Defendant AMI's Motion to Dismiss or in the Alternative, to Change Venue (# 4A) is GRANTED to the extent that it requests remand and DENIED in all other respects;
IT IS FURTHER ORDERED THAT Defendant AMI Franchising, Inc.'s Motion to Dismiss or in the Alternative, to Change Venue (# 2) is DENIED as moot;
IT IS FURTHER ORDERED THAT Defendant L & H Development, Inc.'s Motion to Dismiss (# 13) is DENIED as moot;
IT IS FURTHER ORDERED THAT this matter is remanded to the Eighth Judicial District Court for Clark County, State of Nevada, and that the Clerk shall forthwith mail a certified copy of this Order to the Clerk of the District Court of Clark County, State of Nevada.
NOTES
[1] Moreover, there is a split of authority as to whether an amendment naming a new defendant may only be filed with leave of Court before an answer is filed despite the first sentence of Rule 15(a). See, e.g., McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872-73 (5th Cir.1976) (Rule 15(a) allows amendment of pleading to add a party as a matter of course before responsive pleading is filed), modified on other grounds, 545 F.2d 919 (5th Cir.1977); United States ex rel Precision Co., v. Koch Indus., Inc., 31 F.3d 1015, 1018 (10th Cir.1994) (same); but see LaBatt v. Twomey, 513 F.2d 641, 651 n. 9 (7th Cir.1975) (party must obtain order of court before amending a complaint to add a party, even before a responsive pleading is filed); Springer-Penguin, Inc. v. Jugoexport, 648 F. Supp. 468, 470 (D.N.Y. 1986) (same). The Ninth Circuit has not ruled on the issue. However, because the Court will use the discretionary review standard of 28 U.S.C. § 1447(e), the Court need not decide this issue now.
[2] Rule 21 states as follows:
Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
Fed.R.Civ.P. 21.
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916 F. Supp. 1276 (1996)
UNITED STATES of America
v.
BCCI HOLDINGS (LUXEMBOURG), S.A., Bank of Credit and Commerce International, S.A., Bank of Credit and Commerce International (overseas) Limited, and International Credit and Investment Company (overseas) Limited, Defendants.
Crim. Action No. 91-0655 (JHG).
United States District Court, District of Columbia.
February 27, 1996.
*1277 *1278 Breckinrige L. Willcox, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for petitioner Banque Indosuez.
Gerald McDowell, Director, Asset Forfeiture Office, Criminal Division, U.S. Dept. of Justice, Stefan D. Cassella, Deputy Director, Michelle Crawford, Trial Attorney, U.S. Dept. of Justice, for U.S.
PETITION OF BANQUE INDOSUEZ
MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS
JOYCE HENS GREEN, District Judge.
Presently pending is the United States' Motion to Dismiss ("Motion to Dismiss") the Claim and Petition for Remission of $263,250.00 by Banque Indosuez as a Third Party Claimant Pursuant to 18 U.S.C. § 1963(l) ("L-Claim"). The sole ground of the Motion to Dismiss is lack of timeliness.
For the reasons expressed below, the Motion to Dismiss will be denied. Should the United States or the Court-Appointed Fiduciaries oppose the L-Claim on the merits, they shall file their briefs in opposition on or before March 29, 1996.
BACKGROUND
On January 24, 1992, this Court, following findings of fact and conclusions of law with supporting reasons made in open court, accepted the pleas of guilty of the four corporate defendants (collectively "BCCI") and the plea agreement between them and the United States of America. Thereupon, and in accordance with 18 U.S.C. § 1963, an Order of Forfeiture was entered.
Paragraph 1(e) of the Order provides that the corporate defendants named in this action shall forfeit to the United States ownership interests in all property located in the United States, including, without limitation, real property and all tangible and intangible personal property, however held, whether subsequently identified, determined or discovered in the course of the ongoing liquidation proceedings described therein or otherwise identified, determined, or discovered in any manner at any time, but not property that may be brought into the United States by or on behalf of Court-Appointed Fiduciaries of BCCI in the course of the management or disbursement of the liquidation estates as described in the plea agreement.
Attached to the First Order of Forfeiture was a listing of BCCI accounts, with corresponding numbers, names, and approximate balances, which the United States Marshals Service was directed to seize forthwith. Because the government was unable to verify certain information concerning additional forfeitable accounts at the time the Order of Forfeiture was entered, the Court issued a First Supplemental Order on January 31, 1992, which directed immediate seizure of the specific assets listed therein. The Court has since amended the Order of Forfeiture to include additional assets, including property set forth in the Second and Third Supplemental Lists of Forfeited Property. See Order of Forfeiture of July 29, 1992 (Second *1279 Order of Forfeiture); Order of Forfeiture of August 19, 1993 (Third Order of Forfeiture).
The Third Order of Forfeiture is relevant to Banque Indosuez' L-Claim presently before the Court. Attached to the Third Order of Forfeiture was a Third Supplemental List of Forfeited Property aggregating $101,302,465.54. Included among the accounts seized at First American Bank of New York ("FABNY" or "First American") was Account No. 23012 of Banque de Commerce et de Placements, S.A. ("BCP"), which included the $263,250 at issue in the L-Claim presented by Banque Indosuez.
In compliance with 18 U.S.C. § 1963(l)(1) and to inform third parties of their potential rights to seek recovery of assets declared forfeited in the Third Order of Forfeiture, the United States published notice of the Order of Forfeiture, as amended, during the period between September 3, 1993, and September 27, 1993 in eleven major newspapers including the Wall Street Journal, the New York Times, the Chicago Tribune, the Los Angeles Daily Journal, the Washington Post, and the International Herald Tribune. See United States' Notice to the Court of the government's compliance with Order of August 19, 1993, filed September 21, 1993.[1] In addition, personal notice was sent to 523 persons and entities, including Ms. Francine Marx, Deputy General Counsel to Banque Indosuez of Geneva, Switzerland. Id. at Exhibit 2, at 11.
However, prior to entry of the Third Order of Forfeiture, Banque Indosuez became aware that the sum of $263,250 had been blocked at First American, and it attempted to determine why. By letter of February 4, 1993, Banque Indosuez requested from the Federal Reserve information about the blocking order at First American and sought the Federal Reserve's assistance in obtaining release of the funds. See Letter of Ms. Francine Marx of Banque Indosuez to Marylin (sic) D. Barker, Esq., Board of Governors of the Federal Reserve, dated February 4, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit F. Further correspondence was exchanged between Banque Indosuez and the Federal Reserve during February 1993, and, on April 1, 1993, Ms. Barker of the Federal Reserve advised Ms. Marx of Banque Indosuez that the sum of $263,250 was frozen in BCP's account at First American Bank, because it was BCCI-related property. See Letter of Marilyn D. Barker, Esq., Board of Governors of the Federal Reserve, dated April 1, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit A. The Federal Reserve advised Banque Indosuez:
A procedure for filing a claim to funds contained in the [Court Registry Investment System] account has been established by [the Department of] Justice. Should you wish to obtain further information regarding these procedures, please contact the Justice attorney who is handling the matter, Robert C. Dalton, at the *1280 Asset Forfeiture Office, Criminal Division, United States Department of Justice.
Id.
On April 26, 1993, Banque Indosuez accepted Ms. Barker's advice and wrote to the Department of Justice. In relevant part, Ms. Marx' letter stated:
It appears that a procedure for filing a claim to funds in the CRIS account has been established. Could you please advise us as to the appropriate procedure? Also, could you confirm that the amount of $263.500 transferred by us was effectively transferred into an account of BCP's with FABNY? (We had been informed that BCP did not have an account at FABNY).
Letter of Ms. Marx of Banque Indosuez to Mr. Robert C. Dalton, Asset Forfeiture Office, Criminal Division, U.S. Department of Justice, dated April 26, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit B.
Receiving no response to her letter of April 26, 1993, Ms. Marx tried again on May 25, 1993:
As I mentioned in my letter [of April 26, 1993], we would like to know the procedure for filing a claim to funds in the CRIS account established for the funds in BCP's account with FABNY, pursuant to the order of the United States District Court for the District of Columbia dated March 18, 1993.
We would also appreciate knowing whether the $263.500 transferred by Banque Indosuez to BCP's account at FABNY on July 12, 1991, value July 15, 1991, was effectively credited to that account.
Letter of Ms. Marx of Banque Indosuez to Mr. Robert C. Dalton, Asset Forfeiture Office, Criminal Division, U.S. Department of Justice, dated May 25, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit C.
By letter of September 17, 1993, the Department of Justice provided Banque Indosuez, along with 522 others, with notice that certain BCCI-related property had been declared forfeited, including BCP's account, account # XXXXX in the amount of $827,396.35. The letter also provided Banque Indosuez with information about the claims procedure:
The procedure for filing a claim is set forth more fully in Title 18, United States Code, Section 1963(l). Under Section 1963(l)(2), a person intending to file a claim must do so in the above-styled case within thirty (30) days of his receipt of the Notice of Forfeiture by mail or within 30 days of the last publication of the Order of Forfeiture in a newspaper of general circulation, whichever is earlier. As of the date of this letter, the Notice of Forfeiture has not yet been published for the last time; therefore, you will likely have 30 days from receipt of this letter in which to file a claim. If delivery of the letter is delayed for any reason until after the last publication date, however, the time for filing a claim would run from the last publication date and not from the date of the receipt of the letter.
Letter of Lee Radek, Director, Asset Forfeiture Office (signed by Robert C. Dalton for Stefan D. Cassella) to Ms. Francine Marx of Banque Indosuez, dated September 17, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit D (first emphasis in original, second emphasis added); see also Notice to the Court (filed Sept. 21, 1993), supra, at Exhibits 1 (addressees included Banque Indosuez) & 2 (copy of letter).
On September 27, 1993, the last notice of forfeiture was published. See Notice to Court, supra, at Exhibit 3. However, for whatever reason, Banque Indosuez did not receive its letter from the Department of Justice until November 15, 1993, approximately three weeks after the 30-day window closed.
On December 9, 1993, within 30 days of receipt of the letter from the Department of Justice but more than 30 days after the last date of publication, Banque Indosuez filed its L-Claim. The government moved to dismiss the L-Claim on March 1, 1994, and, this Court heard oral argument on the Motion to Dismiss on January 20, 1995.
The government contends that Banque Indosuez' L-Claim should be dismissed, because *1281 it was filed untimely: "Because the date of last publication was September 27, 1993, Banque Indosuez' claim should have been filed not later than October 27, 1993. Banque Indosuez did not file its claim, however, until December 9, 1993." Motion to Dismiss, supra, at 4. Because it did not receive actual notice until November 15, 1993, however, Banque Indosuez argues that it did not know until then that the $263,500 was included within the $827,396.35 seized in BCP's account # XXXXX at First American. Consequently, and because its earlier efforts to obtain such information from the government were unavailing, Banque Indosuez contends that its L-Claim should be considered timely. See Petition Banque Indosuez' Response to Government's Motion to Dismiss Petition Pursuant to 18 U.S.C. § 1963(l) ("Banque Indosuez' Response"), at 1-3; Transcript of Motions Hearing Before the Honorable Joyce Hens Green, United States District Judge, of January 20, 1995 ("TR"), at 10-15 (argument of Mr. Breckenridge L. Willcox on behalf of Banque Indosuez). Alternatively, if the 30-day period is construed by the Court to run from the date of published notice, Banque Indosuez importunes the Court to excuse the late filing: the government was effectively placed on notice in the earlier correspondence of the nature and extent of Banque Indosuez' claim and no prejudice would arise to the government by equitable tolling. See Banque Indosuez' Response, supra, at 4-5; TR, supra, at 13.
At oral argument and in its memoranda, Banque Indosuez presented the following facts to support its argument on the merits.[2] On July 12, 1991, seven days after the effective date of the blocking order on BCCI's assets, Banque Indosuez transferred $263,500 from a depositor's account at Banque Indosuez to the depositor's account at BCP, also located in Geneva, Switzerland. See L-Claim, supra, at ¶ 5 (citing Exhibit H, instructions of July 11, 1991). However, because the transfer was accomplished in U.S. dollars, the transaction was made through U.S. correspondent banks in New York. Id. at ¶ 6. Banque Indosuez' correspondent, Banker's Trust in New York, transferred $263,500 to the bank it believed to be BCP's correspondent bank, the ill-fated First American Bank of New York. Id. at ¶¶ 6-7. On July 17, 1991, BCP advised Banque Indosuez that its correspondent bank was not First American, but American Express Bank, Ltd., in New York. Id. at ¶ 8 (citing Exhibit K).
Pursuant to Banque Indosuez' instructions, Banker's Trust contacted First American and demanded the return of the $263,500, which it asserted had been transferred to First American in error. It was too late. On July 29, 1991, First American advised Banker's Trust that "our bank regulators forbid processing of any [BCC] transactions. Funds that are received in favor of a BCC Bk are held in suspense until further clarification." Id. at Ex. O (telex from Banker's Trust to Banque Indosuez relaying telex from First American). Despite the fact that BCP had closed its account with First American on June 4, 1991, a month and a half prior to the effective date of the blocking order, and despite Banque Indosuez' arguments that BCP was not even a subsidiary of the BCCI group, the $263,500 was never released. Ultimately, the funds were included in the Third Order of Forfeiture.
Discussion
Title 18, United States Code, Section 1963 sets forth an orderly procedure by which third parties seeking to recover interests in forfeited property may obtain judicial resolution of their claims. The provision granting standing to parties seeking to amend an order of forfeiture to exclude certain property states:
Any person other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The *1282 hearing shall be held before the court alone, without a jury.
18 U.S.C. § 1963(l)(2).
Section 1963(l)(6) sets forth the substantive elements that a third party must establish to obtain amendment of an order of forfeiture. This section provides:
If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that
(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or
(B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section;
the court shall amend the order of forfeiture in accordance with its determination.[3]
Only by establishing standing and satisfying the requisite elements of either Subsection 1963(l)(6)(A) or Subsection 1963(l)(6)(B) may a party obtain judicial relief from an order of forfeiture. See United States v. BCCI Holdings (Luxembourg), S.A., 46 F.3d 1185, 1188 (D.C.Cir.), cert. denied sub nom. Chawla v. United States, ___ U.S. ___, 115 S. Ct. 2613, 132 L. Ed. 2d 856 (1995); United States v. Schwimmer, 968 F.2d 1570, 1584 (2d Cir.1992); United States v. Lavin, 942 F.2d 177, 187 (3d Cir.1991).
If a third party fails to allege in its petition all elements necessary for recovery, including those relating to standing, the court may dismiss the petition without providing a hearing. See United States v. Campos, 859 F.2d 1233, 1240 (6th Cir.1988); United States v. Mageean, 649 F. Supp. 820, 825 (D.Nev.1986), aff'd without opinion, 822 F.2d 62 (9th Cir.1987); S.Rep. No. 225, 98th Cong., 1st Sess. 191, 208 n. 46 (Sept. 12, 1983).
The question presented by the government's Motion to Dismiss is whether Banque Indosuez' L-Claim is barred because it failed to comply with the time requirements of 18 U.S.C. § 1963(l)(2) when the government provided notice by publication in accordance with the statute. Two legal issues are raised. First, the Court must decide whether the filing time limitation is jurisdictional in nature or is instead a statute of limitations subject to equitable tolling. Second, if the failure to file timely does not deprive the Court of jurisdiction, the Court must decide whether the doctrine of equitable tolling should be applied to this case.
A. THE TIMELY FILING REQUIREMENTS OF 18 U.S.C. § 1963(l)(2)
In general, a court is obligated to apply statutory time requirements as written even though "those words lead to a harsh result." United States v. Locke, 471 U.S. 84, 95-96, 105 S. Ct. 1785, 1792-93, 85 L. Ed. 2d 64 (1985). Where a statutory deadline has passed and a litigant has failed to file timely, substantial compliance is not enough. Id. at 100-02, 105 S.Ct. at 1796-96. Moreover, if the statutory provision is jurisdictional in nature, the Court lacks any authority to offer shelter to a duly diligent, but late-filing litigant. However, if the statutory provisions operate as a statute of limitations, such time periods are subject to, inter alia, the doctrine of equitable tolling.
As previously noted by this Court, the text of 18 U.S.C. § 1963(l)(2) is silent as to whether a court may extend the thirty-day period provided for the filing of L-claims; the statute neither expressly allows nor expressly prohibits extensions of time. See *1283 Order of Nov. 13, 1992, United States v. BCCI Holdings (Luxembourg), S.A., Cr. No. 91-0655, Slip. op. at 4 (Petition of Delphis Bank Ltd).[4] One premise underlying Delphis Bank was the nonjurisdictional nature of the time limitations of Section 1963(l)(2).
Whether timely filing requirements are jurisdictional in nature turns, quite simply, on what Congress intended, as evidenced by the text, structure and legislative history of the statute. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98, 102 S. Ct. 1127, 1131-35, 71 L. Ed. 2d 234 (1982). While both the text[5] and its underlying legislative history[6] are silent as to whether Section 1963(l)(2) is jurisdictional in nature, the structure of the statute offers evidence probative of Congress' intent.
The jurisdictional grant of Section 1963 is contained in Subsection (j), which provides:
The district courts of the United States shall have jurisdiction to enter orders as provided in this section without regard to the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this section.
18 U.S.C. § 1963(j).
A completely different subsection contains the time limits for filing L-claims. This subsection is silent as to any jurisdictional underpinning:
Any person other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury.
18 U.S.C. § 1963(l)(2).
Where the jurisdictional grant is structurally separate from the timely filing requirements of a statute, courts have generally found that timely filing is not jurisdictional in nature. E.g., Zipes, 455 U.S. at 394, 102 S.Ct. at 1133; Mondy v. Secretary of the Army, 845 F.2d 1051, 1055 (D.C.Cir.1988). This is particularly true where the underlying legislative history is sparse and there is no evidence of contrary congressional intent. Zipes, 455 U.S. at 394, 102 S.Ct. at 1133. A statute that grants jurisdiction and establishes the filing requirements in the same textual breath, creates filing requirements that are jurisdictional in nature. See, e.g., AFL-CIO v. OSHA, 905 F.2d 1568, 1569-70 (D.C.Cir.1990). However, absent "exceptionally emphatic" text to the contrary, Mondy, 845 F.2d at 1055, structural separation between the jurisdictional grant and the filing *1284 requirements within a statutory regime indicates that Congress never intended a court's jurisdiction to turn on timely filing. Id.; see also Zipes, 455 U.S. at 394, 102 S.Ct. at 1133; Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1040 (D.C.Cir.1986).
The following makes explicit what was implicit in Delphis Bank: because the jurisdictional grant and filing requirements are structurally separate, in the absence of any evidence of legislative intent to the contrary, this Court holds that the filing requirement of Subsection 1963(l)(2) is not jurisdictional but instead operates as a statute of limitations subject to equitable tolling. See Zipes, 455 U.S. at 392-98, 102 S.Ct. at 1131-35; Phillips v. Heine, 984 F.2d 489, 491 (D.C.Cir.1993); Hardin, 797 F.2d at 1040.
B. EQUITABLE TOLLING UNDER 18 U.S.C. § 1963(l)(2)
Although applied sparingly, the doctrine of equitable tolling is available to a court to soften the harsh result that would obtain from the strict application of a statute of limitations. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435 (1990); Phillips, 984 F.2d at 491. The doctrine may be available in circumstances in which "a claimant has received inadequate notice." Freeman v. Federal Deposit Insurance Corp., 56 F.3d 1394, 1405 (D.C.Cir.1995) (quoting Mondy, 845 F.2d at 1057 (quoting Baldwin Co. Welcome Center v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1729, 80 L. Ed. 2d 196 (1984) (per curiam))). Absence of prejudice to the other party and due diligence are important considerations, see Spannaus v. Fed'l Election Comm'n, 990 F.2d 643, 644 (D.C.Cir.1993), but absence of prejudice enters the "calculus only if another factor provides the essential underpinning for equitable tolling." Dougherty v. Barry, 869 F.2d 605, 613 (D.C.Cir.1989). Whether a claimant has acted with due diligence is a "fact-specific judgment in each case." Hohri v. United States, 782 F.2d 227, 250 (D.C.Cir. 1986).
In this case, three propositions appear clear. First, the Department of Justice has complied fully with the letter of the statute, providing Banque Indosuez with the notice to which it was entitled under 18 U.S.C. § 1963(l)(2). Second, Banque Indosuez failed to file its claim within thirty days of the published notice, as required by statute. Third, Banque Indosuez, alerted early to the possibility that it had a claim, did not sit idle. Instead, it pursued its claim long before the $263,250 was actually declared forfeited to the government on August 19, 1993.
The specific and repeated attempts by Banque Indosuez to determine whether the funds were in fact among those BCCI assets seized by the government satisfies this Court that Banque Indosuez acted with due diligence in pursuing its claim. While awareness of the blocked sum imposed a duty on Banque Indosuez to conduct a reasonable inquiry, due diligence does not require Banque Indosuez to have succeeded in identifying with precision the location of the $263,500, particularly when specific inquiries to the Department of Justice went unanswered. This is not a case in which a claimant who has received actual notice nevertheless sat on its claim until the limitations period expired. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984) (per curiam). Here, Banque Indosuez attempted to determine whether it had a claim and, if so, what procedure it must follow to preserve its claim.
While due diligence may be lacking in some cases where the claimant has failed to monitor publication notices in major newspapers, even if Banque Indosuez had diligently monitored the notices,[7] it is not clear that the published notice would have provided adequate notice to Banque Indosuez that it had a claim. There is more than a suggestion in the record that the notice failed to identify with sufficient clarity that the sum of $263,500 was included within the amount of $827,396.35, declared forfeited by the government in BCP's account number XXXXX. There is no *1285 evidence that Banque Indosuez was advised, or otherwise had knowledge, that the $263,500 was placed in this account. Except for the Federal Reserve's correspondence directing its inquiries to the Department of Justice, until it received Justice's letter dated September 17, 1993, on November 15, 1993, all Banque Indosuez knew with any certainty was what the Federal Reserve had told Ms. Marx earlier in the year: the sum of $263,500, inadvertently sent to First American on July 12, 1991, was blocked. On November 15, 1993, three weeks after the close of the statutory period to file claims, Banque Indosuez received the long-sought answers to its multiple inquiries.
Perhaps Banque Indosuez should have, after scrutinizing the published notices of forfeiture, filed protective claims as a precautionary measure where funds in any BCP accounts at First American were declared forfeited. However, while prudent, such extremely cautious measures are not necessary to satisfy the due diligence standard under the facts of this case. As discussed above, the published notice did not specifically identify the sum Banque Indosuez sought. See United States v. Estevez, 845 F.2d 1409, 1411-12 (7th Cir.1988) (notice defective where published notice was insufficient to put third party on notice that forfeiture included third party's interest; failure to file "excusable"). Given the combination of the ambiguity in the published notice as to the $263,500 and the government's silence in the face of Banque Indosuez' direct inquiries, the failure to file timely is excusable; it should not be dispositive of what otherwise may be a meritorious claim.
Also relevant in the Court's calculus is the fact that the government cannot be prejudiced by equitably tolling Banque Indosuez' filing period. If the transfer to First American occurred as Banque Indosuez avers, it is likely that the government would have no entitlement to the sum of $263,500.
Under the circumstances of this case, a wooden application of 18 U.S.C. § 1963(l)(2) would result in granting the government's Motion to Dismiss. Banque Indosuez did not file its claim within 30 days of the last date of the published notice as the statute requires. However, the letter of the law need not be applied woodenly if, in so doing, fundamental fairness would become a casualty. While it should be invoked judiciously, equitable tolling is available to the Court to do justice and steer around such unfair results. In this case, where the foreign petitioner has made repeated attempts to obtain information from the government regarding the assets at issue; where the government's notice failed to identify specifically the $263,500 sought; where Banque Indosuez filed its claim within 30 days of being provided actual notice; where its claim was also filed within a reasonable time after the date of constructive notice; where Banque Indosuez has at least made a prima facie demonstration on the merits of an interest superior to that of the government's; and where no prejudice would inure to the government, equitable tolling is appropriate.
The government's Motion to Dismiss will be denied.
CONCLUSION
For the reasons stated above, it is hereby
ORDERED that the government's Motion to Dismiss is denied; and it is
FURTHER ORDERED that should the government or the Court-Appointed Fiduciaries oppose Banque Indosuez' L-Claim on the merits, briefs in opposition shall be filed on or before March 29, 1996; Banque Indosuez' reply, if any, shall be filed on or before April 12, 1996.
IT IS SO ORDERED.
NOTES
[1] In relevant part, the notice published provided:
Notice is hereby given that on August 19, 1993, in the above-captioned case, the Honorable Joyce Hens Green, United States District Judge for the District of Columbia, entered an order condemning and forfeiting the following properties to the United States of America:
Third Supplemental List of Forfeited Property
Account No. Description Approx. Value
* * *
**First American Bank of N.Y.
00023012 Banque de Commerce et de $827,396.35
Placements S.A.
* * *
The Order of Forfeiture having been entered, the United States hereby gives notice of its intention to dispose of each of the forfeited properties in such manner as the Attorney General of the United States may direct, consistent with the plea agreement entered into by the defendants and the United States on December 19, 1991. Any persons or entities having or claiming a legal right, title or interest in any of the aforementioned properties must, within thirty (30) days of the final publication of this notice or actual receipt thereof, whichever is earlier, petition the United States District Court for the District of Columbia for a hearing to adjudicate the validity of his/her alleged interest in the property pursuant to Title 18, United States Code, Section 1963(l).
United States' Notice to the Court, supra, at Exhibit 2.
[2] At oral argument, the government reserved its position on the merits. For the purposes of this opinion, the Court assumes true the facts offered by Banque Indosuez. Should the government or the Court-Appointed Fiduciaries contest the L-Claim on the merits, however, the Court would revisit the underlying facts.
[3] Title 18 U.S.C. § 1963(l)(6) contains exactly the same language as 21 U.S.C. § 853(n)(6), the statute providing for forfeiture in criminal narcotics cases, and it appears that no court has interpreted these two provisions differently. Because the two subsections are identical and because of the relative dearth of case law interpreting and applying Section 1963(l), the Court's opinion relies on the reasoning contained in Section 853(n) cases as well as that in Section 1963(l) cases.
[4] In Delphis Bank, as in this case, the Department of Justice provided notice of the forfeiture by publication and, in addition, provided actual notice to a number of entities, including Delphis Bank. The Court nevertheless allowed Delphis Bank to file its petition untimely owing to the fact that Delphis Bank had relied, to its detriment, on unintentional but misleading language in the letter from the Department of Justice. The letter provided, in relevant part, "If you intend to file a claim, you must do so in the above-styled case within thirty (30) days of your receipt of this letter." Slip. op. at 4 (citing Exhibit A to Delphis' Motion) (emphasis in original).
Based on the doctrine of equitable estoppel, this Court held that Delphis Bank's reliance on the notice was reasonable and that "fairness dictate[d] that a foreign entity unfamiliar with relatively complex, novel and undeveloped United States criminal forfeiture law should be able to rely on representations regarding time deadlines made to it by the United States government." Id. at 7.
[5] In relevant part, the text of Section 1963(l)(2) states that a person "may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court." While there would appear to be a difference between the word "may" used in Subsection (l)(2) and the words "shall" or "must" that are used in other statutes, in construing language similar to that of Subsection (l)(2), the Supreme Court has stated: "An argument can undoubtedly be made that the latter language is more stringent than the former, but we are not persuaded that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 457, 112 L. Ed. 2d 435 (1990).
[6] While silent as to the question at issue in this case, the most detailed legislative history can be found in S.Rep. No. 225, 98th Cong., 1st Sess. 191, 214 (Sept. 12, 1983).
[7] There is no evidence in the record to indicate that Banque Indosuez did or did not monitor the major newspapers for publication notices.
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360 Pa. Super. 89 (1987)
519 A.2d 1005
DONEGAL MUTUAL INSURANCE COMPANY
v.
Anthony E. EYLER, Jeffrey Eyler, State Automobile Mutual Insurance Company, Daniel F. Aughenbaugh, Bernice Eyler, Cindy Peguinot, Steven Spahr, Diane Aughenbaugh, Connie Aughenbaugh and Melvin Aughenbaugh.
Appeal of Daniel F. AUGHENBAUGH, Diane Aughenbaugh, Connie Aughenbaugh and Melvin Aughenbaugh.
Supreme Court of Pennsylvania.
Argued September 5, 1986.
Filed January 9, 1987.
*90 Bishop Nicklas Kauffman, York, for appellants.
Daniel H. Shertzer, Lancaster, for State Automobile, appellee.
Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
KELLY, Judge:
On March 25, 1984, an automobile accident occurred between a vehicle operated by Anthony Eyler and an auto operated by Daniel Aughenbaugh. The car operated by Anthony Eyler was owned by his brother, Jeffrey Eyler, and insured by State Automobile Mutual Insurance Company. At the time of the accident, Anthony Eyler resided with his mother, Bernice Eyler, who held an automobile liability insurance policy issued by Donegal Mutual Insurance Company. The other driver, Daniel Aughenbaugh, filed suit against Anthony Eyler for alleged injuries resulting from the accident.
On January 18, 1985, Donegal Mutual brought the declaratory judgment action which is the subject of the instant appeal; Donegal Mutual sought to determine which carrier, if either, had a duty to defend and/or indemnify Anthony Eyler against claims arising from the accident. The declaratory judgment complaint named as defendants State Automobile Mutual, Anthony Eyler, Jeffrey Eyler, Bernice Eyler, Daniel Aughenbaugh, and the family members who were passengers in the Aughenbaugh's vehicle (hereinafter referred to as "the Aughenbaughs"). On March 6, 1986, the court below granted the summary judgment motions of *91 both Donegal Mutual and State Automobile Mutual, finding that neither carrier owed coverage for claims resulting from the accident. The Aughenbaughs have appealed the order of March 6, 1986. For the reasons stated herein, we affirm.
I. Standing to Appeal
Before reaching the merits of the issues raised on appeal, we must first determine whether the Aughenbaughs have standing to appeal the lower court's ruling regarding the extent of coverage to Anthony Eyler.[1]
One may not appeal from a decision which is not adverse to him, even though he is a party to the action in which the decision was rendered. Prior v. Borough of Eddystone, 30 Pa.Cmwlth. 536, 374 A.2d 981 (1977). Pennsylvania Rule of Appellate Procedure 501 limits the right of appeal to "any party who is aggrieved by an appealable order." The official note adds that "[w]hether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party. . . ." "In determining whether the interest asserted renders a litigant `aggrieved,' the court must ascertain whether the interest is `substantial,' `direct,' `immediate,' and `not a remote consequence' of the challenged action." American Booksellers Assn., Inc. v. Rendell, 332 Pa.Super. 537, 553, 481 A.2d 919, 927 (1984). Thus, "to justify judicial intervention, a party must allege a recognizable, adverse effect to himself and a close causal nexus between the injury and the challenged conduct." 332 Pa.Superior Ct. at 554, 481 A.2d at 927.
Research reveals not a single Pennsylvania case which has determined the exact issue now before us.[2] Courts *92 from other jurisdictions, however, have considered the question, with varying results. In Reliance Insurance Company v. Walker, 33 N.C.App. 15, 234 S.E.2d 206 (1977) (cert. denied), the insurer brought a declaratory judgment action to determine liability for injuries allegedly sustained by the claimant while on the policyholder's property. The lower court found that an automobile insurance policy provided coverage but that a homeowner's policy did not. The Court of Appeals of North Carolina dismissed the subsequent appeal, brought by the personal injury claimant/defendant. The court reasoned:
The clear purpose of the action is to determine which insurance company, if any, would be liable to indemnify [the policyholder] and not to determine any possible liability to [the personal injury claimant]. Since [the personal injury claimant] has yet to establish any liability of [the policy holder] for the shooting, this declaratory judgment action involves only [the policyholder], his automobile liability carrier, and his homeowner's liability carrier. At this point, [the personal injury claimant] has no interest in the subject matter of the action nor does he have any substantive legal rights to enforce the court's determination of liability of either carrier.
234 S.E.2d at 209.
Applying the reasoning of Reliance, one could argue in the instant case that, until the Aughenbaughs have proved that they sustained compensable damages as the result of Anthony Eyler's negligence, the injury resulting from the lower court's ruling is merely a `remote consequence,' and is neither `direct' nor `immediate.' See American Booksellers *93 Assn., supra. We are persuaded, however, that the reasoning applied by the following cases, which hold that the personal injury claimants have standing to appeal, is the sounder approach.
In Security Insurance Company of Hartford v. Daniels, 70 Mich.App. 100, 245 N.W.2d 418 (1976), the Court of Appeals of Michigan, under similar facts, found the personal injury claimant to be an `aggrieved party' having standing to appeal an order denying insurance coverage. The insurance company argued that the claimant was barred from appealing because his claim was contingent rather than direct: (1) the personal injury claimant may not join the insurer as a party defendant in an action for damages; (2) the claimant may file suit against the insurer only after he recovers against the tortfeasor in the original action. The court found that this factor was not so significant as to negate the personal injury claimant's strong interest in the appeal:
Although [the personal injury claimant] was barred from joining the insurance companies in the original action, if he were to succeed in that action, he would be entitled to litigate the coverage issue in a subsequent action against the insurance companies . . . Thus, he has an interest in resolution of that issue.
245 N.W.2d at 422. Similarly, in National Farmers Union Property & Casualty Co. v. Maca, 26 Wis. 2d 399, 132 N.W.2d 517 (1965), the insurance company asserted that the personal injury claimant held no interest in the policy, could not maintain an action thereon against the insurer, and was not a party aggrieved by an order declaring that no coverage existed for the injury. The Supreme Court of Wisconsin responded:
[The personal injury claimant] would, however, be entitled to recover under the policy after first securing a judgment determining Louis' liability to him. * * * Should [the claimant] recover against [the alleged tortfeasor] and then bring action against the company, the judgment now before us would bar his action. The *94 judgment affects his interest to that extent, and he has standing to appeal.
132 N.W.2d at 519. Accord: General Casualty Company of Illinois v. Olsen, 56 Ill.App.3d 986, 14 Ill. Dec. 567, 372 N.E.2d 846 (1977).
In the case before us, although the fact that the Aughenbaughs were named defendants in the declaratory judgment action does not automatically confer "aggrieved party" status upon them for purposes of appellate standing, this factor is nevertheless relevant to our inquiry. According to the declaratory judgment statute, 42 Pa.C.S.A. § 7540, "[w]here declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration." Because personal injury claimants have a pecuniary interest in coverage questions, they are indispensable parties and must be joined in such declaratory judgment actions. Pleasant Twp. v. Erie Insurance Exchange, 22 Pa.Cmwlth. 307, 348 A.2d 477 (1975). The resolution of the coverage question in the declaratory judgment action has a res judicata[3] effect upon any subsequent action brought by the personal injury claimant against the tortfeasor's insurer. Thus, under the reasoning espoused in National Farmers and Security Insurance, supra, we believe that personal injury claimants are "aggrieved parties" and have standing to appeal a declaratory judgment in favor of the tortfeasor's insurer. We conclude that the Aughenbaughs have standing to appeal the March 6, 1986 order.
II. Merits of the Appeal
The sole question raised by the Aughenbaughs on *95 appeal[4] is whether there existed a material issue of fact which barred the lower court from properly granting the motion for summary judgment. We find that a material issue of fact did not exist, and that the judge therefore did not err in granting the motion.
A motion for summary judgment shall be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. No. 1035(b). In passing upon a motion for summary judgment, "[i]t is not part of the court's function to decide issues of fact out solely to determine whether there is an issue of fact to be tried." Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 141, 476 A.2d 928, 931 (1984).
Donegal Mutual and State Auto Mutual based their denial of coverage and their summary judgment motions upon nearly identical "permissive use" clauses contained within both policies. The policies excluded from coverage any person "[u]sing a vehicle without a reasonable belief that the person is entitled to do so." As the lower court summarized the evidence in its opinion:
At his deposition taken on July 18, 1985, which has been filed with the Prothonotary, Anthony testified that Jeffrey placed restrictions upon Anthony's use of his car. (N.T. 13). Jeffrey told Anthony, then age seventeen, that he was only to use the car to travel to and from work, that he was not to drive the car after midnight and that he was not to drive the car after drinking any alcohol. (Id.). The accident on March 25, 1984 occurred shortly after two o'clock in the morning, many hours after Anthony had finished working, after Anthony had consumed *96 several bottles of beer and while Anthony was driving between the homes of friends. (N.T. 10, 13, 14, 16). Anthony admitted that at the time of the accident, he was fully aware that he was not obeying Jeffrey's instructions and was not driving the car with permission. (N.T. 18, 25).
Opinion of 12/19/85, p. 4. Based upon this evidence, the lower court held that the "permissive use" clauses applied to exclude Anthony Eyler from coverage.
On appeal, the Aughenbaughs claim that an issue of material fact existed as to whether Anthony Eyler was using his brother's car with a reasonable belief that he was entitled to do so; they assert that the court below therefore erred in finding as a matter of law that the policy exclusion applied. In support of their position, the Aughenbaughs cite portions of Anthony Eyler's deposition, which purportedly shows that Anthony had "implied permission to use the automobile for purposes other than going to and from work because Jeffrey Eyler had acquiesced to uses of the automobile which were outside the scope of the express permission." Appellants' Brief at 12-13.
Certainly, appellants are correct in stating that permissive use of an automobile may be implied from a course of conduct in which the parties have mutually acquiesced. See Crespy v. Bliesmer, 248 Pa.Super. 441, 375 A.2d 179 (1977); Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966). These cases, however, are distinguishable from and inapplicable to the scenario presented in the instant case. In the cases cited by appellant, the operator of the vehicle believed that he was using the vehicle with the permission of the owner; this Court then determined that this belief was "reasonable" because the owner had previously acquiesced in operation of the auto beyond the scope of the consent which had been expressed. Nowhere in the depositions, pleadings, or affidavits presented in the instant case did Anthony Eyler state a belief that he was operating the auto with his brother's consent at the time of the accident. To the contrary, Anthony Eyler repeatedly stated that he did not have his brother's consent:
*97 Q. So when you were driving the car at one and two o'clock in the morning of March 25th, you knew you were using it without his permission.
A. Yes, I knew.
R. 27a-28a. In an affidavit which was filed with the summary judgment motion, Anthony Eyler agreed that he was "operating said vehicle in violation of the restrictions imposed" and that "[a]t such time and place he was using the said vehicle without being entitled to do so." R. 107a. Thus, it is clear that the implied consent cases are inapplicable.
The permissive use clauses in the policies excluded from coverage any person "[u]sing a vehicle without a reasonable belief that the person is entitled to do so." The driver consistently stated that he did not believe that he was entitled to operate the vehicle under the circumstances present at the time of the accident. The question of whether or not, if the operator had believed that he was entitled to operate the vehicle, that belief was reasonable, is irrelevant. The lower court correctly held that the facts of this case fall squarely within the language of the policy exclusion, and that the insurers are entitled to judgment in their favor as a matter of law. Accordingly, the order of March 6, 1986 is affirmed.
NOTES
[1] The fact that appellees have not challenged the Aughenbaugh's right to appeal is not dispositive of the question. The requirement that a prospective appellant be aggrieved by the order which he is attempting to appeal is not one which can be waived by the action or inaction of his opponents. Tate v. MacFarland, 303 Pa.Super. 182, 449 A.2d 639 (1982).
[2] Language used by our Supreme Court in Allstate Insurance Company v. Stinger, 400 Pa. 533, 534, 163 A.2d 74 (1960) implies that individuals in appellants' position have standing to appeal:
This is a petition for a declaratory judgment filed by an insurance company seeking a declaration of its rights. It issued a policy of automobile insurance to the defendant Stinger. The court below at first upheld the policy but after hearing further testimony held it void. It also disallowed the intervention of the defendants Manko, who were in collision with Stinger and who have now appealed. The Mankos were allowed to litigate the whole case, and it was only at the end that the court below refused intervention in its last order and held the policy void. Hence they have standing to appeal. Stinger has not appealed.
[3] Black's Law Dictionary defines res judicata as follows:
A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made.
Black's Law Dictionary 1174 (5th ed. 1979) (citation omitted).
[4] Appellee Donegal Mutual attempts to raise additional issues in its brief filed with this Court. An appellee who does not file a counter-appeal is precluded from raising issues which are not raised by appellant. Philadelphia Bond and Mortgage Company v. Highland Crest Homes, 235 Pa.Super. 252, 340 A.2d 476 (1975); Appeal of Pesante, 82 Pa.Cmwlth. 242, 476 A.2d 474 (1984). Accordingly, we decline to address the additional issues raised in appellee's brief.
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726 S.W.2d 608 (1987)
William Marion CARR, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-86-00343-CR.
Court of Appeals of Texas, Houston (14th Dist.).
March 5, 1987.
Craig A. Washington, Houston, for appellant.
*609 John B. Holmes, Dist. Atty., Frances Northcutt and Ira Lee Jones, II, Asst. Dist. Attys., Houston, for appellee.
Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.
OPINION
ROBERTSON, Justice.
The jury rejected appellant's not guilty plea to murder and assessed punishment at confinement for life. The only issues on appeal concern the admissibility of evidence. We affirm.
The record reveals that on April 8, 1982, appellant killed his wife by stabbing her with a knife and hitting her with a pickax. Of the thirteen major wounds in her body, it appeared nine were inflicted with a knife and four with a pickax. Six neighbors and the deceased's eleven year old daughter witnessed the appellant inflict several wounds after the deceased was lying on the ground outside her home. The record also reveals that over a period of approximately four years the trial court granted a dozen continuances to appellant prior to the case finally proceeding to trial on April 14, 1986.
In his first and second points of error appellant contends the court erred in admitting a portion of the police officer's offense report which contained summaries of what six witnesses, five of whom did not testify at trial, observed. A brief review of the unorthodox manner in which this occurred is in order. The next door neighbor, Annie McGowan (McGowan), testified that as a result of hearing the screams of the deceased's eleven year old daughter she looked out her window and observed appellant standing over the deceased holding "a pickax up in the air." She ran out the front of her house and observed appellant strike the deceased with the pickax. During cross-examination McGowan denied that she told a police officer that she looked out her window and saw appellant strike the deceased with the pickax. The investigating officers did not take a written statement from McGowan, but one of the officers (who was not available at trial to testify) wrote in his offense report that McGowan looked out her window in time to see appellant strike the deceased with the pickax. Appellant's counsel sought to impeach McGowan with the statement attributed to her in the offense report. The state's attorney initially objected, but withdrew his objection and appellant's counsel read that portion of the offense report to the jury. Then, over appellant's objection, the prosecutor, on the theory of optional completeness, offered into evidence that complete page of the offense report, which read:
Juanita Butler, black female, 7221 England. This witness lives directly across the street from where the offense occurred. She stated that she heard the complainant screaming and went out to see what was going on. They saw the complainant lying on the ground and the suspect on top of her. At first she thought he was just hitting her until she saw the knife. The daughter of the complainant was trying to pull the suspect off her mother. This witness went next door and called the police. She does not have a phone at home. When she came back out, she saw the suspect hitting the complainant with a pickax.
Robert Simmons, black male, thirteen and Andrew Simmons, black male, 8, 5007 Lingonberry, 734-3581. These two witnesses are brothers. They were across the street from where this offense occurred and they saw the suspect stab the complainant and hit her with a pickax.
John Evans, black male, ten, 7225 England, 747-0723. This witness was with the Simmons brothers and saw the suspect stab and hit the complainant with a pickax.
Annie McGowan, black female, 7222 England. This witness lives next door to where this offense occurred. She lives there with her daughter. She heard the complainant screaming and looked out her bedroom window in time to see the suspect hit the complainant with a pickax. She knows the suspect and the complainant.
*610 Stephanie McGowan, black female, 7222 England, 741-0498. This witness lives next door to where the offense occurred. She lives with her mother. She heard the complainant screaming and looked out her bedroom window in time to see the suspect hit the complainant with a pickax. This witness then went to the phone and called the police. She then went outside with her mother and looked at the complainant. The suspect went in the house and came out with a sheet. He covered the complainant completely up.
None of these witnesses, except McGowan, testified at trial. Appellant argues in his first point of error that Tex.Code Crim. Proc.Ann. art. 38.24 (Vernon 1979) did not authorize the state to introduce into evidence the "separate conversations by separate witnesses." In his second point of error he argues that the admission of such evidence violated his sixth amendment right to confront and cross-examine witnesses.
At trial, the state based its support for the admissibility of the remainder of that page of the offense report on Ballestero v. State, 640 S.W.2d 423 (Tex.App.San Antonio 1982, no pet.). However, that case does not sustain the action of the court in the case before us. Even though the prosecutor withdrew his objection to appellant reading the unsworn statement allegedly made by McGowan, the court should not have permitted such unauthorized impeachment. Despite this action the state was not authorized to introduce the remainder of that page of the offense report and trial court erred in admitting it into evidence. Although art. 38.24 of the Code of Criminal Procedure authorizes the other party to introduce into evidence "the whole on the same subject" after one party has introduced a portion thereof, we believe the clear intent of the statute is to provide the fact finder with the total picture of the disputed issue. Here, it cannot be seriously contended that the fact five other witnesses observed appellant stabbing the deceased with a knife and hitting her with a pickax had any bearing on whether McGowan observed appellant striking the deceased with a pickax from her window or whether she only saw him holding the pickax in the air from her window and observed the striking with the pickax only after she went outside her house. This error, however, does not call for a reversal of this conviction.
It is a well settled rule when the accused in a criminal case offers before the jury the same evidence as that to which he objected, or the same evidence is introduced from another source, he is in no position to complain on appeal. Withers v. State, 642 S.W.2d 486 (Tex.Crim.App.1982). The deceased's daughter, who was eleven years old at the time of the offense, testified in detail that appellant was on top of the deceased stabbing her mother with a knife; that twice she attempted to pull appellant off the deceased, but that appellant knocked her back each time; that she ran back into the house to summon help by telephone and that when she came back outside appellant appeared to be striking the deceased with the pickax. McGowan testified that after she ran outside her house she saw appellant hit the deceased with a pickax. Appellant, testifying in his own behalf, admitted stabbing his wife several times with a knife and then hitting her with the pickax while she was on the ground. The complained-of statements allegedly made by the non-testifying witnesses echo appellant's own testimony. There is not a single fact recited in any of the unsworn summaries that was not testified to by appellant. We hold appellant is in no position to complain; therefore, appellant's first and second points of error are overruled.
In his third point of error appellant contends the court erred in admitting the testimony of three witnesses concerning extraneous offenses. We do not agree.
After the defense had rested, the prosecutor called two sisters and the daughter of the deceased as rebuttal witnesses. One of the sisters testified before the jury that she had observed appellant physically assault the deceased. However, at trial appellant did not object to this *611 testimony, therefore, nothing is preserved for review. The other sister testified in the absence of the jury that appellant caused the deceased to lose her job. This testimony was never introduced before the jury. Obviously, no error is shown here. Finally, the deceased's daughter testified that she was awakened late one night by appellant who was crawling on the floor next to her bed with his pants unzipped. Appellant offered no objection to this testimony until the state passed the witness for cross-examination. Failure to timely object waived any alleged error. Tex.R.App.P. 52(a). Appellant's third point of error is overruled.
The judgment of the trial court is affirmed.
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726 S.W.2d 595 (1987)
Horace Edward CATLEY, Appellant,
v.
The STATE of Texas, Appellee.
No. B14-86-077-CR.
Court of Appeals of Texas, Houston (14th Dist.).
February 26, 1987.
*596 Craig A. Washington, Kristine C. Woldy, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Kathlyn Giannaula, JoAnn Lee, Asst. Dist. Attys., Houston, for appellee.
Before PAUL PRESSLER, MURPHY and ELLIS, JJ.
OPINION
ELLIS, Justice.
Appellant, Horace Edward Catley, appeals a judgment of conviction for aggravated robbery, enhanced by two prior felony convictions. Appellant entered a plea of not guilty. The jury found appellant guilty and the court assessed punishment at fifty (50) years confinement in the Texas Department of Corrections. We affirm.
Appellant presents two points of error. He asserts the trial court erred in: (1) failing to sustain the defense objection to the makeup of the jury, based on the prosecutor's unexplained striking of minorities; and (2) admitting into evidence the fingerprint of the co-defendant, identified as appellant's brother.
In his first point of error, appellant claims the State exercised its peremptory challenges to strike minorities from the jury without explanation. He maintains such purposeful discrimination denied him federal and state constitutional guarantees of equal protection, as well as his right to a jury drawn from a cross-section of the community under article I, § 10 of the Texas Constitution. He asserts the trial court thus erred in denying his motion to quash the jury panel or his alternative motion for mistrial. We disagree.
It is clear that appellant bases his discrimination argument on the recent case of Batson v. Kentucky, ___ U.S. ____, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Batson holding must be applied retroactively; thus Batson is applicable to the case before us. Griffith v. Kentucky, ___ U.S. ____, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); Chambers v. State, 724 S.W.2d 440 (Tex. App.Houston [14th Dist.] 1987, pet. pending).
Batson has lowered the repeated occurrence evidentiary standard required of a defendant under Swain, in order for him to make a prima facie case of purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). A defendant may now establish a prima facie case of purposeful discrimination in jury selection solely on evidence concerning the prosecutor's exercise of peremptory challenges at his trial. To establish his prima facie case, a defendant (1) must show that he is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove from the venire, members of the defendant's race; (2) may rely on the fact that peremptory challenges permit "those to discriminate who are of a mind to discriminate"; and (3) must show that these facts *597 and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen on account of their race. Batson, 106 S.Ct. at 1723.
Even if appellant had established his prima facie case under Batson, the record shows he has not preserved error. Batson requires a defendant to have timely objected to the prosecutor's peremptory challenges before the jury is sworn. Appellant's oral motion was made after the jurors were sworn; and his written motion was not to have been submitted until the following day ("[T]he defendant moves the Court by oral motion to be filed [sic] by written motion in the morning, to quash the jury selection, in the alternative for a mistrial...."). Appellant has waived error by his untimely objection.
However, had error been properly preserved, appellant's oral motion does not present a proper equal protection objection to the purposeful discrimination addressed by Batson. The motion reads in pertinent part:
Of the 10 strikes accorded to them by statute 8 were exercised by [sic] minority members of this community which deprives this defendant an opportunity to have a fair trial and cross-section of the citizens of Houston for which purpose I ask you quash the jury selection and grant him a mistrial.
A Batson objection concerns invidious discrimination that violates a defendant's equal protection guarantee. Appellant, as a black defendant, had the burden of showing the prosecutor removed blacks from the venire, rather than "minorities." In fact, six blacks and two Hispanics were struck peremptorily by the State; and one black served on the jury. See Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App. 1987).
Under the first element needed to establish the Batson prima facie case, appellant did show he was a member of a cognizable racial group. However, he has not shown that the prosecutor exercised peremptory challenges to remove members of his race from the venire. His "peerage" objectioneight strikes were exercised against "minority members of this community which deprives this defendant an opportunity to have a fair trial and cross-section of the citizens of Houston ..." (emphasis added)does not constitute an equal protection objection.
We hold appellant's failure to have made a timely and specific motion is sufficient basis for the trial court to have overruled the motion without providing the opportunity for appellant to present evidence. Appellant's first point of error is overruled.
In a multifarious second point of error, appellant alleges the trial court erred in admitting into evidence the fingerprint of the co-defendant, identified as appellant's brother, over objection of counsel. In his brief, appellant quotes at length from defense counsel's motion for mistrial, made immediately upon his learning of the State's possession of Kenneth Catley's fingerprint from the scene of the robbery. A prior motion for discovery had not uncovered the existence of the print, which appellant concedes had apparently been inadvertently misfiled by the Houston Police Department.
Although appellant's point of error is far from clear, it is premised on the theory that the fingerprint of appellant's brother was irrelevant and thus inadmissible. The second portion of his argument contests the admissibility of the testimony of Officer Wesley Sheldon, the latent fingerprint examiner. Appellant maintains that Sheldon's testimony was inadmissible hearsay. We disagree with appellant's two contentions and hold the evidence of the fingerprint and Sheldon's testimony were both properly admitted.
A fingerprint lifted from the scene of a crime is clearly relevant and admissible evidence. It is for the jury to decide what weight and credibility it wishes to give such evidence. The trial court thus did not err in admitting the Kenneth Catley print into evidence.
Appellant argues as well in his multifarious point of error that Officer Sheldon's testimony was inadmissible hearsay. In so maintaining, appellant makes a factually *598 incorrect assertion. He concludes the testimony was hearsay because Officer Sheldon identified the owner of the fingerprint as the same person who was seated in the courtroom and positively identified by others as Kenneth Catley. Appellant states in his brief that "the fact that the fingerprint from the scene matched Appellant's brother's fingerprints, and that Appellant's brother was the same person seated in the courtroom, was definitely evidence of a hearsay statement...." In fact, the record shows that Sheldon, who was the Identification Division records custodian, never connected the Catley print to those of a man seated in the courtroom and identified as Kenneth Catley. Sheldon testified on cross-examination only that he compared the unknown print with prints on the arrest record of a Kenneth Edward Catley:
Q. Officer Sheldon, do you know of you did the prints that you used for comparison. Were they within your knowledge the prints of Kenneth Catley?
A. Yes.
Q. Within your knowledge?
A. Yes.
Q. The prints of Kenneth Catley?
A. Yes, that is correct.
Q. How many Kenneth Catleys do you know of?
A. Excuse me. Kenneth Edward Catley, Houston No. 313672.
Q. You don't know the individual?
A. No, I don't know the individual (emphasis added).
We find Sheldon's testimony, not being hearsay, was clearly admissible. Appellant's hearsay argument is meritless.
We note from the record that although Sheldon did not identify Kenneth Catley, who was in the courtroom at appellant's request (apparently to aid in his defense), Catley had been previously identified by other witnesses. The statement of facts shows that three witnessesthe savings institution branch manager, complainant Wanda Champ; the assistant manager; and a savings representativeall made positive in-court identifications of appellant as the first of the two robbers, as well as his brother, Kenneth Catley, as the second. Appellant's second point of error is overruled.
The judgment of the trial court is affirmed.
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726 S.W.2d 263 (1987)
Bobby Joe FOY, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-86-037-CR.
Court of Appeals of Texas, Waco.
March 5, 1987.
William E. Stallings, Waco, Walter M. Reaves, Jr., West, for appellant.
Vic Feazell, Crim. Dist. Atty., R.D. Rucker, Asst. Dist. Atty., Waco, for appellee.
OPINION
McDONALD, Justice.
This is an appeal by defendant Foy from conviction for felony driving while intoxicated for which he was assessed 5 years in the Texas Department of Corrections and fined $1,000.00.
Defendant was arrested in the early morning hours of July 14, 1985, when an officer of the Waco Police Department observed him driving without any headlights *264 down a dark street. The officer turned on his flashing lights, but Defendant ignored him, crossed a center median, entered the northbound traffic lane, passed the officer's car, and crossed the center median again. Defendant slowed his car to 5 to 10 miles per hour and eventually was stopped after he crossed a grassy lot onto another street. The officer requested Defendant to produce his license, but Defendant stated that he did not have one with him. Defendant was sitting behind the steering wheel, but slumped over to the right side. Defendant was also wearing sunglasses. The officer could smell alcohol on Defendant's breath, and noticed that his eyes were very bloodshot when he removed his glasses. His speech was also slurred. When asked to get out of the car, the officer had to assist him, and he staggered forward and then back against the car. In the opinion of the arresting officer, Defendant was very intoxicated.
Defendant appeals on 5 points.
Point 1 asserts: "The trial court erred in refusing to impanel a separate jury to determine [Defendant's] competency to stand trial, where evidence to support a finding of incompetency was produced by [Defendant] prior to the beginning of trial".
Defendant alleges that the trial court utilized the wrong standard in determining Defendant's competency to stand trial. We have reviewed the record and find that there was no evidence of incompetence sufficient to require the trial court to impanel a separate jury to determine Defendant's competence. See Sisco v. State, 599 S.W.2d 607, 613 (Tex.Cr.App. 1980); see also Hawkins v. State, 660 S.W.2d 65, 84-85 (Tex.Cr.App.1983); Futch v. State, 632 S.W.2d 743, 746 (Tex.Cr.App. 1982). Assuming without deciding that the trial court used an improper standard in determining Defendant's competence, we find that any such error is harmless.
Point 1 is overruled.
Point 2 asserts: "The trial court erred in failing to conduct a hearing outside the presence of the jury, to determine whether there was any evidence to support a finding of incompetency to stand trial, where evidence of [Defendant's] incompetency was brought to the court's attention during trial".
In Mata v. State, 632 S.W.2d 355 (Tex.Cr.App.1982), the Court of Criminal Appeals described in detail the two procedures for asserting a defendant's incompetence to stand trial under article 46.02. Section 2(a) of this article governs those instances in which the incompetence of Defendant was asserted prior to trial, as in the present case, while section 2(b) "controls the competency procedure if there has been no pretrial assertion of incompetency". Id. at 357. Since the issue of Defendant's competence was raised pretrial, the trial court was not required to sua sponte hold a competency hearing during the trial. Id. Moreover, after reviewing the record, we do not find that there was any evidence of Defendant's incompetency brought to the trial court's attention during trial that would have required a sua sponte determination of competency.
Point 2 is overruled.
Point 3 asserts: "The trial court erred in overruling [Defendant's] objection to the introduction of a video tape showing [Defendant] being booked into the McLennan County Jail, and asked to perform sobriety tests, because Defendant did not waive his right to have counsel present, and therefore the video tape was inadmissible pursuant to the provisions of article 38.22, § 3, Tex.Code Crim.Proc.Ann."
On the night Defendant was arrested, all events that transpired after Defendant was transported into the sally port were recorded on video tape. Defendant's Miranda[1] warnings were read to him, at which time Defendant stated that he did not understand all of his warnings and asked the officer to read the warnings once more. The officer then told Defendant *265 that he had the right to speak with an attorney prior to and during questioning. Defendant then asked to call his attorney. He was taken to a phone and given a phone book. Defendant fumbled around with the phone book, but never made the phone call. He told the officer that he would call his attorney in the morning. At that time, the officer took Defendant to the area designated for sobriety testing, and requested that Defendant walk nine steps heel-to-toe on the line. Defendant refused. The officer then asked Defendant if he would take an intoxilyzer test, and he refused to do so.
Defendant now complains that once he requested an attorney, all interrogation should have ceased and could not have resumed until Defendant's attorney was present. Defendant stated that since he requested an attorney, he did not waive his right to have an attorney present. We have viewed the video tape, and we find that Defendant did request an attorney, but that he later waived his right to counsel when he told the officer that he would not call his attorney at that time, but would call him in the morning. Thus, Defendant's rights were not violated. Moreover, it is clear from our viewing of the video tape that Defendant was not mistreated in any way by the officer during this period of his arrest. In fact, the officer was overly willing to abide by Defendant's wishes.
Point 3 is overruled.
Point 4 asserts: "The trial court erred in overruling [Defendant's] objection to the introduction [of] a video showing [Defendant] being booked into the McLennan County Jail because the video tape showed [Defendant] being compelled to perform sobriety tests, which violated [Defendant's] constitutional rights against self-incrimination".
Terry Fuller testified that he was in charge of running the video equipment during the time period in which Defendant was brought to the McLennan County Jail. He further testified that the video equipment appeared to be operating properly at the time Defendant was being taped; that he personally observed Defendant while he was being taped; that he reviewed the video tape on the morning prior to his testimony and that the video tape fairly and accurately represented the scene as it was at the time of the events depicted on the tape. He also testified that the tape did not appear to have been altered in any way. The video portion of the tape was viewed by the jury, while the audio portion was not played due to objection by Defendant.
The privilege against self-incrimination extends only to testimonial communications from a defendant, not to real or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); Delgado v. State, CA (San Antonio) no pet., 691 S.W.2d 722, 723 (1985). Article 38.22 of the Code of Criminal Procedure is based on the privilege against self-incrimination, but only applies to recordings of testimonial confessions made as the result of custodial interrogation. Wagner v. State, CA (Texarkana) no pet., 720 S.W.2d 827, 829 (1986). The video tape in this case was nontestimonial since the audio portion was not played, and thus does not violate the privilege against self-incrimination as contained in the State and Federal constitutions. Additionally, the showing of the video tape did not violate article 38.22 because it was not only nontestimonial, but it was not made as a result of custodial interrogation, pursuant to our discussion under point 3.
Point 4 is overruled.
Point 5 asserts: "The trial court committed fundamental error in submitting instructions to the jury on the law of parole under the authority of article 37.07, [section] 4, Tex.Code Crim.Proc.Ann., because such statute is unconstitutional".
The trial court properly instructed the jury in accordance with article 37.07, section 4, of the the Texas Code of Criminal Procedure. Defendant alleges that article 37.07, section 4, is unconstitutional because *266 it violates the separation of powers doctrine of the Texas Constitution.
Article 37.07, section 4, has been held to be constitutional. Rose v. State, 724 S.W.2d 832 (Tex.App.Dallas, 1986, no pet.) (on rehearing); Hardy v. State, CA (Houston 14) no pet., 722 S.W.2d 164, 166 (1986); Clark v. State, CA (Houston 1) no pet., 721 S.W.2d 424, 425-26 (1986); Patton v. State, CA (Fort Worth) no pet., 717 S.W.2d 772, 780 (1986). We do not find that article 37.07, section 4, violated the separation of powers doctrine.
Point 5 is overruled.
AFFIRMED.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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308 Md. 354 (1987)
519 A.2d 1269
TERRY LANG DILLSWORTH
v.
STATE OF MARYLAND.
No. 36 September Term, 1986.
Court of Appeals of Maryland.
January 27, 1987.
Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.
Valerie W. Loftin, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.
Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.
MARVIN H. SMITH, Judge, (retired), Specially Assigned.
Petitioner Terry Lang Dillsworth, after conviction by an Allegany County jury, was sentenced to consecutive terms for assault with intent to maim, disfigure or disable, and third degree sexual offense. At trial the victim testified that when Dillsworth attacked her he said he was going to rip out her vagina. She said further, "He put his hand inside me and started to pull and tear at me." Next, Dillsworth threatened to rip out the victim's throat. He placed two or three fingers down her throat and choked her. The Court of Special Appeals affirmed the convictions in Dillsworth v. State, 66 Md. App. 263, 503 A.2d 734 (1986).
We granted Dillsworth's petition for a writ of certiorari to consider his contentions that the convictions for assault with intent to maim and third degree sexual offense should have been merged and that the sentence was based, in part, upon impermissible considerations. We shall affirm.
I. Merger
Dillsworth contends that merger of the offenses of assault with intent to maim, disfigure or disable and third degree sexual offense is mandated by both the required evidence test and the rule of lenity.
A. The Required Evidence Test
We have consistently applied the required evidence test in determining whether two offenses are the same for double jeopardy purposes. See Brooks v. State, 284 Md. 416, 420-21, 397 A.2d 596, 598 (1979); Thomas v. State, 277 Md. 257, 266, 353 A.2d 240, 246 (1976). Judge Eldridge recently summarized the test for the Court in State v. Jenkins, 307 Md. 501, 515 A.2d 465 (1986):
"The normal test for determining whether one offense merges into another is the so-called `same evidence test' or `required evidence test' or, as it is often labeled, the `Blockburger test.'[[1]] This test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter." 307 Md. at 517, 515 A.2d at 473.
"Required" evidence is not to be confused with "actual" evidence. Under an actual evidence approach, offenses would merge whenever the evidence actually adduced at trial is substantially the same for both offenses. We have explicitly rejected the actual evidence test as our general standard for determining merger. Brooks, 284 Md. at 420-21, 397 A.2d at 598. We there said that "the cases in this Court have consistently taken the position that the general test for determining merger of offenses, as well as for deciding whether two offenses should be deemed the same for double jeopardy purposes, is the required evidence test." In Brooks we said that the required evidence test
"focuses upon the elements of the two crimes rather than upon the actual evidence adduced at trial. The `required evidence' refers to that evidence needed, as a matter of law, to prove the crimes. This was explained in Thomas v. State, 277 Md. 257, 267, 353 A.2d 240 (1976):
"The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode.'"
284 Md. at 420, 397 A.2d at 598 (emphasis in original; citations omitted).
Jenkins involved convictions for assault with intent to murder and assault with intent to maim, disfigure or disable. The two offenses were based on a single act: the shooting of another man during an altercation. We held that assault with intent to maim merges into assault with intent to murder when the offenses are based on the same, single act of assault. 307 Md. at 521-22, 515 A.2d at 475. The basis for the merger, however, was not the required evidence test. We said that under that test the offenses would not merge as each requires proof of a distinct element. Specifically, one offense requires proof of an actual, specific intent to murder. The perpetrator of an assault with intent to maim, disfigure or disable, on the other hand, contemplates that the victim shall live. Consequently, the two intents are "different in kind" and do not merge under the required evidence test. Id. at 515, 517-18, 515 A.2d at 472, 473.
We have applied the required evidence test in other cases, concluding that statutory daytime housebreaking with intent to steal does not merge with statutory breaking and entering a dwelling house, Hawkins v. State, 291 Md. 688, 436 A.2d 900 (1981); that solicitation to commit murder merges into the offense of being an accessory before the fact to the murder, Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979); that the underlying felony merges into a conviction for felony murder, Newton v. State, 280 Md. 260, 373 A.2d 262 (1977); that assault and the statutory offense of carrying a weapon openly with intent to injure do not merge, Cousins v. State, 277 Md. 383, 354 A.2d 825, cert. denied, 429 U.S. 1027, 97 S. Ct. 652, 50 L. Ed. 2d 631 (1976); and that assault merges into rape, Green v. State, 243 Md. 75, 220 A.2d 131 (1966).
We turn to the question of whether the two offenses involved here each requires proof of an element which the other does not.[2] Assault with intent to maim, disfigure or disable is proscribed by Maryland Code (1957, 1982 Repl. Vol.) Art. 27, § 386:
"If any person ... shall assault or beat any person, with intent to maim, disfigure or disable such person ... every such offender ... shall be guilty of a felony...."
The provisions relative to third degree sexual offense are found in Code (1957, 1982 Repl.Vol.) Art. 27, § 464B, which states in relevant part:
"(a) What constitutes. - A person is guilty of a sexual offense in the third degree if the person engages in sexual contact:
"(1) With another person against the will and without the consent of the other person, and:
"(i) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
"(ii) Inflicts suffocation, strangulation, disfigurement or serious physical injury upon the other person or upon anyone else in the course of committing that offense; or
"(iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping...." (Emphasis added.)
"Sexual contact" is defined in Code (1957, 1982 Repl.Vol.) Art. 27, § 461(f), as
"the intentional touching of any part of the victim's or actor's anal or genital areas or other intimate parts for the purposes of sexual arousal or gratification or for abuse of either party and includes the penetration, however slight, by any part of a person's body, other than the penis, mouth, or tongue, into the genital or anal opening of another person's body if that penetration can be reasonably construed as being for the purposes of sexual arousal or gratification or for abuse of either party."
Both offenses carry maximum penalties of ten years.
In Jenkins we said, "Assault with intent to maim, disfigure or disable ... requires one of these three enumerated statutory intents...." 307 Md. at 515, 515 A.2d at 472. Third degree sexual offense requires proof of forcible, unconsented-to sexual contact and, for purposes of this case, one of the enumerated aggravating circumstances, among which are included threatening or inflicting "disfigurement."
Assuming that under Green, 243 Md. 75, 220 A.2d 131, simple assault merges into a third degree sexual offense, the inquiry narrows to whether that relationship is affected by adding to simple assault the element of intent to maim, disfigure or disable. Clearly, third degree sexual offense requires elements which assault and assault with intent to maim, disfigure or disable do not. For example, the sexual offense requires proof that a specific part of the body was touched or penetrated, and that the purpose was sexual arousal, sexual gratification, or abuse. Consequently, unless it can be said that an actual, specific intent to maim, disfigure or disable constitutes an element of third degree sexual offense, there can be no question but that each offense requires proof of an element which the other does not. As earlier noted, either the infliction or the threatening of disfigurement would satisfy the aggravating circumstance requirement of third degree sexual offense. Code (1957, 1982 Repl.Vol.) Art. 27, § 464B(a)(1)(ii), (iii). However, neither inflicting nor threatening disfigurement necessarily involves an actual, specific intent to disfigure. For example, it is quite possible to inflict disfigurement without having a specific intent to do so. Similarly, one could threaten disfigurement without having any actual intent of carrying out the threat. Although an actual intent to disfigure could accompany the infliction or threat, § 464B does not require such an intent. The language we quoted earlier from Thomas, 277 Md. at 267, 353 A.2d at 246-47, offers guidance: "The required evidence is that which is minimally necessary to secure a conviction for each statutory offense." (Emphasis added.) We conclude that there is no merger of these two crimes under the required evidence test.
B. The "Rule of Lenity"[3]
Although the required evidence test is the normal standard for determining whether offenses merge, we, as observed in Jenkins, have "recognized on several occasions ... [that it] is not the exclusive standard." 307 Md. at 518, 515 A.2d at 473. In Jenkins we quoted from Brooks, 284 Md. 416, 397 A.2d 596:
"[E]ven though offenses may be separate and distinct under the required evidence test, courts occasionally find as a matter of statutory interpretation that the Legislature did not intend, under the circumstances involved, that a person could be convicted of two particular offenses growing out of the same act or transaction. See, e.g., Simpson v. United States, 435 U.S. 6, 13-16, 98 S. Ct. 909 [913-915], 55 L. Ed. 2d 70 (1978); United States v. Gaddis, 424 U.S. 544, 547-548, 96 S. Ct. 1023 [1025-1026], 47 L. Ed. 2d 222 (1976); Ladner v. United States, 358 U.S. 169, 173-178, 79 S. Ct. 209 [211-214], 3 L. Ed. 2d 199 (1958); Prince v. United States, 352 U.S. 322, 327, 77 S. Ct. 403 [406], 1 L. Ed. 2d 370 (1957); Bell v. United States, 349 U.S. 81, 83-84, 75 S. Ct. 620 [622-623], 99 L. Ed. 905 (1955); Thessen v. State, 508 P.2d 1192, 1195-1197 (Alas. 1973); Manning v. United States, 270 A.2d 504, 506 (D.C. 1970); State v. McCarroll, 337 So. 2d 475, 478-479 (La. 1976)." 284 Md. at 423-24, 397 A.2d at 600.
We concluded in Jenkins "that assault with intent to murder and assault with intent to maim, disfigure or disable, when based on the same single act of assault, should not be viewed as entirely separate crimes for purposes of conviction and sentence." 307 Md. at 521, 515 A.2d at 475. In so holding we observed that courts in other jurisdictions have reached the same conclusion with regard to single acts of assault which meet statutory requirements for more than one aggravated assault. We quoted from Manigault v. State, 61 Md. App. 271, 486 A.2d 240 (1985), where Judge Moylan said for the court:
"Indeed, an assault with intent to rob and an assault with intent to murder arising out of the same attack are not separate crimes at all, but rather separate modes of aggravating a common crime. A defendant who has assaulted his victim with the concomitant specific intents to rape her, to rob her, and to kill her, has committed not three crimes but one. That one has simply been aggravated upward to the felony plateau in three different ways. An uncritical application of the Blockburger test, simply comparing elements, might make it appear that assault with intent to rob, assault with intent to murder, and assault with intent to rape are all separate crimes because each possesses a distinct element. It is not a proper occasion to apply the Blockburger test, however, because these are but various forms of aggravating a common undergirding offense. By the same token, an uncritical application of the Blockburger test would indicate that premeditated murder and felony-murder are separate crimes, but we know that they are but alternative modes of aggravating a single crime.
"A murder aggravated up to the first-degree level two separate ways does not become two murders. Neither does an assault aggravated up to the felonious level in two separate ways become two assaults.
"It might facilitate our ability to conceptualize the relationship if we thought of common law assault as `assault in the second degree' and of the various aggravated assaults as forms of `assault in the first degree.'" 61 Md. App. at 285 n. 2, 486 A.2d at 247 n. 2.
Clearly, the instant case is distinguishable to the extent that it involves more than "an assault aggravated up to the felonious level in two separate ways."
We have alluded to the doctrine of merger by legislative intent in several other decisions. See State v. Boozer, 304 Md. 98, 497 A.2d 1129 (1985) (legislative intent compatible with notion that single criminal episode can give rise to multiple sexual offense charges); State v. Oliver, 302 Md. 592, 611 n. 12, 490 A.2d 242, 251 n. 12 (1985); Whack v. State, 288 Md. 137, 416 A.2d 265 (1980), appeal dismissed and cert. denied, 450 U.S. 990, 101 S. Ct. 1688, 68 L. Ed. 2d 189 (1981); Brooks, 284 Md. at 423-24, 397 A.2d at 600; Newton, 280 Md. at 274 n. 4, 373 A.2d at 269 n. 4 (Legislature may indicate intent to impose punishment under two statutes, even though the offenses are the "same" under the required evidence test). Aside from Jenkins, however, Whack is the only other case in which the doctrine was squarely before the Court. Tommy Whack received consecutive sentences for robbery with a deadly weapon (Code (1957, 1976 Repl.Vol.), Art. 27, § 488) and use of a handgun in the commission of a felony (Art. 27, § 36B(d)). Both offenses occurred during the course of a single robbery. In upholding the sentences we first observed that there was no legislative history indicating the General Assembly did not intend multiple punishment for violation of both statutes. We stated that a mere absence of legislative history, however, would not preclude merger: "any doubt concerning the legislative intent should be resolved against turning one transaction into multiple offenses...." 288 Md. at 144-45, 416 A.2d at 268-69, citing Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). We held that, lack of legislative history notwithstanding, the General Assembly clearly intended to permit multiple punishment for robbery with a handgun. First,
"[I]n enacting the handgun act, [Section 36B(d)] the Legislature was concerned with the matter of duplicative legislation. Where it desired no duplication it specifically amended or superseded those other statutes. Against this background, it is significant that the General Assembly did not amend Art. 27, § 488, to delete handguns from the coverage of that robbery statute." 288 Md. at 146, 416 A.2d at 270.
Moreover, the very language of § 36B(d) mandated multiple punishment. Among other things, the section made use of a handgun in the commission of a felony a "separate misdemeanor" and provided for a sentence "in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor." 288 Md. at 147. 416 A.2d at 270.
The doctrine of merger by legislative intent operates as a rule of statutory construction and is not constitutionally mandated. Nevertheless, we and the Court of Special Appeals have examined applications of the doctrine by the Supreme Court. As a matter of statutory interpretation, the Supreme Court has held that the following offenses merge: robbery by the use of a dangerous weapon or device (18 U.S.C. § 2113(d)) and use of a firearm to commit a federal felony (former 18 U.S.C. § 924 (c)), Simpson, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (distinguished in Whack, 288 Md. 137, 416 A.2d 265); bank robbery (18 U.S.C. § 2113(a), (b), (d)) and receiving or possessing the proceeds of that robbery (former 18 U.S.C. § 2113(c)), United States v. Gaddis, 424 U.S. 544, 96 S. Ct. 1023, 47 L. Ed. 2d 222 (1976); multiple convictions of assaulting a federal officer with a deadly weapon, where a single gunshot causes injury to more than one officer (former 18 U.S.C. § 254 (1940)), Ladner v. United States, 358 U.S. 169, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958); robbery of a federally insured bank and entering the bank with intent to commit a felony (18 U.S.C. § 2113), Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957); and multiple convictions for violation of the Mann Act (18 U.S.C. § 2421) where two women were transported at the same time, Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955).
In holding the policy of lenity to be inapplicable, the Court in Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958), distinguished Bell. Gore involved violations of three federal narcotics laws in a single sale of narcotics on each of two different days for a total of six counts. Justice Frankfurter said for the Court:
"It is one thing for a single transaction to include several units relating to proscribed conduct under a single provision of a statute. It is a wholly different thing to evolve a rule of lenity for three violations of three separate offenses created by Congress at three different times, all to the end of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics. Both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity but of severity toward violation of the narcotics laws." 357 U.S. at 391, 78 S.Ct. at 1284, 2 L.Ed.2d at 1409.
In Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981), consecutive sentences were imposed for both conspiracy to import marijuana and conspiracy to distribute marijuana. The violations stemmed from a single conspiracy having a dual objective. Despite an absence of legislative history on the question of multiple punishment, the Court held the rule of lenity inapplicable:
"Lenity ... serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation `at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.' Callanan v. United States, [364 U.S. 587], 596 [, 81 S. Ct. 321, 326, 5 L. Ed. 2d 312, 319 (1961)].
"In light of these principles, the rule of lenity simply has no application in this case; we are not confronted with any statutory ambiguity. To the contrary, we are presented with statutory provisions which are unambiguous on their face and a legislative history which gives us no reason to pause over the manner in which these provisions should be interpreted.
"The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. `Importation' and `distribution' of marihuana impose diverse societal harms, and, as the Court of Appeals observed, Congress has in effect determined that a conspiracy to import drugs and to distribute them is twice as serious as a conspiracy to do either object singly. 612 F.2d [906], at 918 [5th Cir.1980]." 450 U.S. at 342-43, 101 S.Ct. at 1144, 67 L.Ed.2d at 284 (emphasis added).
The concept that lenity is an aid for resolving ambiguity and not a device for creating it was echoed in Johnson v. State, 56 Md. App. 205, 216, 467 A.2d 544, 549 (1983), cert. denied, 299 Md. 136, 472 A.2d 999 (1984). In that case the Court of Special Appeals declined to require merger of assault with intent to murder and attempted robbery with a dangerous or a deadly weapon. Judge Adkins reviewed for the court a number of the pertinent cases in the Supreme Court, this Court, and the Court of Special Appeals:
"A common thread connects all the cases we have just discussed. It is the assumption (often not articulated) that under the circumstances of a given case, it is reasonable to believe that the legislature that enacted a particular statute or statutes would express some intent as to multiple punishment. That assumption is appropriate when a single act is charged as multiple offenses under a single statute (Ladner, Bell and Prince), where the subject of two statutes is of necessity closely intertwined (Loscomb [v. State, 45 Md. App. 598, 416 A.2d 1276 (1980)] and Fields [v. State, 50 Md. App. 717, 439 A.2d 1121 (1982)], where one offense is necessarily the overt act of a statutory offense (Walker [v. State, 53 Md. App. 171, 452 A.2d 1234 (1982)], and where one statute, by its very nature, affects other offenses because it is designed to effect multiple punishment (Whack). Under those circumstances, it is not unreasonable to assume that the legislative body contemplated the possibility of multiple punishment and to conclude that unless the intention in favor of multiple punishment is clear, as in Whack, the Rule of Lenity or its equivalent should be applied against the imposition of multiple punishment." 56 Md. App. at 215, 467 A.2d at 548-49.
If the analytical framework enunciated in Johnson is applied to the case at bar, it quickly becomes apparent that this is not a proper case for invoking the doctrine of merger by legislative intent. The prohibition against an assault with intent to maim, disfigure or disable was enacted by ch. 99 of the Acts of 1853. Code (1957, 1982 Repl.Vol.) Art. 27, § 386. Article 27, §§ 461 et seq., the sexual offense legislation, was enacted in 1976, 123 years later. Ch. 573 Acts of 1976. As Judge McAuliffe noted for the Court in Boozer, 304 Md. at 102, 497 A.2d at 1131, this legislation was a comprehensive package "to reform and codify this State's rape and sexual offense laws." In discussing the prohibition against fourth degree sexual offense set forth in Art. 27, § 464C, Judge McAuliffe observed for the Court:
"[I]t is clear that many of the various acts of criminal conduct grouped together in § 464C historically and customarily have been considered sufficiently separate and distinct from each other to justify separate punishment, even though occurring in close temporal proximity and within the same criminal episode. Prior to the 1976 revision of our rape and sexual offense laws, a defendant in this State could have been separately charged and punished with offenses now grouped within § 464C." 304 Md. at 104, 497 A.2d at 1132.
There is no indication that the General Assembly considered the question of multiple punishment in those instances where a consumated sexual offense embodies an assault with intent to maim, disfigure or disable. Furthermore, assault with intent to maim, disfigure or disable and third degree sexual offense do not fall within any of the categories set forth in Johnson. In other words, the two offenses (1) do not constitute conduct proscribed by a "single statute"; (2) are not "of necessity closely intertwined," and (3) do not relate to each other in such a manner that one offense is "necessarily the overt act" of the other. Nor is this a situation in which one of the statutes "by its very nature [] affects other offenses." Because none of those relationships exists, there is no reason "to assume that the legislative body contemplated the possibility of multiple punishment" and the doctrine of merger by legislative intent is not triggered.
II.
Dillsworth next contends that the trial judge in imposing sentence improperly considered the large number of criminal charges lodged against him on prior occasions. For various reasons many of those charges never resulted in convictions. Dillsworth points out that a sentencing court's consideration of mere "bald accusations of criminal conduct" contravenes Maryland decisional law. See Henry v. State, 273 Md. 131, 328 A.2d 293 (1974); Purnell v. State, 241 Md. 582, 217 A.2d 298 (1966); Walker v. State, 186 Md. 440, 47 A.2d 47 (1946).[4] Although Dillsworth correctly states the law, the record simply does not support his factual assertion.
Specifically, Dillsworth takes issue with the following comment by the trial judge:
"And whether or not society has responded to all of Mr. Dillsworth's problems, I don't know, nor is it my job to at this stage worry too much about that. My job right now is to make sure society is protected and society responds appropriately to this kind of conduct. I will observe in fairness ... and this does enter into my sentencing ... that, as pointed out by [Dillsworth's attorney,] Mr. Smith, while Mr. Dillsworth has a criminal experience that numbers a couple of pages, if you consider all of those factors individually, one is struck by the fact that up till now Mr. Dillsworth has had a number of charges placed against him that have in one fashion or another been nol-prossed or dismissed, or otherwise resulted in at least a favorable outcome to Mr. Dillsworth, so that he has actually only been convicted of a few matters up till now. And I recognize that. That for whatever reason in the past he has not had the type of criminal conviction record that one would expect when you look at the two to three pages of his involvement."
The trial judge's remarks concerning the prior charges appear to have been entirely fair and proper. He expressly took into account the fact that Dillsworth had relatively few convictions despite the length of his criminal record. By negative inference, then, the trial judge did not permit the so-called "bald accusations" to enter into his determination of sentence. This conclusion is bolstered by an exchange which occurred earlier during the sentencing hearing:
"MR. SMITH: Yes, sir, Your Honor. On previous convictions, Mr. Moessinger states that he has a long and varied criminal record. However, when you go over the record, Your Honor, you'll find that as a minor he apparently abused alcohol and at one point was sent to the Springfield State Hospital for alcohol treatment. Then as far as other convictions are concerned you have the forgery for which he got two years probation, the bad check, and the malicious destruction of property. Everything else was he was either found not guilty or was nol-prossed. So his record while he has a long arrest record, he does not have a long conviction record. The bad checks, the forgery, and the one thirty day for malicious destruction of property when he had an argument with his brother over a house roof.
"BY THE COURT: Well I'll ... will draw my own conclusions as to the nature of the gentleman's criminal record based on the pages that are set forth here, and I can note the distinction between convictions and being charged, so all that will be considered and has been considered by me."
It seems clear from the record that the trial judge did not base Dillsworth's sentences on the criminal charges which did not result in convictions. Accordingly, his contentions to the contrary are without merit.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.
NOTES
[1] Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). The required evidence test in fact antedates Blockburger. For a discussion of the history of the test, see Thomas v. State, 277 Md. 257, 353 A.2d 240 (1976).
[2] Green v. State, 243 Md. 75, 220 A.2d 131 (1966), which held that assault merges into rape, does not of itself mandate merger. In this case the assault possesses an additional required element: the intent to maim, disfigure or disable.
[3] The cases suggest that "rule of lenity" and "merger by legislative intent" are interchangeable terms.
[4] At the same time, it is proper for a sentencing judge to consider reliable evidence of the details and circumstances surrounding a criminal charge of which a defendant has been acquitted. See, e.g., Logan v. State, 289 Md. 460, 481, 425 A.2d 632, 643 (1981); Henry v. State, 273 Md. 131, 148, 328 A.2d 293, 303 (1974); see also Smith v. State, 308 Md. 162, 517 A.2d 1081 (1986). This principle has not been raised, however, in the case at bar.
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519 A.2d 638 (1986)
In the Matter of Derek W. BURNS, A Minor Child.
Supreme Court of Delaware.
Submitted: June 10, 1986.
Decided: December 19, 1986.
Carolyn R. Schlecker (argued) and Merril L. Zebe (argued), of Community Legal Aid Society, Inc., Wilmington, for appellant.
Beth E. Evans (argued), of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for appellee The Children's Bureau, Inc.
Janice R. Tigani, Dept. of Justice, Wilmington, for appellee Div. of Child Protective Services.
Before HORSEY, MOORE and WALSH, JJ.
*639 MOORE, Justice.
In this termination of parental rights case we consider for the first time the State's obligations to promote family stability and preserve the family unit, whenever feasible, under the federal Adoption Assistance and Child Welfare Act of 1980 (the "Child Welfare Act" or the "Act")[1] and concomitant Delaware law, 29 Del.C. §§ 9001, 9003(3)(a-b), (4).
The Family Court terminated the parental rights of Judy Burns and David Black in their illegitimate minor son, Derek. For ease of reference, and to protect the identities of the parties, we have used pseudonyms. The Delaware Division of Child Protective Services ("DCPS" or ("the Division"), a state agency, and the Children's Bureau of Delaware, Inc. ("the Children's Bureau") sought to terminate these parental rights, alleging that both parents were unable, and had failed, to plan adequately for Derek's physical needs under 13 Del.C. § 1103(5).[2] The father's rights were terminated *640 because he abandoned and failed to plan adequately for Derek.[3] No appeal has been taken from that decision. Relief was granted against the mother for her alleged failure to plan adequately for the child.
The mother appeals the trial court's ruling on several grounds, only two of which are pertinent to our decision: (1) that the mother, then a minor, was forced to relinquish custody of Derek without any independent advice, and denied her basic due process rights at every important stage of the termination proceedings; and (2) that the Family Court failed to apply the provisions of the Child Welfare Act to this case. There is merit to both of these contentions, and they find ample support in the record. Accordingly, we reverse and return custody to the mother.
I.
Judy Burns, the mother, was born on April 9, 1966. When she was one month old, she and her siblings were taken from their natural parents and placed in foster homes by the Division. She remained with one foster family for ten years until the Division deemed the situation unsatisfactory. From that time until she was approximately seventeen, Judy lived in at least thirteen other places, either in shelters, foster homes or with relatives.
On August 21, 1983, while still an unwed minor in the custody of the Division, Judy gave birth to Derek. She was seventeen years old and was then living with her natural mother in Chicago. Judy's living arrangements with the child's father and with her family were unsatisfactory and she returned to Delaware, with Derek, in October 1983. Thereafter, she lived for some time with her natural father, and then with her natural brother and a previous foster sister. As often happens in such unfortunate circumstances, Judy's relationships with these people deteriorated, leaving her destitute and homeless.
As a minor still in the technical custody of the Division, she turned to it for help. On January 4, 1984, at the age of seventeen, and without the guidance or counsel of any independent person who could advise her of the extent and purport of her action, Judy was required by DCPS, as a condition of its assistance, to sign a document called a Voluntary Placement Agreement. This three-page instrument, filled with legal terms and the esoteric language of social workers, was of broad effect. It provided for the "placement" of both Judy and Derek solely because "we don't have a place to stay". There is no suggestion that Derek was a neglected, abused or abandoned child. Among this agreement's various provisions were the following:
I understand that I have the right at any time to ask that my child(ren) be returned. The Agency will return my child(ren) to me within 48 hours (except weekends) of my request unless the Agency determines that the child(ren) would be at risk of dependency, neglect or abuse.
*641 My worker will make a home evaluation before releasing my child(ren) to me. If I refuse to cooperate in this evaluation or if the Agency believes my child(ren) are at risk of dependency, neglect or abuse when I request their return or at any time while they are in Agency care, the Agency will ask the court to issue a custody order so that my child(ren) may stay in Agency care.
If a court order is requested, I have a right to have an attorney represent me in hearings which may occur before the court can order my child(ren) into Agency care and custody.
I understand that this agreement and voluntary placement cannot last more than 90 days. It will end on 4/2/84. By this date I understand that one of the following two events must occur:
1) my child(ren) will be returned to me, or
2) the Agency will obtain legal custody of my child(ren) so that he/she/they can remain in placement.
(Emphasis in original)
Execution of this document was something of a Hobson's choice offered the mother by a Division social worker. Either Judy signed or Derek would be taken from her. While the social worker described the matter more euphemistically, the mother's account was not disputed in any essential detail:
MS. SCHLECKER: Okay. But, do you remember signing any documents about [Derek's] custody?
MS. [BURNS]: Yes, I do. There was one document that I did not quite understand, that she summed it up in one sentence.
MS. SCHLECKER: Okay. What, what did she what did she sum up? What did she say?
MS. [BURNS]: It was a document that she, she had explained to me that if I did not sign this document, [Derek] and I would be on the streets and they would have to take [Derek] from me. If I signed the document, [Derek] would go with me.
MS. SCHLECKER: So, you thought you were signing a document that meant [Derek] would always stay with you?
MS. [BURNS]: Yes. That's the way that she had explained it to me. Those were her words.
Next, allegedly to meet federal funding requirements, the Division had Judy, then still a minor, sign a "consent" awarding Derek's custody to it. Again, the mother had neither advice nor counsel from any independent source before she relinquished custody of her child.
This document stated that a hearing would be held on April 2, 1984, at which time custody would be transferred to the Division unless contested by the mother. Although the consent form required specific factual bases for the transfer, the only reason listed was "he's [Derek] in placement because we have no place to stay." On January 30, after one aborted attempt by DCPS at an undesirable and unsatisfactory foster care arrangement, Judy and Derek were placed in the home of Margaret Draper.
Thereafter, Judy began job training and worked toward obtaining her GED at the Howard Skills Center. She narrowly missed passing the GED test. Although trained in the clerical field, the only job offered her through the school placement office was part-time work at a fast-food restaurant, which she accepted.
On April 4, after a hearing at which Judy was not present, and of which she had neither notice nor knowledge, a Master of the Family Court awarded custody of Derek to DCPS principally on the basis of the signed consent form.[4] Concurrently, the relationship between Judy and Mrs. Draper deteriorated. When Judy reached the age *642 of eighteen, on April 9, 1984, and relying on the terms of the "voluntary" placement agreement, she notified DCPS that she was terminating the arrangement and would leave the Draper home, taking her son with her to live temporarily at her natural father's house.
However, Mrs. Draper refused to let her leave with Derek. Judy then became hysterical, the police were called, and Derek was forcibly taken from her. Judy left the Draper house and Derek was given to the care of the Children's Bureau. Since that time, this mother and child have lived apart, and nothing was done by DCPS to provide Judy and Derek with other housing so that they could continue living together and maintain the close family relationship that had existed.
The Children's Bureau placed Derek in a foster home on April 16, and assumed the Division's responsibilities and duties to Judy and Derek through a purchase-of-care agreement. With no help from either her family or DCPS, Judy lived a transient lifestyle with little stability, despite her apparent good faith efforts to provide living and working arrangements of some permanence.
In June a Children's Bureau case worker, Patricia Jacobs, attempted to establish a plan with Judy for Derek's care. Jacobs proposed that Judy be evaluated and receive whatever counseling was indicated, that Judy might benefit from "parenting" classes, and that Judy would be expected to participate in weekly counseling and weekly visits with Derek at the Children's Bureau. The plan also called for Judy to secure adequate living quarters and suitable day care for Derek. Although the Children's Bureau, now acting in DCPS's stead, did nothing whatever to reunite this mother and child as a family unit, the plan rather disingenuously stated that the separation was because "no other joint placement was available." Understandably, the mother refused to sign this document.
Judy subsequently planned to marry a long-distance truck driver and move to Oklahoma. She submitted to a psychiatric evaluation, and agreed to have her fiance meet with Jacobs. Dr. Leon Green examined Judy, and reported that "from this interview I don't find anything seriously to contraindicate giving a chance to replacement of Derek with his mother." In a postscript, Green wrote: "Her life has been unstable, but there are enough positive signs and trends, that should she get settled in Oklahoma, replacement of Derek with her ought to be tried."
Judy then moved to Oklahoma in an attempt to establish a new life. Although unable to visit Derek, she remained in contact with Jacobs and asked about the well-being of her son. Unfortunately, the proposed marriage and its more permanent arrangements did not materialize. She then took a job in New Jersey as a housekeeper for a man and his two sons, receiving room, board and $40 per week. Thus, in November 1984, Judy and Patricia Jacobs again attempted to formulate a plan of care based on Judy's new circumstances. This proposal required Judy to maintain a stable living arrangement for six months, work with a local agency in seeking parental educational help, allow the agency to conduct an in-depth evaluation of her situation, and to reestablish regular patterns of visitation with Derek and meetings with her case worker.
Again, the mother's residence and position in New Jersey did not last. In January 1985, Judy moved to the Philadelphia area, where she supported herself with odd jobs and living with various friends. The Children's Bureau then changed its recommendation for Derek's future in March of 1985, and sought to terminate Judy's parental rights. The revised plan for Derek's care, dated April 11, 1985, stated:
"Miss [Burns] has not presented a reasonable plan for Derek's care. One essential component of a reasonable plan would be for her to maintain a stable living situation for at least six months. She has been at her present home since December 23, 1984. She lost her job in *643 January 1985. Derek has been separated from her since April 16, 1984. Thus, she has failed to present a plan for his care for a year."
Judy refused to sign this document.
At a Foster Care Review Board hearing on June 3, Hearing Officer Mary Lawson agreed with the Children's Bureau's decision to seek termination of parental rights, but ruled that the Bureau and DCPS were to arrange for counseling with specific treatment objectives and to continue their reunification efforts in the meantime. DCPS and the Children's Bureau sought de novo review of this decision from the Family Court.
This review was combined with the Family Court hearing in late August, 1985, on the petition for the termination of Judy's parental rights. The Family Court ruled in favor of DCPS and the Children's Bureau on the de novo review, noting in a footnote that the agency's decision to discontinue initiating reunification plans, and to simply cooperate with Judy's increased visitation requests pending the termination hearing, was appropriate under the circumstances.[5] The Family Court terminated Judy's parental rights.
The trial judge found that the Children's Bureau had shown by clear and convincing evidence that Judy was unable, or had failed, to plan adequately for Derek's needs. However, at the time of this hearing, Judy was a cabaret dancer earning approximately $200 to $250 per week. As an economic measure, and there is no suggestion otherwise, she shared a three-bedroom apartment with two males. She testified that there was room for Derek. Nonetheless, the court concluded that termination would be in the best interests of the child. Judy's appeal followed.
II.
This Court will draw its own inferences and deductions, making its own findings and conclusions, whenever those of the trial judge are not supported by the record and are not the product of an orderly and logical deductive process. Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972). However, where the issue on appeal is one of law, the scope of review is de novo. Wife (J.F.V.) v. Husband (O.W.V., Jr.), Del.Supr., 402 A.2d 1202, 1204 (1979).
The Family Court may terminate parental rights when facts justifying such relief exist, based always on the best interests of the child. 13 Del.C. § 1108(a). See Daber v. Division of Child Protective Services, Del.Supr., 470 A.2d 723, 726 (1983); Cline v. Hartzler, Del.Supr., 227 A.2d 210, 212 (1967). DCPS must prove by clear and convincing evidence that termination of parental rights is essential to the child's welfare. Patricia A.F. v. James R.F., Del. Supr., 451 A.2d 830, 832 (1982).
The grounds for the termination of parental rights are set forth in 13 Del.C. § 1103. Section 1103(5)a. provides, in part, *644 for termination of parental rights under the following circumstances:
(1) Where the person(s) holding parental rights are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development; and,
(2) the child has been in the care of an authorized agency for one year; and,
(3) the conditions which led to the child's placement persist, and it is unlikely that these conditions will be remedied in the near future.
Whether termination is in the child's best interests "necessarily depends upon the facts in the context in which the petition is presented." Daber, 470 A.2d at 726; Matter of Three Minor Children, Del.Supr., 406 A.2d 14, 19 (1979). The statutory criteria listed in 13 Del.C. § 722(a) for the determination of a child's best interests in a custody action apply with equal force to a termination proceeding. Daber, 470 A.2d at 727; Matter of Three Minor Children, 406 A.2d at 19. Section 722(a) requires the court to consider "all relevant factors including: (1) The wishes of the child's parent...; (2) The wishes of the child ...; (3) The interaction and interrelationship of the child with ... any other person who may significantly affect the child's best interests; (4) The child's adjustment to his home, school, and community; and (5) The mental and physical health of all individuals involved." 13 Del.C. § 722(a).
The interests of the child remain paramount, and all questions of statutory interpretation must be settled in light of this objective. Moreover, where the best interests of the child and those of the parent conflict, the best interests of the child shall prevail. 13 Del.C. § 1113[6]; Daber, 470 A.2d at 727.
Based on these standards, the Family Court ruled that the best interests of the child would be served by termination of the mother's parental rights. The court found that Judy had consistently failed to comply with several case plans, and that her post-petition attempts to visit with Derek and to seek a return of custody were insufficient.
[T]he court, based upon the evidence presented, is satisfied that conditions which led to the child's placement with foster care in January of 1984 continue to persist with little likelihood that those conditions, namely the mother's failure or inability to achieve a stable lifestyle in one location for a reasonable period of time and to obtain a secure job commensurate with her job training level, will be remedied at an early date so that the child can be returned to her in the near future.
Matter of Derek Wayne B., slip op. at 8.
The court cited Judy's failure to make good-faith efforts at developing "parenting" skills or suitable living arrangements, and ruled that such inaction, even if unintentional, could not be condoned if it was adverse to Derek's best interests.
III.
Stripped of all other considerations and factors, the bare facts may support a facile conclusion that this very young and immature mother had failed to plan adequately for Derek's needs within the meaning of Section 1103(5), and that the conditions which led to his placement still persisted when Judy's parental rights were terminated. However, the failure of DCPS and the Family Court to recognize and comply with both the minimal requirements of due process and the Child Welfare Act at several steps along the path to termination of the mother's parental rights, including the Children's Bureau's failure to meet its obligations under the Act, vitiate the trial court's judgment and mandate reversal.
*645 The parental right is a sacred one. It does not depend on societal standards or mores of lifestyle, age, economic achievement or sex. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599 (1982). Certainly, it does not hinge on spoken or unspoken amorphous concepts of a "model" or "ideal" parental environment contrived by the mind of a social worker or judge. Were that the norm, few would qualify for a role and relationship that usually reflects success, not by the exhaltation of great achievements, but by an effort to minimize one's failures. In that spectrum there are many hues, and none remain constant. Thus, it is this State's policy that when governmental interference looms:
Fewer rights are more sacred than those which derive from the parent-child relationship. A society which arrogates to itself the power to intervene and disrupt that relationship can do so only for the most compelling reasons necessary to correct or protect a child from circumstances which directly threaten or affect the minor's physical or emotional health...
This places in the balance issues of parental rights versus responsibilities, and when there is an absence of performance of the latter, there is no presumption or compelling rule that the former are entitled to any overriding or paramount considerations in the scale of human values and relationships.
Daber, 470 A.2d at 726.
The powers, duties and functions of the DCPS have now been assigned to, and assumed by, the Department of Services for Children, Youth and Their Families (the Department) under 29 Del.C. §§ 9010 and 9012. The DCPS, however, continues as an agency of the Department. 29 Del.C. § 9006(1). By statute, the Department and its components must adhere to basic principles of due process in regard to all procedures which affect the rights of children and their families. Thus, 29 Del.C. § 9003(11), commands the Department
[t]o establish, implement and follow procedures and standards compatible with due process of law with respect to the removal of a child from his home, a change in the placement of a child who is under the supervision or custody of the Department, and any other actions by the Department that may affect the legal rights of a child and his or her family ...
This judicial policy and statutory mandate are consistent with the guidance from the United States Supreme Court that:
"This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to `the companionship, care, custody and management of his or her children' is an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.'"
Lassiter v. Dept. of Social Services of Durham County, 452 U.S. 18, 27, 101 S. Ct. 2153, 2159-60, 68 L. Ed. 2d 640 (1981), (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972).
The Supreme Court later reaffirmed this principle:
"The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."
Santosky, 455 U.S. at 753, 102 S.Ct. at 1394-95.
The due process standards applicable here turn on the balancing of three factors: (1) the private interest that will be affected by the official action; (2) the risk that there will be an erroneous deprivation of the interest through the procedures used and the probable value of any additional or substitute procedural safeguards; and, (3) the government interest involved, including the added fiscal and administrative burdens that additional or substitute procedure would require. Santosky, 455 U.S. at 754, 102 S.Ct. at 1395; Mathews v. Eldridge, *646 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).
However, our decision does not derive from the United States Constitution. The applicable Delaware principles are concomitant with, but not dependent upon, like concepts of federal constitutional law. Thus, they stand on independent judicial and statutory bases, clearly enunciated by this Court and the General Assembly as mandated by the due process standards of the Delaware Constitution. Del. Const. art. I., §§ 7 and 9; 29 Del.C. § 9001, et. seq. See Daber, 470 A.2d at 726.
Here, the due process issues begin with Judy's "voluntary" execution of the placement agreement on January 4, 1984, followed by the so-called "consent", signed on January 30, 1984, purporting to "voluntarily" transfer Derek's custody to the Division. These documents of vast import were executed by a minor without the assistance of counsel, a guardian ad litem, or any independent person standing in loco parentis. While the Division technically had custody of Judy, it could hardly satisfy due process standards by any advice it rendered in getting her to convey her own parental rights to the Division.
Judy's need for some form of independent advice was amply demonstrated in the course of the next eight months. What seemed to be a mere bureaucratic condition of locating a joint home for mother and child became the lever by which DCPS sought to permanently separate the two.
Judy, led to believe that she could revoke her consent to the transfer of custody, attempted to leave the Draper house with her child. Instead, the two were forcibly separated on the basis of an ex parte order granting custody to the DCPS on April 4, 1984 by a Master, on a date not previously specified (the transfer of custody signed by Judy listed April 2 as the hearing date), without a summons or waiver of notice as to the actual date.[7]
Applying the Eldridge factors, we note that the private interest in the parent-child relationship is quite powerful; that the risk of erroneous deprivation, especially when seeking the renunciation of such rights from a minor, is considerable; and that the additional burden of providing counsel or a guardian ad litem under such circumstances cannot be said to outweigh the first two factors.
Here, the primary failure of due process began with the Division's bureaucratic requirement that a minor, without the benefit of any assistance from some independent representative, relinquish custody of her child for 90 days as a prerequisite to finding desperately needed housing. This circumstance was aggravated and compounded by the ex parte proceeding in the Family Court on April 4, awarding custody to DCPS without any summons or notice reciting the time and place of the hearing, as well as other information required by Family Court Rule 110(a). This elementary lack of minimal due process standards vitiates the entire set of proceedings and mandates reversal. But the matter does not end there.
IV.
Even adherence to rules of due process could not cure the equally serious failures of the State to meet its obligations under the federal Child Welfare Act. Those requirements are matters of first impression before us, and this record forces us to address them irrespective of due process considerations.
The Act is a substantial step toward federal child welfare reform. Studies undertaken in the last decade highlighted several important problems facing children who are at risk of placement or who are already *647 in out-of-home care. Children are being placed in foster care without first providing alternative services that may help keep the families together. State agencies often failed to provide case plans and reviews for foster children, thus unnecessarily prolonging the length of foster care. Federal dollars encouraged the inappropriate separation of children from their families and discouraged their return home. Funds for alternatives to out-of-home care were not provided.
To stimulate state-wide reform of these problems, the Child Welfare Act was enacted on June 17, 1980. This legislation redirects fiscal incentives by imposing, as a condition of continued federal funding, several specific substantive reforms on state agencies to ensure permanent families for children.[8]
In order to qualify for the funding it receives from the federal government, DCPS must follow the guidelines prescribed by the Act. Funds are available for both child welfare services (under Title IV-B, §§ 620-28) and for foster care and adoption assistance (under Title IV-E, §§ 670-76). If the State is to qualify for reimbursement funds under Title IV-E, it must show that for each child as to whom foster care expenditures have been made, there has been a judicial determination that all reasonable efforts were extended (1) to prevent the necessity of removing the child from his or her natural parents, or (2) to reunify the parents and the child. In the case of a voluntary placement, there must be a finding that the placement is in the best interests of the child. 42 U.S.C. §§ 672(a)(1), (e); 671(a)(15).[9] Additionally, the State must show that each child has a case plan which qualifies under § 675(1) and which is reviewed on a semi-annual basis. 42 U.S.C. § 671(a)(16).[10]
Moreover, Delaware has its own statutory mandate in 29 Del.C. § 9003(3), requiring "preplacement, preventive services and *648 reunification services" for children and their families.[11] The statute also requires written case plans and semi-annual reviews of such plans. 29 Del.C. § 9003(4), (5).[12]
Here, the record demonstrates that DCPS and the Children's Bureau failed to provide Judy with meaningful case plans outlining reunification guidelines. Nor did the agencies make reasonable efforts to provide preventive and/or reunification services.
For a case plan to so qualify under § 675(1), the plan must describe where the child will be placed, contain a discussion of the appropriateness of the placement, and demonstrate a plan for "assuring that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate the return of the child to his own home or the permanent placement of the child ..." 42 U.S.C. § 675(1). When this section is read together with the requirements of § 671(a)(15) that reasonable efforts must be made either to reunite the family or prevent placement it is clear that some affirmative services must be provided if the State and the Department are to qualify for federal funds.
The case plans drafted by DCPS, from the time of Derek's "voluntary" placement until DCPS changed its goal to adoption, consistently indicated that the sole reason for the transfer of custody was due to lack of housing. The case plan failed to indicate what efforts or services the Children's Bureau would provide in order to reunite the family under one roof.
The inadequacy of the case plans developed by the Children's Bureau is illustrated by the June 30, 1984 proposal. Paragraph seven states that Judy "might also benefit from parenting classes." The Children's Bureau failed to explain why such classes were necessary, and significantly, did not indicate that attendance at such classes constituted a prerequisite to the reunification of the family. Such open-ended language indicates that the Children's Bureau did not have reunification foremost among its goals.
The sole reason for transferring custody of Derek to the State was due to a lack of housing. The DCPS and the Children's Bureau were obliged to make all reasonable efforts to prevent Derek's removal from his mother, and to reunify the family after separation. The legislative history of the Child Welfare Act emphasizes the importance of the "reasonable effort" requirement:
[T]hese sections are aimed at making it clear that States must make reasonable efforts to prevent the removal of children from their homes. In the past, foster care has often been the first option selected when a family is in trouble: the new provisions will require States to examine alternatives and provide, wherever *649 feasible, home-based services that will help keep families together, or help reunite families ... Far too many children and families have been broken apart when they could have been preserved with a little effort. Foster care ought to be a last resort rather than the first.
126 Cong.Rec. S6942 (daily ed. June 13, 1980) (statement of Sen. Cranston).
DCPS could have subsidized placement of Judy and Derek in another foster home for six months past Judy's eighteenth birthday. However, the agency did not offer this option. DCPS made no efforts to prevent Derek's placement in a foster home and did not assist Judy in obtaining alternative, subsidized housing. The conclusion, thus, is inescapable that the State and its agents failed in their clearly mandated duties to prevent the separation, or to reunify Judy and Derek.
In future cases of this type the Family Court must ensure meaningful compliance with the Child Welfare Act of 1980, 42 U.S.C. §§ 608, 620-28, 670-76 (1982), and the appropriate Delaware law, 29 Del.C. § 9003(2)a and (3). In doing so, the Family Court must interpret and apply the federal and state statutes to determine their application to a given case. Thus, where termination of parental rights is sought primarily on the ground that a parent has failed, or was unable, to plan adequately for a child's needs, and if that rather vague criterion is to survive constitutional scrutiny, the trial court is required to make appropriate findings of fact and conclusions of law as to the State's bona fide efforts to meet its own obligations. Without that, no case of this sort, and all its enormous consequences, will pass appellate muster.
V.
Judy also challenges the trial court's dicta allowing the DCPS to discontinue reunification efforts when the decision to seek termination of parental rights is reached. The mother claims that such a holding circumvents the need for "judicial dispositions and the `case review system' built into the Act."
We see no fundamental error in permitting the agency to discontinue reunification efforts if the State has acted properly to terminate parental rights. In such circumstances the State assumes an adversarial role vis a vis the parents. To require continued reunification efforts, while contending for termination, is illogical.
In this case, however, it is quite clear that neither DCPS nor the Children's Bureau exerted the required efforts to reunify Judy and Derek, or to prevent their separation. To give judicial sanction to such circumstances would be inappropriate.
In conclusion, the failure of the Department to adhere to minimum standards of due process rendered invalid the initial custody award and the subsequent termination of Judy's parental rights. The mandates and principles of the federal and state statutes were not observed. Accordingly, the decision of the Family Court is REVERSED. Custody of Derek is returned to his mother.
NOTES
[1] P.L. 96-272, 42 U.S.C. §§ 608, 620-28 and 670-76 (1982). See M.L. Allen, C. Golubock and L. Olson, A Guide to the Adoption Assistance and Child Welfare Act of 1980, reprinted in M. Harden, Foster Children in the Courts 575-611 (1983).
[2] 13 Del.C. § 1103(5) provides, in pertinent part:
The procedure for termination of parental rights ... for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption, may be initiated whenever it appears that:
(5) The parent or parents of any child, or any person holding parental rights over such child, are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development and:
a. In the case of the child in the care of an authorized agency:
1. The child has been in the care of an authorized agency for 1 year, or there is a history of previous placement or placements of this child, or a history of neglect, abuse or lack of care of other children by this parent; and
2. The conditions which led to the child's placement still persist, and there appears to be little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future.
* * * * * *
[3] 13 Del.C. § 1103(3) states that abandonment of a child constitutes adequate grounds for the termination of parental rights.
[4] As previously noted, the so-called consent form had indicated that a hearing would be held on April 2, not April 4.
[5] The text of the Family Court's footnote discussion reads as follows:
The Division of Child Protective Services has filed an appeal from the June 3, 1985 order of the Hearing Officer at a Foster Care Review Board Hearing which approved the plan of the Children's Bureau of Delaware, Inc. to proceed to a hearing on its termination of parental rights action previously filed, but conditioned this approval upon that agency's arranging for counseling with specific treatment objectives and frequent communication between agencies with a direction that the agency should not discontinue reunification efforts in the meantime. The basis for the Review de Novo is the obvious contradiction in plans for termination and reunification by the same agency. While the court's decision granting the petition to terminate the rights of both parents in their child renders this issue moot, such a decision whether to continue reunification efforts by an agency after a decision is made to seek a termination of parental rights should be made on a case by case basis depending on the facts presented. In this case, the Court finds that the agency's decision to discontinue initiating plans for reunification and to simply cooperate with the mother's requests pending the termination hearing, such as increased visitation with the child, was appropriate under the circumstances.
In the Matter of Derek Wayne B., a Minor Child, Delaware Fam.Ct., Nos. T-85-05-11 and D-1016 at 11 (Aug. 30, 1985) (James, J.).
[6] The relevant provision of the statute provides:
This chapter is designed to achieve without undue delay the paramount objective of the best interest of the child, and all questions of interpretation shall be resolved with that objective in mind. Where there appears to be a conflict between the best interest of the parent(s) and the child, the best interest of the child shall prevail.
13 Del.C. § 1113.
[7] Family Court Rules then in effect required either the issuance of a summons bearing, inter alia, the date of the service, or a promise in writing to appear at the hearing, absent a voluntary appearance or a waiver of service. Del. Fam.Ct. Rule 110(a), (c)(2). Here, there was no summons, but only a written acknowledgment by Judy of a hearing on an incorrect date, signed by a minor without the guidance of an attorney or guardian ad litem.
[8] Foster Children in the Courts, supra, n. 1, at 575-77.
[9] The relevant sections of the statutes provide:
(a) Each State with a plan approved under this part shall make foster care maintenance payments (as defined in section 675(4) of this title) under this part with respect to a child who would meet the requirements of section 606(a) of this title or of section 607 of this title but for his removal from the home of a relative (specified in section 606(a) of this title), if
(1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child's parent or legal guardian, or was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and (effective October 1, 1983) that reasonable efforts of the type described in section 671(a)(15) of this title have been made;
* * * * * *
42 U.S.C. § 672(a)(1).
(c) No Federal payment may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of any child who was removed from his or her home pursuant to a voluntary placement agreement as described in subsection (a) of this section and has remained in voluntary placement for a period in excess of 180 days, unless there has been a judicial determination by a court of competent jurisdiction (within the first 180 days of such placement) to the effect that such placement is in the best interests of the child.
* * * * * *
42 U.S.C. § 672(e).
In order for a State to be eligible for payments..., it shall have a plan approved by the Secretary which
(15) effective October 1, 1983, provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home ...
* * * * * *
42 U.S.C. § 671(a)(15).
[10] The statute provides in relevant part:
In order for a State to be eligible for payments..., it shall have a plan approved by the Secretary which
(16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meet the requirements described in section 675(5)(B) of this title with respect to each such child ...
* * * * * *
42 U.S.C. § 671(a)(16).
[11] The relevant portion of the statute provides:
The Department of Services for Children, Youth and Their Families shall have the following powers, duties and functions:
* * * * * *
(3) To provide for a variety of facilities and services to children, youth and their families which shall include, but not be limited to the following:
b. Preplacement, preventive services and reunification services;
* * * * * *
29 Del.C. § 9003(3).
[12] The relevant aspects of this statute are:
* * * * * *
(4) To prepare and maintain a written case plan for each child under its supervision or custody, which shall include but not be limited to a description of the child's problems, the care and treatment of the child and any other services to be provided to the child and his or her family; each case plan must be designed to achieve any placement of the child outside of his or her home in the least restrictive setting available and in close proximity to the child's home, consistent with the best interests and special needs of the child;
(5) To conduct a written review at least every 6 months of the case plan for each child under its supervision or custody for the purpose of determining whether the plan is appropriate;
* * * * * *
29 Del.C. § 9003(4), (5).
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519 A.2d 147 (1986)
Robert STACK, Appellant,
v.
UNITED STATES, Appellee.
No. 84-1101.
District of Columbia Court of Appeals.
Argued February 4, 1986.
Decided December 17, 1986.
*148 Mark Rochon, Public Defender Service, with whom James Klein and Mark Carlin, Public Defender Service, were on the brief, for appellant.
Daniel S. Seikaly, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Charles S. Leeper, Asst. U.S. Attys., were on the brief, for appellee.
Before MACK, TERRY, and ROGERS, Associate Judges.
*149 ROGERS, Associate Judge:
Appellant Robert Stack was indicted for the second degree murder, D.C.Code § 22-2403 (1981), of Helen Bataineh, who died on June 8, 1983, as a result of a subdural hematoma. According to the government's theory, Stack caused the fatal hematoma when he struck Bataineh in the face on June 6, 1983. Stack's defense was that he struck her in self-defense and that the government had failed to establish a sufficient nexus between his action and her death one and one-half days later. The jury found him guilty of the lesser included offense of voluntary manslaughter, D.C. Code § 22-2403 (1981). On appeal, he seeks reversal of his conviction on the grounds that: (1) the in limine limitation of cross-examination of a key government witness violated his Sixth Amendment right to confront witnesses; (2) the jury instructions failed to present fairly the defense theory in violation of his right to a fair trial; (3) the admission of the videotaped deposition of a key government witness, who the government failed to show was unavailable to testify at trial, violated his confrontation rights and Super. Ct. Crim.R. 15; and (4) there was insufficient evidence his blow was the cause of death. We agree that Stack's first and second contentions require reversal. We also agree that the trial court erred in ruling that a key government witness was unavailable; however, in view of our disposition, we need not decide whether the error was harmless beyond a reasonable doubt. Finally, we hold there was sufficient evidence of causation; accordingly, we reverse and remand for a new trial.
I
On the morning of June 6, 1983, while on his way to the hospital for treatment, Robert Stack stopped at James Vaughan's house where his girlfriend, Rita Morris, lived. Helen Bataineh, the decedent, who sometimes stayed with Morris, was lying on the living room couch. Stack initially remained outside of the house, then went inside, and an altercation developed between him and Bataineh. Bataineh, who had been drinking since the night before, brought two large German Shepherds into the house and went towards Stack with the dogs. Stack was terrified and yelled for Morris' help. One dog went under a table; Morris took the other dog outside. When Morris returned, she saw Stack take a full swing and slap Bataineh across the left side of the face. The blow knocked Bataineh to a sitting position on the floor. Stack then kicked her twice in the left rib; Bataineh looked dazed. Stack stopped hitting Bataineh after Morris told him to "stop hitting her, you're going to kill her." He and Morris then left for the hospital. Later that morning, Stack said to Morris, "I guess [Bataineh's] head hurts now."[1]
Around one p.m. Bataineh called a neighbor and the police to report the assault. Officer Lantz testified that Bataineh said she thought some of her ribs were broken. Lantz observed that it was difficult to get information from Bataineh because she lost track of her thoughts easily, although she did not appear to be intoxicated.
An ambulance took Bataineh to Capitol Hill Hospital where she told the emergency room nurse that she had been kicked in the neck and ribs, but did not mention being hit in the face. The examining doctor found no localized tenderness in the neck or bruises or welts in the head or neck, and noted in the medical record "no head trauma." Chest x-rays revealed five of the eight ribs on Bataineh's left side were broken. No x-rays or other tests were ordered for her head.
James Vaughan brought Bataineh home from the hospital on June 6 about 7 p.m. That evening he noticed a bruise on the left *150 side of Bataineh's face.[2] He and Bataineh remained in the house until the next morning, when Bataineh told Vaughan she felt terrible, but was going to work.
Blair Middleton, for whom Bataineh worked as a live-in nurse's aid, recounted Bataineh's activities and deteriorating physical condition during the next two days.[3] Joan Park, a cousin of Middleton's who was staying with him at the time, also described Bataineh's behavior during this period. Park testified that on June 7 Bataineh was moving slowly at 8 a.m. and claimed she had been beaten up over the weekend and felt lousy. The next morning, she was still moving slowly, and saying that she did not feel well. She did not do any of the things she normally did in the morning. In addition, her manner of speaking was slow and "sort of drowsy." Park did not see Bataineh again until after 7:00 when she went upstairs to Bataineh's bedroom. Bataineh was lying on her stomach, breathing heavily, and Park thought she was sleeping. About an hour later, Park thought Bataineh felt slightly feverish. Less than half an hour later, Park could not hear any breathing and found Bataineh's body was cold. Middleton told Park to call the police. Bataineh was pronounced dead at 10:57 p.m. that evening.
The government called two expert witnesses, Dr. Michael Bray, who performed the autopsy, and Dr. Vernon Armbrustmacher, who reviewed the medical records, autopsy report, and a tape recording of Bataineh's voice. The doctors testified that Bataineh's death was caused by a subdural hematoma[4] on the right side of her brain: the hematoma had swollen and compressed the brain, eventually causing a hemorrhage within the brain stem which resulted in death. In their opinion, the trauma which had caused the hematoma could have occurred between one and four days before Bataineh's death. Dr. Bray testified, to a reasonable medical certainty, that the hematoma was consistent with a punch or a kick to the neck on the afternoon of June 6. He estimated that the trauma which caused the hematoma could have occurred as late as 10 p.m. on June 7. Dr. Armbrustmacher testified, in response to hypothetical questions which recounted Bataineh's activities from June 6 until her death, that, to a reasonable medical certainty, the slap to Bataineh's face on June 6 was "very consistent" with the type of event required to cause the fatal hematoma. Dr. Armbrustmacher thought that the evidence Bataineh was drowsy on June 8 was an ominous sign of increasing intracranial pressure. Both doctors opined that the bruise on the lower left side of Bataineh's jaw, close to her chin, occurred at approximately the same time as the trauma which caused the hematoma. They agreed, however, that a fall or any event causing a sudden, sharp rotation of the head could result in a fatal hematoma. Because of Bataineh's history of heavy drinking, they expressed caution about ascribing any particular injury as the cause of the hematoma, although neither doctor found any evidence of the type of bruises or scrapes which are usually seen when an intoxicated person falls down the stairs.
The defense expert, Dr. Richard Lindenberg, testified that the fatal hematoma was less than two and a half days old and could have begun to form as little as four to six hours before Bataineh's death. In his opinion, the autopsy report was more consistent with evidence that Bataineh had fallen on June 8, and the fall had caused the hematoma, than with evidence that Stack's slap on June 6 had caused the hematoma. He based his opinion on the absence of edema[5] (an indication of age of the injury) in the *151 brain, the absence of a notation in the hospital records of head or facial bruises on June 6, and the fact that Bataineh was able to go to work on June 7 and perform the tasks associated with grocery shopping and meal preparation. On cross-examination, Dr. Lindenberg admitted that the bruise on Bataineh's chin might have been covered by make-up, and that Stack had not told him Vaughan had claimed to have seen the bruise on the night of June 6 or his (Stack's) slap of Bataineh's face had knocked her off her feet.[6]
The defense also called James Calloway, a tenant in Vaughan's house. He testified that when he came home around ten o'clock at night, Vaughan had told him that Bataineh had been beaten by Rita Morris' boyfriend, Frank. Calloway did not notice any injuries on Bataineh's body.[7] He saw Bataineh sitting on the floor, and testified that she may have been drinking, and had complained her back hurt. Stack did not testify.
II
Stack contends first that he was denied his Sixth Amendment right to confront witnesses when defense counsel was not allowed to cross-examine Vaughan about his assaults of Bataineh prior to June 5, 1983. He argues the trial judge thereby impermissibly limited cross-examination which would have shown Vaughan's bias and motive to fabricate.[8]
A criminal defendant has a Sixth Amendment right to confront and cross-examine government witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1109, 39 L. Ed. 2d 347 (1974); Lawrence v. United States, 482 A.2d 374, 376 (D.C. 1984). If the trial court limits that right, and if an error of constitutional magnitude is found, the appellate court must determine whether reversal is required, see, e.g., Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111; Springer v. United States, 388 A.2d 846, 857 (D.C.1978), or whether the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). See Delaware v. Van Arsdall, ___ U.S. ___, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); see also Lawrence, supra, 482 A.2d at 378. Once a trial judge has allowed enough cross-examination on an appropriate issue to satisfy the Sixth Amendment, limitation of further cross-examination will be reviewed for abuse of discretion. See Goldman v. United States, 473 A.2d 852, 856 (D.C.1984); Springer, supra, 388 A.2d at 854. Implicit in this standard is an evaluation of the importance of the subject matter and the witness whom the defendant seeks to cross-examine, measured against the degree of cross-examination permitted. Where the proffered testimony of a witness establishes an element of the offense or affects the core of the defense, the court is more likely to find constitutional error if cross-examination is severely limited on that issue. See Lawrence, supra, 482 A.2d at 377; Goldman, supra, 473 A.2d at 857-58; Springer, supra, 388 A.2d at 855-56.
The government argues that this case is indistinguishable from Beale v. United States, 465 A.2d 796 (D.C.1983), cert. denied, *152 465 U.S. 1030, 104 S. Ct. 1293, 79 L. Ed. 2d 694 (1984), because defense counsel failed to link Vaughan's prior assaults of Bataineh to the pending charges.[9] The government also relies on Brown v. United States, 409 A.2d 1093 (D.C.1979), in support of the trial judge's restriction on the defense to avoid inquiry about assaults which were too remote in time to have caused the hematoma.[10] Stack, relying on Davis v. Alaska, supra, 415 U.S. at 316, 94 S.Ct. at 1110, contends that questions relating to the partiality of a witness are always relevant, and that the defense proffer provided a sufficient indication of good faith. Further, he maintains the trial court misapprehended the issue by basing its ruling on Beale and Brown, which did not involve cross-examination of a "crucial" government witness on bias or motive to fabricate.
Vaughan was one of four witnesses who testified that they spent time with Bataineh between the time of her release from the hospital and her death. The defense claimed Stack did not cause the injury which led to Bataineh's death and that some other person or an accidental fall did. Vaughan's testimony, therefore, was important.[11] Whether it was crucial, however, going to the heart of the defense, depends on whether defense counsel's proffer included sufficient indicia of the reliability of the evidence that Vaughan hit Bataineh and caused the fatal injury.
At the conclusion of Vaughan's direct examination, the prosecutor announced that the government would object to any questions about fights between Vaughan and Bataineh that occurred prior to June 5, 1983, and to evidence that the police had come to Vaughan's house on any prior occasions. The prosecutor argued the questions were impermissible under Beale, supra, 465 A.2d 796, and Hall v. United States, 454 A.2d 314 (D.C.1982),[12] because there was no factual predicate indicating that the altercations had occurred during the relevant period and thus they were too remote in time; more than Vaughan's mere presence had to be shown. Alternatively, the government argued that, even if questions about the prior beatings were relevant, the questions should not be allowed because they would result in jury speculation about what might have happened on Monday night, June 6. The prosecutor also questioned the relevancy to prior altercations of defense questions about the bruise near Bataineh's chin.
Defense counsel responded[13] that Vaughan had told her about the prior beating *153 himself, that the instant case was distinguishable from Beale and Hall because Vaughan was the only person, other than Bataineh's employer (Middleton) and Stack, who was with Bataineh during the relevant period, and that medical evidence was expected to establish that the bruise near Bataineh's chin was "very significant" with regard to the cause of death. Defense counsel also proffered that Rita Morris would testify Vaughan had admitted beating Bataineh in the past and had beaten her after she left the hospital. Morris also would testify that Vaughan became exasperated with Bataineh when she had been drinking.
The trial judge correctly ruled that defense counsel could inquire about the bruise near Bataineh's chin since the evidence was relevant to the ultimate issue in the case and the proffer was sufficiently reliable. Vaughan was the first person to notice the bruise on the night of June 6. When defense counsel sought to cross-examine Vaughan, no evidence had been introduced to explain the presence of the bruise along the lower left side of Bataineh's jaw, near her chin.[14] Nor did the evidence suggest that the bruise had appeared during the six hours on June 6 when she was at Capitol Hill Hospital.
The trial judge erred, however, in ruling that defense counsel could question Vaughan only about his assaults of Bataineh after June 5. The judge viewed evidence of any other assaults as irrelevant unless linked to "the relevant time period," a period which he did not define but appeared to base on the prosecutor's claim that evidence of assaults before the weekend of June 5 would be too remote in time. The evidence of Vaughan's relationship with Bataineh and the fact that he had assaulted her in the past was relevant to the ultimate issue in the case, and might have caused a reasonable jury to conclude there was a reasonable possibility that Vaughan had hit Bataineh on the evening of June 6 either out of exasperation with her drinking or because of other behavior which had provoked him in the past. The government's theory of causation was based on circumstantial proof of guilt. Vaughan admitted being alone with Bataineh after her release from the hospital. He alone saw a bruise near her chin which had not been observed before she left the hospital. The defense proffered medical evidence from which the jury could conclude that Stack's slap of Bataineh's face had not caused her death. The probative value of the prior assaults testimony went beyond a general suggestion that someone other than Stack could have caused the fatal blow.
Therefore, even assuming the Beale-Brown rule applies, the proffered evidence was admissible; it was not extrinsic to the ultimate issue in the case, it had clear indicia of reliability, and nothing in the record suggests it was likely to confuse or mislead or result in speculation by the jury. To require a greater proffer for the admissibility of such exculpatory evidence would distort Beale and Brown. Brown, on which Beale relied, analyzed the admissibility of exculpatory evidence in terms of the proposition that "the accused in a criminal prosecution has a fundamental right to call witnesses in his own defense," limited only by the requirement that there be "sufficient indicia that the evidence is reliable." 409 A.2d at 1097 (citations omitted). The court required no more than that evidence that someone else committed the crime of which the defendant is charged "clearly *154 link that other person to the commission of the crime," and that its probative value be weighed against its prejudicial impact, including its propensity to mislead or confuse the jury. Id. Stack's proffer established the necessary linkage through Vaughan's presence with Bataineh on June 6 and a "new," unexplained injury at that time.
Alternatively, as Stack contends, the evidence of Vaughan's prior assaults of Bataineh was clearly admissible to show bias and motive to fabricate. See Collins v. United States, 491 A.2d 480, 487 (D.C. 1985) ("well-reasoned" suspicion standard) (citing United States v. Pugh, 141 U.S. D.C. 68, 71, 436 F.2d 222, 225 (1970) (so long as cross-examination is not "an improbable flight of fancy" nor "utterly implausible" it is permissible)). The evidence of the parties' phlegmatic relationship was relevant to explain how the "new" injury might have occurred; the nature of that relationship was, according to the defense proffer, admitted by Vaughan. Questions about Vaughan's prior assaults would not have been a "flight of fancy," and the record does not suggest that the prior incidents were so remote in time as to be irrelevant to the parties' relationship on June 6, 1983. See Lawrence, supra, 482 A.2d 374; cf. Jones v. United States, 477 A.2d 231, 243 (D.C.1984) (evidence of prior threats many years ago relevant to show motive); United States v. Bobbitt, 146 U.S. App.D.C. 224, 228, 450 F.2d 685, 689 (1971) (evidence of prior threat many years ago was admissible to show that bad blood between the defendant and the victim had continued).
Accordingly, since evidence about the relationship between Vaughan and Bataineh was relevant, in view of the circumstantial nature of the government's evidence of causation, to the jury's assessment of Vaughan's credibility, the trial court erred in refusing to let defense counsel inquire about Vaughan's assaults of Bataineh prior to June 5. Because such cross-examination went to the heart of the defense theory, the error was of constitutional magnitude. Goldman, supra, 473 A.2d at 857 (applying Chapman standard). Given the equivocal nature of the medical testimony, we hold that keeping "from the jury relevant and important facts bearing on the trustworthiness of crucial testimony" was not harmless error beyond a reasonable doubt.
III
Stack next contends that the trial judge's instructions did not give a fair presentation of the defense theory to the jury. Because he admitted the truth of a good part of the government's case, he argues that his defense required the jury to be advised of the significance of his independent cause theory. See Laughlin v. United States, 128 U.S.App.D.C. 27, 34, 385 F.2d 287, 294 (1967), cert. denied, 390 U.S. 1003, 88 S. Ct. 1245, 20 L. Ed. 2d 103 (1968) (citing Levine v. United States, 104 U.S.App. D.C. 281, 261 F.2d 747 (1958)).
A "defendant is entitled to an instruction on his theory of the case when properly requested by counsel and when the theory is supported by any evidence." Montgomery v. United States, 384 A.2d 655, 660 (D.C.1978); see Hale v. United States, 361 A.2d 212, 216 n. 9 (D.C.1976). Although the instruction need not be given in the exact language requested, Fludd v. United States, 336 A.2d 539, 541 n. 3 (D.C. 1975); Leftwich v. United States, 251 A.2d 646, 649 (D.C.1969), the trial court commits reversible error when it refuses to present adequately a defendant's theory of the defense. See Levine, supra, 104 U.S.App. D.C. at 282-83, 261 F.2d at 748-49 (reversible error to deny defense request for an instruction "where special facts present evidentiary theory which if believed defeats the factual theory of the prosecution...."). The trial court is not required to "rehearse the evidence, especially where the effect would be ... to give special emphasis to the defendant's testimony." Montgomery, supra, 384 A.2d at 660 (quoting Laughlin, supra, 128 U.S.App.D.C. at 34, 385 F.2d at 294). Nor may the court give instructions *155 that favor the government's version of the evidence. See Levine, supra, 104 U.S.App. D.C. at 283, 261 F.2d at 749. For this court the key question is whether the instructions to the jury were an adequate statement of the law, see Leftwich, supra, 251 A.2d at 649; Spade v. United States, 277 A.2d 654, 656 (D.C.1971), and our task is to review the instructions as a whole to determine whether they fairly and fully presented the defense theory. See Montgomery, supra, 384 A.2d at 661.[15]
Defense counsel requested the trial judge to instruct the jury that:
The theory of the defense in this case is that Robert Stack did not cause the death of Helen Bataineh. The fight between Helen Bataineh and Robert Stack, which was started by Helen Bataineh, resulted in injuries to her ribs but did not cause the subdural hematoma from which she died. The subdural hematoma resulted from independent causes which happened after her release from the hospital.
The defendant has no burden to show or prove by what means the decedent died. The burden of proving how the decedent died always remains with the government.
If you have a reasonable doubt whether the fight between Helen Bataineh and Robert Stack resulted in injuries from which she died, then you must find him Not Guilty.
The trial judge's complete instruction on the defense theory was: "Ladies and gentlemen, the theory of the defendant is that he did not inflict wounds from which the deceased died. He also asserts the defense of self-defense." The judge elaborated on the self-defense theory, but made no mention of the theory of independent cause. Elsewhere the judge instructed the jury on proximate cause, stating that the defendant was responsible for the foreseeable and likely consequences of his acts.[16] In instructing on the elements of second degree murder and voluntary manslaughter, the judge told the jury that to convict it must find the defendant "inflicted an injury or injuries upon the deceased and that the deceased have died as a result of such injuries." The judge gave the standard instructions on reasonable doubt and the government's burden of proof.
We hold that the instructions inadequately expressed the defense theory of independent cause. In effect, as Stacks points out, the instruction told the jury "no more than that the defendant denied killing the decedent a general denial." The phrase "independent cause," or its equivalent, and the legal principle involved were not mentioned in the instructions. In addition, the judge's expansion of the standard instruction on causation in murder and manslaughter had the effect of emphasizing the government's theory of causation. The single "denial" sentence instructing on Stack's theory was also minimized in significance by the contrast between it and the lengthy (two pages in the transcript) instructions on self-defense. Indeed, the instructions as a whole undercut the focus and force of any suggestion in the instructions about independent cause as well as defense counsel's closing argument that *156 the government had failed to negate the independent cause theory. See Laughlin, supra, 128 U.S.App.D.C. at 34, 385 F.2d at 294 ("there was a risk that the jury might find the defendant guilty although believing his testimony, because of failure to appreciate the significance of defendant's evidentiary theory.").
Stack clearly met his burden to show that he was entitled to an instruction which expressly set forth his theory of an independent cause. Fersner v. United States, 482 A.2d 387, 393 (D.C.1984) (evidence viewed most favorably to defendant). Defense counsel did not insist on the precise language requested. Assuming, as the government suggests, that the first paragraph of the requested instruction would have unduly emphasized the defense version of the evidence, the judge easily could have made appropriate modifications. That defense counsel argued the independent cause theory to the jury in closing does not cure the error since the jury must be instructed on the legal principles which are to guide its deliberations, and the court has the obligation to state those principles in the instructions.
IV
Stack further claims that allowing a key government witness to testify by color video-tape deposition although the witness was willing and available to testify at trial violated his constitutional right to confrontation and Super.Ct.Crim.R. 15(e).[17]
Due process requires that the prosecution make a reasonable, good faith effort to secure a witness' presence. Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543, 65 L. Ed. 2d 597 (1980); Warren v. United States, 436 A.2d 821, 826-27 (D.C. 1981). The government bears a substantial burden to show that a witness is unavailable to testify at trial. As described in Ohio v. Roberts, supra, although "the law does not require the doing of a futile act...[,] if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation." 448 U.S. at 74, 100 S.Ct. at 2543 (emphasis in original).[18] The trial court must determine whether a witness is unavailable, and if so, whether and under what circumstances the witness' deposition should be admitted at trial. See Warren, supra, 436 A.2d at 825. The issue is whether there was sufficient evidence to support the trial judge's ruling that the government met its burden to show Middleton was unavailable to testify at trial, and that his deposition was admissible into evidence. Id. at 829. We review the trial court's determinations for abuse of discretion. Id. at 831.
This court has made clear that it has not sanctioned "a new category of medical unavailability in all cases where witnesses are likely to suffer adverse emotional or psychological *157 effects as a result of testifying against their assailants." Id. In Warren, supra, the defendant was charged with kidnapping and various sexual assaults and armed robbery, and the complainant's availability to testify was disputed. Two psychiatrists, one of whom was appointed by the trial judge, testified about the complainant's psychological unavailability. Id. at 828-29. This court affirmed the trial judge's finding that the complainant was unavailable because of "extreme circumstances" consisting of a high likelihood of temporary psychological injury, perhaps even psychosis, and a possibility of permanent psychological injury.
Middleton, according to the prosecutor, was an "essential" witness in the government's effort to establish the absence of an independent cause of Bataineh's death. In support of the motion to take Middleton's deposition under Super.Ct.Crim.R. 15(a),[19] the government contended that he was unavailable to testify at trial because of his poor medical condition and the likely consequences to his health which the emotional stress of testifying would cause. The motion referred to statements by Middleton's cardiologist, and offered a letter from Middleton's personal physician. The unsworn letter described Middleton, who was 71 years old at the time of his deposition, as suffering from hypertension, a narrowing of the main heart valve, congestive heart failure and diabetes. The letter, which was written six months before the trial, expressed concern that testifying at trial could have "potentially very serious" ill effects on Middleton "if he is placed under any great emotional stress or tension." A second unsworn letter from the same doctor, written three months before the trial stated that a courtroom appearance would place Middleton and his life in jeopardy. At his deposition four and one-half months before trial, Middleton testified that he suffered from high blood pressure, diabetes, shortness of breath and was too fat; he had a pacemaker, and had to avoid excitement. During a telephone conversation with the trial judge shortly before trial, however, Middleton told the judge that he was willing to appear; the judge commented lightly after the telephone conversation that he thought his "charm and personality" had caused Middleton to say he was willing to testify at trial. Stack disputed the severity of Middleton's illness, the partiality of his doctor and the absence of sworn testimony, as well as whether, assuming these medical facts, they were sufficient to establish that Middleton was unavailable to testify as a witness at trial.
The quantum and quality of evidence of Middleton's unavailability to testify at trial does not measure up to that in Warren. The evidence consisted only of unsworn hearsay, Middleton's view of his health, and the trial judge's evaluation of Middleton's health based on observations of Middleton at his deposition, and the judge's telephone conversation with Middleton. Nor does the evidence of unavailability rise to the level of evidence that was present in either Ohio v. Roberts, supra, or Harrison v. United States, 435 A.2d 734 (1981) (en banc),[20] where the witness' unavailability *158 involved facts about which a lay-person would be knowledgeable. Here physical unavailability was not an issue; Middleton lived nearby, he was not physically impaired but still active, going to work every week, he had appeared without adverse consequence for the deposition, and he was willing to testify at trial.[21]
The trial judge initially had stated correctly that he would need to conduct a voir dire hearing to determine, on the basis of competent evidence, Middleton's unavailability for medical reasons. See Warren, 436 A.2d at 828-30.[22] Although Harrison, supra, implicitly suggests that expert testimony is not required, 435 A.2d at 738, 740, Warren, supra, which was decided after Harrison, recognized that expert testimony was required to determine psychological unavailability because the trial judge's personal observations were "pointless in view of his lack of psychiatric expertise." 436 A.2d at 830; Warren v. United States, 515 A.2d 208, 209-10 (D.C.1986) (per curiam) ("testimony of independent court-appointed psychiatrist will usually be the proper foundation for a finding of psychological unavailability of a witness").[23] This requirement is consistent with the rule in a number of other jurisdictions.[24]
Accordingly, we hold that where a crucial government witness' unavailability is contested, and the witness' unavailability is based on the effect which a trial appearance would have on particular medical conditions as well as the witness' general health, expert evidence is required to support a finding that the witness is unavailable to testify at trial. Many older people undoubtedly suffer from the type of medical problems described by Middleton, and probably would prefer not to testify at trial. Although deference to the trial judge is appropriate where a witness' appearance and reaction to questioning in the atmosphere of a trial must be evaluated, the trial judge's reliance on hearsay and his (and Middleton's) impressionistic, personal opinions about the effect of a trial appearance on Middleton's health are an insufficient basis on which to deny Stack the opportunity to exercise a fundamental constitutional right. Cf. Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339-40, 39 L. Ed. 409 (1895); Springer, supra, 388 A.2d at 854. Because we reverse and remand this case on other grounds, we need not consider whether Stack's inability *159 to confront Middleton at trial was harmless beyond a reasonable doubt.[25]
V
Finally, Stack contends that the evidence of causation was insufficient to support his conviction because the government failed to show a sufficient nexus between Stack's slap of Bataineh on June 6, and her death on June 8. The government concedes on appeal that its medical evidence, standing alone, was insufficient to convict,[26] but maintains that it met its burden through the medical testimony coupled with the lay testimony about Bataineh's deteriorating physical condition and the absence of any evidence another event led to her death.
Upon review of the denial of a motion for judgment of acquittal, we view the evidence most favorably to the government, drawing all reasonable inferences in its favor. Patterson v. United States, 479 A.2d 335, 337-38 (D.C.1984); Boyd v. United States, 473 A.2d 828, 832 (D.C.1984). Neither this court nor the trial court may *160 "usurp the jury's prerogative of determining credibility, weighing the evidence, and drawing reasonable inferences of fact." Boyd, supra, 473 A.2d at 832; see Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1941); In re A.H.B., 491 A.2d 490, 496 (D.C.1985). Reversal is required "only where there is no evidence upon which a reasonable mind could infer guilt." Patterson, supra, 479 A.2d at 338; see Franey v. United States, 382 A.2d 1019, 1022 n. 6 (D.C.1978); Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 392-93, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S. Ct. 1511, 91 L. Ed. 2d 1850 (1947). Because Stack introduced evidence after his motion for acquittal was denied at the close of the government's case, only the motion at the close of all the evidence is before us, see Hawthorne v. United States, 476 A.2d 164, 168 n. 10 (D.C.1984); consequently, we determine the propriety of the trial court's denial in light of all the evidence. Id.
Although the government is not required to negate every possible inference of innocence, Chaconas v. United States, 326 A.2d 792, 798 (D.C.1974), the preclusion of defense counsel's attempt to cross-examine Vaughan on his prior assaults of Bataineh deprived the jury of the opportunity to weigh Vaughan's credibility in the light of relevant, admissible evidence, and preserved inviolate the favorable inference regarding the cause of death on which the government must rely to meet its burden of proof. As discussed in Part II, supra, Vaughan's testimony was a crucial part of the government's effort to prove that Bataineh's death was not independently caused by an event occurring after Stack had slapped her.[27] Vaughan's testimony therefore helped establish proximate cause, a crucial element necessary for conviction. Since the trial judge's limitation on Stack's cross-examination of Vaughan violated Stack's right of confrontation, we must decide if Vaughan's testimony should be disregarded in determining whether the government met its burden of proof.
Our research has not found a case explicitly addressing the right to confront adverse witnesses in the context of evidentiary sufficiency. However, it has been held repeatedly that the appropriate remedy where the defense has not been permitted to cross-examine a key government witness is to remand for a new trial. See Delaware v. Van Arsdall, supra, 106 S. Ct. 1431; Davis v. Alaska, supra, 415 U.S. 308, 94 S. Ct. 1105; Lawrence, supra, 482 A.2d 374; Goldman, supra, 473 A.2d 852; Springer, supra, 388 A.2d 846. This court has declined to hold the evidence insufficient and a new trial therefore barred even when it has acknowledged that without the witness' testimony the government's evidence would have been insufficient to convict. Lawrence, supra, 482 A.2d at 377; Goldman, supra, 473 A.2d at 858; Springer, supra, 388 A.2d at 857.
This approach makes sense in the framework of our judicial system. The right to test an adverse witness' reliability and veracity through cross-examination is vital to maintaining the "integrity of the fact-finding process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297 (1973) (quoting Berger v. California, 393 U.S. 314, 315, 89 S. Ct. 540, 541, 21 L. Ed. 2d 508 (1969)); Howard v. United States, 473 A.2d 835, 838 (D.C.1984); see Delaware v. Van Arsdall, supra, 106 S.Ct. *161 1431). If the first trial is fundamentally flawed as a result of a violation of a defendant's right of confrontation, and the error is not harmless beyond a reasonable doubt, Delaware v. Van Arsdall, supra, a remand is required to insure that the defendant receives a fair trial. Given the totality of the evidence presented by the government, we can determine that Vaughan was a crucial witness, but we do not know whether further cross-examination would have been effective, nor whether the government would have been able to rehabilitate cross-examination undermining Vaughan's credibility. The government obtained a favorable ruling limiting cross-examination at the trial and was entitled to rely on it by assuming Vaughan's testimony would not need to be buttressed.
The evidence of Stack's guilt, with Vaughan's testimony, was sufficient to send the case to the jury. The jury could reasonably believe the government's witnesses, and conclude that an accident or injury had not occurred after Stack struck Bataineh and before her death. In view of the evidence of the force of the blow that Stack delivered and the medical evidence that Bataineh's injuries could have caused the fatal subdural hematoma, a reasonable jury could find beyond a reasonable doubt that Stack's actions were the proximate cause of Bataineh's death.
Accordingly, the judgment is reversed, and the case remanded for a new trial.
Reversed and remanded.
MACK, Associate Judge, concurring in part and dissenting in part:
I agree with the majority that appellant Robert Stack's manslaughter conviction must be reversed because he has been deprived both of his constitutional right to confront a key witness and of his right to have the jury instructed on his theory of the case. However, I find the majority's conclusion that the evidence was sufficient to go to the jury, as well as the rationale employed to reach that result, to be extremely troubling.
The majority, noting the government's concession that the medical evidence, standing alone, was insufficient to convict appellant for manslaughter, concludes that without James Vaughan's testimony the evidence would have been insufficient. In reversing appellant's conviction because of the court's limitation on cross-examination, the majority has concluded that Vaughan was a crucial witness whose testimony went to the heart of the defense theory that some intervening cause, not the action of appellant, had caused the death of the victim. The basic reason why reversal is mandated in such a case is that curtailment of cross-examination has prevented the jury from receiving information essential to an assessment of the credibility of the government witness here, "a key witness... [whose] testimony establishes a required element of the charged offense...." Lawrence v. United States, 482 A.2d 374, 377 (D.C.1984) (quoting Springer v. United States, 388 A.2d 846, 855 (D.C.1978)).
I think it therefore an anomaly for the majority to reverse because the jury was prevented from assessing the credibility of testimony essential to the conviction, while simultaneously concluding, as the basis of its holding that the evidence was sufficient to go to the jury, that the same testimony can be used to supply the essential element needed to convict. The majority concedes that there are no cases explicitly addressing the right to confront adverse witnesses in the context of evidentiary sufficiency; the cases it does cite do not support the proposition that, where there has been reversible error by the trial court in curtailing cross-examination, the appropriate remedy is that of a remand for retrial.[1]See Delaware v. Van Arsdall, ___ U.S. ___, *162 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986) (no sufficiency issue raised; remand by the United States Supreme Court to the Delaware Supreme Court for the sole purpose of determining whether the error in limiting cross-examination was harmless); Davis v. Alaska, 415 U.S. 308, 320-21, 94 S. Ct. 1105, 1112-13, 39 L. Ed. 2d 347 (1974) (no sufficiency issue raised); Lawrence v. United States, supra, 482 A.2d at 378 (same); Goldman v. United States, 473 A.2d 852, 858 (D.C.1984) (same); Springer v. United States, supra, 388 A.2d at 857 (same); see also Delaware v. Van Arsdall, supra, 106 S.Ct. at 1440 (Marshall, J., dissenting) ("denial of cross-examination ... may deprive the defense of its best opportunity to expose genuine flaws in the prosecution's case flaws that the cold record will not reveal to an appellate court").
Moreover, I do not agree with the majority's conclusion that its approach makes sense in the framework of our judicial system. It does not make sense to me to say that testimony which has not been tested for the purpose of maintaining the "integrity of the fact-finding process," majority opinion, supra p. 161, can provide the sufficiency necessary to send a case to the jury. It does not make sense to me to say that the government, after having pressed for and obtained an erroneous ruling preventing the jury from assessing the credibility of "crucial" testimony, is nevertheless permitted to rely on that testimony and is not held accountable for its failure to produce other evidence essential to support its case.
I would reverse. I would not remand.
NOTES
[1] After Bataineh's death, Stack told Morris not to tell the police he had gone inside Vaughan's house on June 6.
[2] Vaughan was not positive which side of Bataineh's face was bruised.
[3] Middleton testified by videotaped deposition over defense objection. See infra Part IV.
[4] A subdural hematoma is a collection of blood, either liquid or clotted, which displaces the brain, causing breathing to stop.
[5] An edema is an abnormal accumulation of serous fluid.
[6] Vaughan did not mention the bruise on Bataineh's chin to the police or to the grand jury. He first mentioned it ten months after Bataineh died while he was being interviewed by a prosecutor. Vaughan testified that the prosecutor was the first person to ask about a bruise.
[7] Defense counsel also attempted to show that Vaughan had tried to influence Calloway's testimony.
[8] The government contends the bias argument is raised for the first time on appeal because at trial the defense wanted to cross-examine Vaughan only to show he had caused Bataineh's death. We disagree. Stack's contention in this court and the trial court focused on the limitation on his attempt to challenge the government's theory of causation by showing it had failed to eliminate the possibility that an independent incident had caused the fatal hematoma. By attempting to raise a question about whether Vaughan had caused Bataineh's death, Stack also necessarily raised a question about Vaughan's motive to fabricate.
[9] In Beale, the trial court refused to let the defendant call four witnesses who allegedly would testify that others had as much, if not more, of a motive to kill the decedent. This court found no abuse of discretion by the trial court since the defendant had failed to proffer any evidence "specifically linking" events relating to the motives of the others to the subsequent murder, and also had failed to place the others with a motive to kill in the area at the time of the murder. Id.
[10] In Brown, the trial court refused to let the defendant call as a witness the person whom he wished to suggest to the jury had committed the rape. In affirming, this court observed that the proposed testimony, that the complainant had become hysterical when she saw the witness at her husband's funeral, was at best a description of an ambiguous act and might have led to the introduction of prejudicial testimony about the defendant's involvement in the murder of the complainant's husband. Id. at 1097.
[11] See In re J.N., 406 A.2d 1275, 1286 (D.C.1979) (vacated; judgment affirmed by an equally divided court), In re J.N., Nos. 10737 and 12150 (D.C. May 29, 1981) (appellant's intervening cause defense hinges on demonstrating that the act for which appellant has been charged with homicide was not a "substantial factor" contributing to the victim's death).
[12] In Hall, the court noted that in the absence of evidence tending to show that the decedent had a "special friendly relationship" with another man whom she had rejected, thus suggesting that a rejected suitor had a motive to kill similar to the defendant's motive, such inference would be pure speculation. Id. at 319-20.
[13] COUNSEL: [T]his particular witness, Jimmy Vaughan, has told me about beating [the decedent] himself and he told me this the very first day I met him when he came down to the court. He picked me up at my office and gave me a ride home and Rita a ride home and on that occasion they discussed how infuriating [the decedent] could be when she was drunk and how aggressive she could be and how verbally aggressive she was and how, and Rita says and, you know, you have beat her up and he says, I have, and she says you put her out; yes, I have and you called the police; yes, I have, but, I didn't beat and Rita accused him of beating [the decedent] up that night and he denied beating her up that night, but he did admit to beating her on other occasions.
[14] Defense counsel told the court that the bruise had caused the examining doctor to think that Bataineh's death was not a routine death, and to call a medical examiner.
[15] Erroneous instructions are not harmless if we find the jury was substantially swayed by them. See United States v. Lemire, 232 U.S.App. D.C. 100, 720 F.2d 1327 (1983), cert. denied, 467 U.S. 1226, 104 S. Ct. 2678, 81 L. Ed. 2d 874 (1984); Mullen v. United States, 105 U.S.App.D.C. 25, 263 F.2d 275 (1958).
[16] The judge instructed the jury:
A person is held responsible for all consequences or harm which are proximately caused by his [or her] criminal conduct. This concept of proximate cause means that an accused may be found guilty of a criminal offense even though his [or her] acts were not the sole or immediate cause of the victim's death or injury. If the ultimate harm to the victim should have been foreseen or has, or has been reasonably related to the defendant's conduct the defendant's conduct should be regarded as the cause of death.
The judge then gave the standard instruction on causation in murder and manslaughter; thus the jury received an expanded version of the standard murder and manslaughter instruction.
[17] Super.Ct.Crim.R. 15(e) provides, in pertinent part:
At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable. `Unavailability as a witness' includes situations in which the declarant ... (D) Is unable to be present or testify at the hearing because of death or then existing physical or mental illness or infirmity.
[18] In Ohio v. Roberts, supra, 448 U.S. 56, 100 S. Ct. 2531, a transcript of a witness' testimony at the preliminary hearing was admitted in rebuttal after the witness failed to appear at trial following the issuance of five subpoenas. An Ohio statute permitted the use of such testimony when the witness "cannot for any reason be produced at the trial." The witness' mother testified at a voir dire hearing on the admissibility of the witness' transcript, that her daughter had left home after the preliminary hearing, had been in San Francisco a year before the trial, and had last called, without revealing where she was, seven or eight months ago when she was traveling outside Ohio; the mother knew of no way to reach her daughter, even in an emergency, and knew of no one who knew where her daughter was. The Supreme Court affirmed, holding that although the witness had not been cross-examined at the preliminary hearing, defense counsel had tested the witness' veracity through leading questions, and thus the court had substantially complied with the confrontation requirement.
[19] The government stated in its motion pleadings that:
Middleton's testimony is essential to describing the activities of the decedent during the time between the assault by the defendant and her death to refute any suggestion that she was injured subsequent to the beating inflicted by Mr. Stack while at the home of Mr. Middleton and to corroborate the findings of the medical examiner concerning the attack and the progression of the effects of her fatal injuries. His testimony is thus essential to the Government's case-in-chief.
[20] In Harrison, the issue was the admissibility of the victim's spontaneous utterance; availability was uncontested. Four judges held that "under these particular circumstances" the government's sparse showing of unavailability met the good faith test of Ohio v. Roberts where the government had tried to locate and present the witness and the witness' daughter had advised a police officer of the victim's advanced age, uncertain medical condition, distance from this jurisdiction and inability to travel. Id. at 736. However, the plurality noted that "[t]he government would do well to relate carefully and comprehensively for the record at trial its efforts to make the witness available and the reasons such efforts have proved unavailing." Id. at n. 5 For the factual background, see Harrison v. United States, 407 A.2d 683 (D.C. 1980) (judgment vacated in 1981).
[21] United States v. Bell, 500 F.2d 1287, 1290 (2d Cir.1974), cited by the government, is not to the contrary. There the finding of unavailability was upheld where a doctor's letter stated that the witness' recent surgery made her unavailable for at least two and a half months. The appellant in Bell did not contest the genuineness of the witness' illness or its duration at trial, and on appeal argued only that a trial continuance might have enabled the witness to testify in person.
[22] At Middleton's deposition the trial judge mentioned that he would determine Middleton's availability to testify at trial on the basis of Middleton's deposition testimony and the medical records. Insofar as the record indicates, the medical records were confined to the two letters from Middleton's personal physician and, perhaps, the representations in the government's motion about his cardiologist's opinion.
[23] See, e.g., State v. Hannagan, 473 A.2d 291, 293 (R.I.1984) ("[t]he trial justice's visual diagnosis does not rise to [the level of competent evidence], for, as Aesop pointed out in `The Wolf in Sheep's Clothing,' `Appearances are deceptive.'" JACOBS, FABLES OF AESOP 94 (1902)).
[24] See, e.g., People ex rel. Faulk v. District Court, 667 P.2d 1384, 1390 (Colo.1983) (en banc); State v. Hannagan, supra note 23, 473 A.2d at 293 (expert testimony needed to show that witness' attendance or testimony is "relatively impossible and not merely inconvenient"); People v. Stritzinger, 34 Cal. 3d 505, 194 Cal. Rptr. 431, 439-41, 668 P.2d 738, 746-47 (1983) (en banc) (need expert testimony to determine that an existing illness is the cause making it impossible for witness to testify); Sheehan v. Wisconsin, 65 Wis. 2d 757, 223 N.W.2d 600 (1974); People v. Del Mastro, 72 Misc. 2d 809, 813, 339 N.Y.S.2d 389, 393 (1973).
[25] Were we to reach the issue, it would be difficult, if not impossible, for this court to determine whether the trial judge's error was harmless, given (1) the importance of Middleton's testimony to the government's theory that Bataineh suffered no accidents after Stack struck her; (2) Middleton's evident concern throughout the videotape deposition that his actions in reacting to Bataineh's condition be viewed as appropriate, thus indicating an area of possible bias which defense counsel could have pursued during cross-examination at trial; and (3) the fact that the deposition was edited before presentation to the jury in some undisclosed fashion so that we were able to view only an edited version. Hence, a remand would be required.
We find unpersuasive Stack's contention that post-deposition discovery had produced new documents which would compel a finding of prejudice. At trial, the substance of the new documents was addressed in Stack's cross-examination of the paramedics and the fire department official, who explained how Bataineh's body was moved onto the bedroom floor. Stack also had an opportunity to cross-examine Joan Park about any inconsistencies with Middleton's testimony. Finally, the editing of the deposition is not an issue; Stack did not object to the admission of the edited deposition at trial or on appeal.
[26] The government's experts testified their findings were "consistent" or "very consistent" with the view, to a reasonable medical certainty, that Stack caused Bataineh's subdural hematoma. Although the question of the sufficiency of expert testimony on causation has not been decided by this court in the context of a criminal trial, but cf. Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986) (expert must testify, based on reasonable degree of medical certainty, that "defendant's negligence is more likely than anything else to have been the cause (or a cause) of the plaintiff's injuries") and Martin v. United States, 109 U.S.App.D.C. 83, 84, 284 F.2d 217, 218 (1960) (expert testimony that it was "possible" or "probable" the defendant suffered from a mental illness and the illness had a causal relation to the charged crime (sale of narcotics), could not be the basis for a finding of fact: "In the language of the law of evidence, that which is merely possible, standing alone and not offered as auxiliary or rebuttal testimony, is immaterial to the ascertainment of the facts and so is inadmissible as evidence of that fact." Id. at 85, 284 F.2d at 218), other jurisdictions have held such testimony is insufficient to send a case to the jury. See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178, 179 (1971) (proof of causation beyond a reasonable doubt required medical testimony that physical and emotional stress resulting from struggle over purse was sole cause of fatal heart attack "with a reasonable degree of medical certainty"); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802, 803-04 (1968) (evidence of probable causation insufficient for government to meet its burden of proof on causation); People v. Brown, 57 Ill.App.3d 528, 15 Ill. Dec. 113, 116, 373 N.E.2d 459, 462 (1978) (state's burden is to show beyond a reasonable doubt that defendant's act was "a contributing cause to a death such that the death did not result from a source unconnected with the defendant's act"); see also Jackson v. State, 652 S.W.2d 415, 419 (Tex.Ct.App.1983) (en banc) (connection between blows and cause of death too unclear to support conviction where medical evidence was that defendant's blows to deceased child were an "unlikely and improbable" cause of the injury causing death); Reed v. State, 180 Ind.App. 5, 387 N.E.2d 82, 85 (1979) (medical testimony that crash would be consistent with injuries sustained insufficient where no evidence presented that blow to decedent's head, which caused death, occurred when car crashed; state must prove defendant's conduct "is the direct and proximate cause of the death of the victim"); Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335, 339 (1979) (even though medical expert did not use words "reasonable medical certainty," reasonable medical certainty could be found from the record which supported conviction where testimony that defendant beat the decedent with a blunt instrument and body subsequently discovered).
[27] Indeed, the government specifically recognized the need to refute suggestions of an independent cause subsequent to Stack's slap on June 6, of Bataineh's death. See supra note 20. There was no evidence that Stack had slapped or kicked Bataineh in the area of the jaw where Vaughan saw the bruise, which the medical testimony identified as significant in determining the cause of death. The nurse at Capitol Hill Hospital testified that Bataineh did not complain of injuries around her face, only the collar bone and the rib areas. A photograph of Bataineh's injuries showed that the bruise was under Bataineh's jaw, and not in the area Stack had slapped her or kicked her. Thus, since Vaughan was alone with Bataineh at a relevant time, without Vaughan's testimony, the government's evidence would have been insufficient.
[1] Retrial is constitutionally forbidden where the evidence presented at trial was insufficient to convict. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1 (1978). This is so because the Double Jeopardy Clause mandates that "No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V.
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359 Pa. Super. 594 (1987)
519 A.2d 511
Edward F. O'BRIEN
v.
Edna O'BRIEN, Appellant.
Supreme Court of Pennsylvania.
Argued September 5, 1986.
Filed January 5, 1987.
*595 Paul W. Rauer, Philadelphia, for appellant.
Denis W. Lanotot, Morrisville, for appellee.
Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
BECK, Judge:
In this divorce case, appellee-husband petitioned for special relief under the Divorce Code of 1980, Pa.Stat.Ann. tit. 23, § 403 (Purdon Supp. 1986) to prevent appellant-wife from dissipating proceeds from the sale of marital assets. First, it is necessary to consider whether an order granting or denying special relief under the Divorce Code is appealable as of right. We find that an order granting or denying special relief is not appealable as of right.[1]
On January 21, 1986, the trial court conducted a hearing on husband's petition and made findings of fact. The court ordered the wife to file an accounting within ten days, and further ordered that she not spend, transfer or otherwise dispose of the balance of the proceeds from the sale of marital property. The court determined that violation of the order subjected the wife to the penalty of contempt. Wife filed a timely accounting and a timely motion for post-trial relief pursuant to Pa.R.Civ.P. 1920.52(a) and 227.1
On March 3, 1986, the trial court reaffirmed its previous order of of January 21, 1986. The court then relied on wife's accounting to clarify its order. It directed wife not *596 to convey or encumber two vehicles and a house trailer which were paid for in part or in full from marital property proceeds. The order further directed wife not to withdraw any money from two bank accounts, and the order created a $35,000 lien in favor of the husband against all the aforesaid property. This sum represents one-half of the sale price of the marital residence.
The court scheduled an equitable distribution hearing which wife delayed by requesting a postponement. The rescheduling was in process when wife filed this appeal. Thereafter the trial court entered an order reaffirming the order of March 3, 1986. In its opinion the trial court concluded that wife's appeal was premature. We agree.
The Pennsylvania Supreme Court has recognized that the appealability of decisions involving interim relief in divorce actions is an important question. Fried v. Fried, 509 Pa. 89, 91, 501 A.2d 211, 212 (1985). The right to special relief in the instant action is derived from Sections 401(c) and 403(a) of the Divorce Code. It is necessary to consider the two sections together.
§ 401. Decree of court
(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interest of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.
Pa.Stat.Ann. tit. 23, § 401(c) (Purdon Supp. 1986).
§ 403. Injunction against disposition of property pending suit and decree rendering fraudulent transfers null and void. (a) Where it appears to the court that a party is about to remove himself or herself or his or her property from the jurisdiction of the court or is about to dispose of, alienate, or encumber property in order to defeat alimony pendente lite, alimony, child and spousal support, or similar award, an injunction may issue to prevent such removal or disposition and such property may be attached *597 as provided by the Rules of Civil Procedure. The court may also issue a writ of ne exeat to preclude such removal.
Pa.Stat.Ann. tit. 23, § 403(a) (Purdon Supp. 1986). The Code is silent as to whether orders pursuant to these sections are appealable as of right. An examination of Pa.R.Civ.P. 1920.43, implementing the two sections, sheds no light on the issue of appealability. We must therefore turn to our Rules of Appellate Procedure and case law construction thereunder to determine whether Sections 401(c) and 403 orders are final and appealable or interlocutory; and if interlocutory, whether they are appealable as of right pursuant to exceptions enumerated in Pa.R.App.P. 311.
Wife argues alternatively that her appeal is a final order appealable under Pa.R.App.P. 341 or an interlocutory order appealable as of right pursuant to Pa.R.App.P. 311(a)(2) and 311(a)(4).
I.
The appropriate standard to determine whether an order is final was originally set out in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), establishing an exception to the final judgment rule.
In Cohen, The Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. 337 U.S. at 546 [69 S.Ct. at 1226] . . . (emphasis added).
cited in Fried, 509 Pa. at 94, 501 A.2d at 214. This approach looks beyond the technical effect of an adjudication to its practical ramifications. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 544-45 (1978).
*598 In Fried, the Pennsylvania Supreme Court affirms the Cohen principle and determines that not all the factors can be met in the case of an appeal from an award of interim counsel fees and expenses in a matrimonial case. The court held that under the Divorce Code "such an order is interlocutory and thus not reviewable until final disposition of the case." Fried, 509 Pa. at 97, 501 A.2d at 215.
In considering the finality of an order, there is no applicable distinction between the interim financial award in Fried and the temporary order for special relief at issue in the instant case. Both orders fail to meet the Cohen standard. Thus, the order for special relief in the instant action is not a final order appealable as of right.
II.
The determination that the order is not final does not end our inquiry. We must examine whether the interlocutory order may be appealable as of right, under the applicable statute and rules. Appellant contends that Pa.R.App.P. 311(a)(2) and 311(a)(4) are applicable:
Rule 311. Interlocutory Appeals as of Right
(a) General rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
(2) Attachments, etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property.
(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.
As these rules for interlocutory appeals as of right were adopted before the Divorce Code of 1980, the drafters could not consider their impact in divorce cases.
The Fried court considered the policy of interlocutory appeals in divorce cases and determined that to permit appeals prior to final disposition of all matters relating to the divorce action would have serious consequences.
*599 Our decision today reflects the policy of law which abhors "piecemeal determinations and the consequent protraction of litigation." Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954). See also Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970). The avoidance of unduly protracted divorce proceedings is consistent with the legislature's intent to mitigate harm to the spouses and their children during this emotionally taxing experience. 23 P.S. § 102(4) (Supp. 1985). It is obvious that had the interlocutory appeal been disallowed, the present dispute as to costs could have been resolved several years ago in a final divorce decree. Moreover, a policy which allows piecemeal appeals from a single case serves only to increase the cost of litigation, and favors the party with the greater resources, who can strategically delay the action at the expense of the indigent party. We thus conclude that strong policy considerations support our holding today that such orders issued pursuant to section 502 of the Divorce Code are interlocutory and therefore unappealable.
Fried, 509 Pa. at 97, 501 A.2d at 215.
Accordingly, we conclude this interlocutory order is not appealable as of right.
The appeal is quashed. Jurisdiction is relinquished.
NOTES
[1] Wife raises numerous issues. Our disposition of the first issue is determinative and makes it unnecessary for us to consider the others.
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105 N.J. 67 (1987)
519 A.2d 350
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PAUL GIBBONS, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued October 7, 1986.
Decided January 15, 1987.
*69 William Welaj, Designated Counsel, argued the cause for appellant (Alfred A. Slocum, Public Defender, attorney).
Paul Gibbons submitted a letter in lieu of a supplemental brief pro se.
Richard W. Berg, Deputy Attorney General, argued the cause for respondent (W. Cary Edwards, Attorney General of New Jersey, attorney, Richard W. Berg and Jack R. Martin, Special Deputy Attorney General, on the briefs).
The opinion of the Court was delivered by HANDLER, Justice.
*70 Defendant, Paul Gibbons, was tried before a jury on two counts each of possession, possession with intent to distribute, and distribution of methamphetamine. Defendant raised the affirmative defense of entrapment. The jury rejected the defense, returning a verdict of guilty on all six counts.
In its charge to the jury, the trial court instructed the jury that in assessing defendant's entrapment defense, defendant's two prior convictions for receiving stolen property and single previous conviction for larceny and breaking and entering could be considered in evaluating defendant's predisposition to commit the drug offenses, as well as for purposes of appraising defendant's general credibility. Defendant unsuccessfully raised objections to this instruction at the close of the charge, and subsequently in a motion for a new trial. Following the jury verdict, the trial court merged each of the counts of possession into the distribution convictions and sentenced defendant to two concurrent terms of six years in state prison. On appeal, the Appellate Division affirmed in a reported decision, State v. Gibbons, 202 N.J. Super. 297 (1985). We granted certification, limited to the issue of whether the defendant's prior property-related convictions could properly be used to demonstrate a propensity to commit the drug-related offense.[1] 103 N.J. 456 (1986). For the reasons set forth in this opinion, we now reverse and remand for a new trial.
I.
Defendant's arrest and convictions stemmed from two meetings between defendant and an undercover police detective in November of 1981. The undercover officer, Robert Pincus of the Atlantic City Police Department, and defendant related differing accounts of these two meetings. They agreed that a *71 confidential paid informant, identified as Linda, introduced defendant to Pincus on November 22, 1981. Pincus testified that at that initial meeting, which occurred in the informant's apartment, the defendant sold Pincus a small quantity of methamphetamine in exchange for $20. Pincus further testified that after this transaction he informed the defendant that he was interested in purchasing a larger quantity of the same type of drug, whereupon the defendant quoted him prices for varying amounts. According to Pincus, the defendant then provided him with his phone number, and agreed that Pincus would contact the defendant the next day to arrange the details of the drug purchase.
Pincus testified that he called the defendant on November 23, 1981, and arranged to meet the defendant later in the day in Atlantic City to purchase methamphetamine. Pincus related that he met with the defendant on November 23, 1981, eventually proceeding to a room in the Caesar's Boardwalk Regency hotel. Pincus stated that once at the hotel, the two discussed future drug purchases and a trip to Philadelphia to buy more drugs. Defendant then produced approximately 2.5 grams of methamphetamine for Pincus's inspection and a $30 bag for Pincus to sample. Pincus subsequently signalled his fellow officers, who entered the room under the pretense of a room service delivery. Atlantic City Detectives McKnight and Mooney, along with a Caesar's security agent, were let into the room by Pincus, and defendant was placed under arrest. Pincus testified that when the defendant learned of Pincus's real identity, the defendant stated, "I thought you were Pincus but I wasn't sure." Detective McKnight confirmed this statement. The State contends that defendant was referring to Pincus's reputation in the area as an undercover narcotics officer.
Defendant admitted that he was a methamphetamine addict, thereby conceding guilt on the possession counts, but claimed that he neither distributed nor intended to distribute the drug. Defendant testified that he first began to use methamphetamine to relieve the pain resulting from crushed heels sustained *72 in an industrial accident. According to defendant, Linda called him 4 or 5 times on a day in November asking him to sell her drugs. He subsequently "stopped by" her apartment, where he found Pincus, whom he assumed was the informant's boyfriend, and the informant. Defendant testified, "he [Pincus] sat down at the table and I took the speed out of my pocket and gave it to Linda, and he put twenty dollars on the table which I just thought was the courtesy of a boyfriend or something like that." The defendant further testified, in contradiction to Pincus, that he left the $20 on the table and that Linda never left the room. Pincus then asked defendant about obtaining more methamphetamine, whereupon defendant "reluctantly" and "abstractly" related prices to Pincus.
Defendant testified that Pincus called him at home the following day, and invited him to take a ride to Philadelphia to buy some clothes with $16,000 that the detective's brother had just won in a casino. Defendant agreed to meet Pincus, thinking that he could "separate him from some of that money." Defendant testified that when he met Pincus the next day, he was carrying drugs for his own personal use and that only after Pincus asked him several times for drugs did he put two "lines" on a table for them to use. Defendant denied stating "I thought you were Pincus" when the officers entered the hotel room, although he conceded saying "something to that effect regarding school with him."
At the close of the State's case, the trial court held a Sands hearing[2] and determined that the State could introduce evidence of defendant's three prior convictions receiving stolen property in 1972, larceny and breaking and entering in 1975, and receiving stolen property in 1976 for purposes of impeaching the defendant's credibility. Thereafter the trial court instructed the jury that the prior convictions could be considered *73 also on the issue of defendant's predisposition to commit the offense as well as to assess the defendant's credibility.
II.
The New Jersey Code of Criminal Justice expressly provides entrapment as an affirmative defense. N.J.S.A. 2C:2-12.[3] The Court has interpreted N.J.S.A. 2C:2-12 as requiring that a defendant claiming entrapment prove both subjective and objective entrapment; he must prove, in other words, both "that the police conduct ... by its nature created a `substantial risk' that the crime would be committed by an average person who was not otherwise ready to commit it" (objective element) and "that the police conduct in fact caused him to commit the crime" (subjective element). State v. Rockholt, 96 N.J. 570, 581 (1984). Prior to the enactment of the entrapment defense as part of the Code, our common law had recognized the subjective entrapment defense, which allowed a defendant to demonstrate that prior to the commission of the crime, he had no predisposition or intent to commit the crime and that the law enforcement *74 authorities were responsible for inducing him to commit the crime. State v. Dolce, 41 N.J. 422 (1964). We had also recognized the relevance of objective evidence of entrapment in particular circumstances. The entrapment defense could be established by objective evidence of especially egregious police misconduct, even if predisposition was shown. State v. Talbot, 135 N.J. Super. 500 (App.Div. 1975), aff'd, 71 N.J. 160, 167-68 (1976) ("as the part played by the State in the criminal activity increases, the importance of the factor of defendant's criminal intent decreases, until finally a point may be reached where the methods used by the State to obtain a conviction cannot be countenanced, even though a defendant's predisposition is shown"). See State v. Molnar, 81 N.J. 475 (1980).
With respect to subjective entrapment we had followed the general rule regarding the use of other-crimes evidence as relevant to the defendant's predisposition to commit the crime charged. In Dolce, the Court, relying on Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L.Ed. 413 (1932), stated:
When a defendant interposes the defense of entrapment, the State may introduce evidence of his predisposition to commit crime. The purpose is to demonstrate that he was not an innocent person who would not have committed the offense were it not for the proposal and inducement of the police officer. Predisposition is evidenced by previous conviction of crime, reputation for criminal activities, ready compliance with minimal inducement, or easy yielding to the opportunity to commit the offense. [41 N.J. at 433 (emphasis added).]
Although the Court also expressed hesitancy over the admission of prior conviction evidence in the State's case in chief, it endorsed the use of such evidence on cross-examination not only to affect credibility but also to show a defendant's propensity to commit crime when a defendant's direct testimony or other evidence adduced by him created a factual issue regarding the defense of entrapment. Id. at 434. Our pre-Code approach comports with the general common law according to which the prosecution could introduce "other-crimes" evidence on the issue of a defendant's predisposition to commit crime. See generally Annotation, "Admissibility of Evidence of Other *75 Offenses in Rebuttal of Defense of Entrapment," 61 A.L.R.3d 293 (1975) (1986 supp. at 14) (collecting cases).
Because the New Jersey Code of Criminal Justice, in codifying the defense of entrapment, encompassed subjective as well as objective elements, State v. Rockholt, supra, 96 N.J. 570, the defendant's predisposition to commit the offense and the relevance of prior crimes to the issue of the defendant's predisposition remain at issue in terms of what caused the crime. In the context of this case, this proposition of law poses a series of difficult problems: what kinds of prior crimes are admissible to show such predisposition; what relationship exists between prior crimes relevant to predisposition and prior crimes relevant to credibility; and can prejudicial error be demonstrated if evidence of prior crimes admissible for one purpose but not another is admitted for both purposes?
III.
We deal first with the question of what kinds of prior crimes are relevant to demonstrate a predisposition to commit the crime currently charged. Preliminarily, we consider defendant's claim that Evidence Rule 55 itself governs and restricts the use of prior-crimes evidence in connection with the entrapment defense.
By its language, the Rule precludes any use of other-crimes evidence to prove "disposition to commit crime." It provides:
Subject to Rule 47, evidence that a person committed a crime or civil wrong on a specific occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed a crime or civil wrong on another specified occasion but, subject to Rule 48, such evidence is admissible to prove some other fact in issue including motive, intent, plan, knowledge, identity, or absence of mistake or accident.
The Dolce decision, authorizing the use of such other-crimes evidence, was rendered prior to the adoption of the New Jersey *76 Rules of Evidence,[4] and thus does not address the potential impact of Evidence Rule 55.
Despite the language of Evidence Rule 55, defendant does not contend that Evidence Rule 55 imposes a blanket exclusion of other-crimes evidence to prove predisposition in an entrapment case, nor has the Rule ever been so interpreted. The drafters of the New Jersey Evidence Rules, intending to incorporate the common law, clearly contemplated that the common-law rule of Dolce would not be altered by the Evidence Rules, viewing admission in the entrapment context as an implied exception to Evidence Rule 55. Comment 11 to Evidence Rule 55 states:
There is one situation where the State in a criminal case may introduce other crime evidence to show that a defendant is predisposed toward committing crime as a basis for an inference that the defendant committed the offense in question. This occurs when the defendant raises the defense of entrapment, i.e., when he states that his criminal conduct was the direct product of the creative activity of law enforcement officials. [N.J. Rules of Evidence (Anno. 1986), Comment 11 to Evid.R. 55.]
Additionally, in State v. Rockholt, supra, 96 N.J. 570, this Court, without mentioning Rule 55, noted that "under certain circumstances a defendant's prior convictions ... might be admissible on the issue of predisposition" in the entrapment context. Id. at 582-83. Moreover, while Evidence Rule 55 forbids the use of other-crimes evidence to support the inference that the individual "committed a crime ... on another specified occasion," a defendant pleading entrapment has conceded the commission of acts that might otherwise constitute criminal conduct. Cf. State v. Rockholt, supra, 96 N.J. at 583 (prior crimes may be admissible to prove predisposition in an entrapment case but not admissible to prove the defendant committed the criminal act). Hence, other-crimes evidence offered to rebut an entrapment claim is not used to establish that *77 the defendant committed the crime, but to prove, as an independent issue, that the defendant was predisposed. Under this view, the use of other-crimes evidence of predisposition in entrapment cases is proof of "some other fact in issue," within the bounds of Evidence Rule 55.
We have long recognized that the restrictions upon the admissibility of other-crimes evidence to prove predisposition stem not so much from a lack of probative worth as from the potential for unfair prejudice. The danger exists that a jury, aware of other-crimes evidence, may convict a defendant not on the evidence of the specific crime at issue but because of the perception that the defendant is a "bad" person in general. See State v. Miller, 159 N.J. Super. 552, 562 (App.Div. 1978); N.J. Rules of Evidence (Anno. 1986), Comment 1 to Evid.R. 55; W. LaFave and A. Scott, Criminal Law (1972), § 48 at 373. Consequently, when the State seeks to use prior convictions, for example, to impeach credibility or to prove another issue in dispute, courts have resorted to limiting instructions and evidentiary hearings out of the presence of the jury to ensure that the jurors' minds are not improperly diverted. See State v. Humphrey, 183 N.J. Super. 580, 586 (Law Div. 1982), aff'd, 209 N.J. Super. 152 (App.Div. 1986). In the context of entrapment, courts have tried to ensure that the probative worth of such evidence when used to show predisposition will outweigh its prejudicial effect by requiring that the prior convictions be for crimes similar to the crime for which the defendant is being prosecuted. The difficulty, of course, lies in fixing the scope of "similarity," for any two given crimes can be characterized, at a sufficiently abstract level, as "similar."
The majority of the federal cases considering this issue have insisted on some demonstrable indicia or tangible degree of similarity. Some have focused explicitly on the object of the crime and its modus operandi. In United States v. Pagan, 721 F.2d 24, 31 (2d Cir.1983), the Second Circuit stated:
evidence of ... prior crimes must involve offenses similar to those in question in order to constitute relevant rebuttal evidence. [Citations omitted.] Here the *78 prior conviction for dealing in stolen automobiles is so dissimilar from heroin trafficking that it would not have been relevant to demonstrate ... predisposition to distribute drugs.
In effect, the court required a specific or particularized predisposition to commit the charged offense predisposition to distribute drugs rather than a broader, intent-based predisposition that would encompass both dealing in drugs and dealing in stolen automobiles. In United States v. Hairrell, 521 F.2d 1264 (6th Cir.), cert. denied, 423 U.S. 1035, 96 S.Ct. 568, 46 L.Ed.2d 409 (1975), the court asserted that "the fact that [defendant] had once stolen a television set told nothing about his predisposition to transfer and deliver counterfeit money." The court explained: "The defense of entrapment does not give the prosecution the right to put a defendant's general character into issue.... Only evidence ... which tends to show a predisposition to `willingly engage in the specific conduct involved' in the charge is admissible." Id. at 1268 (citations omitted); see also United States v. Daniels, 572 F.2d 535, 538 (5th Cir.1978) (post-crime offense of possession of sawed-off shotgun "is not probative of a defendant's predisposition to violate the drug laws"); United States v. Blankenship, 775 F.2d 735, 739 (6th Cir.1985) (impermissible to use other-crimes evidence to prove predisposition to commit criminal acts generally; only other crimes of same nature as those charged are admissible to prove predisposition to commit charged offense); De Jong v. United States, 381 F.2d 725, 726 (9th Cir.1967) (prior offenses of burglary and drunkenness dissimilar to charge of drug distribution); United States v. Clemons, 503 F.2d 486, 489 (8th Cir.1974) (prior criminal conduct introduced to rebut defendant's claims of inadvertence and mistake "must involve an offense similar in kind and reasonably close in time to the charge at trial"). But see United States v. Murzyn, 631 F.2d 525 (7th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981) (in prosecution for sale of stolen automobiles, evidence that defendant threatened a federal agent with a gun, solicited an assassin, made derogatory racial and sexual remarks *79 and stole from a nursery and construction site admissible to rebut claim of government coercion).
Other federal decisions have required less specificity as to the particular purpose or mechanics of the respective crimes. Some have focused on a more abstract kind of mental state that characterizes both the prior and current crimes, e.g., United States v. Williams, 705 F.2d 603, 623 (2nd Cir.1983), cert. denied, 464 U.S. 1007, 104 S.Ct. 524, 78 L.Ed.2d 708 (1983) (prior attempts to peddle influence "morally indistinguishable" from "ABSCAM" offenses charged and therefore probative on predisposition); United States v. Apuzzo, 555 F.2d 306, 307 (2nd Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1470, 55 L.Ed.2d 507 (1978) (conviction for possession of untaxed cigarettes is similar to indicted offense dealing in firearms without a license because both involve intent to "defraud the revenue"). Still others have relied on an ad hoc declaration that the crimes could be considered "similar". See United States v. Parrish, 736 F.2d 152, 156 (5th Cir.1984) ("the previous conviction was for a crime very similar to that for which [defendant] was on trial, and was therefore strongly relevant to the issue of predisposition"); United States v. Moschiano, 695 F.2d 236, 244 (7th Cir.1982), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983) ("subsequent similar acts may, under proper circumstances, be admissible to prove the defendant's predisposition to commit the crime charged"); United States v. Biggins, 551 F.2d 64, 68 (5th Cir.1977) ("evidence of prior similar offense was relevant to show predisposition and intent").
While most state courts have not specifically addressed the type of other-crimes evidence that is admissible to prove predisposition, several have, like the federal courts, limited the use of other-crimes evidence to similar offenses.[5] In State v. Burciaga, *80 146 Ariz. 333, 705 P.2d 1384 (Ariz. Ct. App. 1985), an Arizona appellate court ruled that a prior conviction for theft could not be used to rebut defendant's claim of entrapment on the charge of trafficking in stolen property because "the past conduct must be of a sufficiently similar nature to the crime charged to show a predisposition to commit that crime." Id. 705 P.2d at 1386 (emphasis supplied); see State v. Batiste, 363 So.2d 639 (La. 1978); State v. Guarisco, 466 So.2d 1356 (La. Ct. App.), writ denied, 474 So.2d 946 (La. 1985); Bowser v. State, 50 Md. App. 363, 439 A.2d 1 (Md. 1981).
It is difficult, if not impossible, to synthesize the results of these myriad decisions into a principled standard for determining similarity. Clearly, under a standard cast broadly in terms of intent, any given offenses could be tortured into a posture of similarity, while under a standard worded narrowly in terms of specific acts, prior offenses that seem relevant to predisposition (e.g., manufacture of drugs, when the current charge is distribution), might be held dissimilar. The impossibility of defining precisely the scope of the standard does not justify, however, an ad hoc determination. It remains necessary to analyze and compare prior and current crimes as to common features for purposes of evaluating their similarity, and to develop standards to guide courts with greater consistency in their assessment of similarity. Consequently, when confronted with this issue, a court should identify those factors or elements that are necessary predicates of the respective crimes. See generally N.J.S.A. 2C:1-14(h) and 2C:1-14(i) (defining, respectively, "Element of an offense" and "Material element of an offense"). It should then determine how many factors essential to each crime are shared, and whether they *81 are shared to such an extent that the conclusion that the crimes are "similar" is justified in light of all the surrounding circumstances. In undertaking this analysis and comparison the court should consider such factors as the object of the crime, the methods used in perpetrating the crime, and the particular mental state required for the commission of the crime. For example, the object of the crime could relate to drugs, stolen goods, property, gambling, physical violence, etc. The methods for committing a crime could encompass robbery, theft, deception, assault, threats, conspiracy, etc. Mental states can relate to purpose, knowledge, intent or motive related to the particular crime. It follows that the greater the number of these coinciding factors, the stronger will be the similarity between the prior and current crimes.
In this case, the Appellate Division in determining admissibility purported not to apply as a standard the "similarity" of the prior conviction. It applied, instead, "fairness in the particular case" as the controlling test. It might be argued, however, that the Appellate Division impliedly used a "similarity" standard because it determined that "[t]he prior convictions [for burglary and larceny] all involved dishonesty and theft, crimes familiar to the drug milieu." State v. Gibbons, supra, 202 N.J. Super. at 301. Thus, the court ruled implicitly that Gibbons' prior convictions for burglary and larceny were "similar" to the current charge of narcotics distribution, because all either directly involved, or were implicated in, "dishonesty and theft."
We disagree with the court's conclusion that the prior crimes were similar to or sufficiently like the current crimes and therefore relevant for the purpose of demonstrating predisposition. It seems obvious that the object of the respective crimes is different. The current charge related to drugs; the prior crimes, according to the record and as presented to the jury, related to offenses against property. The criminal methods were also disparate; the current offense involved acts of drug *82 distribution, while the prior crimes involved the receipt of stolen property and burglary in order to steal. Finally, the mental states were different in that the drug offense entailed a purpose or plan to distribute drugs, whereas the prior offenses presumably required a purpose to steal.[6]
We are satisfied, moreover, that under prevailing case law the prior crimes would not be considered probative on the issue of predisposition. In cases in which the pending charge has been drug distribution, the strongest argument for similarity has been made when the prior crime has likewise involved distribution. See, e.g., State v. White, 86 N.J. Super. 410, 421 (App.Div. 1965) (in view of defense of entrapment, evidence of previous narcotics sales by defendant "admissible as evidence of the defendant's predisposition to commit crime"); United States v. Segovia, 576 F.2d 251 (9th Cir.1978) (distribution of marijuana relevant to predisposition to distribute cocaine; drug need not be identical); State v. Prock, 577 S.W.2d 663 (Mo. App. 1979) (prior offer to sell marijuana relevant to predisposition to sell cocaine); United States v. Biggins, supra, 551 F.2d at 68 (sale of cocaine similar to allegation of possession and distribution of heroin); United States v. Sonntag, 684 F.2d 781, 788 (11th Cir.1982) (evidence of prior sales of pills, marijuana, cocaine admissible in prosecution for cocaine distribution); State v. Carrillo, 80 N.M. 697, 460 P.2d 62 (Ct.App. 1969) (prior heroin sales relevant to predisposition to distribute heroin); State v. DeWolfe, 121 R.I. 676, 402 A.2d 740 (1979) (in prosecution for various narcotics offenses, state entitled to introduce *83 evidence of prior conviction for drug sale and prior sales to rebut entrapment defense); Brown v. State, 392 So.2d 1248 (Ala. Crim. App. 1980) (evidence of prior sale of marijuana admissible to show defendant's "intent" to rebut claim of entrapment on charge of selling marijuana); Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (Ark. Ct. App.), aff'd, 280 Ark. 291, 658 S.W.2d 362 (1983) (evidence of additional drug sales admissible to rebut inference that defendant entrapped on indicted drug sale); see also United States v. Moschiano, supra, 695 F.2d at 244 (attempt to buy Preludin held similar to sale of heroin because "both transactions in essence involved... the distribution of commercial quantities of controlled substances"); cf. Schmitt v. State, 160 Ind. App. 109, 310 N.E.2d 73 (Ind. Ct. App. 1974), cert. denied, 420 U.S. 929, 95 S.Ct. 1129, 43 L.Ed.2d 400 (1975) (to rebut entrapment claim in prosecution for distribution of L.S.D., proper to introduce evidence of defendant's reputation as a drug trafficker).
The case for similarity is attenuated somewhat when the prior conviction is for possession, since possession in small amounts is consistent with personal use. Not surprisingly, courts have divided as to whether mere possession of drugs is sufficiently similar to the distribution of drugs to show a predisposition to distribute. Compare United States v. Bramble, 641 F.2d 681, 683 (9th Cir.), cert. denied, 459 U.S. 1072, 103 S.Ct. 493, 74 L.Ed.2d 635 (1981) (prior conviction for possession of marijuana irrelevant to predisposition to distribute cocaine); State v. Stanley, 288 N.C. 19, 215 S.E.2d 589, 598 (1975) (prior conviction for possession of marijuana "would not indicate a predisposition to distribute LSD"); and State v. Ross, 25 Ariz. App. 23, 540 P.2d 754 (1975) (evidence that defendant had been a heroin buyer not informative on predisposition to sell heroin), with State v. Matheson, 363 A.2d 716, 723 (Me. 1976), in which the court held, as to a defendant charged with distribution, that "evidence that the appellant had committed offenses of the same general character as that for which he was tried, i.e., possession and unlawful use of drugs is evidence of predisposition." *84 (Emphasis added.) See also United States v. Clemons, supra, 503 F.2d at 489-90 (prior arrest "was for possession of so large a quantity of heroin that delivery could reasonably be inferred"); cf. United States v. Parrish, supra, 736 F.2d at 156 (previous conviction for conspiracy to manufacture phenylacetone, a precursor of methamphetamine, held "very similar" to current charge of possession with intent to distribute and distribution); United States v. Badolato, 710 F.2d 1509, 1512 (11th Cir.1982) (video tape regarding harvesting of marijuana crop admissible to prove predisposition to distribute cocaine). Our own decisions reflect the view that possession can be relevant to a predisposition to distribute. See State v. Talbot, 135 N.J. Super. 500, 511 (App.Div. 1975), aff'd, 71 N.J. 160 (1976) (evidence of previous guilty plea to charge of illegal possession of narcotics admissible to show predisposition to sell narcotics when entrapment defense raised); cf. State v. Marzolf, 79 N.J. 167, 178 (1979) (in sentencing for simple possession of marijuana the quantity possessed may suggest possession for other than personal use).
By contrast, cases in which the pending charge has been drug distribution and the prior offenses have not been at all drug-related have rejected the similarity, and hence the relevance, of the prior offenses. In the most widely-discussed case, DeJong v. United States, supra, 381 F.2d at 726, evidence of prior arrests for burglary and drunkenness was held inadmissible because dissimilar to narcotics dealing. The court was typically vague in announcing its standard, noting only that the evidence of prior offenses must tend "to prove that defendant was engaged in illegal operations in some way similar to those charged in the indictment." Id. (emphasis added). The court then added: "Proof that a man is a burglar or a drunk does not tend to show that he has dealt in narcotics and was prepared to deal in narcotics at the time of the asserted entrapment." Id. In United States v. Pagan, supra, 721 F.2d at 31, the court held that prior convictions "must involve offenses similar to those in question in order to constitute relevant rebuttal evidence"; *85 the defendant's "prior conviction for dealing in stolen automobiles is so dissimilar from heroin trafficking that it would not have been relevant to demonstrate ... predisposition to distribute drugs." See also United States v. Daniels, supra, 572 F.2d 535 (post-indictment arrest for possession of sawed-off shotgun inadmissible to prove predisposition to violate the drug laws).
Thus, if the strongest case for similarity in a drug-distribution context is a prior conviction for distribution of drugs, and if that similarity is attenuated somewhat where the prior conviction was for possession only, perhaps the weakest case for similarity is presented where, as here, the prior convictions are unrelated to the current charge in terms of objects, methods, and particular mental states. They can be regarded as "similar" in only the most abstract terms, as evidenced by the Appellate Division's reasoning that "dishonesty and theft" crimes were "familiar to the drug milieu." Put simply, there is lacking, on the record before us, any factual nexus between the crimes. The prior crimes as presented for the jury's consideration were wholly unrelated to drugs, and were thus closely akin to the crimes burglary, drunkenness, dealing in stolen automobiles whose relevance to predisposition to distribute drugs has been repudiated in such cases as DeJong v. United States, supra, 381 F.2d 725, and United States v. Pagan, supra, 721 F.2d 24.[7]
In sum, we are satisfied that the prior crimes, because dissimilar to the current crime, did not have sufficient probative worth bearing upon defendant's predisposition to commit the crimes charged. It was error, therefore, for the trial court to have allowed evidence of these crimes to be used to demonstrate a specific predisposition to commit the current crime.
*86 IV.
Defendant's claim that evidence of his prior convictions for larceny and burglary was admitted erroneously to prove his predisposition is further complicated by the fact that the trial court admitted the evidence to impeach the defendant's credibility as well as to rebut his entrapment defense. No issue is raised on this appeal as to whether these prior crimes were properly admissible for the purpose of affecting credibility under State v. Sands, supra, 76 N.J. 127. Sands noted explicitly that "[s]erious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving"; the trial and appellate courts both found controlling the fact that "[t]he prior convictions all involved dishonesty and theft," 202 N.J. Super. at 301. However, while the prior convictions were relevant to credibility, the trial court failed to limit the jury's consideration of them to the issue of credibility. Defendant contends that this failure was harmful error calling for a reversal of his conviction.
The State argues that the admission of prior convictions to prove predisposition was, if error, harmless error, because "[t]he evidence of the defendant's predisposition to engage in criminal activity for profit even without the prior convictions, was overwhelming." We disagree. The testimony on disposition to distribute was, if anything, equivocal. The Appellate Division noted, however, that "[t]he prior convictions were known to the jury in any event, even if not pertinent to the defense of entrapment, because defendant had testified and they were properly in evidence for testing his credibility under Sands and N.J.S.A. 2A:81-2." State v. Gibbons, supra, 202 N.J. Super. at 301.
The Appellate Division's conclusion seems supported by cases such as United States v. Parrish, supra, 736 F.2d 152, in which the defendant granted the admissibility of his prior conviction, but argued that the reference to the prior conviction in the *87 prosecutor's summation was calculated to imply that the prior conviction reflected a criminal predisposition. The court acknowledged that "[o]rdinarily such an argument by a prosecutor is improper," but rejected defendant's position because "[i]n this case ... [defendant] put his predisposition in issue by alleging entrapment.... [T]he evidence was clearly relevant to the question of predisposition, a question that had been put in issue by the defendant. The probative value was not outweighed by the prejudicial potential of the evidence...." See also Nutter v. United States, 412 F.2d 178 (9th Cir.), cert. denied, 397 U.S. 927, 90 S.Ct. 935, 25 L.Ed.2d 107 (1970) (defendant argued that because he had dropped his entrapment defense, his prior convictions should not have been admissible; court held that they were admissible because entrapment was still at issue when they were introduced, and noted that "[b]oth felony prior were admissible to impeach the appellant as to his credibility"); cf. United States v. Apuzzo, supra, 555 F.2d 306 (the converse of the present case: defendant challenged admissibility of prior convictions for impeachment purposes; court noted that since the prior conviction was similar to the current charge, "[i]t was therefore, in any event, admissible as evidence tending to show a predisposition to commit the crime, such evidence being open to proof when the defense is entrapment"). The implication of these cases, and of the opinion below, is that even if it was error to rule that the prior conviction is admissible to show predisposition (or, in Apuzzo, to impeach), that error is harmless because the same prior conviction was available to impeach (or, in Apuzzo, to show predisposition).
We disagree with this conclusion. In Sands itself this Court noted its awareness "of the danger that a jury might improperly use a prior conviction as evidence of the defendant's criminal propensity." 76 N.J. at 142 n. 3. This danger was lessened, the Court held, by its decision in State v. Sinclair, 57 N.J. 56, 63 (1970), which "instructed trial judges to explain carefully the *88 limited purpose of prior conviction evidence." Sands, supra, 76 N.J. at 142 n. 3. In Sinclair, the Court affirmed the nexus between prior convictions and credibility, but emphasized that "the trial court ... must carefully explain to the jury the limited purpose for which the evidence can be used." Sinclair, supra, 57 N.J. at 165-66.
These considerations take on more force in this case, where the defendant's specific predisposition to commit a particular crime is at issue but not his general "criminal propensity." Given the basic instruction of Sands that discretion must be exercised with respect to the admissibility of a prior conviction that bears more on disposition than on credibility, given the requirement that a limiting instruction be provided where consideration of prior convictions relative to a defendant's "criminal propensity" would be improper, and given our present determination that the defendant's prior crimes in this case were not similar to the offense currently charged and were thus irrelevant to his predisposition to commit it, the trial court's failure to limit the jury's consideration of the prior convictions to the issue of credibility was clearly harmful error. See State v. Miscavage, 62 N.J. 294 (1973) ("Once the convictions came into the record, the trial court was duty bound... to charge on the prior use and effect of prior convictions in the jury's deliberations lest the jury ... think that the criminal conduct ... could serve as ... proof of a criminal propensity...."); cf. State v. Lair, 62 N.J. 388, 391-92 (1973) (evidence of prior convictions "may not ... be considered or taken into account in determining the defendant's guilt of the offense for which he is being tried.... A limiting instruction to this effect should be given by the trial court"; held: failure to give limiting instruction was not plain error, in light of "overwhelming" evidence of guilt); State v. Boratto, 80 N.J. 506 (1978) (emphasizing importance of limiting instruction where evidence carries "prejudicial aura").
In this case we go no further than to accept the admissibility of the prior convictions for impeachment purposes and reverse *89 the judgment because of the trial court's failure to limit the jury's consideration of the prior convictions to the issue of impeachment.
V.
In light of our decision, a remand and retrial is called for. We point out, in connection with a retrial, that the affirmative entrapment defense must establish both the subjective and objective elements. The former focuses upon causation and predisposition; the latter, also relating to causation, entails proof of police misconduct creating "a substantial risk that the crime would be committed by individuals who were not ready to commit it." State v. Rockholt, supra, 96 N.J. at 577, 579; see id. at 584, 586 (O'Hern, J., concurring); Note, 15 Seton Hall L. Rev. 464 (1985). No issue has been raised in this appeal, however, as to the sufficiency of evidence adduced at trial bearing on the objective element of the entrapment defense.
For the foregoing reasons, the judgment below is reversed and the matter remanded for a new trial.
For reversal and remandment Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 7.
Opposed None.
NOTES
[1] Defendant, pro se, also petitioned for certification on a claim of ineffective assistance of counsel. The Court denied this petition.
[2] This is required under State v. Sands, 76 N.J. 127 (1978), to determine the admissibility of prior convictions.
[3] The statute provides:
a. A public law enforcement official or a person engaged in cooperation with such an official or one acting as an agent of a public law enforcement official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such offense by either:
(1) Making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
[4] In 1967 New Jersey comprehensively codified its common-law rules of evidence in the New Jersey Rules of Evidence. Rules 1(1) through 1(13) and 23 through 40 were adopted in 1960. The remaining Rules were adopted in 1967.
[5] The only states that have not limited the rebuttal use of other crimes to similar crimes are those that have precluded the issue of predisposition altogether. See People v. Benford, 53 Cal.2d 1, 345 P.2d 928 (Cal. 1959); State v. Klauer, 226 N.W.2d 803 (Iowa 1975); State v. Nelsen, 89 S.D. 1, 228 N.W.2d 143 (S.D. 1975). California has implemented the purely objective form of the entrapment defense, rendering irrelevant evidence of other crimes. See People v. Barraza, 23 Cal.3d 675, 153 Cal. Rptr. 459, 591 P.2d 947 (1979).
[6] The State has moved to supplement and to clarify the record to reflect that defendant's prior crimes were drug-related, in that defendant was a heroin addict at the time they were committed. The Court has denied these motions, on the ground that such evidence, not having been produced at trial, is irrelevant to what occurred at trial and cannot appropriately be considered on appellate review. This ruling, however, in no way precludes the State from proffering this evidence at a retrial and arguing that it should be considered relevant to the issue of defendant's predisposition, although we intimate no views as to the merits of such a contention.
[7] As we noted earlier, this opinion does not preclude any future attempt by the State to show that the prior offenses were, in fact, drug-related. See note 6, supra, at 82.
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916 F. Supp. 638 (1995)
Irma COLLINS, Plaintiff,
v.
BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendant.
No. 95-CV-72192-DT.
United States District Court, E.D. Michigan, Southern Division.
November 29, 1995.
*639 Nelson S. Chase, Farmington Hills, MI, for Plaintiff.
James R. Murphy, Blue Cross Blue Shield of Michigan, Detroit, MI, for Defendant.
MEMORANDUM OPINION AND ORDER
ZATKOFF, District Judge.
I. INTRODUCTION
In this action, plaintiff Irma Collins seeks confirmation of an Arbitration Award pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the Michigan Arbitration Act, M.C.L. § 600.5001 et seq. The defendant, Blue Cross Blue Shield of Michigan ("BCBSM"), has filed a counterclaim seeking to vacate the Arbitration Award. Currently before this Court are the parties' cross-motions for summary judgement. The facts and legal arguments are adequately presented in the briefs, and the decisional process will not be aided by oral arguments. Therefore, pursuant to E.D.Mich.Local R. 7.1(e)(2), it is hereby ORDERED that the motions be resolved on the briefs submitted, without this Court entertaining oral arguments.
Binding arbitration was requested in this matter pursuant to the BCBSM Termination Arbitration Procedure for Non-Bargaining Unit Employees (the "Arbitration Agreement"). In an Opinion and Arbitration Award dated April 13, 1995, the arbitrator, Elliot I. Beitner, determined that in terminating the plaintiff, BCBSM had violated both the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101; and the Michigan Handicappers' Civil Rights Act ("MHCRA"), M.C.L. § 37.1101. The arbitrator awarded back pay and attorney fees and ordered BCBSM to reinstate the plaintiff.
After reviewing the motions, briefs, the Court file and the relevant case law and statutes, the Court concludes that the Arbitration Award should be confirmed. Accordingly, plaintiff's motion will be GRANTED, and defendant's motion will be DENIED.
II. BACKGROUND
The plaintiff, Irma Collins, was an employee at BCBSM with nine years of service and no disciplinary record. On November 11, 1993, plaintiff took a medical leave of absence due to stress and began psychiatric treatment with Dr. Rosalind Griffin. Dr. Griffin sent reports to BCBSM indicating that the *640 plaintiff was disabled from work as a result of a mental condition known as major depression/adjustment disorder. The plaintiff received short term disability benefits during her leave of absence.
On December 16, 1993, plaintiff was examined by Dr. Jolyn Welsh Wagner, a psychiatrist, to determine whether she continued to be disabled. In the course of the examination, plaintiff made certain statements to Dr. Wagner regarding her supervisor at BCBSM: "I hate the bitch"; "She is living on borrowed time and she doesn't know it"; "I have killed her a thousand times in my mind."
The plaintiff's treating psychiatrist, Dr. Griffin, did not believe that the plaintiff would act on her homicidal ideation, and concluded that the plaintiff was not a threat to herself or others in the workplace. The examining psychiatrist, Dr. Wagner, would not characterize the grievant's statements as threats; instead, she referred to them as expressions of the plaintiff's thoughts.
After receiving Dr. Wagner's interim report, BCBSM concluded that the plaintiff should be terminated. Dr. Griffin determined that plaintiff had recovered from her disability and authorized her to return to work on February 1, 1994. When plaintiff returned to work, she was terminated.
Plaintiff filed a request for arbitration alleging violations of the Americans With Disabilities Act and Michigan Handicappers' Civil Rights Act. The arbitrator concluded that BCBSM, in terminating the plaintiff, had violated both the ADA and the MHCRA. The arbitrator awarded back pay and attorney fees and ordered BCBSM to reinstate the plaintiff.
III. OPINION
A. Standard of Review
There are three possible sources for the applicable standard of review of the Arbitration Award state law, federal law and the Arbitration Agreement. The Arbitration Agreement entered into by the parties provides, with regard to the Judicial Enforcement and Review of an arbitrator's award, as follows:
This Arbitration Procedure and proceedings hereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., as well as the Michigan Arbitration Act, 27 MSA § 5001 et seq. An arbitrator's award rendered pursuant to this Arbitration Procedure shall be enforceable, and a judgement may be entered thereon, in a Michigan federal district court or Michigan circuit court of competent jurisdiction.
The decision of the arbitrator shall be final and binding; provided however, that limited judicial review may be obtained in a Michigan federal district court or Michigan court of competent jurisdiction (a) in accordance with the standards for review of arbitration awards as established by law; or (b) on the ground that the arbitrator committed an error of law.
The Federal Arbitration Act ("FAA"), 9 U.S.C. § 9, states, in pertinent part:
If the parties in their agreement have agreed that a judgement of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.
The manner in which a court is to review an arbitration award under the FAA was set forth by the Sixth Circuit in Federated Department Stores v. J.V.B. Industries, Inc., 894 F.2d 862, 866 (6th Cir.1990). The court first noted that the party seeking review must prove that "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." See 9 U.S.C. § 10(d). The court then reviewed how other courts have interpreted this language, observing that "the standard of review in arbitration decisions is very narrow." Id. at 866.
"[A]s long as the arbitrator is even arguably construing or applying the contract and *641 acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id. at 866 (quoting United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987)). The Federated court concluded that "[a]rbitrators do not exceed their authority unless they display a manifest disregard of the law." Id. at 866.
The Michigan Arbitration Act, MCL § 600.5001(2), states, in pertinent part:
A provision in a written contract to settle by arbitration under this chapter, a controversy thereafter arising between the parties to the contract, with relation thereto, and in which it is agreed that a judgement of any circuit court may be rendered upon the award made pursuant to such agreement, shall be valid, enforceable and irrevocable save upon such grounds as exist in law and equity for the rescission or revocation of any contract.... Any arbitration had in pursuance of such agreement shall proceed and the award reached thereby shall be enforced under this chapter.
The leading authority in Michigan regarding the standard for reviewing an arbitration decision is DAIIE v. Gavin, 416 Mich. 407, 331 N.W.2d 418 (1982). The DAIIE court adopted the following standard:
[W]here it clearly appears on the face of the award or the reasons for the decision as stated, being substantially a part of the award, that the arbitrators through an error in law have been led to a wrong conclusion, and that, but for such error, a substantially different award must have been made, the award and decision will be set aside. Id. at 443, 331 N.W.2d 418 (quoting Howe v. Patrons' Mutual Fire Ins. Co. of Michigan, 216 Mich. 560, 562, 185 N.W. 864 (1921)).
Thus, the Court must choose between three competing standards of review: the federal "manifest disregard of law" standard, the state "substantial error of law" standard, and the alternative "error of law" standard expressed in the Arbitration Agreement.
At the outset, the Court notes that federal and state standards "are not all that different ... [b]oth invoke a rather deferential review." St. Luke's Hospital v. SMS Computer Systems, Inc., 785 F. Supp. 1243, 1245-46 (E.D.Mich.1991). As with any federal statute, however, "when a state law `actually conflicts' with the federal law, the state law is pre-empted." Id. at 1247. See also U.S. Const., Art. VI, Clause 2. Moreover, "where the Federal Arbitration Act enforces agreements to arbitrate, the Act controls and governs the arbitration in question, including the means of securing judicial review." Corey v. New York Stock Exchange, 493 F. Supp. 51 (W.D.Mich.1980). As between the state and federal standards, the federal standard of review must prevail.
The next issue the Court must address is whether the parties can, by agreement, alter the nature of a federal court's role in the arbitration process. In Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford, Jr. University, 489 U.S. 468, 478-79, 109 S. Ct. 1248, 1255-56, 103 L. Ed. 2d 488 (1989), the Supreme Court held that "[a]rbitration under the act is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted."
Although the freedom of contract language in Volt applies only in the context of the arbitration itself, this principle has been extended by at least one court to its determination of the applicable standard of review. In Fils et Cables d'Acier de Lens v. Midland Metals Corp., 584 F. Supp. 240, 245 (S.D.N.Y. 1984), the court reviewed the arbitrator's award "in accordance with the standard provided for by the parties' agreement and not by the less searching inquiry normally applicable in an action to confirm an arbitration award." The court allowed the parties to alter the roles of the arbitrators and courts in a contract which provided for more extensive court involvement than is ordinarily the case. Id. at 245. The Fils et Cables court could find no jurisdictional or policy barrier to such a result. Id. at 245.
*642 The Court will thus review the Arbitration Award in the instant case under the lowest common denominator "error of law" standard provided in the Arbitration Agreement. The Court recognizes that the plaintiff, as a non-bargaining unit employee of BCBSM, did not bargain for this lowered standard. However, such a standard is not inherently unfair to either party and the Arbitration Agreement does not resemble an adhesion contract in this regard. Moreover, the Court's decision is premised on the notion that if defendant's assertions are unable to overcome even this lower standard, they will certainly fail under the more stringent federal standard.
B. Arbitration Agreement and Award
Non-union employees at BCBSM are considered employees at will who can be terminated for any lawful reason. The BCBSM Termination Arbitration Procedure for Non-Bargaining Unit Employees ("Arbitration Agreement") requires claims of statutory violations to be presented solely through arbitration administered under the rules of the American Arbitration Association. As a threshold matter, the Court observes that an employee's claims under the ADA can be arbitrated. Solomon v. Duke University, 850 F. Supp. 372 (M.D.N.C.1993).
To establish a prima facie case of discrimination in violation of the ADA, the plaintiff must prove (1) that she is a qualified individual; (2) with a disability; (3) that she has suffered adverse employment action; and (4) that a causal connection exists between the adverse employment action and her disability. Smith v. Upson County, Ga., 859 F. Supp. 1504 (M.D.Ga.1994).
Under the MHCRA, MCL § 37.1202(1)(b), a prima facie showing of handicap-related discriminatory discharge is made when (1) plaintiff demonstrates that she is handicapped under the act; (2) her handicap is unrelated to her ability to perform her work; (3) she was discharged; and (4) there is some evidence that the employer acted with discriminatory intent. Sherman v. Optical Imaging Systems, Inc., 843 F. Supp. 1168 (E.D.Mich.1994). As the arbitrator noted, the MHCRA is quite similar to the ADA, and plaintiff's claim contained the elements of both acts. Although the arbitrator only analyzed plaintiff's claim as it related to the ADA, the arbitrator concluded that defendant violated both the ADA and MHCRA.
The arbitrator made the following factual findings relevant to the plaintiff's ADA claim. First, the arbitrator concluded that the plaintiff was a qualified person under the ADA. Despite deficiencies in her writing noted by her supervisor, the plaintiff had received a well-qualified rating and had never been disciplined for performance deficiencies. Moreover, plaintiff was not disqualified from performing her work duties on the basis of her statements to Dr. Wagner.
Second, the arbitrator found that there was little dispute that the plaintiff suffered a disability during the period of time that she was on sick leave. Third, it is undisputed that plaintiff's termination constitutes "adverse employment action."
Finally, the arbitrator found that the plaintiff was terminated because of her disability. The arbitrator determined that the plaintiff's statements made at her examination with Dr. Wagner were the products of her psychiatric disability. The arbitrator concluded further that BCBSM was under the perception that the plaintiff was suffering from a psychiatric disability that included homicidal ideation when it terminated the plaintiff.
C. Analysis
This Court must determine whether the arbitrator committed an error of law in his conclusion that BCBSM violated both the ADA and the MHCRA. The Defendant raises two objections to the Arbitration Award in the instant case.
First, BCBSM argues that the plaintiff was terminated not because of her disability, but because of the statements she made threatening to kill her supervisor. BCBSM argues that these statements render her "not otherwise qualified" for her position at BCBSM.
The defendant's argument is premised on its belief that plaintiff's statements made during a psychiatric evaluation constitute misconduct. The cases the defendant has *643 relied upon, both here and at the arbitration hearing, duly support its contention that "[a]n employer has the legal right to discharge an employee for misconduct, even an employee with a qualifying disability, even if the misconduct was a direct manifestation of the disability" (Defendant's Brief 2). As the arbitrator noted, however, the cases relied upon by BCBSM involve either violent or threatening misconduct in the workplace, or criminal misconduct outside of the workplace. Neither were present in the instant case.
The defendant has failed to persuade this Court that statements made by the plaintiff to an examining psychiatrist constitute workplace misconduct or that they were in violation of the law. The defendant has made several conclusory statements in this regard ("Plaintiff's vehement statements about killing her supervisor were a nondiscriminatory reason for discharge no matter where the statements were made, or to whom" (Defendant's Brief 7)); but defendant has presented no arguments or legal authority to support its contention that plaintiff's statements constituted misconduct.
This Court is not persuaded that plaintiff's statements to Dr. Wagner disqualify her from employment with BCBSM as a matter of law. Neither of plaintiff's psychiatrists concluded that her statements constituted threats. Rather, they characterized the statements as expressions of her thought and "homicidal ideations" consistent with plaintiff's psychiatric diagnosis. The plaintiff did not make these statements directly to her supervisor, nor did she make them to fellow employees. The statements were made in the private setting of a psychiatric evaluation.
It is important to note that Dr. Griffin, the treating psychiatrist, did not believe that plaintiff had the present ability to act on her homicidal ideation or was a threat to her supervisor at the time the remarks were made. Moreover, she did not consider the plaintiff's ideation as presenting a danger and did not feel required to report it to BCBSM.
Dr. Griffin determined that plaintiff had recovered from her disability and authorized her to return to work on February 1, 1994. The arbitrator found that plaintiff was capable of performing her work despite deficiencies in her writing and editing skills, noting that plaintiff had received a well-qualified rating and had not been disciplined for performance deficiencies.
The Court has no authority to disturb the arbitrator's factual finding that the statements were the product of plaintiff's psychiatric disability. Thus, the statements made by the plaintiff did not disqualify her from employment at BCBSM, and terminating her on the basis of the statements was equivalent to terminating her because of her disability.
BCBSM's second argument is that the Arbitration Award is against public policy because it orders the company to reinstate an employee who has threatened to kill her supervisor.
In Shelby County Health Care Corporation v. American Federation of State, County and Municipal Employees, Local 1733, 967 F.2d 1091 (6th Cir.1992), the Sixth Circuit laid out the manner in which a court may refuse to enforce an arbitration award that violates public policy:
[T]he public policy exception to the general deference afforded arbitration awards is very limited, and may be exercised only where several strict standards are met. First the decision must violate some explicit public policy that is well defined and dominant. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987).... Second, the conflict between the public policy and the arbitration award must be explicit and clearly shown. Misco, 484 U.S. at 43 [108 S.Ct. at 373]. Further, it is not sufficient that the "grievant's conduct for which he was disciplined violated some public policy or law," rather, the relevant issue is whether the arbitrator's award "requiring the reinstatement of the grievant ... violated some explicit public policy." Interstate Brands v. Teamsters Local 135, 909 F.2d 885, 893 (6th Cir.1990).
The defendant's counterclaim states "[f]urther, the arbitrator, by ordering reinstatement of an employee who threatens to kill *644 her supervisor, violated public policy." Aside from this conclusory statement, the defendant has failed to set forth an adequate basis for its claim. The defendant has failed to show that the arbitrator's decision violated "some explicit public policy that is well defined and dominant." Defendant's assertion that "[t]o threaten to kill another employee is a violation of BCBSM policy ..." simply will not suffice. Thus, the defendant has failed to show that reinstating the plaintiff will violate some explicit public policy.
IV. CONCLUSION
For the above reasons, the Court finds that the arbitrator did not make an error of law and therefore the Arbitration Award shall be confirmed.
Therefore, IT IS ORDERED that plaintiff's motion for summary judgment is GRANTED and that defendant's motion for summary judgment is DENIED.
IT IS SO ORDERED.
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295 Pa. Super. 234 (1982)
441 A.2d 436
COMMONWEALTH of Pennsylvania
v.
Gary Allen PITTMAN, Appellant.
Superior Court of Pennsylvania.
Argued January 13, 1981.
Filed February 12, 1982.
*235 *236 Vincent J. Roskovensky, II, Uniontown, for appellant.
Gerald R. Solomon, District Attorney, Uniontown, submitted a brief on behalf of Commonwealth, appellee.
Before SPAETH, SHERTZ and MONTGOMERY, JJ.
SHERTZ, Judge:
Following a jury trial, Appellant was found guilty of Robbery and Terroristic Threats. Appellant waived his right to file post trial motions and trial counsel brought this appeal. Subsequently trial counsel was replaced and Appellant's present counsel filed a brief raising ineffective assistance as the sole basis for a demand for a new trial.[1]
*237 Although issues not raised in post-verdict motions will not be considered on appeal, there is an exception where ineffective assistance of prior counsel is raised. In such a case, ineffectiveness of counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents Appellant. Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980). In the present case, this appeal presented the first opportunity for Appellant's present counsel to raise the issue. See e.g., Commonwealth v. Taggert, 258 Pa. Super. 210, 392 A.2d 758 (1978). Therefore, we shall consider the merits of Appellant's claim.
When confronted with a claim of ineffective assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client's interest. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Burrell, 286 Pa.Super. 502, 429 A.2d 434 (1981); Commonwealth v. Price, 278 Pa.Super. 255, 420 A.2d 527 (1980).
Appellant contends that trial counsel was ineffective for failing to call an alibi witness or for failing to request a continuance "until the witness could have been located." Further, Appellant suggests that counsel was ineffective for failing to explain to the jury his failure to call the witness.
The Commonwealth's case was based solely on the identification testimony of a water company clerk who was present during the robbery. A second clerk present during the robbery was unable to make a positive identification.
When the Commonwealth rested, Appellant's trial counsel, at side bar, requested a recess to wait for a defense witness who had been subpoenaed but had not appeared. Trial counsel indicated that he wished to speak to the witness *238 before he put Appellant on the stand. The trial judge denied the request for a recess, indicating that trial counsel would be permitted to recall Appellant after the witness testified.
Appellant then took the stand and testified that, at the time of the robbery, he was at his cousin's home and that he had spent the "whole complete day" there. Following cross-examination of Appellant, trial counsel, at side bar, requested a continuance because the subpoenaed witness had not arrived and that trial counsel wanted to speak to the witness to determine if the witness was going to testify. No explanation was offered to the trial judge as to the identity of the witness or the nature of his testimony. The trial judge then recessed for the day informing the jury that a subpoenaed defense witness had failed to appear and that the defense was requesting time to "ascertain the whereabouts of the witness and to bring him on the witness stand if it deems necessary."[2] When the trial resumed the following morning, the defense and Commonwealth presented closing arguments. No additional explanation was offered for the defense's failure to call the subpoenaed witness.
It is settled that the failure to call a witness whose testimony would be helpful to the defense, constitutes ineffective assistance of counsel unless counsel had some reasonable basis for his decision not to call the witness. Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). See also: Commonwealth v. Burrell, 286 Pa. Super. 502, 429 A.2d 434 (1981); Commonwealth v. Price, 278 Pa. Super. 255, 420 A.2d 527 (1980). In a case where virtually the only issue is the credibility of the Commonwealth's witness versus that of the defendant, failure to explore all available alternatives to assure that the jury heard the testimony of a known witness who might be capable of casting doubt upon the *239 Commonwealth's witness's truthfulness, is ineffective assistance of counsel Commonwealth v. Twiggs, 460 Pa. at 110, 331 A.2d at 443; Commonwealth v. Abney, 465 Pa. at 309, 350 A.2d at 410.
Based on this record we are unable to conclude whether the defense in fact had an alibi witness and, if so, whether counsel failed to explore all alternatives available to assure that the jury heard such testimony. Furthermore, absent additional information about the elusive witness and the nature of his testimony, we cannot discern whether counsel was ineffective for failing to explain to the jury his failure to call the witness following the recess.[3]
Where the reason for counsel's decision cannot be determined from the record, this court must remand for an evidentiary hearing to determine the basis for counsel's actions. Commonwealth v. Twiggs, 460 Pa. at 110, 331 A.2d at 443; Commonwealth v. Price, 278 Pa. Super. 255, 420 A.2d at 530; See, Commonwealth v. Burrell, 286 Pa. Super. 502, 429 A.2d at 436. Here, it is impossible to determine whether there was an alibi witness and, if so, whether there was a reasonable basis for counsel's decision not to call such witness or, in the alternative, to request a continuance pending the availability of this witness. Neither can we determine whether there was a reasonable basis for trial counsel's decision not to offer some explanation for the failure of the witness to testify.
The judgment of sentence is vacated and this case is remanded for an evidentiary hearing to determine whether there was a reasonable basis for trial counsel's actions.[4] This Court does not retain jurisdiction.
*240 The decision in this case was rendered prior to the expiration of Judge SHERTZ's commission of office on the Superior Court of Pennsylvania.
NOTES
[1] This appeal was timely filed by trial counsel. However, on June 11, 1980, Appellant petitioned for the assignment of new counsel. This petition was denied by the trial judge. Appellant then filed a petition for reconsideration of the petition for the assignment of new counsel. On August 21, 1980, Appellant's present counsel was appointed by the trial judge.
[2] Appellant's counsel contends that trial counsel "made a statement at the conclusion of the first days testimony that a continuance was being requested so that the defendant could present the testimony of an alibi witness." There is nothing in this record which supports that version of the facts.
[3] Although it is not expressly stated, appellant implies that the missing witness would corroborate Appellant's alibi defense.
[4] Appellant also alleges ineffectiveness of trial counsel for failure to challenge the trial identification of Appellant by the prosecution's chief witness when she failed to identify Appellant from a photo array which may or may not have included Appellant's picture. The record shows that trial counsel, on cross-examination, alertly brought out the fact that the witness did not identify Appellant from pre-trial photographic array. There is no evidence in the record as to whether Appellant's picture was even included in the photographic array.
Here there was neither a pre-trial identification resulting from the photo array nor an allegation that the procedure was invalid. Additionally, there was no claim that the in-court identification was impermissibly tainted by the pre-trial procedure. See e.g., Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Lavelle, 277 Pa. Super. 518, 419 A.2d 1269 (1980). Counsel may not be deemed ineffective for failure to raise a meritless claim. Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980).
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916 F. Supp. 291 (1996)
Timothy Maxwell HUMM, an Underwriter at Lloyd's of London on behalf of himself and all interested Underwriters under Policy No. MB6807/7000, Plaintiff,
v.
LOMBARD WORLD TRADE, INC., Defendant,
v.
Timothy Maxwell HUMM, Lowndes Lambert Cargo Limited, and John Does 1 through 50, fictitious names being and intending to be all persons having liability under Lowndes Lambert Cover Note No. MB6807/7000, to be named individually when identified, Counterclaim Defendants.
No. 94 Civ. 3470(AGS).
United States District Court, S.D. New York.
February 13, 1996.
*292 Hill Rivkins Loesberg O'Brien, Mulroy & Hayden, New York City, for Plaintiff.
John J. Witmeyer III and David A. Beke, Ford Marrin Esposito Witmeyer & Gleser, New York City, for Defendant Lombard & Co., Inc. (f/k/a Lombard World Trade, Inc.).
Mendes & Mount, New York City, for Counterclaim Defendant Lowndes Lambert Cargo Limited.
AMENDED OPINION & ORDER
SCHWARTZ, District Judge:
This action is before the Court on defendant Lombard & Co., Inc.'s (formerly known as Lombard World Trade, Inc.) ("Lombard") motion to dismiss the complaint for lack of subject matter jurisdiction, failure to join indispensable parties and lack of standing. In addition, third party defendant Lowndes Lambert Cargo Ltd. moves to dismiss Lombard's claim against it for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2).
BACKGROUND
On or about November 21, 1988, Lombard became insured under a policy of marine cargo insurance with Lloyd's, London ("Lloyd's"). Plaintiff Timothy Maxwell Humm ("Humm") is a lead underwriter of the insurance policy issued to Lombard, who brings this action "on behalf of himself and all interested Underwriters under Policy No. MB6807/7000." Complaint ¶ 2.
Policy No. MB6807/7000 (the "Policy") contained a storage clause which covered risks of physical loss for coffee stored at various warehouses in the United States. In 1991, Lombard made a claim under the Policy for the loss of approximately 7,971 bags of coffee in the amount of $885,475.76, alleged to have been stolen while in storage at the Thor Warehouse in Texas. While the claim was under investigation by the Policy underwriters, the parties agreed that the underwriters would loan to Lombard 67% of its claim "on account", amounting to $593,268.76. Humm alleges that the underwriters' investigation revealed that only 2,499 bags of coffee, worth $278,567.00, were ever delivered to Thor Warehouse for Lombard and that the remaining 5,472 bags of coffee never existed except on fraudulent warehouse receipts issued by Thor Warehouse as part of a scheme to defraud Lombard.
Humm and the other underwriters deny liability for such non-existent goods on the basis that the Policy covered only physical loss or damage and does not include coverage for spurious warehouse receipts. After the investigation, the underwriters demanded that Lombard return to them $314,701.76, which is the excess of the loan over the value of the coffee proven to have been in existence. Upon Lombard's refusal to return the funds demanded, Humm brought this action.
Lombard brings counterclaims against Humm and joins as counterclaim defendants Lowndes Lambert Cargo Limited ("Lowndes *293 Lambert") and John Does 1 through 50, representing all persons having liability under the Policy. Lowndes Lambert is an insurance broker, incorporated under the laws of England, that insures risks with underwriters on the insurance market operated by Lloyd's. Lowndes Lambert allegedly issued the Policy to Lombard, which Policy referenced unnamed underwriters at Lloyd's as the underwriters of the insured risks. Lombard claims that by issuing the Policy for the account of the underwriters, Lowndes Lambert became liable to Lombard for all risks insured by the Policy.
Lombard alleges, in part, that the counterclaim defendants unconscionably failed to pay Lombard $292,207.00 of its claimed loss, acted in bad faith in not effectuating a prompt, fair and equitable settlement of Lombard's claim, engaged in unfair and deceptive trade practices, and breached their duty of good faith and fair dealing. Lombard seeks compensatory damages in the amount of $292,207.00, trebled in accordance with Texas law, interest on the compensatory damages, exemplary damages in the amount of $5,000,000.00, and its costs and disbursements.
Relevant to Lombard's motion to dismiss the complaint for lack of subject matter jurisdiction is the nature and structure of insurance underwriting at Lloyd's. Lloyd's itself does not underwrite insurance. Rather, Lloyd's operates as a marketplace where large numbers of individual investors buy and sell insurance risks. These individual investors are referred to as "Names" and operate as members of syndicates. The Names invest funds and pledge their assets as security for insurance risks which have been accepted in the Lloyd's market. Affidavit of Graham Baxter, dated November 16, 1994 ("Baxter Aff."), at ¶ 3. According to plaintiff, the Names do not actively participate in the business of underwriting risks, but instead appoint a managing agent who manages the syndicate pursuant to a Managing Agent's Agreement. The managing agent in turn appoints and employs an active underwriter to underwrite risks for the syndicate. Id. An active underwriter under the Lloyd's Agency Agreements Bylaw must also be a member of the syndicate (Name) for which he or she will accept the risk on insurance policies. See Bath Iron Works Corp. v. Certain Member Companies of the Institute of London Underwriters, 870 F. Supp. 3, 4 (D.Me.1994). There can be a few to thousands of Names, each of whom subscribes to a small fraction of the insurance risk. The Names are severally (not jointly) liable to the insured for their fraction of the risk. Defendant's Memorandum in Support of Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Standing ("Defendant's Mem. of L.") at 7.
A total of fifty-six syndicates participated in underwriting the Policy issued to Lombard. Baxter Aff. at ¶ 6; see also Baxter Aff. Ex. C (chart of participating syndicates showing the syndicate code, percentage of risk under the Policy, underwriter, managing agent and number of Names). Plaintiff states that, according to an internal review, there were in excess of 80,000 Names who participated as investors in the Policy as members of the fifty-six syndicates. Baxter Aff. at ¶ 7. According to plaintiff's review of the pertinent records maintained at Lloyd's, over one hundred Names whose syndicates accepted risk on the Policy have New York mailing addresses. Thus, for purposes of defendant's motion to dismiss, plaintiff accepts that at least one of the Names is a citizen of New York. Plaintiff's Memorandum of Law in Opposition to Motion of Defendant, Lombard World Trade Inc. to Dismiss the Complaint ("Plaintiff's Mem. of L.") at 4, n. 1.
Each syndicate has a managing agent who acts on behalf of the syndicate members (the Names) in insuring risks. Hiscox Syndicates Ltd., the managing agent of syndicate number 0625, which is also known as the T.M. Humm syndicate, appointed Humm to act as "senior active underwriter", or "leading underwriter", for that syndicate. Baxter Aff. at ¶¶ 2, 5. As a leading underwriter for syndicate 0625, Humm has the power to accept risks on behalf of the syndicate, settle and pay claims, and commence lawsuits in his own name for the syndicate. Id. at ¶ 6. Graham Baxter, who is also an underwriter for syndicate 0625, also possesses such powers on behalf of his syndicate and states that *294 he "exercised this power when [he] accepted the Lombard risk on behalf of the syndicate by initialling the slip." Id. at ¶ 6. Presumably, the underwriters who accepted the risk under the Policy for the other fifty-five syndicates (whether they have been appointed the "senior active" or "leading" underwriter or not) have the same or similar powers pursuant to a Managing Agent's Agreement assigned to them by the syndicate's managing agent. See id. Ex. A (Standard form Managing Agent's Agreement). Humm purports to represent "all interested underwriters" under the Policy. To Humm, this apparently means the underwriters of the other fifty-five syndicates who accepted the risk for their syndicates. See id. Ex. C (chart identifying leading underwriters). These underwriters, in turn, represent the interests of the members of their syndicates. Lombard, on the other hand, argues that the Names are the true parties interested under the Policy because they are severally liable. See id. Ex. A, §§ 7.1, 8 at 43, 45. No other underwriter or Name, whether in an individual or representative capacity, has been joined as a plaintiff in this action.
DISCUSSION
Humm asserts jurisdiction under 28 U.S.C. § 1332, based upon the diversity of the parties and the matter in controversy exceeding $50,000.00. Complaint at ¶ 1. Lombard moves to dismiss the complaint for lack of subject matter jurisdiction based on the fact that Humm concedes that at least one of the Names was a citizen of New York State when this action was commenced. In addition, Lombard argues that Humm does not properly represent all interested underwriters under the Policy, since he does not own the substantive rights to the entire Policy, and urges that the action should be dismissed for failure to join indispensable parties.[1]
Lombard is a Delaware corporation with its principal place of business in New York, which makes it a citizen of both Delaware and New York. See 28 U.S.C. § 1332(c)(1). Lombard argues that, in order for the Court to have jurisdiction over this action pursuant to 28 U.S.C. § 1332, there must be complete diversity between it and each Name who invested in the Policy and that each Name must have a claim which exceeds $50,000.00. Humm submits that since the Names do not participate in the actual business of underwriting, but rather designate the managing agent of their syndicates to act on their behalf, their citizenship is irrelevant to a determination of diversity. The only real parties in interest, Humm asserts, are himself and the other underwriters who accepted liability under the Policy for their syndicates. In sum, Humm brings this suit on behalf of all interested underwriters under the Policy; however, he urges the Court to look only to his own citizenship, which would provide the Court with alienage jurisdiction under 28 U.S.C. § 1332(a)(2) since he is a citizen of the United Kingdom, and to find that all of the underwriters have a "common and undivided interest, vis-a-vis Lombard, in the amount [of $314,701.76] although as among themselves the interest is separable." Plaintiff's Mem. of L. at 14.
District courts have original jurisdiction where the matter in controversy exceeds $50,000 and is between citizens of different States, or citizens of a State and citizens of a foreign state. 28 U.S.C. 1332(a)(1) & (2). When diversity is asserted as the basis for jurisdiction, it must be complete. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806). The burden of showing complete diversity falls upon the party claiming section 1332 jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936). "[C]itizens upon whose diversity a plaintiff grounds jurisdiction must be real and substantial parties to the controversy. Thus, a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy." *295 Navarro Savings Ass'n v. Lee, 446 U.S. 458, 460-61, 100 S. Ct. 1779, 1781-82, 64 L. Ed. 2d 425 (1980) (internal quotations and citations omitted); see also Carden v. Arkoma Assocs., 494 U.S. 185, 188, n. 1, 110 S. Ct. 1015, 1018, n. 1, 108 L. Ed. 2d 157 (1990) (the question "which of various parties before the Court should be considered for purposes of determining whether there is complete diversity of citizenship ... will generally be answered by application of the `real party to the controversy' test"); Bath Iron Works, 870 F.Supp. at 5 ("courts look to the `real parties in interest' to determine whose citizenship will be considered for the purposes of diversity").
Humm relies on the Sixth Circuit's decision in Certain Interested Underwriters at Lloyd's, London, England v. Layne, 26 F.3d 39 (6th Cir.1994). In Layne, the plaintiffs, Lloyd's underwriters of the defendants' fire insurance policy, sought a declaratory judgment denying coverage. On appeal, the Sixth Circuit was faced with the issue of whether the district court had properly exercised diversity jurisdiction, given that the defendants and possibly some of the syndicate members represented by the plaintiffs were citizens of Tennessee. The Court held that, under Tennessee law, the underwriters, and not the Names, were the real parties in interest, noting that the underwriters "are liable on the contract[,] ... actually wrote the insurance, processed the claim, and are authorized to sue on the policy." Layne, 26 F.3d at 43. The Sixth Circuit based its holding, in large part, on the following observations:
Tennessee follows the venerable common law rule that an agent for an undisclosed principal is personally liable on a contract.... A party who deals with such an agent may sue either the principal or the agent, but not both. When the defendants elected to sue the underwriters, they elected to sue the agent. The syndicates, as principal, therefore, were no longer liable to the defendants on the contract and, consequently, are not real parties in interest. Although initially there might have been a question whether the defendants elected to sue the agents since the suit originated as a declaratory judgement [sic] action brought by the underwriters, the defendants' counterclaim against "Certain Interested Underwriters at Lloyd's, London, England" seems to be a clear election to sue the agent.
Id. at 43-44 (citations omitted).
This key portion of the decision has since been criticized and distinguished at the district court level. See, e.g., Bath Iron Works Corp., 870 F.Supp. at 7 & n. 1 (finding the "approach and conclusion" in Layne to be "unnecessarily artificial" and that "the court was applying certain aspects of the Tennessee law on agency, with which there are no comparable rules in Maine"); Transamerica Corp. v. Reliance Ins. Co., 884 F. Supp. 133, 139 (D.Del.1995) (criticizing the distinction between the active underwriters and Names as "unnecessarily artificial"); see also Lowsley-Williams v. North River Ins. Co., 884 F. Supp. 166, 171 (D.N.J.1995) (finding that since parties stipulated that Names were personally liable on the contracts, they were real parties in interest). We find that the decision in Layne is distinguishable based on several factors.
First, addressing Layne's agency reasoning head-on, we find that, although under New York law an agent is personally liable for a contract executed on behalf of an undisclosed principal, Broser v. Royal Abstract Corp., 49 Misc. 2d 882, 883, 268 N.Y.S.2d 594, 595 (N.Y.Sup.1966), the Names were not undisclosed principals. Delving deeper into the law of agency, it becomes clear that if the party making a contract with an agent is on notice that the agent is acting for a principal, then the principal is "partially disclosed" and the agent is not liable. See Instituto Cubano De Estabilizacion Del Azucar v. The SS Theotokos, 155 F. Supp. 945, 948 (S.D.N.Y.1957); see also Restatement (Second) of Agency § 4 (1958). Thus,
[n]owhere does the law specifically require that the name of the principal must be disclosed; rather, it requires that the `identity' of the principal must be disclosed.... [I]f the agent gave such information that a reasonable person in the light of the surrounding circumstances would have understood that the agent was *296 acting for a principal indicated, though not named, the contract is with the principal and not with the agent.
Id. at 947-48 (internal quotations and citations omitted) (emphasis supplied); see also Restatement (Second) of Agency § 9 cmt. d (1958) ("A person has reason to know of a fact if he has information from which a person of ordinary intelligence ... would infer that the fact in question exists or that there is such a substantial chance of its existence that, if exercising reasonable care ..., his action would be predicated upon the assumption of its possible existence").
The Cover Note to the Policy executed by Lowndes Lambert, as a Lloyd's broker, and Lombard states: "UNDERWRITERS: 100% LLOYD'S". Declaration of John J. Witmeyer III, Esq., dated October 13, 1994 ("Witmeyer Dec."), Ex. D at 10. Neither Lowndes Lambert nor the underwriters who initialled the slip on the Policy professed to be acting solely on their own behalf. This term of the Cover Note informed Lombard that all underwriters of the Policy would be underwriters associated with Lloyd's. The question then becomes, would a reasonable person seeking insurance in the Lloyd's marketplace be aware that the underwriters were acting on behalf of underwriting syndicates and their investors, the Names? It is at least arguable that, given the nature and structure of insurance underwriting at Lloyd's, knowledge of which may justly be imputed to a customer of that market, this stated term of the Cover Note put Lombard on notice that the underwriters were acting on behalf of themselves, as underwriters, and the syndicate members, as investors. See Windward Traders v. Fred S. James & Co. of N.Y., Inc., 855 F.2d 814, 820 (11th Cir. 1988) (agent adequately identified insurers as 42.648% "effected with: Underwriters of Lloyds", so that insured had constructive notice of principals' identity); but see Ell Dee Clothing Co., Inc. v. Marsh, 247 N.Y. 392, 398, 160 N.E. 651 (1928) (where principals were not known to insured and no such principals existed when the binder was signed, agent was liable on contract).
Second, the Court in Layne considered significant the fact that the defendants had "elected to sue the agents" when they brought their counterclaim against "Certain Interested Underwriters at Lloyd's, London, England", the plaintiffs. In this case, there was no such election. Humm brought this action as the sole plaintiff, purporting to represent all those interested under the Policy. Lombard brought a counterclaim against not only Humm, but also Lowndes Lambert and "John Does 1 through 50, fictitious names being and intending to be all persons having liability under the Lowndes Lambert Cover Note No. MB6807/7000 to be named when identified." In bringing its counterclaim against John Does 1 through 50, Lombard elected to sue "all interested underwriters, including all syndicate members," even though these undoubtedly number more than fifty. Defendant's Reply Mem. of L. at 7. Thus, in this case, defendants did not elect to sue only the agents, as the Court in Layne determined, and such an election does not support the finding that the Names are no longer liable on the Policy.
Third, plaintiffs in Layne were Certain Interested Underwriters at Lloyd's, London, England under the policy insuring the defendants in that action. Presumably, these were all of the underwriters who accepted the risk under the policy in question for their syndicates. There is no indication that the Layne plaintiffs purported to represent any other underwriters (other than members of their own syndicates) interested under the defendants' policy; whereas, in this case, Humm sues as the sole plaintiff on behalf of himself and all interested underwriters under the Policy. As the Court in Layne noted, Federal Rule of Civil Procedure 17(a) provides that "[e]very action shall be prosecuted in the name of the real party in interest." F.R.C.P. 17(a). "Under the rule, the real party in interest is the person who is entitled to enforce the right asserted under the governing substantive law." Layne, 26 F.3d at 42-43.
Humm claims that he and the other underwriters who accepted the risk for their syndicates under the Policy are the real parties in interest, and that he represents such underwriters. Assuming for the moment that Humm and the other underwriters are *297 the real parties in interest under Rule 17(a), to the exclusion of the Names, we first briefly examine the evidence Humm has presented to demonstrate that he represents the other underwriters.[2]
Humm states in his affidavit that he "ha[s] been authorized by all of the underwriters who have accepted the risk under The Policy to commence suit on their behalf to recover an overpayment of monies given to Lombard as detailed in the complaint filed with the court. The underwriters, as such, will be bound to whatever may be the ultimate judgment of the court." Affidavit of Timothy Maxwell Humm, Esq., dated November 17, 1994, ¶ 5. Humm submits no supporting documentation to show that he properly represents the underwriters of the other fifty-five syndicates, who, in turn, represent the Names of those syndicates. There is no evidence in the record that Humm owns the substantive rights to the entire Policy; rather, he apparently represents one of fifty-six syndicates whose Names are liable under the Policy. Nor is there any evidence or affirmation in the record that the managing agents for the other fifty-five syndicates have in effect Managing Agent's Agreements with their respective Names.
Humm does not bring this suit as a class action. Rather, he claims to act as an agent of the numerous underwriters interested under the Policy. Humm states that "[a]ll of the underwriters who accepted the risk are present before the Court through their agent, Mr. Timothy M. Humm." Plaintiff's Mem. of L. at 12. Having presented no evidence in support of his status as agent of the other underwriters, the Court cannot presume that such exists.[3]See John L. Walker Co. v. National Underwriters' Co., 3 F.2d 102, 103 (7th Cir.1924).
Turning to the question of who are the real parties in interest in this action, we disagree with the Layne Court's statement that "the underwriters are `real parties in interest' because they are liable on the contract." Layne, 26 F.3d at 43. The Sixth Circuit based this conclusion on two factors: 1) as agents for undisclosed principals, the underwriters were liable, and 2) the underwriters "actually wrote the insurance, processed the claim, and are authorized to sue on the policy." Id. As noted above, we find the first factor unpersuasive. The second factor, in essence, relies on a real-party-in-interest approach which looks to control as the determining element. The Supreme Court in Carden v. Arkoma Assocs., 494 U.S. 185, 110 S. Ct. 1015, 108 L. Ed. 2d 157 (1990), specifically rejected this approach, which "looks to control over the conduct of the business and the ability to initiate or control the course of litigation." Id., 494 U.S. at 193, 110 S.Ct. at 1020; see also Bath Iron Works, 870 F.Supp. at 6 ("Contrary to Lloyd's assertions, `control' is not a dispositive issue in determining who, among parties, is the real party-in interest").
We agree with the other district courts which have found, in similar cases involving Lloyd's, that the Names are the real parties *298 in interest because they are severally liable for the syndicates' risk under the Policy.[4]See Bath Iron Works, 870 F.Supp. at 7 ("The Names were appropriately named as defendants here since they are potentially liable; accordingly, the citizenship of each defendant (i.e., each Name) should be considered for diversity purposes"); Transamerica Corp. v. Reliance Insurance Company of Ill., 884 F.Supp. at 139 (following Bath Iron Works); Lowsley-Williams v. North River Insurance Co., 884 F.Supp. at 171 ("it is not the Underwriter but the Names who are personally liable on the contracts, it is therefore the Names who are the real parties in interest in this lawsuit"); see also The Chase Manhattan Bank, N.A. v. Aldridge, 906 F. Supp. 870, 872 (S.D.N.Y.1995) ("the Names are personally liable for any of the syndicate's losses").
The standard form Managing Agent's Agreement submitted by Humm provides that the Names are responsible for ensuring that there are "available sufficient funds ... to enable [the Agent] to pay all claims and all necessary and reasonable expenses and outgoings made or incurred in connection with the Underwriting and shall comply with any request made by the Agent to make such funds available...." Baxter Aff. Ex. A, § 7.1(a); see also id., § 8.3. Each Name is liable for his or her portion of the risk accepted by the syndicate. Id., § 13.2 ("There shall be attributed to the Name ... the same proportion of the risks underwritten by the Agent on behalf of the members of the Managed Syndicate and allocated to a year of account as the amount of the Name's member's syndicate premium limit in relation to the Managed Syndicate for that year of account bears to the syndicate allocated capacity of the Managed Syndicate for that year of account, in each case as specified in the initial syndicate constitution filed with Lloyd's at or about the beginning of the relevant year").
We reject Humm's assertion that the Supreme Court's decision in Navarro Savings Ass'n v. Lee, 446 U.S. 458, 100 S. Ct. 1779, 64 L. Ed. 2d 425 (1980), supports the contention that he and the other underwriters are the only real parties in interest. In Navarro Savings Ass'n, supra, the Supreme Court held that the trustees of a business trust, rather than the trust beneficiaries, were the real parties in interest in a breach of contract action. However, Lloyd's syndicates bear no resemblance to trusts. Rather, "unlike trust beneficiaries, the names here are investors, who face unlimited liability for their shares of the syndicates." Bath Iron Works, 870 F.Supp. at 7; see also The Chase Manhattan Bank, N.A. v. Aldridge, 906 F.Supp. at 872 and cases cited therein ("While counsel for Lloyd's has urged this Court to accept a `trust' theory, under which the citizenship of `Lloyd's' would be measured only by the citizenship of the representative or active underwriter, every recent case addressing this issue has rejected the defendant's suggestion of a trust theory and has concluded that the citizenship of a Lloyd's syndicate is measured by the citizenship of the individual Names who are responsible for their proportional share of the specific insurance in question"). Thus, the Supreme Court's holding in Navarro Savings Ass'n is inapposite.
We find that the Names are not nominal parties, but are real parties in interest. Moreover, for Humm to assert that he represents only the underwriters who accepted the risk under the Policy, but not the Names which he and those underwriters, in turn, represent, is illogical. Humm concedes as much when he states, "[a]ny judgment for or against the underwriters will bind not only the underwriters but their principals, the syndicates." Plaintiff's Mem. of L. at 12-13. Thus, the Names are before the Court, and, as real parties in interest, their citizenship must be examined in determining diversity jurisdiction. See Navarro Savings Ass'n, 446 U.S. at 460-61, 100 S.Ct. at 1781-82; 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3606, n. 6 (1984). Since it is conceded that at least one Name was a citizen of New York when this action was commenced, diversity *299 is not complete. Accordingly, the Court lacks subject matter jurisdiction over the action, and it must be dismissed.
This result is consistent with Carden v. Arkoma Assocs., 494 U.S. 185, 110 S. Ct. 1015, 108 L. Ed. 2d 157 (1990), in which the Supreme Court found that an unincorporated association has no separate legal identity, and that for purposes of diversity jurisdiction, its citizenship is the citizenship of each of its members. Lloyd's syndicates are not recognized as legal entities under British law. Bath Iron Works, 870 F.Supp. at 7. They consist of Names grouped together in artificial entities. As such, the Court must consult the citizenship of all of their members in determining diversity jurisdiction. Carden v. Arkoma Associates, 494 U.S. at 195, 110 S.Ct. at 1021 ("In sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members").
Finally, the Court lacks subject matter jurisdiction because no individual Name's claim against Lombard satisfies the jurisdictional amount requirement of Title 28, United States Code, Section 1332(a). Humm seeks a total of $314,701.76. No one syndicate accepted more than 4.53% of the risk under the Policy. Each syndicate has hundreds, if not thousands, of members. See Baxter Aff. Ex. C. Humm concedes that no one syndicate or Name has a claim that exceeds $50,000.00, but he urges the Court to aggregate the amounts allegedly due each syndicate because the underwriters have a "common and undivided interest" which is "separable as between themselves." Plaintiff's Mem. of L. at 15 (citing Eagle Star Ins. Co. v. Maltes, 313 F.2d 778, 780 (5th Cir. 1963), and Clay v. Field, 138 U.S. 464, 11 S. Ct. 419, 34 L. Ed. 1044 (1891)). Lombard argues that since the Names are severally liable, their claims cannot be aggregated.
In Thomson v. Gaskill, 315 U.S. 442, 62 S. Ct. 673, 86 L. Ed. 951 (1942), the Supreme Court stated
Aggregation of plaintiffs' claim cannot be made merely because the claims are derived from a single instrument or because the plaintiffs have a community of interest.... In a diversity litigation the value of the "matter in controversy" is measured not by the monetary result of determining the principle involved, but by its pecuniary consequence to those involved in the litigation.
Id., 315 U.S. at 447, 62 S.Ct. at 675-76 (citations omitted). The pecuniary consequence to the Names is determined by the fact that they are severally liable under the Policy. Each Name has a distinct claim against Lombard for that portion of the risk it bears, and Lombard has a distinct claim against each Name pursuant to its counterclaim. In Motorists Mut. Ins. Co. v. Simpson, 404 F.2d 511 (7th Cir.1968), cert. denied, 394 U.S. 988, 89 S. Ct. 1470, 22 L. Ed. 2d 763 (1969), the Seventh Circuit stated,
[T]he pecuniary test of jurisdiction depends on whether the potential liability of the insurer is joint or several. If joint, the matter in controversy between the insurer and the defendants is the sum of the potential claims. On the other hand, if the insurer's potential liability is several, jurisdiction under section 1332(a) can be sustained only against those defendants whose respective controversies individually involve matters exceeding the jurisdictional amount.
Id. at 513; see also The Chase Manhattan Bank, N.A. v. Aldridge, 906 F.Supp. at 876 ("there is not a sufficient jurisdictional amount at issue for any of the Names to pursue the counterclaim individually"); Niagara Fire Ins. Co. v. Dyess Furniture Co., Inc., 292 F.2d 232, 233 (5th Cir.1961) (As "they are each proportionately and severally liable for the loss at the ratio which the amount of their respective policies bears to the whole insurance ... their claims cannot be aggregated to make up the jurisdictional amount").
Humm submits that, although the insurers' liability under the Policy is several, "when an assured presents a claim he does not file with each underwriter expecting to be paid only that underwriter's portion. On the contrary, the claim is presented as one claim and paid to the assured in that manner." Plaintiff's Mem. of L. at 16. We find this procedural matter unpersuasive. The fact remains that the Names are severally liable for their proportionate *300 share of the loss on the Policy. Thus, their claims are separate and distinct and may not be aggregated. See Charles A. Wright, Arthur R. Miller & Edward H. Cooper, 14A Federal Practice and Procedure § 3704 ("Even when the claims arise from a single instrument or the parties have a community of interest ... separate and distinct claims still cannot be aggregated"). Accordingly, the jurisdictional amount required by 1332(a) is not met, and the action must be dismissed for lack of subject matter jurisdiction.
Lombard's counterclaim against Humm, Lowndes Lambert and John Does 1 through 50 suffers from the same jurisdictional infirmities as plaintiff's claim. Accordingly, it, too, must be dismissed for lack of subject matter jurisdiction. Lowndes Lambert's motion to dismiss the counterclaim for lack of personal jurisdiction, therefore, is moot.
CONCLUSION
For the reasons stated above, defendant's motion to dismiss the complaint for lack of subject matter jurisdiction is granted. Lowndes Lambert's motion to dismiss the counterclaim is moot. The Clerk of the Court is directed to dismiss both the claim and the counterclaim and close the case.
SO ORDERED.
NOTES
[1] Lombard also argues that Humm failed to plead facts establishing alienage or diversity jurisdiction in the complaint. The Court finds it unnecessary to reach this issue but notes that, if the complaint were found to be defective, it would grant leave to amend the complaint so as to cure this defect. See 28 U.S.C. § 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts").
[2] With regard to Humm's representation of the members of syndicate 0625, we note that Humm has submitted to the Court an unexecuted standard form Managing Agent's Agreement which sets forth the responsibilities and liabilities of the managing agent and Names. Such an agreement may well have been made between Hiscox Syndicates Ltd., the managing agent of the T.M. Humm Syndicate and the members of that syndicate; however, a signed copy of such an agreement has not been provided to us. Section 5(q) of the standard form Managing Agent's Agreement provides that the Managing Agent has the power "to take in any part of the world, and in such name or names as the Agent thinks fit (whether or not including that of the Name), such legal or other proceedings as the Agent considers necessary or expedient for the purposes of or in connection with the Underwriting." Baxter Aff. Ex. A. at 42. Thus, assuming that this is the form of agreement made between the Names in Humm's syndicate and the managing agent (who then appointed Humm as the leading underwriter for the syndicate), it provides that Humm may bring an action on behalf of the Names in the T.M. Humm syndicate who are liable under the Policy. These number 802. See id. Ex. C.
[3] Moreover, even if we were to find that Humm properly represented the other underwriters, and they in turn the Names, "[i]t has generally been held that federal courts must look to the individuals being represented rather than their collective representative to determine whether diversity of citizenship exists." Lowsley-Williams v. North River Ins. Co., 884 F.Supp. at 172 (quoting Northern Trust Co. v. Bunge Corp., 899 F.2d 591, 594 (7th Cir.1990).
[4] This means that the underwriters, including Humm, are also real parties in interest because they too are Names. However, we agree with the Court in Bath Iron Works that there is no reason why the underwriters must be the real parties in interest to the exclusion of all other Names. Id., 870 F.Supp. at 6.
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https://www.courtlistener.com/api/rest/v3/opinions/1516768/
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905 S.W.2d 713 (1995)
Maria DOMINGUEZ, Appellant,
v.
STATE FARM INSURANCE COMPANY, Appellee.
No. 08-93-00233-CV.
Court of Appeals of Texas, El Paso.
August 3, 1995.
Opinion Overruling Rehearing September 7, 1995.
*714 Phillip Godwin, Odessa, Larry Zinn, San Antonio, for appellant.
James M. Rush, Denis Dennis, MacMahon, Tidwell, Hansen, Atkins & Peacock, P.C., Odessa, for appellee.
Before BARAJAS, C.J., and LARSEN and CHEW, JJ.
OPINION
LARSEN, Justice.
Maria Dominguez appeals a judgment against State Farm Insurance Company for $8,794.52 under an uninsured motorist policy. She was injured in an automobile accident on June 20, 1991, when an uninsured motorist ran a stop sign and collided with the car in which she was a passenger. Following a jury trial, the court entered judgment on the verdict which Dominguez urges was inadequate in several respects. She also appeals *715 the trial court's denial of her Batson challenge to the jury selection process. Finding Batson error, we reverse and remand for new trial.
FACTS
Maria Dominguez is a forty-four year old Hispanic woman. After the automobile collision which is the subject of this suit, she was taken to Medical Center Hospital in Odessa, Texas. The emergency room records show that Dominguez complained of back pain, was given a pain shot and prescription for pain medication, and discharged. Between the time of the accident and trial, Dominguez received additional medical treatment. She sued State Farm for payment under the applicable uninsured motorist coverage. Before the jury was seated at trial, Dominguez challenged two peremptory strikes made by State Farm to the jury venire, alleging Batson error. The trial court overruled the Batson challenge, and the case was tried and verdict entered.
BATSON CHALLENGE
In her first point of error, Dominguez urges that the trial court erred in overruling her challenge to State Farm's exercise of peremptory challenges to minority members of the jury array. We agree.
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the United States Supreme Court held that in criminal proceedings, the prosecution could not strike potential jurors on the basis of race. This theory has been expanded to prohibit strikes by the defense in a criminal trial, Georgia v. McCollum, 505 U.S. 42, ___, S.Ct. 2348, 2359, 120 L. Ed. 2d 33 (1992), strikes by any party in a civil trial, Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), and strikes based on ethnicity or gender as well as race. Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) (ethnicity); J.E.B. v. Alabama ex rel T.B., ___ U.S. ___, ___, 114 S. Ct. 1419, 1430, 128 L. Ed. 2d 89 (1994) (gender).[1] Although Batson forbade racially-motivated strikes only against members belonging to the same protected group as defendant, it is no longer necessary that the objecting party be a member of the same group as the challenged veniremembers, or indeed of any protected group. Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). This is so because the use of peremptory challenges to discriminate against potential jurors violates the excluded juror's right to equal protection if the strike is used against an otherwise qualified juror solely because that juror is a member of a cognizable race, ethnic group, or gender. Id. at 406, 111 S.Ct. at 1368, 113 L.Ed.2d at 422. The non-striking party possesses third party standing to assert the excluded juror's constitutional rights. Id. at 414-415, 111 S.Ct. at 1372-1373, 113 L.Ed.2d at 427, 428; In the Interest of A.D.E., 880 S.W.2d 241, 243 (Tex. App.Corpus Christi 1994, no writ); Powers v. Palacios, 813 S.W.2d 489 (Tex.1991).
In advancing a Batson challenge, the complaining party must first present sufficient evidence to establish a prima facie case of discrimination: this consists of evidence creating a rebuttable presumption of discrimination, usually by showing a suspect pattern of strikes against members of a protected class. Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 405 (Tex.App.El Paso 1994, writ denied); In the Interest of A.D.E., 880 S.W.2d at 243. A prima facie case is established upon showing the minimum evidence necessary to support a rational inference that the allegation of discrimination is true. Texas Tech, 876 S.W.2d at 407. Upon making a prima facie showing, the movant is entitled to an adversary hearing, at which the judge serves as fact finder, and the usual rules of evidence apply. Id. at 408. At the Batson hearing, the burden shifts to the striking party to rebut the presumption of discrimination by producing a racially-neutral explanation for each peremptory challenge to a veniremember *716 belonging to a protected class. Id. Such explanation, while not necessarily rising to the level of a challenge for cause, must articulate a neutral explanation reasonably related to the issues being tried. Id.; Williams v. State, 804 S.W.2d 95, 103 (Tex. Crim.App.1991). After the striking party has given racially-neutral reasons for its peremptory challenges, the complaining party may then offer evidence showing that the explanations are sham or pretext for discrimination. Texas Tech, 876 S.W.2d at 408.
On appeal, the trial court's decision on the issue of discriminatory intent is given great deference and we will not disturb it unless it is clearly erroneous. The trial court's decision is clearly erroneous only if, after our consideration of the evidence before the trial court at the time of the Batson ruling, we are left with the "definite and firm conviction that a mistake has been committed." Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App. 1992). We look to both civil and criminal law for guidance in our review of a Batson challenge. Texas Tech, 876 S.W.2d at 405; Lott v. City of Fort Worth, 840 S.W.2d 146, 152 (Tex.App.Fort Worth 1992, no writ).
In this case, plaintiff Dominguez challenged defendant's use of peremptory strikes as racially motivated:
Comes now the Plaintiff prior to the jury being selected and we would object to the Defendant's objections as towe would object to the Defendant's strikes in selecting a jury concerning number nine, David Madrid and number twenty-seven, Joe Alfredo Rubio. And during Voir Dire there were no questions propounded to David Madrid by the Defendant's attorney, nor were there any questions propounded to Alfredo Rubio.
The Plaintiff herein being Maria Dominguez, a Hispanic, the Plaintiff objects to the strikes of the Defendant as aforementioned as they areas being racially motivated.
The court's response to this objection was "All right. Well, let me swear you in," addressed to State Farm's counsel. State Farm's counsel did not object that Dominguez had failed to make her prima facie case. He instead allowed himself to be sworn and responded without objection to questions about his reasons for striking the two veniremembers. Where a challenged party does not obtain the trial court's ruling on whether the prima facie case has been met, that issue is waived and may not be raised on appeal. Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim.App.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1871, 128 L. Ed. 2d 491 (1994); Wyle v. State, 836 S.W.2d 796, 797 (Tex.App.El Paso 1992, no pet.). In this case, by holding a hearing, the trial court impliedly found a prima facie case of discrimination had been met and we will not review that finding. Wyle, 836 S.W.2d at 797.[2] We therefore turn to State Farm's counsel's reasons for striking the two veniremembers, which must be based on something other than ethnicity and must be facially valid.
As to the first juror strike, David Madrid, counsel's testimony was:
He is a twenty year old, unemployed. And while he was in Phillip Godwin's Voir Dire, he looked bored, wasn't paying attention. Those are the notes that I have taken on this gentleman.
Regarding the second questioned strike, of Alfredo Rubio, defense counsel's sole reason was:
The only reason I have for cutting him was that he appeared to be responding *717 well to some of Phillip's questioning regarding the insurance coverage.
The court then asked of defense counsel: "Well, did you strike either of these gentlemen because they were Hispanic?" Counsel responded, "No." That was the entirety of the Batson hearing. Plaintiff's counsel did not cross-examine opposing counsel, nor offer any evidence attempting to show that the asserted neutral reasons were pretext. The trial court, impliedly finding no Batson violation, seated the jury with the strikes as originally made.
The party exercising a peremptory strike, challenged under Batson, must give a "clear and reasonably specific" explanation of "legitimate reasons" for the strike. Lott, 840 S.W.2d at 152. We find that defense counsel's explanation of the peremptory challenge to David Madrid was racially neutral and facially valid; both youth and employment status are proper considerations in making peremptory challenges. Jack v. State, 867 S.W.2d 942, 947 (Tex.App.Beaumont 1993, no pet.); Barnes v. State, 855 S.W.2d 173, 174 (Tex.App.Houston [14th Dist.] 1993, pet ref'd). (We do note, however, that striking a veniremember because he seemed bored by opposing counsel is unusual.) Although Dominguez's counsel raised some evidence of disparate treatment on motion for new trial (that several non-Hispanic panel members were not struck by State Farm despite their youth or lack of employment) that evidence came too late. We must judge whether the trial court's decision was clearly erroneous based upon the evidence presented at the time of the Batson hearing. Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App. 1992). Evidence adduced after the jury is seated will not support reversal of a Batson ruling. We therefore conclude that the trial court correctly upheld the peremptory challenge to veniremember David Madrid.
As to veniremember Alfredo Rubio, however, we cannot reach the same conclusion. The reason advanced by State Farm for this strike, that the veniremember "responded well" to opposing counsel's questions, finds no support in the record. Mr. Rubio made no verbal response to any question by either counsel during voir dire. If counsel's strike relied upon some sort of non-verbal response not reflected in the written record (head nodding, facial expression, arm crossing), we believe the law required him to describe specifically the behavior upon which he relied. Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App.1992) (prosecutor's race-neutral reason pretextual where no mention of any specific body language or other non-verbal actions supporting his conclusion that African-American veniremember was biased); Roberson v. State, 866 S.W.2d 259, 261 (Tex.App.Fort Worth 1993, no pet.); ("When the State strikes a juror on a basis that cannot easily or objectively be determined by the reviewing court, ... that basis must be substantiated by something other than the prosecutor's statement and that something must be on the record"); Munson v. State, 774 S.W.2d 778, 780 (Tex.App.El Paso 1989, no pet.); Branch v. State, 774 S.W.2d 781, 784 (Tex.App.El Paso 1989, pet. ref'd); but see Moss v. State, 877 S.W.2d 895 (Tex.App.Waco 1994, no pet.) (declining to follow majority view).
That someone "responded well" to questions, where no verbal response is contained in the record, cannot alone overcome the presumption of discrimination at a Batson hearing unless some evidence of the adverse conduct, and how it relates to the issues to be tried, is reflected in the record. "Whimsical explanations will simply not get the job done." Lott, 840 S.W.2d at 153. We conclude that the presumption of discrimination as to veniremember Rubio was not rebutted in this case.
The exclusion of even one member of the venire for prohibited reasons invalidates the entire jury selection process. Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim.App.1989). Having shown error, Dominguez is entitled to a new trial. Appellant's point of error one is sustained. We therefore need not reach appellant's remaining points of error.
CONCLUSION
We reverse the trial court's judgment and remand the case for new trial.
*718 OPINION ON REHEARING
On rehearing, State Farm urges that our opinion in this case conflicts with the U.S. Supreme Court's recent case of Purkett v. Elem, 514 U.S. ___, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). We do not believe that opinion changes the outcome of the appeal here, and we write on rehearing to explain why.
Purkett is a per curiam opinion involving strikes of two African-American veniremembers from the jury in a criminal case. The prosecutor, upon examination at the Batson hearing, stated that he struck the two because they both had long, unkempt hair and goatees. Purkett, 514 U.S. at ___, 115 S.Ct. at 1770, 131 L.Ed.2d at 836. The trial court overruled the Batson challenge, and the Court of Appeals for the Eighth Circuit reversed, finding that the prosecutor's explanation was pretextual and that the trial court had "clearly erred" in concluding there had been no intentional discrimination. Purkett, 514 U.S. at ___, 115 S.Ct. at 1770, 131 L.Ed.2d at 836. The U.S. Supreme Court reversed, finding that the Court of Appeals had misinterpreted its:
[A]dmonition in Batson that to rebut a prima facie case, the proponent of a strike `must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges' [cites omitted] and that the reason must be `related to the particular case to be tried.' Purkett, 514 U.S. at ___, 115 S.Ct. at 1771, 131 L.Ed.2d at 839, quoting Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20.
The Supreme Court explained that it meant by "legitimate reason" not a reason that made sense, but a reason that does not deny equal protection.[1]Id. It found that the Court of Appeals erred by holding that the explanation proffered at the second stage of a Batson proceeding must be not just neutral but also at least minimally persuasive and plausible. Id. It is only at the third stage of a Batson hearing, the Court explained, that the quality of an explanation may be examined. At the second stage, implausible or fantastic justifications, so long as they are race neutral, will suffice. Id.
We believe Purkett is distinguishable from the situation before us here. In Purkett, the prosecutor gave a specific, detailed description of the veniremembers' appearance. The appellate courts had some basis for deciding whether the trial court properly or improperly allowed the prosecutor's reason to stand, as the record reflected those facts upon which he relied. Here, the record shows no "response" of any kind, verbal or non-verbal, by veniremember Rubio. There is simply no evidence to support the trial court's ruling on the Batson issue. Just as with any other evidentiary matter, a party must make sure the appellate court, by some method, has access to the evidence upon which that party relies. We hold, as do the majority of Texas courts, that if a strike relies upon non-verbal factors, those factors must be described specifically in the record. We do not see that the Purkett case changes this requirement.
State Farm's motion for rehearing is overruled.
NOTES
[1] The Texas Court of Criminal Appeals recently held that Batson prohibited strikes based upon religion as well. Casarez v. State, No. 1114-93, 1994 WL 695868, ___ So.2d ___(Tex.Crim.App. 1994, reh'g granted). Rehearing has been granted in that case, and the continued viability of religious Batson challenges is far from certain at this writing.
[2] Much of State Farm's brief on appeal focuses on the lack of evidence ascertaining the two veniremembers were indeed members of a protected class. Under the procedural posture of this case, however, the lack of such evidence is beside the point. It is true that where the trial court finds no prima facie case, it is imperative that the challenging party include in the record competent evidence showing that the challenged veniremembers were members of a protected class, as well as showing the make-up of the jury panel as a whole. If the moving party's Batson challenge relies upon disparate treatment, moreover, the evidence should also establish the status of jury members used for comparison. See Texas Tech, 876 S.W.2d at 408. Where the trial court proceeds to hearing on the Batson issue, however, the prima facie case has been sustained and the presumption of discrimination arises. Further evidence on the jury panel's background therefore becomes unnecessary.
[1] Perhaps the Court of Appeals can be forgiven for misunderstanding this nuance.
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905 S.W.2d 175 (1995)
LAMAR ADVERTISING OF TENNESSEE, INC., Plaintiff-Appellee,
v.
CITY OF KNOXVILLE, Tennessee and Knoxville City Council, Defendants-Appellants.
Court of Appeals of Tennessee, Eastern Section.
February 10, 1995.
Permission to Appeal Denied May 30, 1995.
*176 Sharon E. Boyce, Knoxville, for appellants.
Lawrence P. Leibowitz, Knoxville, for appellee.
Permission to Appeal Denied by Supreme Court May 30, 1995.
OPINION
GODDARD, Presiding Judge (Eastern Section).
The City of Knoxville appeals the Chancellor's application of T.C.A. 13-7-208 to two billboards owned by Lamar Advertising of Tennessee, located along Interstate 40/75 in Knoxville. The area in which the signs are located south of the interstate and east of Cedar Bluff Road is zoned Planned Commercial; billboards are prohibited. However, the Chancellor found that the billboards are non-conforming uses and allowed Lamar to remove and replace them under T.C.A. 13-7-208.
After reviewing precedent and the Chancellor's opinion, we reverse.
Lamar currently owns and maintains the billboards at issue. The City annexed the property on which the billboards are situated in April of 1990. The age of the billboards is unknown; the only proof in the record shows they existed as early as 1972. There is further proof that the property at issue has been zoned to prohibit billboards since the 1950s. Conversely, there is no evidence that the property was ever zoned to permit billboards.
In February of 1991, presumably intending to modernize its signs, Lamar applied to the City for permits to rebuild the existing billboards. The City refused to issue the permits, contending that the billboards were illegal. Lamar filed suit in Chancery Court seeking an order compelling the City to issue the appropriate permits. After a trial, the Chancellor granted the requested relief and Lamar replaced the existing billboards with new ones.
The primary issue in this case is the interpretation of T.C.A. 13-7-208(d), which states:
(d) Industrial, commercial, or other business establishments in operation and permitted to operate under zoning regulations or exceptions thereto immediately preceding a change in zoning shall be allowed to destroy present facilities and reconstruct new facilities necessary to the conduct of such industry or business subsequent to the zoning change.... No building permit or like permission for demolition, construction or landscaping shall be denied to an industry or business seeking to destroy and reconstruct facilities necessary to the continued conduct of the activities of that industry or business, where such conduct was permitted prior to a change in zoning. (Emphasis supplied.)
This Section permits non-conforming uses to exist and expand under municipal zoning ordinances.
Lamar, the party seeking the protection of the Statute, has the burden of proving that their signs are non-conforming uses which qualify for protection. Eugene McQuillen, The Law of Municipal Corporations § 25.188.50 (Julie Rozwadowski & James Solheim Eds., 3d Ed. 1994). In Rives v. City of Clarksville, 618 S.W.2d 502 (Tenn. App. 1981), this Court found that a plaintiff must make two threshold showings before invoking the protection of T.C.A. 13-7-208. Under Rives, Lamar must show: (1) There has been a change in zoning (either adoption of zoning where none existed previously, or an alteration in zoning restrictions), and (2) the use to which they put their land was permitted prior to the zoning change. Furthermore, since the effective date of T.C.A. 13-7-208 was May 13, 1973, Lamar must prove its use of the property was permitted subsequent to that date. Rives, supra.
*177 As for the first prong of the Rives test, the Chancellor found that the City's annexation of the land supplied the necessary change in zoning prior to which Lamar's use was permitted. This determination was in error. The Rives Court required more than a change in enforcement. The Court stated that the zoning change must be significant "insofar as plaintiff is concerned"; it required a change in the uses allowed under the zoning code, which change affects the plaintiff's use of his land.
The record below shows that in 1972 the area in question was in an Agricultural Zone where billboards were prohibited. The record further shows that the area was rezoned in 1979 from Agricultural to Planned Commercial, which also prohibits billboards. The Planned Commercial zoning is still in effect. The record clearly indicates that there has been no change in the Zoning Code affecting Lamar's use of its land since before T.C.A. 13-7-208 went into effect in 1973. Lamar is unable to meet its burden of showing a change in the Zoning Code which affects its use of the land in question. Consequently, Lamar cannot invoke the protection of T.C.A. 13-7-208.
As for the second prong of the Rives test, the Chancellor based his decision that the billboards were "permitted" on the fact the County treated the billboards as legal. The Chancellor stated: "There is absolutely no question that whatever the County zoning ordinances say these billboards were permitted to exist for many years and were treated by the County as being lawfully and legally erected and maintained." The Chancellor further stated: "I think the City has to live with the County's interpretation and application of its zoning ordinance, even though the City contends that that was wrong and might have a very strong argument that the County was wrong." The Chancellor concluded, in essence, that Knox County's lax enforcement of its Zoning Code constituted the permission contemplated by the General Assembly when it drafted the language: "permitted to operate under zoning regulations or exceptions thereto." T.C.A. 13-7-208.
Again, the Chancellor's decision is in error. In Rives the plaintiff made a similar argument. The plaintiff argued that his operation of a junkyard in a zone which prohibited junkyards was "permitted" under T.C.A. 13-7-208 because the city had not enforced the zoning code against him though it had been in effect for 11 years. The Court disagreed, stating that the plaintiff's contention was "without merit." The Court wrote: "The clear meaning of T.C.A. § 13-7-208 is that the use must be permitted by the zoning regulations, not permitted through lax enforcement. The failure of the City to enforce the ordinance for a period of time does not estop the City from enforcing it eventually." Likewise, the failure of Knox County to enforce its Zoning Ordinance does not estop the City from enforcing the zoning now that the property has been annexed.
For the foregoing reasons, the judgment of the Chancellor is reversed and the cause remanded for collection of costs below, which are, as are costs of appeal, adjudged against Lamar.
FRANKS, J., and WILLIAM H. INMAN, Senior Judge, concur.
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916 F. Supp. 349 (1996)
303 WEST 42ND STREET ENTERPRISES, INC., Plaintiff,
v.
INTERNAL REVENUE SERVICE and The United States of America, Defendants.
No. 93 Civ. 4483 (LBS).
United States District Court, S.D. New York.
February 28, 1996.
*350 *351 Bailin & Seplowitz, New York City (William Seplowitz, Leonard Bailin, of counsel), for plaintiff.
Mary Jo White, United States Attorney for the Southern District of New York, New York City (Glenn C. Colton, Asst. U.S. Atty., of counsel), for defendant.
SAND, District Judge.
Plaintiff corporation, 303 West 42nd St. Enterprises, operates an "adult entertainment" center known as Show World. The Internal Revenue Service assessed a deficiency against Show World for employment taxes on dancers working in Show World's one-on-one fantasy booths. Plaintiff paid part of the assessment and has instituted this action for refund. Plaintiff moves for summary judgment on its refund claim. The Government cross-moves for summary judgment on its counterclaim for employment taxes for all payroll periods during 1989 and 1990. We deny plaintiff's motion for summary judgment and grant the Government's motion for summary judgment.
BACKGROUND
Plaintiff corporation, 303 West 42nd St. Enterprises, Inc., operates an adult entertainment facility at 42nd Street known as Show World. Show World provides a variety *352 of adult entertainments including a movie theater showing pornographic movies, single occupancy booths for the individual viewing of pornographic videos, live stage shows, and booths, known as one-on-one fantasy booths, where customers can communicate with performers, known as "visual telephonic communicators". The employment status of these booth performers, i.e. whether or not they are employees, is the crux of the instant dispute.
According to Show World's chief financial officer, the one-on-one booths account for 15-30% of the company's gross revenue. Deposition of Scott Wexler ("Wexler Dep".), June 29, 1994, at 18. The booths consist of two parts, with a glass partition separating the booth performer from the customer. As soon as the customer deposits a coin, the performer becomes visible, and the telephones become operational. What happens inside the booth is private, determined by the number of coins the customer deposits and conversation with the performer. During the time when the performer is visible to the customer the performer engages in a sexually provocative routine. See Footnote 5 infra, Notice of Motion, Exhibit 6, August 16, 1995.
Many of these routines have set prices. Id. Patrons negotiate with the performers for the amount to be paid for the selected performance. The patron pays the performer directly by inserting money into a slot provided for this purpose. The performer keeps all of the monies so paid. In addition to these monies, the customer inserts coins into the deposit box in order to keep the window clear and the telephone operative. Show World sets the price of the tokens, sells them to its patrons, and sets the amount of time that each coin will allow the customer to communicate with the performer. Deposition of Audrey Metzger, June 21, 1994, 12-14. At the end of the day (or night), when the performer has finished her shift, the tokens are collected and the visual telephonic communicator is paid 40% of the coins deposited; Show World keeps the additional 60%. Wexler Dep. at 24. The performers are then asked to sign a purported lease agreement, which specifies that Show World may withhold the performer's 40% as a security deposit for the reservation of the booth for the rest of the week. Id. at 25.
Show World argues that as a result of this lease, the visual telephonic communicators are tenants. In support of its contention that it enters into a landlord-tenant relationship, rather than an employer-employee relationship, Show World argues that its twenty-one booths are all similar. The performers rent the booths by paying a fee equal to 60% of the coins deposited in their booth boxes during their shifts. A lease agreement is signed by the performer after her first shift is completed. At that time, she is able to lease the booth for future shifts, although the record indicates that booths are never leased for more than a couple of days.
Believing booth performers to be employees rather than tenants, on November 26, 1991, the Internal Revenue Service ("IRS") issued Show World a Notice of Deficiency in the amount of $268,313.26 for additional employment taxes and interest for all periods encompassing the 1989 and 1990 calendar years. Show World paid $24,296.74 in assessed deficiencies for the quarter ending December 31, 1989. Several weeks later, the adult entertainment company filed an administrative claim for a refund of the amount paid. Show World's claim for refund was denied by the IRS.
By complaint dated June 24, 1993, Show World commenced the instant action seeking reimbursement of the $24,296.74 under the theory that a safe harbor provision, § 530 of the Revenue Act of 1978, prevents the government from treating Show World's booth performers as employees for the purpose of assessing employment taxes. In reply, the Government asserted that the safe harbor provision is inapplicable to Show World. The Government then filed a counterclaim against Show World for employment taxes in the amount of $249,773.79 plus interest for the quarters ending March 31, 1989, June 30, 1989, September 30, 1989, March 31, 1990, June 30, 1990, September 30, 1990 and December 31, 1990. Thereafter, plaintiff Show World moved for summary judgment on its refund claim and the Government cross-moved for summary judgment on its deficiency assessment.
*353 Each motion before the Court requires the resolution of two questions. First, does the safe harbor provision of § 530 protect a company whose alleged industry practice has been to characterize its workers as anything but employees. Second, if § 530 does not apply, are the visual telephonic communicators to be considered employees of adult entertainment companies for employment tax purposes. We proceed to address these issues.
DISCUSSION
This case is before us on uncontested facts. The parties debate only whether, on the facts presented, the safe-harbor provision applies and whether visual telephonic communicators are employees under the tax code. As both motions thus turn wholly on questions of law, summary judgment is the appropriate vehicle for their resolution.
A. The Employment Tax and Section 530
The classification of workers as either employees or non-employees under the Internal Revenue Code determines both the nature and quantity of taxes imposed. If an employer-employee relationship exists, the employer is subject to social security taxes under the Federal Insurance Contributions Act (FICA) (§ 3101) and unemployment taxes under the Federal Unemployment Tax Act (FUTA) (§ 3301). If there is no employer-employee relationship, the employer is not subject to FICA and FUTA, rather, the worker pays self-employment taxes under the Self-Employment Contributions Act (SECA) (§ 1401-1403).[1]
In addition to FICA and FUTA, the Internal Revenue Code requires employers to withhold Federal income taxes from employee paychecks in accordance with procedures proscribed by the Internal Revenue Service. Using the employee's Withholding Allowance Certificate and a table issued by the IRS, the employer computes the correct amount of Federal income withholding tax. The computation is based on the number of withholding allowances claimed, the employee's wages, and the frequency of payroll payments. Joint Committee Print, JCX-27-92, Present Law and Issues Relating to Misclassification of Employees and Independent Contractors for Federal Tax Purposes. If there is no employer-employee relationship, however, no income tax withholding is required.
Historically, whether an employer-employee relationship existed was determined under a common law test. If the person contracting for the work had the "right to control not only the result of the service, but also the means by which that result is accomplished," the worker was an employee. Treas.Reg. 31.3401(c)-(1)(b), cited in Committee Print; Rept. No 100-76, 100th Cong., 1st Session. At present, the term "employee" is defined by Section 3121(d) of the Code to include, "any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee."
In response to controversies over employment status between taxpayers and the IRS, Congress enacted section 530 of the Revenue Act of 1978 (P.L. 95-600).[2] Section 530 allows a taxpayer to treat a worker as a nonemployee, regardless of the individual's actual status under the common law test discussed supra, as long as the taxpayer's treatment of the worker for tax purposes has been consistent and a reasonable basis exists for such treatment. A reasonable basis is considered to exist if the taxpayer reasonably relies on 1) judicial precedent; 2) a past *354 failure of the IRS to raise such an employment tax issue on audit; and 3) "long-standing recognized practice of a significant segment of the industry in which such individual was engaged." 26 U.S.C. § 3401. In relevant part, section 530 states:
"If for purposes of employment taxes, the taxpayer did not treat an individual as an employee for any period, and in the case of periods after December 31, 1978, all Federal tax returns ... required to be filed by the taxpayer with respect to such individual for such periods are filed on a basis consistent with the taxpayer's treatment of such individual as not being an employee, then for purposes of applying such taxes for such period with respect to the taxpayer, the individual shall be deemed not to be an employee unless the taxpayer had no reasonable basis for not treating such individual as an employee ... A taxpayer shall in any case be treated as having a reasonable basis for not treating an individual as an employee for a period if the taxpayer's treatment for such period was in reasonable reliance on ... long-standing recognized practice of a significant segment of the industry in which such individual was engaged."
The taxpayer has the burden of proving that he satisfies the requirements for Section 530 relief. Springfield v. U.S., 873 F. Supp. 1403, 1412 (S.D.Cal, 1994); In re Arndt, 158 B.R. 863, 870 (M.D.Fla.1993). In an attempt to meet its burden, Show World relies upon the third prong of the reasonable basis test, long-standing industry practice, to assert that the safe harbor provisions of § 530 exempt it from FICA, FUTA and withholding taxes.
Show World contends there is a long standing industry practice of treating visual telephonic communicators as anything but employees. Affidavit of Ron Martin, dated August 14, 1995, ¶ 4; Affidavit of Thomas Parron ("Parron Aff."), dated August 14, 1995, ¶ 8. But although there may be an industry practice of not treating these performers as employees, there is no long-standing practice of treating them as falling into another single specific category. Rather, the industry appears to utilize two classifications, tenant and independent contractor. Citing the practice of characterizing booth performers as either tenants or independent contractors, plaintiff has documented the adult entertainment industry's choice to classify its performers as non-employees for employment tax purposes.
Show World has never treated its visual telephonic communicators as employees for employment tax purposes. As discussed previously, Show World contends that its performers are tenants who pay rent equal to 60% of the deposited coins, sign leases after the first shift, and lose a security deposit of their first days wages (40% of the coins) if they fail to appear for the future shifts contracted to in the lease. If the performer generates no revenue in her booth's coin box, there are no proceeds to divide and Show World gets no rent. A copy of the per diem lease appears in Exhibit 7 of Plaintiff's Notice of Motion. In the alternative, Show World contends that its booth performers, are independent contractors, purchasing their own props and costumes and charging their own rates for various performances agreed upon by the dancer and the customer.
The relevant issue therefore is whether the safe harbor provision of § 530 protects a company whose alleged industry practice has been to characterize its workers as anything but employees without a consistent opinion as to a single other classification. Based upon the fact that 1) the industry cannot agree on a uniform practice and 2) the language and legislative history of 530 manifests an intent to rectify unfairness and surprise rather than provide a loop hole, this Court answers the question in the negative.
No Single Industry Practice
The evidence submitted indisputably demonstrates that no single long-standing industry practice exists. Show World primarily contends that its booth performers are tenants. In a December 23, 1991 letter, plaintiff's counsel alleged that each of its visual telephonic communicators was a tenant and that tenant treatment is "common in the industry." Notice of Cross-Motion, Ex. A, December 23, 1991, letter signed by Leonard Bailin; see also, Parron Aff. ¶ 6 ("For purposes of employment taxes, Show World did *355 not treat any booth tenants as employees for any period."). Less than one month later, however, on January 15, 1992, plaintiff's counsel represented that the "entire industry" issues to booth performers Form 1099, the tax form distributed to independent contractors. Id. With evidence of both tenant and independent contractor treatment, it seems clear that the only classification on which the industry agrees is that of non-employee.[3] Indeed, it is undisputed that as far as a specific classification is concerned, there is no single long-standing practice in the adult entertainment industry of characterizing visual telephonic communicators. Plaintiff's 3G Statement ¶ 13.
Legislative History of Section 530
Historically, section 530 was enacted as a fairness provision. Joint Committee Print; JCX-27-92. It was designed to alleviate the burden employers faced when the IRS prevailed in reclassifying workers as employees. Reclassification often resulted in employer liability for substantial portions of employee FICA and withholding tax although the employee might have fully paid all liabilities for self-employment and income taxes. In light of this occurrence, Section 530 was promulgated to ease the employer's burden. As the Second Circuit noted in U.S. v. MacKenzie, 777 F.2d 811 (2d Cir.1985) cert. denied, 476 U.S. 1169, 106 S. Ct. 2889, 90 L. Ed. 2d 977 (1986), "a good faith taxpayer who was determined to have made an honest
mistake might be liable for enormous sums that should have been withheld from employee's paychecks but were instead paid to the workers. Thus, a limited safe haven was set up for those employers that manifested a `reasonable basis' for their treatment of employees as independent contractors."
Section 530 was not designed to aid an industry ambivalent about the particular employment classification of its workers. Rather, the statute was designed to protect those who in good faith reasonably relied on a specific practice of classification and were surprised to discover that the IRS took another view.
The courts have distinguished between reasonable and unreasonable bases. Safe harbor protection was available to a business that provided hospitals with nurses to fill staffing needs when the business had consistently characterized the nurses as independent contractors and followed an industry-wide practice of doing so. Hospital Resource Personnel v. U.S., 860 F. Supp. 1557 (S.D.Ga.1994). Safe harbor protection was not available "where various segments of an industry [were] using contradictory practices." Springfield at 1412.
The lack of a single practice within the adult entertainment industry, combined with section 530's circumscribed nature and its underlying objective of mitigating the harshness of reclassification by preserving fairness, deprives Show World of safe harbor protection. Section 530 was simply not intended to be a loop hole for taxpayers bent on avoiding known tax consequences. Show World has not sustained its burden of showing an entitlement to § 530 treatment.
B. Employee or Independent Contractor
Since the safe harbor provision of § 530 is inapplicable to Show World, the next issue to be considered is the status of the visual telephonic communicators. If, as a matter of law, the booth performers are employees, then Show World is subject to employment taxes under FICA, FUTA, and withholding statutes. If they are not employees, then Show World is not liable and the Government's *356 summary judgment motion must be denied.
Historically, the Commissioner's determination of tax liability, as enunciated in a statutory note of deficiency, is entitled to a presumption of correctness. Helvering v. Taylor, 293 U.S. 507, 55 S. Ct. 287, 79 L. Ed. 623 (1935); Day v. Commissioner, 975 F.2d 534 (8th Cir.1992); Brooks v. U.S., 280 F.2d 370 (5th Cir.1960). The taxpayer has the burden of proving that the Commissioner's determination of employee status is erroneous. Beatty v. Halpin, 267 F.2d 561 (8th Cir.1959); Marvel v. U.S., 719 F.2d 1507 (10th Cir.1983).
Addressing its burden, Show World's primary argument is that its booth performers are tenants. Supporting this contention, Show World asserts that booths are leased to the performers under a per-diem agreement. Rent is variable; the visual telephonic communicators pay 60% of the gross revenue generated by the coin box in their particular booths. If the performer generates no revenue in the fantasy booth's coin box, there are no proceeds to divide and Show World receives no rent under the agreement. At the other end of the spectrum, if the performer generates $100 in coin deposit revenue, the proceeds are divided and Show World receives 60% of the revenue, or $60, as rent. The remaining 40% is paid to the performer, however, a standard provision in the purported lease agreement stipulates that a performer may forfeit the 40% generated on her first day if she fails to appear for a future booking contracted to under the lease term. This provision and all other provisions are stipulated in a short-form lease, which is signed only after the visual telephonic communicator has finished her first day of performance. A copy of the per diem lease appears in Exhibit 7 of Plaintiff's Notice of Motion.
In addition to the booth-performer-as-tenant argument, Show World contends that its booth performers are independent contractors, purchasing their own props and costumes and charging their own rates for various performances agreed upon by the dancer and the customer. According to this argument, the visual telephonic communicator uses the booth as an opportunity to perform any acts that an individual patron may desire and for which the customer is willing to pay. The prices for each sexual act are negotiated by the patron and the performer. The patron then pays the performer directly by inserting money into a slot provided for this purpose. The performer retains the full fee charged to a patron for the individual performance. Therefore, at the end of the shift, the performer takes home 100% of money passed through the slot and 40% of the value of the coins deposited in the booth's coin box.
Based upon these factors, Show World contends that its booth performers are tenants and/or independent contractors who sign leases to rent out booth space and utilize the booth to conduct their own independent businesses.
In assessing the validity of Show World's contention, IRS revenue rulings, in conjunction with Treasury Regulations and case law, have set forth twenty common law factors to be considered. These rules have been enumerated in Rev.Rul. 87-41, 1987-1 C.B. 296.[4] Each factor is analyzed below in light of the particular attributes of Show World's relationship with its booth performers.
1. Instructions
Revenue Rule 87-41 states that a worker who is required to comply with other persons' instructions about when, where, and how he or she is to work is ordinarily an employee. In re Compass Marine Corp., 146 B.R. 138, 148 (E.D.Pa.1992). Despite the fact that Show World employees do not themselves view the booth performances (as all performances are exclusively for the coinpaying customer) or set the prices for the particular performances given (all the proceeds of which are kept by the performer), Show World nevertheless exercises considerable control over the performers. Show World monitors the booths by audio in order to insure compliance with its instructions.
*357 Time
Booth performers have the discretion to pick either one of two shifts, an evening shift or a daytime shift. However, once engaged in performance during a shift, the visual telephonic communicator must work the entire shift in order to receive compensation. The performer cannot leave the premises for any reason if he or she wishes to continue performing during the shift.
Place
All performances are exhibited in the one-on-one booths. Show World controls the dimensions and maintenance of the booths. Visual telephonic communicators may select the booth in which they wish to perform, however control over the booths including the amount of viewing time each coin provides is strictly controlled by Show World.
Manner
In regards to the manner in which the work is performed, Show World's customers control the individual performance based upon 1) the number of coins deposited and 2) the explicit act requested by the patron over the telephone. Indeed the very purpose of one-on-one booths seems to allow the patron to custom-tailor the performance to his or her wishes. Performers may choose their own clothing, as employees often do, and may even choose their own sexual devices. Yet the latitude over sexual acts is strictly curtailed by Show World. By audio monitoring the booths, Show World enforces a limit to this customization by preventing certain sexual acts and transactions from occurring.
2. Training
Traditionally, the training of a worker by management or an experienced employee is indicative of an employer-employee relationship because it demonstrates the employer's desire to have the work performed in a particular fashion. Moore v. U.S., 1992 WL 220913, at *2 (W.D.Mich.1992). However, given the nature of the services performed, communication through sexually provocative acts, there is little need for formal training. See Reich v. Circle C Investments, Inc., 998 F.2d 324, 328 (5th Cir.1993) ("[Topless] dancers do not need long training or highly developed skills to dance."). Yet even with the diminished need for instruction, Show World trains its new visual telephonic communicators by allowing them to observe the performances of others. Metzger Dep. at 16.
3. Integration
When the success or continuation of a business depends to an appreciable degree upon the performance of certain services, the worker who performs those services is more likely to be considered an employee than an independent contractor. Rev. Ruling 87-41. Show World argues that there is no integration of the performer's services into its business operations because the performances are for the benefit of the general public. This argument is specious. Show World receives 60% of the coin value deposited in the one-on-one booth boxes. Wexler Dep. at 24. These receipts encompass between 15-30% of Show World's gross revenue. Wexler Dep. at 18. The revenue earned from the performance of the visual telephonic communicators effects Show World's continued viability as a purveyor of adult entertainment.
4. Services Rendered Personally
If a worker's services must be rendered personally, it is presumed that the employer is interested in the methods as well as the results. Rev.Ruling 87-41. Show World prohibits booth performers from hiring their own substitutes to work their shift. Metzger Dep. at 28-29. Indeed it is undisputed that a booth performer who fails to appear for her booking will lose her revenues from her first day of work. Wexler Dep. at 26. As Show World's visual telephonic communicators are unable to hire their own replacements, they lack control, and therefore this factor favors the finding of employee status.
5. Hiring, Supervising and Paying Assistant
When the person for whom the services are performed hires, supervises, and pays assistants, the person is more likely to be exercising control in an employer-employee relationship than in an independent contractor relationship. Rev.Ruling 87-41. As *358 there are no assistants hired by either the plaintiff or the performers, this factor is inapplicable in this instance.
6. Continuing Relationship
A continuing relationship between an individual and the person for whom the services are rendered is indicative of an employer-employee relationship. Rev.Ruling 87-41. The Government concedes that the evidence indicates that booth performers typically work for a single establishment for a short period of time and will work for several operators in a given period of time. The record details that the job of visual telephonic communicator is impermanent and would thus ordinarily weigh in favor of finding independent contractor status.
7. Hours of Work
Establishing hours of work is a factor indicating control. Rev.Ruling 87-41. Show World allows its performers to choose between one of two time periods, day and evening. Wexler Dep. at 19, 29. Once the performer begins a shift, she must work throughout the entire shift and must remain on the premises in order to receive compensation. Once the choice was made as to time of shift, day or evening, the performer could not alter the shift, start time or finish time. Id. at 29. If the performer did not appear for her shift, the performer lost the security deposit. Id. at 26. Show World's control over the hours of work performed by their visual telephonic communicators favors employee status over that of independent contractor.
8. Full-Time
If a worker must devote substantially full time to the business of the person for whom services are performed, such worker is more likely to be an employee than an independent contractor. Rev.Ruling 87-41. The evidence is clear that Show World's visual telephonic communicators do not perform on a full time basis. This factor weighs in favor of independent contractor status.
9. Place of Work
Work performed away from the premises generally indicates that the individual is an independent contractor. Rev.Ruling 87-41. It is undisputed that booth performers are required to work on the premises of Show World and are not allowed to leave and return to the premises mid-shift. Plaintiff argues that as the performers are tenants renting space at Show World's premises, the Court should not base its determination upon ownership of the premises in which the booth is located. However, Show World's manager concedes that one booth is like another. Visual telephonic communicators must perform their work on the premises in the individual booth and may not leave the premises mid-shift if they wish to be compensated. Such facts weigh in favor of employee status.
10. Order of Services
Revenue Ruling 87-41 states "the employer has control if the workers are not free to follow their own pattern of work, but must perform the services in the order set by the employer. Often because of the nature of an occupation, the employer does not set the order of services or sets them infrequently; however, if the employer retains the right to set the order of services, that is sufficient to show control." Show World does not choreograph the booth performers' dances, neither does it detail the sequence of a sexual act. Indeed, given the nature of the show performed inside the booth, the very idea of an organized sequence of events is inapposite. What occurs inside the booths is private. If control over the order of services must be placed in the hands of one party, it naturally follows that control rests predominately with the patron and to a lesser extent with the performer.
11. Reports
The requirement for oral or written reports indicates control by the employer because workers are compelled to account for their actions. Rev.Ruling 87-41. In the case at hand, there is absolutely no evidence that booth performers submitted any type of report; this would be inconsistent with the *359 latitude and privacy afforded to the performer and to the customer. Monitoring is performed only by audio intervention.
12. Method of Payment
Payment by the hour, week or month generally points to an employer-employee relationship. Rev.Ruling 87-41. In the instant case, booth performers work a set shift and are paid 40% of the value of the coins deposited in their booths. Wexler Dep. at 24. In this manner performers are paid a set percentage of the revenues they procure during the agreed upon work period. The payment by a firm of regular amounts (40%) at stated intervals to a worker strongly indicates an employer-employee relationship.
13. Business Expenses
If the employer pays the worker's expenses, the worker is ordinarily an employee because the employer needs a certain degree of control in order to regulate spending. Rev.Ruling 87-41. In the instant case, there are very few business expenses related to one-on-one booths. Booth performers purchase their own intimate apparel as well as the props and supplies used during the shows. However, it is apparent that most employees purchase their own clothing, whether it be a pin-striped suit or a waiter's uniform. The bulk of the business expenses incurred in running one-on-one booths (electricity, security, maintenance) are paid by Show World thus lending support to an employer-employee relationship.
14. Furnishing Tools and Materials
If an employer furnishes tools and materials, an employer-employee relationship tends to exist. Rev.Ruling 87-41. As discussed supra, the visual telephonic communicators purchase their own lingerie and sexual paraphernalia. As these items cannot be shared, it is essential that each performer furnish the props she will utilize. The items that do not implicate hygiene, the telephonic equipment, the coins, and the booth, are furnished by Show World. This criteria neither advances nor weakens the classification of booth performers as employees.
15. Investment
Investment in facilities that are used by the worker in the performance of services tends to indicate that the worker is an independent contractor. Rev.Ruling 87-41. As discussed previously, performers invest in costumes and tools, Show World invests in the maintenance of its facilities. As the Fifth Circuit held in Reich v. Circle C Investments, Inc., 998 F.2d 324 (5th Cir.1993), "a dancer's investment in costumes ... is relatively minor to the considerable investment Circle C has in operating the night club." In the case at hand, Show World maintains the facilities, renovates when necessary, and advertises. It is therefore evident that performers invest where it is necessary for hygiene; beyond that, investment in facilities is the duty of Show World. This factor, therefore, weighs in favor of employee status.
16. Realization of Profit or Loss
Persons who can realize a profit or loss as a result of their services are generally independent contractors, while persons who cannot do so are employees. Rev.Ruling 87-41. The booth performer has very little financial down-side. When Show World agrees with a performer that she will appear in a booth, no agreement is signed and no money changes hands. Wexler Dep. at 19. An agreement is signed only after the performer has worked his or her shift and only after the coin proceeds are divided 60%/40%. If the booth performer does not attract a single customer during her shift, she is not liable for any payment to Show World. On any given shift, the worst she could do would be to earn no money. Thus she runs no risk of loss. For every dollar she earns, 60 cents is paid to Show World. If she fails to appear during a specified shift, her penalty is forfeiture of her security deposit or first day's revenue (40%). Therefore, the visual telephonic communicator never operates at a loss. Take-home pay may total zero, but it will never be lower than zero.
Show World contends that its profit motive is disparate from that of the visual telephonic communicator. Show World prefers the customer to remain in the booths for extended periods of time; the more time the customer *360 spends in the booth, the more coins from which Show World may garner its 60%. Show World asserts that the performers are more concerned with maximizing their income through private shows, often preferring smaller fee acts and greater turnover to those patrons wishing to remain in the booths for a protracted and more difficult performance. Booth performers may derive more income by acting with flair or anticipating the special needs of an individual customer. As the visual telephonic communicator has a limited ability to realize profit and has almost no financial down-side, this factor favors employee status.
17. Working for More than One Firm at a Time
Persons who work for more than one firm at a time are generally independent contractors. Rev.Ruling 87-41. The record indicates that visual telephonic communicators are free to work at other adult entertainment operations and do in fact work in other locations. This factor favors a finding of independent contractor.
18. Availability of Services to the General Public
Workers who make their services available to the general public are more likely to be independent contractors. Rev.Ruling 87-41. It is apparent that booth performers make their services available to the general public in the same manner that hair stylists make their services available to the public. See Rev.Rule. 70-488 1970-2 CB 219; Rev.Rul. 73-591 1973-2 CB 337. A paying customer walking in from the street may enter Show World to watch a sexually provocative dance or may enter the corner salon to have a haircut. To date, Show World has not allowed booth performers to run their own advertisements. However, performers may contact previous customers via telephone to inform them that they will be appearing at Show World on a certain date. It is therefore clear that this factor neither suggests nor negates employee status.
19. Right to Discharge the Worker
The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. Rev.Ruling 87-41. Show World is under no obligation to allow a visual telephonic communicator to perform in a booth and would in fact prohibit the performer from using a booth if that worker had previously engaged in any type of drug or prostitution transaction in the booth. Plaintiff's Reply Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment and in Opposition to the Government's Cross-Motion for Summary Judgment at 50. Show World has control over whom it permits in its booths. It therefore has the power to discharge any worker who does not follow its guidelines.
20. Right to Quit
An employee has the right to end his or her relationship with an employer at any time without incurring liability. On the other hand, an independent contractor agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete the job. Rev.Ruling 87-41. A booth performer who does not appear for her shift loses a security deposit equal to 40% of the first days wages. Visual telephonic communicators are not held responsible for the satisfactory completion of their performances. Neither are they legally obligated to make good for failure to complete the shift. The worker's freedom to leave, without incurring liability beyond the 40%, manifests the performers' right to quit and thus weighs in favor of employee status.
We are unpersuaded by Show World's contention that its booth performers are tenants and/or independent contractors who sign leases to rent out booth space and utilize the booth to conduct their own independent businesses. The foregoing analysis of the twenty common law factors, demonstrates that, as a matter of law, visual telephonic communicators are properly classified as employees for employment tax purposes. See Mladinich v. U.S., 379 F. Supp. 117 (S.D.Miss.1974) (holding *361 go-go dancers as employees for employment tax purposes).
A closer analysis of the specific arguments raised by Show World lends support to the conclusion reached by means of the twenty factor analysis.
1. Performer as Tenant
First, a lease executed only after the first day of use is not indicative of a classic lease. This is especially true in the case where the lease term is usually no more than a couple of days. It seems more likely that the lease is merely a scheduling device, used in the same manner as a weekly restaurant work schedule that allows the waiters and waitresses (traditionally treated as employees) to request the nights they wish to work. Second, the variable rent provision is atypical when compared with a standard lease. Although percentage leases are utilized with respect to some real estate transactions, e.g. retail leases, most leases specify a particular base rental price rather than only a variable fee. Landlords customarily try to protect themselves from the risk, inherent in operating a personal business, of little or no profit. In contrast to this customary practice, Show World structures its agreements so as to make itself even more vulnerable to the downside. Indeed it seems as if Show World is shifting the risk of poor business from its booth performers to itself. This assumption of the risk of loss is more often associated with an employer in an employer-employee relationship than a landlord in a landlord-tenant relationship. Similarly, the notion of withholding 40% of revenues as a security deposit is also not typical of the landlord-tenant relationship.
2. Performer as Independent Contractor
Turning now to address Show World's contention that its booth performers are independent contractors, the Court is equally unpersuaded by Show World's claims. As discussed supra in the tenancy context, the retention by Show World of 60% of revenues received for time spent in the booth by the patron, and the Show World-performer risk-of-loss allocation, is more usual with respect to employees than to independent contractors. Furthermore, as to the monies not retained, we conclude that the 40% coin money is akin to wages and the 100% cash money is akin to a tip. On its most basic level, a tip is a payment made by a person who has received a personal service. Roberts v. Commissioner, 176 F.2d 221 (9th Cir. 1949). Like the waiter who is paid a salary and receives tips, it is the Court's understanding that the booth performer is paid a salary of 40% of the coin deposits and receives a tip of the cash for her personal performance. Indeed, Exhibit 6 in Show World's Notice of Motion details one performer's understanding of the personal performance money to constitute a tip.[5]
The analogy between booth performer and waiter can be further extended. As the waiter primarily relies on his tips as his main source of income, so too may the booth performer rely on her tips as her main source of income. As the amount of the waiter's tip depends upon the skill and efficiency of his performance so too does the booth performer's tip depend on her innate attributes and ability to perform the act desired.
In determining whether a worker is an employee or an independent contractor, the power to control the work is of paramount importance. Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir.1993); Diaz v. U.S., 1990 WL 61960, at *3 (C.D.Cal.1990); In re Compass Marine Corp., 146 B.R. 138 (Bankr. E.D.Pa.1992). Show World exercises substantial control over its booth performers by preventing the performers from leaving the *362 premises during their shifts and preventing the use of alcohol. In order to ensure that its regulations are being followed, Show World periodically monitors the one-on-one booths by audio devices.
Show World maintains that this high degree of control is necessary in order to prevent a violation of prostitution and narcotics laws. For the purpose of employment tax assessment, however, the critical point is not the motivation for the control, but rather the fact that control is exercised.
Once inside the booths, it may seem, upon first glance, as if the fantasy booth performers control the work by negotiating prices and performing in private. However, it must be remembered that Show World's product is adult entertainment. The only way to put forth the product is by the use of the human figure. The presence of the individual is essential for the distribution of the product.
One of the distinguishing characteristics of the services that booth performers provide is that the particular fantasy is narrowly tailored to the individual customer's needs and preferences. In this respect it may be likened to the services provided by a home health care provider who tailors her routine to the needs of the patient. Similarly, it may be likened to the stage dancer at an adult club who structures her routine so as to please the specific audience. Despite the individuality exercised in the performance of these services, for the purposes of employment taxes, both the home health care provider and the stage dancer are employees. TAM 8749001, 2-10-87; Jeffcoat v. Alaska, 732 P.2d 1073 (S.Ct.Alaska 1987). Thus, the independent nature of the booth performer's work is not dispositive of independent contractor classification.
The foregoing analysis leads to the conclusion that the relationship between the taxpayer and the performer is a unique one, deliberately structured with a view towards the avoidance of the appearance of an employer-employee relationship. Such avoidance would be valid and permissible if, in fact, the preponderance of relevant factors showed that the true nature of the respective roles of Show World and its performers was as the taxpayer contends. But as our analysis of the twenty relevant factors has shown, the scales tilt decidedly in favor of an employer-employee relationship. Show World has not sustained its burden of proving that the Commissioner's determination of employee status is erroneous.
No material facts are in dispute and so summary judgment is appropriate. The Court denies plaintiff's motion for summary judgment and grants the Government's motion for summary judgment.
SO ORDERED.
NOTES
[1] Prior to 1990, the employment tax structure significantly favored independent contractors over employees. Until 1983 the FICA tax rate on the employer and employee was higher than the SECA tax rate. In 1989, the tax rates were equalized; however, a self-employed person is still entitled to an income tax deduction for a portion of SECA taxes. Joint Committee Print; JCX-27-92, Present Law and Issues Relating to Misclassification of Employees and Independent Contractors for Federal Tax Purposes.
[2] Although § 530 was never codified, it is reproduced in the notes following 26 U.S.C. § 3401. Section 530 was originally intended to provide interim relief to taxpayers involved in employment tax controversies with the IRS. Its provisions were extended indefinitely by Section 269(c) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), P.L. No. 97-248, 96 Stat. 324, 552 (Sept. 3, 1982).
[3] See Affidavit of William Seplowitz, August 15, 1995, ¶ 6 ("the long standing practice of virtually the entire adult entertainment industry [is to] treat[] performers as not being employees for tax reporting purposes, and more particularly, [it is] the long standing practice of every operator in the industry offering "one-on-one booth facilities of not treating booth tenants as such."); Parron Aff., August 14, 1995, ¶ 8, ("virtually all of the New York operators of adult entertainment facilities did not treat performers as employees for tax reporting purposes. Further, based upon my knowledge of the industry gained of my years of experience, I can state, unequivocally, that there have been no operators of facilities with one-on-one booths, since their introduction into the adult entertainment industry in 1979 and up to the present date, whether in New York or elsewhere, who have treated the performers as employees for tax reporting purposes.").
[4] See Treas.Reg. (26 C.F.R.) § 31.3121(d)-1(c)(2); see also, Avis Rent A Car System v. U.S., 503 F.2d 423, 429 (2d Cir.1974); In re Arndt, 158 B.R. 863, 867-68 (M.D.Fla.1993).
[5] Exhibit 6 reads,
"Hello!
Fantasy Booth Guidelines and Tips:
Tokens are $2.00 a piece + last 1 minute each.
(3 minutes $6.00, 5 minutes $10.00 etc.)
* * * * * *
My income is Your tip! (emphasis in original) I want to excite you, a Good Tip excites me!
Dildo Show $20.00
Masturbation Show $10.00
Anal Dildo Show $30.00 for some reason these are more difficult!
Please enjoy yourself + come again + again!
Love always,
Susie
P.S. Please tip in advance so I'll know what you want!
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1516807/
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185 Conn. 549 (1981)
H & S TORRINGTON ASSOCIATES
v.
LUTZ ENGINEERING CO., INC.
Supreme Court of Connecticut.
Argued October 13, 1981.
Decision released December 15, 1981.
SPEZIALE, C. J., PETERS, HEALEY, PARSKEY and ARMENTANO, JS.
*550 Dion W. Moore, for the appellant (defendant).
Peter S. Sorokin, with whom, on the brief, was Christopher M. Royston, for the appellee (plaintiff).
ARMENTANO, J.
In this appeal the parties are contesting the notice required by General Statutes §§ 49-34[1] and 49-35[2] to be served upon the property owner in order to validate a mechanic's lien.
The plaintiff, H & S Torrington Associates (hereinafter H & S), is a general partnership engaged in the construction of shopping centers. Desiring to build the Torrington North Shopping Center upon *551 land it owned in Torrington, H & S entered into a contract with Healy Construction Company, Inc. (hereinafter Healy Construction), a Massachusetts corporation, as general contractor. Bernard H. Healy, Jr., was one of two partners in H & S and an officer and shareholder of Healy Construction. Edward T. Smith was the other partner in H & S, but was not formally affiliated with Healy Construction.
In his capacity as president of Healy Construction, Healy signed a subcontract agreement on April 10, 1979, with the defendant, Lutz Engineering Co., Inc. (hereinafter Lutz), whereby Lutz agreed to furnish and install heating and air conditioning systems for the shopping center. Healy dealt directly with Lutz, but both he and Smith were aware of the defendant Lutz's work. By March 24, 1980, Lutz's services were substantially *552 performed, but $94,410 remained due and payable from Healy Construction. The quality of Lutz's work is not in dispute.
On April 25, 1980, Lutz recorded a mechanic's lien on the premises. The lien claimed an amount owing of $94,410 for services rendered and materials furnished commencing June 12, 1979, and ending March 24, 1980. The lien certificate further alleged that it was made and filed within 60 days from the time of ceasing to render services and furnish materials. The day after the recording a deputy sheriff mailed a true and attested copy of the lien, by registered mail, return receipt requested to both Bernard E. Healy, Jr. and Edward T. Smith as partners of H & S. The sufficiency of service is not disputed.
On October 17, 1980, the trial court discharged the lien upon application of the plaintiff owner. The court based its decision on the subcontractor's failure to serve a separate notice on the owner of its intent to claim a mechanic's lien pursuant to General Statutes §49-35 (a). On December 18, 1980, upon reargument, the trial court declined to reopen the judgment, holding that a subcontractor, not in privity with the property owner, was required to serve two notices on the owner in order to validate a mechanic's lien. In this appeal from the discharge of the lien the defendant claims (1) that two separate notices are not required to comply with the notice requirements of General Statutes §§ 49-34 and 49-35 (a); and (2) that there was a written assent by the plaintiff to the work performed by the defendant, thereby excusing the defendant from the notice requirements of General Statutes §49-35 (a).
*553 The purpose of the mechanic's lien is to give one who furnishes materials or services "the security of the building and land for the payment of his claim by making such claim a lien thereon...." J. L. Purcell, Inc. v. Libley, 111 Conn. 132, 136, 149 A. 225 (1930); Balch v. Chaffee, 73 Conn. 318, 320, 47 A. 327 (1900); see generally "Mechanics' Liens in Connecticut," 37 Conn. B.J. 209 (1963). A subcontractor's right to claim a lien against a property owner with whom he is not in privity was "created because the subcontractor has furnished material or labor to or for the contractor which has gone into the owner's building." J. L. Purcell, Inc. v. Libbey, supra, 137; see A. W. Burritt Co. v. Negry, 81 Conn. 502, 507, 71 A. 570 (1909). Because the mechanic's lien is a creature of statute, a lienor must comply with statutory requirements in order to perfect his claim. E.g., City Lumber Co. of Bridgeport, Inc. v. Borsuh, 131 Conn. 640, 645, 41 A.2d 775 (1945); Swift & Upson Lumber Co. v. W. L. Hatch Co., 115 Conn. 494, 498, 162 A. 19 (1932); White v. Washington School District, 42 Conn. 541, 545 (1875). Provisions of mechanic's lien law should be liberally construed so as to reasonably and fairly implement its remedial intent. See, e.g., Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 115, 438 A.2d 834 (1981); Seaman v. Climate Control Corporation, 181 Conn. 592, 597, 436 A.2d 271 (1980); Pierce, Butler & Pierce Mfg. Corporation v. Enders, 118 Conn. 610, 615, 174 A. 169 (1934).
General Statutes § 49-35 (a) provides, in pertinent part, that no subcontractor except one "whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any ... mechanic's lien, unless, after commencing, and not *554 later than sixty days after ceasing, to furnish materials or render services for such construction,... he gives written notice to the owner of the building, lot or plot of land that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on the building, lot or plot of land." This notice requirement was "concerned with the protection of the owner of the property, who might not otherwise know what, if any, subcontractors the principal contractor had employed"; Biller v. Harris, 147 Conn. 351, 354, 161 A.2d 187 (1960); see Lampson Lumber Co. v. Rosadino, 141 Conn. 193, 196, 104 A.2d 362 (1954); "so that payments to the main contractor may be withheld...." Thames Lumber Co. v. Cruise, 116 Conn. 273, 276-77, 164 A. 652 (1933).
Another notice requirement, first enacted in 1975,[3] was intended to protect the due process rights of property owners who would not otherwise have actual notice of the recorded lien. See Papa v. Greenwich Green, Inc., 177 Conn. 295, 301-302, 416 A.2d 1196 (1979); Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); 18 H. R. Proc., Pt. 10, 1975 Sess., p. 4922. General Statutes § 49-34, as amended to 1980, required anyone claiming a mechanic's lien to cause to be recorded a written lien certificate within sixty days after he has ceased performing services or furnishing materials,[4] and "within the same time, or prior to the lodging of the *555 certificate but not later than seven days after lodging the certificate ... [to serve] ... a true and attested copy of the certificate upon the owner of the building, lot or plot of land...." [5] Because section 2 of Public Acts 1975, No. 75-418 left intact the notice requirement of General Statutes §49-35 (a), as does a 1981 amendment,[6] we conclude that the legislature intended the notice provisions of both statutes to apply to subcontractors claiming a lien.
Both notice requirements may be satisfied in one document. Although the term "intends" usually implies a future act, this court has stated that "[i]f the basic purpose of the notice of intent to claim a lien is borne in mind, it becomes apparent that there is no occasion for reading into § 49-35 an implied provision that as [a] matter of law the notice must be served on the owner prior to the filing for record of the certificate of lien under § 49-34." Biller v. Harris, 147 Conn. 351, 355, 161 A.2d 187 (1960). Accordingly, a subcontractor may comply simultaneously with both notice requirements. Two separate notices are not necessary to accomplish the purpose of the statutes. Lowndes Hill Realty Co. v. Greenville Concrete Co., 229 S.C. 619, 630, 93 S.E.2d 855 (1956).
The copy of the lien certificate served upon the owner in the present case complies, except in one respect, with the content and time requirements of both General Statutes §§ 49-34 and 49-35 (a). The subcontractor has failed only to state that it "intends to claim a lien" pursuant to § 49-35 (a). Use of the language "intends to claim a lien" is not talismanic, *556 provided the other provisions of § 49-35 (a) are met. Taking into account the remedial intent of the law, this court is satisfied with substantial compliance of the requirements of both mechanic's lien statutes. Pierce, Butler & Pierce Mfg. Corporation v. Enders, supra, 615. Because the defendant substantially complied with the notice requirements of both statutes when it served a copy of the lien certificate upon the property owners, the court erred in discharging the valid lien.[7]
There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
NOTES
[1] General Statutes §49-34, as amended to 1980, provided: "CERTIFICATE OF LIEN TO BE RECORDED AND NOTICE GIVEN TO OWNER. A mechanic's lien is not valid, unless the person performing the services or furnishing the materials, (1) within sixty days after he has ceased to do so, lodges with the town clerk of the town in which the building, lot or plot of land is situated a certificate in writing, which shall be recorded by the town clerk with deeds of land, (A) describing the premises, the amount claimed as a lien thereon, the name or names of the person against whom the lien is being filed and the date of the commencement of the performance of services or furnishing of materials, (B) stating that the amount claimed is justly due, as nearly as the same can be ascertained, and (C) subscribed and sworn to by the claimant, and (2) within the same time, or prior to the lodging of the certificate but not later than seven days after lodging the certificate, serves a true and attested copy of the certificate upon the owner of the building, lot or plot of land in the same manner as is provided for the service of the notice in section 49-35."
[2] General Statutes § 49-35, as amended to 1980, provided: "NOTICE OF INTENT. LIENS OF SUBCONTRACTORS AND MATERIALMEN. (a) No person other than the original contractor for the construction, raising, removal or repairing of the building, or the development of any lot, or the site development or subdivision of any plot of land or a subcontractor whose contract with the original contractor is in writing and has been assented to in writing by the other party to the original contract, is entitled to claim any such mechanic's lien, unless, after commencing, and not later than sixty days after ceasing, to furnish materials or render services for such construction, raising, removal or repairing, he gives written notice to the owner of the building, lot or plot of land that he has furnished or commenced to furnish materials, or rendered or commenced to render services, and intends to claim a lien therefor on the building, lot or plot of land. The notice shall be served upon the owner, if he resides in the same town in which the building is being erected, raised, removed or repaired or the lot is being improved, or the plot of land is being improved or subdivided, by any indifferent person, by leaving with him or at his usual place of abode a true and attested copy thereof. If the owner does not reside in such town, but has a known agent therein, the notice may be so served upon the agent, otherwise it may be served by any indifferent person, by mailing a true and attested copy of the notice to the owner at the place where he resides. When there are two or more owners, the notice shall be so served on each owner. The notice, with the return of the person who served it endorsed thereon, shall be returned to the original maker of the notice within said period of sixty days.
"(b) No subcontractor, without a written contract complying with the provisions of this section, and no person who furnishes material or renders services by virtue of a contract with the original contractor or with any subcontractor, may be required to obtain an agreement with, or the consent of, the owner of the land, as provided in section 49-33, to enable him to claim a lien under this section."
[3] Public Acts 1975, No. 75-418, § 1.
[4] See footnote 1, supra.
[5] Section 8 of Public Acts 1981, No. 81-8, extended the notice deadline from seven to thirty days.
[6] Public Acts 1981, No. 81-8, § 7.
[7] The defendant also claims that there was a written assent by the plaintiff to the work performed by the defendant, thereby excusing the defendant from the notice requirement of General Statutes § 49-35 (a). Our resolution of the defendant's first claim of error is dispositive of this appeal. It is unnecessary for this court to address the defendant's second claim.
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295 Pa. Super. 369 (1982)
441 A.2d 1277
COMMONWEALTH of Pennsylvania
v.
Kenneth WILLIAMS, Appellant.
Superior Court of Pennsylvania.
Submitted May 28, 1981.
Filed February 19, 1982.
*370 *371 Buford Tatum, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Before WICKERSHAM, McEWEN and WIEAND, JJ.
McEWEN, Judge:
Appellant, Kenneth Williams, was convicted of rape, solicitation to commit sodomy, assault with intent to commit sodomy and criminal conspiracy on December 16, 1975, following a jury trial before the Honorable Matthew J. Bullock, Jr. of the Court of Common Pleas of Philadelphia County. Bail, which had originally been set at one thousand dollars, was increased after the verdict to two thousand five hundred dollars pending disposition of post-trial motions. The appellant failed to appear in Court on May 7, 1976, the date scheduled for the argument upon those motions. The Court issued a bench warrant but appellant remained a fugitive for the next four years.
Police finally apprehended appellant in early 1980. Upon his return to custody, appellant renewed his post-verdict motions in his Brief in Support of Motion for a New Trial or Arrest of Judgment.
On June 4, 1980, Judge Bullock denied the post-verdict motions, revoked bail,[1] and sentenced appellant to not less than three and one half nor more than seven years imprisonment on the rape conviction. Sentences on the accompanying convictions were suspended. This appeal followed.
Appellant contends that he should be granted a new trial alleging (1) that the Commonwealth denied him due process *372 of law by concealing or destroying possibly exculpatory evidence and (2) that he was denied the right to a fair trial by virtue of improper remarks made by the prosecuting attorney during closing argument. We affirm the judgment of sentence of the trial court.
On the evening of March 18, 1972, appellant hosted a party in his West Philadelphia apartment which was attended by the complainant, Ms. Smith, in the company of her boyfriend Mr. Gary White. The complainant and her escort arrived at the party at about 10:00 or 10:30 p.m. Ms. Smith had never before seen appellant or any of the other people present at the party. Gary White left Ms. Smith at the party at one point in the evening to make a telephone call and did not return. During his absence, appellant requested Ms. Smith to accompany him, his brother, Richard Williams, a cousin, and another couple on some errands. The other couple soon left the group and, after several stops, Ms. Smith was driven to another West Philadelphia apartment which she entered at the urging of appellant and the two other men. A fourth man, Travis Hopson, was present in the apartment when they arrived. While there, the brother of the appellant knocked Ms. Smith's head turban to the floor and as she went into the bathroom to replace it, the fourth male, Travis Hopson, put a meat cleaver to her throat and ordered her to remove her clothes. Appellant, along with his brother and his cousin, then entered the bathroom clad only in their shorts and the four men together watched as she undressed. At first she cried but then ceased when one of the men said, "You had better shut up and calm down because if you don't I will show you what happened to the other women who don't cooperate with us." (N.T. 79-80). There then followed the acts of rape, attempted rape and oral sodomy by the four men, including an act of rape by the appellant. After the four men had finished, the appellant threatened to "put a contract out" on her if she informed police of the incident. (N.T. 80-87). The men finally released Ms. Smith at 5:00 a.m. the next morning and drove *373 her to her apartment.[2] Ms. Smith immediately proceeded to the apartment of a girlfriend in the same building, woke her, and told her, while crying hysterically, that she had been raped. (N.T. 87-88).
Ms. Smith reported the rape to the police department that same morning of March 19, 1972. The police, at that time, summarized her statement on a Police Department Incident Report form. She, subsequently, gave her formal statement to Sergeant George Craig which he then gave to Detective Joseph Brignola. Nearly three years elapsed before the appellant was arrested on the charges in question.[3]
Appellant argues first that he was denied due process of law because the Commonwealth concealed or destroyed "possibly exculpatory evidence." The evidence alluded to is the formal statement which the complainant gave to the police shortly after the incident took place. The testimony of the police officers involved indicated that three copies of the formal statement were made after it was recorded but, at the time of trial, none could be located. Detective Brignola testified at the trial that, although he, personally, had been in possession of one copy of the statement, he could not find it at the time of trial. Extensive efforts by the police to locate a record copy of the statement were unsuccessful. Despite the assertion of appellant that the formal statement was "possibly crucial to the defense," he, nevertheless, concedes in his brief that the statement implicated him in the offenses, since an arrest warrant was sworn out against him shortly after the statement was taken. Appellant argues only that the statement could have been used to impeach the credibility of the victim on cross examination and that the inability of the Commonwealth to produce the statement *374 constituted a violation of the principle established by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
It is undisputed that "[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." Commonwealth v. Lochman, 265 Pa. Super. 429, 438, 402 A.2d 513, 518 (1979) quoting from Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963); See Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). Even where defense counsel does not make a specific request, the prosecution has the duty to make available to the defense evidence that is truly exculpatory rather than merely favorable. Commonwealth v. Lochman, supra; Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). "Exculpatory evidence is that which extrinsically tends to establish the defendant's innocence of the crimes charged as opposed to that which, although favorable, is merely collateral or impeaching." Commonwealth v. Lochman, supra, 265 Pa.Super.Ct. at 438, 402 A.2d at 518; Commonwealth v. Gee, supra.
The Supreme Court further elucidated the standard of materiality it set forth in Brady in the case of United States v. Agurs, 427 U.S. 97, 112-13, 96 S. Ct. 2392, 2401-02, 49 L. Ed. 2d 342, 354-55 (1979) stating:
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated on the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of *375 relatively minor importance might be sufficient to create the reasonable doubt.
We believe that the trial court was presented with ample evidence to support the guilty verdict against appellant and we are satisfied that the principles of Brady were not violated where defense counsel was afforded the opportunity to examine the initial and preliminary report given to the police prior to the formal statement which was lost. Although the preliminary report was in briefer form and made before the formal statement was completed, it, nonetheless, was consistent with the testimony of the victim at the trial. The trial court found this report completely consistent with the testimony of the victim and the record reflects that it was further corroborated by the testimony of the girlfriend to whom Ms. Smith first reported the rape. By permitting defense counsel the opportunity to cross examine the victim and impeach her credibility with the aid of this preliminary report, the trial court eliminated any reasonable contention on the part of appellant that he was denied due process because of the inability of the Commonwealth to produce the formal statement at trial. Cf. Commonwealth v. Mace, 234 Pa. Super. 463, 341 A.2d 505, cert. denied, 423 U.S. 996, 96 S. Ct. 423, 46 L. Ed. 2d 370 (1975) (no denial of due process where the effect of the inadvertent destruction by the Commonwealth of physical evidence was minimized by the fact that the Commonwealth in good faith made other relevant evidence available to the defense for use at trial).
Defense counsel chose not to use the preliminary report during his cross examination of Ms. Smith. His failure to use that report to impeach her recollection of the events of the evening, reflects a trial strategy which, as the District Attorney observed in his brief, was "an attempt to screen out the available indicia of the complainant's truthfulness and, in turn, to highlight as much as possible the absence of her formal statement." (Brief of Appellee at 7).
We concur with the finding of the trial court that the Commonwealth cannot reasonably be said to have concealed *376 exculpatory evidence, where there was no evidence that the statement was exculpatory and where "it was in all probability favorable to the Commonwealth." (Slip Op. at 9). Therefore, we do not believe that the appellant was denied due process by reason of the inability of the Commonwealth to produce the formal statement itself at trial.
In his second argument, appellant contends that a variety of the remarks of the prosecutor during closing argument were improper and violated the American Bar Association Standards for Criminal Justice Relating to the Prosecution Function [hereinafter ABA Prosecution Standard][4] which the Pennsylvania Courts have cited with approval in a number of decisions. See, e.g., Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173, cert. denied, 441 U.S. 964, 99 S. Ct. 2412, 60 L. Ed. 2d 1070 (1979); Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978); Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977).
Initially, appellant claims that the District Attorney in his summation improperly characterized the quality of the summation of defense counsel. He challenges (1) the District Attorney's description of his summation as "vicious character assassination and vicious low-level argument," and (2) the comment of the prosecutor that defense counsel was taking the "low-road" while he would follow the "highroad," as well as (3) the statement of the prosecutor that the argument of defense counsel concerning the missing statement was "done to appeal to your emotions." We do not consider these comments to be violative of the aforementioned ABA Prosecution Standards or to be so prejudicial as to warrant reversal and the grant of a new trial. Indeed, *377 appellant does not specify or explain how the remarks violate the standards, but simply asserts that these types of remarks have been condemned by this Court, our Supreme Court and by the ABA Standards. Although the tenor of certain of these comments may be harsh,[5] "not every intemperate or uncalled for remark by the prosecutor requires a new trial." Commonwealth v. Youngkin, 285 Pa. Super. 417, 430, 427 A.2d 1356, 1362 (1981). A new trial need only be granted where "the unavoidable effect [of the language] would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) quoting Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Youngkin, supra. These remarks cannot be said to have had so prejudicial an effect.
Finally, the appellant sets forth a series of excerpts from the closing argument of the District Attorney in which he claims the District Attorney expressed his personal opinion as to the credibility of the complainant and the guilt of the appellant. The excerpts are as follows:
I will very candidly and plainly say to you her testimony is worthy of belief. And on the basis of her testimony defendant is clearly guilty as charged. (N.T. 384).
[B]ut the point is ladies and gentlemen, she was telling you the truth as honestly as she could. (N.T. 385).
[I]f you have a problem with Ms. Smith versus the defense in terms of reconcile [sic] who to believe, and I already believe in arguing to you that you should not have such a problem. (N.T. 398).
[B]ut I mention the results of what happened to Ms. Smith because I want you to understand, by golly, she is telling you the truth. (N.T. 402).
The law is clear that personal assertions of the guilt of a defendant or of the credibility of a witness' testimony by the *378 prosecutor during closing argument constitute reversible error and warrant the grant of a new trial. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). Commonwealth v. Gunderman, 268 Pa. Super. 142, 407 A.2d 870 (1979). During closing arguments, the prosecutor must limit his or her statements to the facts in evidence and legitimate inferences from those facts. Commonwealth v. Leymeister, 285 Pa. Super. 539, 428 A.2d 176 (1981). Where the remarks of the prosecutor so prejudice the jury as to prevent a fair trial, reversible error exists. Commonwealth v. Leymeister, supra; Commonwealth v. Van Cliff, supra.
Our examination of the contested statements does not reveal, however, that the prosecutor stated any personal opinion regarding the guilt of appellant or of the credibility of the complainant. These excerpts under review contain, rather legitimate arguments and reasonable inferences of the prosecutor based upon the facts in evidence.
Our system of jurisprudence not only relies but rests upon the notion that the scales of justice are evenly balanced and each party, not only the defendant but also the Commonwealth, must be afforded an equal opportunity to tip the scales. It, therefore, follows that the Commonwealth is entitled to a full measure of oral advocacy and the prosecutor has not only the privilege but the duty to exert his skills as an advocate in such manner as he deems the most likely to be persuasive. There is no sound reason why counsel for the Commonwealth should be expected to show any less fervor than counsel for the defendant during any portion of the trial, including the closing remarks, provided, of course, the statements do not fall afoul of the ABA Prosecution Standards. The trial court is the best monitor of the propriety of the remarks of counsel for the Commonwealth during argument and the appellate courts must be more than hesitant to disturb a determination of the trial court regarding propriety since the quiet, studied solemnity of the appellate court is a world apart from the charged atmosphere of the trial courtroom. Therefore, only such remarks as clearly and obviously violate the ABA Prosecution *379 Standards may be determined to be improper. The remarks under review do not so violate and were not improper.
Judgment of sentence affirmed.
WIEAND, J., files a concurring opinion.
WIEAND, Judge, concurring:
I concur that appellant is not entitled to a new trial. In so doing, I agree fully with the majority's disposition of appellant's contention that the prosecution deprived him of due process by "concealing or destroying possibly exculpatory evidence." However, I am unable to agree when the majority says the prosecutor's statements (1) that the alleged victim's "testimony is worthy of belief;" (2) "she was telling you the truth as honestly as she could;" and (3) "I want you to understand, by golly, she is telling you the truth" were not expressions of opinion. In my judgment they were exactly that. They can be excused, however, as relatively mild responses to a highly improper and inflammatory argument by defense counsel. This argument included counsel's opinion that the alleged victim was a "liar," that she was a "perjurer" and that her testimony was, inter alia, "a cock and bull story," "ridiculous," "bunk," "balogna," "nonsense," "made up," "bull," and "preposterous." In view of defense counsel's highly charged and improper, emotional tirade against the veracity of the prosecution witness, the District Attorney cannot be condemned for protesting that her testimony was "worthy of belief" and that "she was telling you the truth as honestly as she could." Certainly, such responses do not require that appellant be awarded a new trial. See: Commonwealth v. Brown, 490 Pa. 560, 417 A.2d 181 (1980); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); ABA Project on the Standards for Criminal Justice, Standards Relating to the Prosecution Function § 5.8 (Approved Draft, March, 1971) (commentary: prosecutor may be justified in making a reply to an argument by defense counsel which may not have been proper if made without provocation). See generally: Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. *380 Kjersgaard, 276 Pa.Superior Ct. 368, 419 A.2d 502 (1980); Commonwealth v. Baynes, 269 Pa.Superior Ct. 563, 410 A.2d 845 (1979).
For these reasons, I concur in the result achieved by the majority but do not join its opinion.
NOTES
[1] We have before us, in addition, the application of appellant to set bail which, in light of this Opinion, we have denied.
[2] Appellant was not only an actual rapist but also a participant in the entire occurrence from the time the victim was initially assaulted until the time she was released. It is clear, therefore, that since he was a member of the conspiracy, the evidence was sufficient to convict him of all of the offenses committed and he does not otherwise contend.
[3] The appellant does not in this appeal challenge the lengthy delay between the incident and his arrest in May of 1975.
[4] The American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, § 5.8(a), (b) (Approved Draft, March, 1971) state in pertinent part:
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecution intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
[5] Our review of the record indicates that perhaps these comments were fair responses to the arguments of defense counsel during his summation.
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916 F. Supp. 176 (1996)
Ricky BROWN, et al., Plaintiffs,
v.
CITY OF ONEONTA, et al., Defendants.
No. 93-CV-349.
United States District Court, N.D. New York.
February 20, 1996.
*177 Whiteman, Osterman & Hanna, Albany, New York (D. Scott Bassinson, of counsel), for plaintiffs.
Rowley, Forrest, O'Donnell & Hite, P.C., Albany, New York (Brian J. O'Donnell, of counsel), for defendant Hartmark.
Dennis C. Vacco, Attorney General, Albany, New York (Robert A. Siegfried, Asst. Attorney General, of counsel), for state defendants.
Dreyer, Boyajian & Tuttle, Albany, New York (James B. Tuttle, of counsel), for Oneonta defendants.
MEMORANDUM-DECISION & ORDER
McAVOY, Chief Judge.
I. BACKGROUND
The facts of this case are well-known to the court and the parties. Accordingly, the court will not recite them herein.
II. DISCUSSION
A. Standard For Reconsideration
"A court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice." Hester Industries, Inc. v. Tyson Foods, Inc., 160 F.R.D. 15, 16 (N.D.N.Y. 1995) (citing, Larsen v. Ortega, 816 F. Supp. 97, 114 (D.Conn.1992), aff'd, 990 F.2d 623 *178 (1993)); Nossek v. Brd. of Educ. of the Duanesburg Central School Dist., 1994 WL 688298 (N.D.N.Y.1994). The Court cautions at the outset that, although "clear error" and "preventing injustice" are valid grounds for reconsideration, the parties seeking reconsideration must not use this vehicle as a means to relitigate issues previously decided by the Court, or to attempt to "sway the judge" one last time. See Saratoga Harness Racing, Inc. v. Veneglia, 897 F. Supp. 38, 40 (N.D.N.Y.1995) (citation omitted). With these standards in mind, the Court now turns to the issues raised.
B. Defendant Hartmark
The defendant Hartmark argues that the court should have dismissed the Equal Protection claims asserted against him with prejudice, rather than without as is stated in the January 3, 1996 Order at issue. It is argued that because the court dismissed the complaint against the state defendants with prejudice, based on the evidentiary record obtained through discovery, the court should so rule with respect to the defendant Hartmark. The reason for this claim is the affidavit of the defendant Hartmark, wherein he states that he is not "aware" of any past instance where the police, investigating a violent crime allegedly committed by a young white male, sought information from SUCO officials and the officials declined to comply. This "evidence" is very different from evidence that, in fact, no such instances had occurred. In the face of the defendant Hartmark's uncorroborated statement, the court cannot say that, as a matter of law, the defendant Hartmark has not violated the Equal Protection clause. That remains to be decided by the fact finder at trial. Accordingly, the court denies the defendant Hartmark's motion for reconsideration.
C. State Defendants
1. Wilson, Jackson, and Hunt
The plaintiffs do not oppose the state defendant's motion to correct the court misidentification of the defendants Wilson, Jackson, and Hunt as state police defendants. Upon review of the affidavits submitted by each in support of this motion, the court hereby dismisses the Fourth Amendment claims set forth against the defendants Wilson, Jackson, and Hunt.
2. Clum
The plaintiffs oppose the dismissal of the Fourth Amendment claims submitted against the defendant Clum. In essence, the plaintiffs argue that the affidavit submitted by the defendant Clum in connection with this motion could, and should, have been submitted with the summary judgment motion, and thus should not be considered by the court at this time. See Music Research, Inc. v. Vanguard Recording Soc., Inc., 547 F.2d 192, 196 (2d Cir.1976). The court notes, however, that Music Research states that evidentiary issues are within the "broad discretion" of the trial court. 547 F.2d at 195 (stated in the context of a ruling as to the sufficiency of the evidence as it relates to a motion to set aside a verdict).
Upon a review of the affidavit submitted by the defendant Clum, and after consideration of the effect of the court's accepting the affidavit at this time, the court decides that it is appropriate for the court to consider the defendant Clum's affidavit. It is clear that if the court dismisses the Fourth Amendment claims asserted against the defendant Clum, that the plaintiffs Quinones, Jennings, and Plaskett will have no claims asserted against him. The court can see no reason to exclude such potentially dispositive evidence on the sole basis of tardiness. The plaintiffs have not asserted that they will be prejudiced by such a ruling, and have made no allegations contradicting the statements contained in the affidavit.
In the Clum affidavit, the defendant Clum states that he did not interview plaintiffs Quinones, Jennings, or Plaskett. Moreover, the defendant Clum did not interview any individuals on the streets of Oneonta. Finally, the defendant Clum states that he does not wear a police uniform when he is working. Accordingly, the court finds that the Fourth Amendment claims asserted against the defendant Clum should be dismissed, with prejudice.
*179 D. Oneonta Defendants
The Oneonta defendants assert two bases for reconsideration of the court's January 3, 1996 Order: (1) the denial of summary judgment as to the claims of Vincent Quinones, given no affidavit by the plaintiff Quinones to contradict the Oneonta defendants' account; and (2) the denial of summary judgment as to Monell liability. The Oneonta defendants argue that the law of the case requires the court to grant summary judgment as to Monell liability, and they argue that the grant of summary judgment as to the claims asserted by the plaintiff Quinones removes any basis for the imposition of Monell liability.
As to the first issue, the court reiterates that in the January 3, 1996 Order, the court determined that the plaintiff Quinones had set forth a claim sufficient to defeat a motion to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(6). The court did not rule that there was a material factual issue relating to that claim. Since the Oneonta defendants' motion is based on a misreading of the court's previous Order, i.e., that the court treated the motion as if for summary judgment, and given the court's clarification, it is clear that the Oneonta defendants do not have a basis to seek reconsideration of the court's Order with respect to the claims asserted by the plaintiff Quinones.
As to the Monell issue, the second contention is mooted by the court's previous discussion. As to the contention that the law of the case doctrine is controlling, the court finds that the Oneonta defendants' argument rests on a misreading of the previous Orders of this court. As stated in the court's July 17, 1994 Order denying the plaintiffs' motion for reconsideration, the court had "granted summary judgment in favor of the City under the Monell doctrine only for the alleged fourth amendment violations." Order dated July 17, 1994 at 15. The court also granted the plaintiffs "leave to replead." Id. at 16. Moreover, the court stated that the original decision of the court "had no bearing on the City's potential Monell liability for equal protection claims if such claims are properly pleaded." Id. Although the court has dismissed the Equal Protection claims asserted against the Oneonta defendants, the plaintiff Quinones has set forth a viable Fourth Amendment claim. Accordingly, the court denies the Oneonta defendants' motion for reconsideration.
E. Plaintiffs' Motion For Reconsideration
1. Equal Protection Claims
The plaintiffs seek reconsideration of the court's January 3, 1996 Order as to two issues: (1) the court's dismissal of the plaintiffs' Equal Protection claims; and (2) the court's allegedly erroneous "finding" that the New York state police traced the assailant's path to a wooded area at the base of the SUCO campus.
As to the first contention, it is clear to the court that the plaintiffs have set forth substantially the same argument as in the summary judgment motion. As stated above, parties seeking reconsideration must not use the motion for reconsideration as a means to relitigate issues previously decided by the Court, or to attempt to "sway the judge" one last time. See Saratoga Harness Racing, 897 F.Supp. at 40. Accordingly, the court will not grant the plaintiffs' motion for reconsideration as to that issue. Nevertheless, the court will attempt herein to clarify its decision as to the Equal Protection claims.
The court, in its Order dated January 3, 1996, stated that for the plaintiffs to withstand a 12(b)(6) motion they had to allege something other than that "any white male suspected of a crime is similarly situated" when compared with the plaintiffs herein. The court went on to say that the plaintiffs had to at least allege that a "white male suspected of a violent crime was treated differently from plaintiffs." Order dated January 3, 1996 at 16. The court continued to state that even if the plaintiffs had set forth a viable claim, it was clear that as to the Oneonta defendants no material question of fact could be raised, because the evidence presented to the court showed that, as a matter of law, that the Oneonta police had not categorized the suspects of violent crimes as white or non white. In fact, the only crimes where the Oneonta police had categorized *180 the suspects as "white males" or "young white males" were non violent crimes. Thus, had the court treated the motion as one for summary judgment, which it did not, the court would have found no material factual issue. Accordingly, and in the interest of judicial economy, the court dismissed the Equal Protection claims against the Oneonta defendants with prejudice, because there was no set of facts that the plaintiff could plead to make out a viable claim.
The court did not state, as is the sum and substance of the plaintiffs' argument herein, that the plaintiff must engage in discovery before filing a complaint. Nor did the court hold the plaintiffs to a higher pleading standard. However, as set forth in Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987), a complaint setting forth civil rights claims must set forth "some specific allegations of fact," rather than "a litany of general conclusions that shock but have no meaning." The plaintiffs did not meet this standard.
2. Factual Findings
As to the plaintiffs' contention that the statement "[t]he New York State Police supervised the investigation, and using dogs, traced the assailant's path to a wooded area at the base of the State University of New York's Oneonta campus," constitutes a finding of the court, the court states that no party is precluded from introducing evidence at trial, otherwise admissible, to show the extent of the state police's efforts to "track" the perpetrator.
F. Plaintiffs' Motion For Certification
A party seeking leave to appeal a district court's interlocutory order must first obtain certification from that court pursuant to 28 U.S.C. § 1292(b). In order to certify, the district court must find that: (1) the order "involves a controlling question of law"; (2) "as to which there is substantial ground for difference of opinion"; and that (3) "appeal from the order may materially advance the ultimate termination of the litigation...." Id. The trial judge has substantial discretion in deciding whether or not to certify. See D'Ippolito v. Cities Service Co., 374 F.2d 643, 649 (2d Cir.1967); Ferraro v. Secretary of HHS, 780 F. Supp. 978, 979 (E.D.N.Y.1992). The court should construe the requirements for certification strictly, see Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.1990), and certify only where exceptional circumstances warrant. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 2461, 57 L. Ed. 2d 351 (1978); Klinghoffer, at 24-25; Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y.1982). The court notes that certification pursuant to 28 U.S.C. § 1292(b) has been permitted when a court's ruling has obviated any possibility of relief as to some plaintiffs, or would have a decisive effect on the amount of recovery. See Junco v. Eastern Air Lines, Inc., 399 F. Supp. 666 (S.D.N.Y.), aff'd without opinion, 538 F.2d 310 (1975).
In the instant case, the court declines to exercise its discretion and certify a question for appeal. The question that the plaintiffs seek to have certified has been loosely framed, but relates to the court's determination of what constitutes sufficient pleading, in the context of an Equal Protection claim, as to the similarly situated group. The court's ruling as to this issue does not obviate recovery for any subset of plaintiffs to this action, as there are numerous other outstanding claims. Moreover, it cannot be argued that the court's ruling would have a decisive effect on the amount of recovery, although the court recognizes the inability to recover on any single claim can be presumed to have some effect on the amount of recovery. Finally, the court has determined that certification of a question for appeal would delay, rather than expedite this torpid case. See Coopers & Lybrand, 437 U.S. at 475, 98 S.Ct. at 2461; Klinghoffer, at 24-25. Accordingly, the plaintiffs' motion for certification is denied.
III. CONCLUSION
For the foregoing reasons, the court (1) DENIES the defendant Hartmark's motion for reconsideration; (2) GRANTS the state defendants', Wilson, Jackson, Hunt, and Clum, motion for reconsideration, and dismisses the Fourth Amendment claims asserted against them; (3) DENIES the Oneonta *181 defendants' motion for reconsideration; (4) DENIES the plaintiffs' motion for reconsideration; and (5) DENIES the plaintiffs' motion for certification of a question for appeal.
It is so ordered.
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916 F. Supp. 919 (1996)
Allen BURKHART, Plaintiff,
v.
MEDSERV CORPORATION d/b/a Primedica Hospital Services Division, and Cigna d/b/a Connecticut General Life Insurance Company, A Cigna Group Insurance Company, Defendants.
Civil No. 95-5230.
United States District Court, W.D. Arkansas, Fayetteville Division.
March 1, 1996.
*920 Laura J. McKinnon, Fayetteville, AR, for Plaintiff.
J. David Wall, Shawn D. Twing, Bassett Law Firm, Fayetteville, AR, for Medserv.
Scott M. Strauss, Barber, McCaskill, Amsler, Jones & Hale, Little Rock, AR, for CIGNA.
MEMORANDUM OPINION
H. FRANKLIN WATERS, Chief Judge.
This matter is currently before the court on the motion to dismiss, or in the alternative, motion for more definite statement, filed by Medserv d/b/a Primedica Hospital Services Division. Medserv contends this action should be dismissed for the following reasons: (1) the court lacks personal jurisdiction over it; (2) venue is improper; and (3) the complaint fails to state a claim for relief against it. Alternatively, Medserv asks that the plaintiff be directed to file a more definite statement on the basis that the complaint is so vague and ambiguous that Medserv cannot prepare an answer.
Background.
This action arises under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. The plaintiff, Allen Burkhart, contends he is entitled to long-term disability benefits under an employee benefit plan offered to employees of Primedica Hospital Services Division of Medserv Corporation. Specifically, plaintiff alleges that as an employee of Prevost Memorial Hospital in Donaldsville, Louisiana, he participated in a group health program provided by Connecticut General Life Insurance Company, a Cigna Company. It is alleged that Medserv Corporation is a Delaware corporation which is headquartered in Marietta, Georgia. It is also alleged that Medserv and Connecticut General Life Insurance Company are both plan administrators.
The complaint alleges that Mr. Burkhart became disabled on October 21, 1992, and left his employment with Primedica Hospital Services Division of Medserv Corporation. Plaintiff further alleges that on or before December 7, 1993, Connecticut General Life was notified the plaintiff was disabled. However, plaintiff asserts Connecticut General Life has continuously denied coverage under the long-term disability plan. Plaintiff asserts that he pursued "internal appeals" and the benefit denial was upheld on appeal.
Personal Jurisdiction.
Medserv first argues that it has no contacts with the State of Arkansas and is therefore not subject to jurisdiction here. Medserv *921 points out that the complaint does not allege a single contact between it and the State of Arkansas. It states the only contact mentioned in the complaint is the existence of an employer/employee relationship while plaintiff worked for a division of Medserv at Prevost Memorial Hospital in Donaldsville, Louisiana.
While the complaint does allege Medserv is one of the plan administrators, Medserv points out that there is no allegation that the plan is administered in Arkansas or that the decision to deny benefits was made in Arkansas. In fact, Medserv argues the only contact with Arkansas apparent from the complaint is the fact that plaintiff resides here.
Plaintiff does not attempt to point the court to any contacts Medserv has with the State of Arkansas. Rather, plaintiff points out that ERISA provides that process may be served in any district where a defendant resides or may be found. 29 U.S.C. § 1132(e)(2). Additionally, plaintiff contends that he served Medserv in compliance with this provision and the applicable procedural rules.
Plaintiff appears to believe that Medserv is challenging the propriety of service of process rather than challenging its amenability to suit in this district. As plaintiff draws no distinction between service of process and personal jurisdiction, the court will construe his argument to be that the two concepts are merged in ERISA actions because of ERISA's provision for nationwide service of process. Succinctly put, the argument would be that ERISA's provision for nationwide service of process subjects an ERISA defendant to personal jurisdiction in any district court in the United States.
In diversity cases a non-resident defendant's amenability to suit in a given district is determined by reference to the state long-arm statute. Arkansas' long-arm statute extends personal jurisdiction "to the maximum extent permitted by the due process of law clause of the Fourteenth Amendment of the United States Constitution." Ark.Code Ann. § 16-4-101(B) (Supp.1995). In federal question cases, the Supreme Court has held that in the absence of any statutory provision for service of process a non-resident defendant's amenability to suit is determined by reference to the state's long-arm statute. Omni Capital International v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 108 S. Ct. 404, 98 L. Ed. 2d 415 (1987).
This left an open question with respect to federal question cases where the federal statute provided for nationwide service of process. Most courts that have addressed this issue have rejected the application of the state long-arm statutes and have applied a national contacts standard. See generally 4 Charles A. Wright, Arthur R. Miller, Federal Practice and Procedure § 1067.1 (2d ed. 1987 & Supp.1995). However, there is no ready consensus on the standards to be applied in the national contacts approach.
Some courts dealing with federal statutes which provide for nationwide service of process have held that such statutes subject the non-resident defendant to personal jurisdiction anywhere in the country, regardless of contact with the court's territorial jurisdiction. See e.g. Busch v. Buchman, Buchman & O'Brien, 11 F.3d 1255 (5th Cir.1994); Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668, 671 (7th Cir.1987) (RICO, § 1965(b), creates personal jurisdiction by authorizing nationwide service of process), cert. denied, 485 U.S. 1007, 108 S. Ct. 1472, 99 L. Ed. 2d 700 (1988); Central States, Southeast and Southwest Areas Pension Fund v. Goldstein, No. 94-C-7176, 1995 W.L. 221848 (N.D.Ill. Apr. 11, 1995) (personal jurisdiction over American defendants in ERISA action is proper in any federal court). Under this application of the national contacts test, when a defendant resides and conducts business within the United States, i.e. when the defendant has minimum contacts with the United States, the court has personal jurisdiction over him. See McCracken v. Auto Club of Southern California, 891 F. Supp. 559 (D.Kan.1995) (ERISA case).
Other courts have held that "federal statutes that provided for nationwide service of process do not necessarily provide nationwide personal jurisdiction." See e.g., Willingway Hosp. v. Blue Cross & Blue Shield, 870 F. Supp. 1102, 1104 (S.D.Ga.1994). Under this view, "[s]ervice of process and personal *922 jurisdiction are linked only in so far as they both must be satisfied before a case can go forward." Id. In at least one court's view "[t]o allow Congress to dictate personal jurisdiction through the enactment of nationwide service of process provisions, unquestioned by the judiciary is nonsensical." Id. at 1106. The test as stated by that court is as follows:
in cases where Congress's purpose in expanding personal jurisdiction would not be advanced by extending jurisdiction in a particular case, the International Shoe test can be afforded greater weight. Congress includes nationwide service provisions in federal statutes to achieve defined purposes and has done so on numerous occasions.... Consequently, when such purposes are absent in a particular case, then the due process analysis should take this into account. "When no special federal interest is implicated ... extraterritorial assertions of jurisdiction should be expected to comport, under the Fifth Amendment national contacts test, with the same basic notions of `fair play and substantial justice' that inform the International Shoe standards."
Id. at 1108.
To the extent the Eighth Circuit has addressed this issue, it has applied the traditional minimum contacts analysis to determine the nature and extent of the non-resident defendant's contacts with the forum state. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1389 n. 2 (8th Cir.1991); South Dakota v. Kansas City S. Indus., Inc., 880 F.2d 40, 44 n. 10 (8th Cir.1989), cert. denied, 493 U.S. 1023, 110 S. Ct. 726, 107 L. Ed. 2d 745 (1990). See also Chemtech Industries v. Goldman Financial Group, Inc., 156 F.R.D. 181, 183-84 (E.D.Mo.1994). The Eighth Circuit recognized that due process was examined in light of the Fifth Amendment rather than the Fourteenth Amendment. Dakota Industries, 946 F.2d at 1389 n. 2. Nevertheless, it noted the Fifth Amendment is "`essentially a recognition of the principles of justice and fundamental fairness,' Honeywell, 509 F.2d at 1143, so it is appropriate that we examine the contacts with the forum state." Dakota Industries, 946 F.2d at 1389 n. 2.
"[A] complaint should not be dismissed for want of jurisdiction, before trial, if there is any genuine issue as to any fact material to the jurisdictional question." Radaszewski v. Telecom Corp., 981 F.2d 305, 309 (8th Cir.1992), cert. denied, 508 U.S. 908, 113 S. Ct. 2338, 124 L. Ed. 2d 248 (1993). "While the facts adduced in a Rule 12(b)(2) Motion to Dismiss for lack of personal jurisdiction must be viewed in the light most favorable to the party opposing the motion, there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist, thereby casting the burden upon the moving party to demonstrate a lack of personal jurisdiction." Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977). See also Dakota Industries, Inc. v. Ever Best Ltd., 28 F.3d 910, 915 (8th Cir.1994) (The nonmoving party need only make a prima facie showing of jurisdiction).
The plan in this case is the Medserv Corporation Group Disability Plan. The plan has not been named as a defendant. The administrator of the plan is Medserv Corporation. From what is before the court, the sole connection the administrator has with Arkansas is that a potential beneficiary, the plaintiff, resides in Arkansas. The court is given no other information regarding any contacts Medserv had with this state. We do not know if the plaintiff resided here when he made a claim for benefits and when benefits were denied. We do not know if the plaintiff performed any work for Medserv in this district or received any benefits under the terms of the plan after he resided in this district.
In short, as Medserv points out, the sole connection with this district appears to be the fact that plaintiff, a potential beneficiary under the plan, resided here when the complaint was filed. This is simply insufficient. Plaintiff has advanced nothing to show that Medserv has had any contacts with the district. While the presence of a beneficiary within the forum has been held sufficient to support personal jurisdiction over a plan, the facts of such cases indicate the plan was *923 administered within the forum district and/or the beneficiary performed their work or earned pension credits within the forum district. See e.g. Ransom v. Administrative Comm., 820 F. Supp. 1429 (N.D.Ga.1993).
Plaintiff has advanced no such factors for the court's consideration. In fact, plaintiff has pointed to no contact between Medserv and the State of Arkansas to show that Medserv in any way purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40, 2 L. Ed. 2d 1283 (1958). The unilateral activity of a plaintiff claiming a relationship with a non-resident defendant does not suffice to create the requisite forum contacts. Id.; Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 416, 104 S. Ct. 1868, 1873, 80 L. Ed. 2d 404 (1984); Kulko v. Superior Court of California, 436 U.S. 84, 93-94, 98 S. Ct. 1690, 1697-98, 56 L. Ed. 2d 132 (1978).
While we recognize that the policy of ERISA is to protect the interests of participants and beneficiaries in employee benefit plans by providing ready access to federal courts, 29 U.S.C. § 1001(b), we cannot ignore the Eighth Circuit's direction to apply minimum contacts/due process analysis to federal statutes containing nationwide service of process provisions. ERISA's policy may indicate that the due process analysis should be applied less stringently. However, we are not free to ignore the analysis altogether.
Conclusion.
For the reasons stated, the motion to dismiss for lack of personal jurisdiction will be granted. In view of this conclusion, we need not address the other arguments advanced by Medserv. A separate order in accordance herewith will be concurrently entered.
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486 S.W.2d 443 (1972)
STATE of Missouri, Respondent,
v.
Ross Odell CAREY, Appellant.
No. 56736.
Supreme Court of Missouri, Division No. 1.
November 13, 1972.
*444 John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.
Kenneth K. Simon, Kansas City, for appellant.
HIGGINS, Commissioner.
Ross Odell Carey was convicted by a jury of burglary, first degree. The jury was unable to agree on defendant's punishment; the court assessed his punishment at seven and one-half years' imprisonment and rendered sentence and judgment accordingly. §§ 560.040, 560.095, V.A.M.S.;
Rule 27.03, V.A.M.R. (Appeal taken prior to January 1, 1972.)
Appellant's statement of evidence demonstrates the sufficiency of evidence to sustain his conviction.
"Eula Mitchell testified that she occupied the premises in question [Route 1, Box 41, Buckner, Jackson County, Missouri] as a tenant, with her husband and her son Paul, and that on the morning in question she left the house. At about ten minutes to nine after walking her son, she further testified that the back door was locked and the front door was locked by her as she left. Upon her return at approximately ten in response to her son's call she inspected the back door and noticed the hook on said door pulled off the screen door and the door, doorknob and wall damaged, none of which was evident when she left. During cross examination, she testified that nothing was disturbed in the house but that the hook was pulled out of the wall by the back door.
"Paul Wayne Mitchell, being called on behalf of the State testified that he awoke about ten A.M. in his bedroom by a knocking at the front door, noticed a white car in the driveway, saw the man who was knocking motion to a second man in said car, at which point the car was backed up to the front door to a point about 30-40 feet from the front door. The occupant of the car then got out and proceeded with the other man around to the corner of the house where he lost sight of them. The witness identified the defendant as one of the men. The witness proceeded to his parents' bedroom where he procured a shotgun and waited in his parents' bedroom. He then saw a man's torso and face, a man not in the Courtroom and accosted him and told both men to leave the house. The second man he identified as the defendant, both men then left the house. None of the property in the house, among which numbered several small appliances, and guns was removed. The witness testified that after the incident he described, *445 he inspected the back door and noticed the hook pulled from the wood of said door casing, but still attached to the eye."
Appellant charges first that the court erred in overruling defendant's motion to suppress testimonial evidence of Paul Mitchell, "as the in court identification * * * was tainted by * * * prior contacts with photographic and line up identifications so as to be unreliable and for the further ground that the defendant was deprived of counsel at what he urges was a critical stage of the proceedings." This point is further delineated by appellant's assertion that the identification of defendant by Paul Mitchell should have been suppressed "following the line of reasoning of" United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, "and the logic of" Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, "which elaborated on those decisions," and United States v. Zeiler, 3 Cir., 427 F.2d 1305, "which lends its analysis to photographic show ups." Appellant's argument is that an initial photographic view and later lineup contained suggestive elements which "predicated against a fair identification procedure and made the identification of the defendant so prejudicial as to deprive him of due process."
Appellant would support his position with the following statement of evidence from his brief: "Evidence was adduced from Paul Wayne Mitchell with respect to said Motion [to suppress], the witness testified that he occupied a home at Buckner, Missouri on August 12, which at about 10:00 A.M. was entered after a series of knocking by a man, the incident of entry being reported to the authorities at Lake Jacomo., that same day. While at the police station, he viewed four pictures of persons, two of whom have been arrested in connection with the entry aforesaid and made from these an identification. Mr. Mitchell further testified that while the persons aforesaid were in his house, he had occasion to see both of them, the defendant and the co-defendant whose case was disposed of separately, the defendant in the instant case being in the living room. The photographs viewed consisted of black and white polaroid shots of men from the waist up. On cross examination, Mitchell testified that he had been advised, prior to the view of the photographs that the police had two men in custody. He further testified that his identification was in part based upon the dress of one of the photographed suspects and in part upon the fact that there were tattoos in evidence, but that all photographs appeared to be of men of the same race and age. The photographic identification occurred after the witness had had a chance to view all photographs handed to him in a group, laid out. There subsequently occurred a live lineup, in which further identification of the defendant was made. The witness testified that he did have recognition of the defendant at that latter show up as being the same man identified from the photographs. He further testified that his view of the person in his home whom he identified as the defendant in the instant case was for only a fraction of a second, and that tattoos had been mentioned in his initial report to the authorities. The witness testified that impressions gathered from viewing the photographs played a part in the subsequent live lineup identification."
To this should be added:
The four photographs were spread in front of Paul Mitchell with no markings on their faces. He did not examine the reverse side for any markings. One subject was identified by his clothing; the other by memory of his face. His view of the subjects occurred inside the house with "average" light. His ability to identify defendant in the lineup was not affected by prior use of photographs. In addition to seeing defendant in the house, Paul also observed defendant outside the house while in the vicinity of the house for five to ten *446 minutes. His observations in the house were for less than ten seconds. Detective Rex McGraw also testified at the hearing. According to him, no comment was made to Paul Mitchell concerning the photographs. Detective McGraw also described the circumstances at the lineup when defendant executed a written waiver of his right to counsel at the lineup. Defendant admitted to reading and executing the waiver but asserted a lack of understanding. At trial, Paul Mitchell testified to the descriptions he gave the police which resulted in the arrest of defendant and his partner. He also identified defendant as the subject who backed the car to the front door and who wore a white T-shirt and blue jeans.
In these circumstances, the authorities cited by appellant have no application and his argument fails for a number of reasons.
The per se exclusionary rule of appellant's authorities applies to violations of constitutional rights by pretrial confrontation conducted after June 12, 1967, where defendant is denied right to counsel and where the confrontation is unnecessarily suggestive. Such rule is not applicable to this case because the evidence shows defendant waived his right to counsel, and there was no evidence before the jury concerning pretrial identification by lineup. And, so far as shown by the transcript, it appears that all confrontations occurred prior to indictment, in which case the per se exclusionary rule is inapplicable. State v. Walters, Mo., 457 S.W.2d 817, 818-819[1]; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d411.
Another aspect of exclusion is the rule which requires exclusion of courtroom identification only if it is tainted by pretrial confrontation and there is no independent source for the witness's identification. United States v. Wade, supra; Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247.
This rule is also inapplicable in this case because the evidence demonstrates that the witness had an independent basis for his identification. State v. Mentor, Mo., 433 S.W.2d 816. This is supported by the witness's opportunity to view the defendant while in the front yard driving the car, leaving the car, coming toward the house, and, ultimately, in the house. This standard applies to photographic as well as lineup identification. Simmons v. United States, supra; State v. Parker, Mo., 458 S.W.2d 241. Cf. United States v. Zeiler, supra. Full opportunity was given to cross-examine defendant in these respects, and conflicts, if any, were for the jury to resolve. State v. Taylor, Mo., 456 S.W.2d 9. And with respect to the short time, if so, for the witness to view defendant, see United States v. Mooney, 8 Cir., 417 F.2d 936.
Appellant charges that the court erred in refusing a requested instruction on burglary, second degree, "as the evidence * * * was insufficient to constitute the offense of burglary, first degree." His argument is that the described entry "is without the sufficient degree of force to constitute the requirement of bursting or breaking set forth in the relevant statute," Section 560.040, V.A.M.S.
It already has been demonstrated that the State made a case of burglary, first degree, against defendant. The house was locked and secured when Mrs. Mitchell left for work; and Detective McGraw "found that the screen door latch or the eye hook had been * * * pulled apart. And also there was several pry marks on the door sill near the door lock." Such force was sufficient to constitute the breaking proscribed by the statute. State v. Hecox, 83 Mo. 531; State v. Henderson, 212 Mo. *447 208, 110 S.W. 1078; State v. Moore, 117 Mo. 395, 22 S.W. 1086; 12 C.J.S., Burglary, § 3.
Judgment affirmed.
WELBORN, C., concurs.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
All of the Judges concur.
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905 S.W.2d 470 (1995)
Mary MORSE, et al., Appellant,
v.
The STATE of Texas, et al., Appellee.
No. 09-94-043 CV.
Court of Appeals of Texas, Beaumont.
Submitted April 6, 1995.
Decided August 31, 1995.
Rehearing Overruled September 29, 1995.
*472 R.L. Pete McKinney, Crawford & McKinney, Clinard J. Hanby, Houston, for appellant.
Mark Heidenheimer, Asst. Atty. Gen., Austin, for appellee.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
OPINION
WALKER, Chief Justice.
This suit for damages was brought pursuant to the Texas Tort Claims Act. TEX.CIV. PRAC. & REM.CODE § 101 et. seq. (Vernon 1986). The seminal issue of this appeal is whether the dangerous condition constitutes an ordinary premise defect or a special defect. Trial was to a jury which rendered a verdict generally favoring appellant, Mary Morse, but finding that the Department of Public Highways and Public Transportation, one of the defendants below, did not have actual knowledge prior to the accident in question.
Factually, appellant's daughter, Laurice Morse, was killed in a one-car accident on October 10, 1989. The accident occurred in the Southbound access road at 26, 813 I-45 in Montgomery County, Texas. The posted speed limit was 50 miles per hour. According to the sole eyewitness, the decedent was traveling 40 to 45 miles per hour the moment before the accident and appeared to be driving normally. "In the blink of an eye" the left tires of the decedent's car went over a large drop-off between the traffic lane and the shoulder causing her to lose control of the vehicle, cross the access road, flip over, and crash into a tree.
The drop-off which caused the accident was as much as ten to twelve inches deep in places. According to testimony, Ms. Morse traveled 65 feet along the drop-off. Mr. Richard Spence, a supervisor who had been with the Highway Department for twenty years, admitted that even a six-inch drop-off adjacent to a roadway can cause accidents. A drop-off of that nature is considered a "critical condition" and should be repaired as soon as possible. Mr. Spence testified that he inspected the access road shortly after the accident; he further stated that the drop-off that caused the accident was one of the worst drop-offs he had ever seen. A second Highway Department employee with thirty (30) years of experience testified that, although he had seen several equivalent drop-offs, a drop-off of this nature needs to be repaired "immediately." An expert witness retained by the State and called by the plaintiff testified that a shoulder drop-off greater than three inches should probably be marked with a warning sign unless repaired immediately.
*473 The accident in question was the fourth accident at this location in just over a one month period. Mr. Clyde Morley, who lived near the location of the accident, testified that there had been accidents there on September 8, September 15, and September 17. This fatal accident occurred October 10, 1989.
Mr. Jimmy Dykes was the driver of the vehicle involved in the September 8 accident. Mr. Dykes testified that, just before his accident, he was trying to pass a car that was pulling a wide trailer. Dykes stated: "... I went to go around him and I slipped off the shoulder, had a pretty good drop-off at the time and I went to try to pull it back on the road. That's when it started going sideways and I flipped my truck." An accident report was made by the officer who investigated the accident; the report reflected that Dykes "lost control when his left side tires dropped off the roadway ..."
Mr. Bill Wood was the driver of the vehicle involved in the September 15 accident. Wood described this accident as follows: "[M]y left rear tire came off that shoulder there which threw the truck out of control... it threw me back up on the right hand side and I hit that car." Mr. Wood described the drop-off that caused him to lose control as of "considerable height." Wood testified that "once the back rear [tire] went off, the front come up off the ground ... I don't know how many inches it would take to do that." The drop-off threw Mr. Wood's vehicle "completely out of control." Wood testified that, after going over the drop-off, he could not have prevented an accident. The Wood accident was investigated by a Department of Public Safety officer. The accident report reflects: "The left back wheel of # 1 [Mr. Wood] dropped off the pavement. The driver steered to the right. The vehicle fishtailed to the left and back to the right...." This second accident occurring in front of Mr. Morley's home prompted him to call the Department of Public Safety to report two wrecks within just a week's time at that location. Under Department of Public Safety regulations, a road hazard was supposed to be reported to the Department of Public Transportation. No such report was made.
Mr. Morley personally observed the September 17 accident wherein a lady driving a Buick left the road, went spinning out of control in front of Morley's house and, once again, knocked down his mailbox.[1]
Appellant brings three points of error:
POINT OF ERROR NO. 1
The district court erred in ruling that the drop-off was not a "special defect" and in failing to render judgment for Plaintiff in accordance with the verdict because the drop-off that caused the accident was a "special defect" as a matter of law.
POINT OF ERROR NO. 2
The district court erred in failing to render judgment for the Plaintiff in accordance with the verdict because the evidence conclusively established that the State of Texas had actual knowledge of the drop-off.
POINT OF ERROR NO. 3
Alternatively, the district court erred in failing to submit a question to the jury regarding the actual knowledge of the State of Texas of the drop-off.
The trial court ruled, as a matter of law, that the defect alongside the roadway, which caused the subject accident and resulting death of appellant's daughter, was a premise condition and not a "special defect." In addressing appellant's point of error one we must determine whether the trial court's ruling, under the law, was correct or incorrect. The existence of a special defect is a question of law for the trial courts. See State v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993). "Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus, an issue of law for the court to decide." State Dept. of Highways and Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex.1992); *474 see also Blankenship v. County of Galveston, 775 S.W.2d 439, 441-42 (Tex.App.Houston [1st Dist.] 1989, no writ). Legal conclusions of law are subject to de novo review in the court of appeals. Gutierrez v. Karl Perry Enterprises, Inc., 874 S.W.2d 103, 105 (Tex. App.El Paso 1994, no writ).
Both ordinary premise defects and special defects can, and many times do, constitute a dangerous condition; however, the legal distinction between the two lies in the duty owed by the State to the person or property injured or damaged as a result of that defect. See Payne, 838 S.W.2d at 237. If the causative factor of appellant's claim is the result of a premise defect, the State owes appellant the same duty a private land owner owes a licensee. TEX.CIV.PRAC. & REM.CODE § 101.022(a); Payne, 838 S.W.2d at 237; State v. Tennison, 509 S.W.2d 560, 562 (1974). Where a defect is determined to be a "premise defect," the duty upon the State (owner) is not to injure a licensee by willful, wanton or grossly negligent conduct; furthermore, the owner must use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. Payne, supra, at 237. Citing Restatement (Second) of Torts § 342 (1965).
However, if the drop-off running parallel and contiguous to the roadway where the subject accident occurred, is a special defect, the State owes appellant the same duty to warn that a private landowner owes an invitee. TEX.CIV.PRAC. & REM.CODE § 101.022(b); County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex.1978); Payne, supra, at 237. If the drop-off is a "special defect," the State's duty to appellant is to use ordinary care to reduce or eliminate an unreasonable risk of harm created by the drop-off condition of which the State was or reasonably should have been aware. Payne, supra, at 237.
Our Texas Supreme Court in Payne sets forth the difference in the elements required to be proved by the plaintiff in order to prevail as follows:
There are two differences between these theories. The first is that a licensee must prove that the premises owner actually knew of the dangerous condition, while an invitee need only prove that the owner knew or reasonably should have known. The second difference is that a licensee must prove that he did not know of the dangerous condition, while an invitee need not do so.
Payne, supra, at 237.
Special defects are statutorily defined as: "... defects such as excavations or obstructions on highways, roads, or streets...." TEX.CIV.PRAC. & REM.CODE § 101.022(b). A condition can be a "special defect" without actually being on the roadway if it is close enough to present a threat to the "normal users of a road." See Payne, 838 S.W.2d at 238, n. 3. Where a "special defect" exists, it is the duty of that governmental unit which owns or controls a roadway to warn of same even though that governmental unit did not create the defect. Eaton, 573 S.W.2d at 179-180. Thus, the primary issue in the case at hand is whether the drop-off that caused this accident constitutes a condition "such as excavations or obstructions on highways," presenting an unexpected or unusual danger to ordinary users of the roadway.
Even though the trial court determined as a matter of law that the drop-off was "a premise condition" and not a "special defect," the trial court submitted jury questions prompting factual findings adverse to the trial court's ruling. The jury determined that the drop-off from the road shoulder constituted a dangerous condition of the roadway that presented an unreasonable risk of harm to Laurice Marleene Morse. The jury further determined that Laurice Marleene Morse did not have actual knowledge of the condition of the shoulder of the roadway where the accident occurred. Interestingly, the jury determined that the Texas Department of Transportation did not have actual knowledge of the condition of the shoulder of the roadway where the accident occurred, but did determine that through the exercise of ordinary care, the Texas Department of Transportation should have known of the dangerous condition prior to the October 10, 1989 accident.
*475 In order for a condition to rise to the plateau of "special defect," such condition must be one which threatens normal users of a road even though such condition does not have to exist upon the surface of the roadway itself. See, e.g., Chappell v. Dwyer, 611 S.W.2d 158, 161 (Tex.Civ.App.El Paso 1981, no writ); Andrews v. City of Dallas, 580 S.W.2d 908, 911 (Tex.Civ.App.Eastland 1979, no writ); City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex.Civ.App.Houston [1st Dist.] 1974, writ ref'd n.r.e.). The special defect cannot be located so far from the roadway, however, that vehicular passengers and other normal users of the roadway are unlikely to encounter it. See Payne, 838 S.W.2d at 239. Moreover, whether on a road or near one, conditions can be "special defects such as excavations or obstructions on highways, roads, or streets ..." only if they pose a threat to the ordinary users of a particular roadway. Payne, 838 S.W.2d at 238-239, n. 3.
In considering whether a condition constitutes a "special defect," size of such condition should be considered. This requirement is clearly set forth in Eaton, 573 S.W.2d at 179; "one characteristic of the class [excavations or roadway obstructions] that should be considered is the size of the dangerous condition." Any attempt, however, to limit "special defects" to the examples cited in the statute"excavations or roadway obstructions" ... places improper limitation on the intent of Section 101.022(b). "Under the ejusdem generis rule, we are to construe `special defect' to include those defects of the same kind or class as the ones expressly mentioned." Eaton, 573 S.W.2d at 179, citing Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944); Farmers & Mechanics' National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911).
Appellee, by brief, places great emphasis on the size, i.e., depth of the drop-off causing Laurice Morse's vehicle to go out of control and ultimately resulting in her death. In an effort to minimize the problem posed by the drop-off, appellee declares that "... a six (6) inch of an unimproved shoulder is not comparable to a ditch across the highway." Appellees' reference to the "ditch across the highway" actually comes from a phrase used by the Texas Supreme Court in Eaton to describe a six (6) inch deep pothole extending across ninety percent of the width of the highway. Eaton, 573 S.W.2d at 178. As far as depth is concerned, however, appellee's example of "special defect" from Eaton is no more dangerous than the drop-off faced by Laurice Morse. The drop-off in the instant case was 10-12 inches at its maximum depth and, according to Trooper Nelson, State's witness, 6-8 inches at the point where Ms. Morse left the roadway and traversed some 65 feet along the drop-off.
A substantial amount of evidence was presented at the trial herein concerning both the depth and the length of the drop-off. One thing made clear by the evidence is the fact that the drop-off in question tended to block the tires of a vehicle from reentering the traveled portion of the roadway. The evidence is somewhat overwhelming that the drop-off presented an unusual or unexpected danger. Even the testimony of Department of Transportation's employees establishes that the drop-off was unusual and extraordinary. Although appellee, throughout its brief, contends that the drop-off was only six (6) inches in depth, the record indicates that the drop-off in places was as much as ten (10) to twelve (12) inches deep. One Department of Transportation employee, who had been inspecting highways for twenty years, testified that this was one of the worst drop-offs he had ever seen. The State's expert witness admitted that even a three-inch drop-off should probably have been marked with a warning sign. One Department of Transportation employee testified that a six-inch drop-off was a "critical condition"; another testified that it would need to be repaired immediately. Based on the testimony of appellant's witnesses, as well as testimony of employees of the State, it is evident that the drop-off posed an unusual or unexpected danger to the normal users of the roadway.
Important to the distinction between ordinary premise defect and special defect is the requisite notice to the responsible State entity. Where the condition in question constitutes a premise defect, the licensee must prove that the owner [responsible entity] actually *476 knew of the condition and further that the licensee did not actually know of said condition. See Payne, 838 S.W.2d 235 at 237. In contrast, the notice requirement where a condition creates a "special defect," casting a claimant in the legal posture of that of "invitee," requires that the invitee produce proof that the owner [responsible entity] knew or reasonably should have known of the condition. Id. at 237.
It is clear that a "special defect" need not originate through the act or acts of commission or omission by the responsible State entity. Eaton, 573 S.W.2d at 179. Whether created by the governmental unit, by natural forces, or by third persons, the dangerous condition on the roadway is the same. The significant difference between the situation in which the governmental unit itself created the condition and that in which something else created it is that the government will have actual knowledge of its existence if it created the condition. The governmental unit that has actual knowledge of its creation already has a duty even to a licensee. Eaton, 573 S.W.2d at 179, 180 (Tex.1978), citing Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex. 1976).
As noted above, if the condition is a premises defect, the State must have actual knowledge of the condition. In a special defect situation, however, it is enough if the State knew or reasonably should have known of the condition.
The jury in this case found that the State Department of Public Highways and Public Transportation ("Department") should have known of the condition. Testimony in the record from two Department employees reveals that drive-by inspections of roads in their area were to be made weekly. The area engineer for the Department confirmed in his testimony that inspections were to be made once a week. Moreover, he further testified that if the condition, as described by two witnesses who had had accidents at the location within the previous month, had existed for over a month and had not been found and reported by inspection crews, that would constitute inadequate inspection. There was ample testimony in the record supporting the jury finding that the Department should have known of the dangerous condition created by the drop-off which resulted in the death of appellant's daughter. In addition, the unusual number of traffic accidents at the location in and of themselves should have been sufficient notice requiring the responsible entity to take appropriate measures to protect the traveling public. Responsible State agencies or entities should avoid the "ostrich approach" where public safety is jeopardized.
Moreover, the State did not raise a cross point on the jury's finding that the State should have known of the condition and thereby waived any objection as to that finding.
The trial court erred in its determination that the "drop-off" did not constitute a "special defect." Point of error one is sustained. In reversing the trial court's ruling, we determine, as a matter of law, that the "drop-off" was a "special defect" at the time of the accident. This Court's finding of special defect renders consideration of appellant's other points unnecessary. We further reverse the trial court's entry of a take-nothing judgment and render judgment against the State Department of Public Highways and Public Transportation (now Department of Transportation) upon the jury's verdict.
REVERSED AND RENDERED.
NOTES
[1] There were two other accidents caused by the drop-off at this location on October 12, shortly before the State finally repaired the condition. Evidence concerning these accidents was excluded from the jury, but submitted to the district court for the purpose of determining the legal issue of whether the drop-off was a "special defect."
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905 S.W.2d 405 (1995)
NRG EXPLORATION, INC., Appellant,
v.
Frank E. RAUCH, Cleo Rauch, and R & R Resources, Inc., Appellees.
No. 03-94-00634-CV.
Court of Appeals of Texas, Austin.
August 16, 1995.
Rehearing Overruled September 13, 1995.
*407 Harvey F. Cohen, Austin, for appellant NRG Exploration, Inc.
Charles W. Kennedy, Jr., Houston, for appellee R & R Resources.
David T. Altenbern, Houston, for appellee Frank Rauch and Cleo Rauch.
Before CARROLL, C.J., and ABOUSSIE and JONES, JJ.
ON MOTION FOR REHEARING
CARROLL, Chief Justice.
This Court's opinion and judgment of July 12, 1995 are withdrawn, and the following opinion and judgment are substituted. This oil and gas lease dispute between appellant NRG Exploration ("NRG") and Frank and Cleo Rauch, appellees, comes before us a second time. In NRG Exploration, Inc. v. Rauch, 671 S.W.2d 649 (Tex.App.Austin 1984, writ ref'd n.r.e.) ("Rauch I"), this Court held that the Rauches wrongfully repudiated NRG's lease but denied declaratory relief to NRG at that time because the Rauches had granted a second lease that had been assigned to a bona fide purchaser. NRG subsequently filed the present lawsuit seeking legal and equitable relief against the Rauches. Following a non-jury trial, the trial court rendered a take-nothing judgment on NRG's claim against the Rauches. We will reverse the judgment of the trial court.
BACKGROUND
On July 14, 1975, the Rauches executed an oil, gas, and mineral lease covering a 371.15acre tract of land in favor of Shenandoah Oil Corporation (the "1975 lease"). NRG is an assignee of successors in title to Shenandoah. The 1975 lease provided for a five-year primary term and an additional two-year term if certain conditions were met. On July 14, 1980, the five-year primary term ended, and all of the conditions for extending the lease two additional years had been met. However, on September 24, 1980, the Rauches filed suit against NRG's assignor, Ammex Petroleum, Inc. ("Ammex"), seeking damages and cancellation of the 1975 lease.[1] On August 4, 1982, after the two-year delay rental period would have expired by its own terms, the Rauches leased approximately 215 acres of the lands covered by the 1975 lease to K & C Exploration (the "1982 lease").[2]
Ammex assigned its interest under the 1975 lease to NRG on February 8, 1983, and *408 the following month, NRG sued the Rauches, claiming that they had interfered with its rights to drill and explore and seeking a declaration that the 1975 lease was still in effect. The Rauches asserted a counterclaim, seeking a declaration that the 1975 lease was no longer in effect, and intervenors Bill Fenn, Inc. and Joe Marie Oil Co. (the "intervenors") requested a declaration that the 1982 lease was in effect and the 1975 lease was not. On March 18, 1983, NRG obtained a temporary injunction enjoining Frank Rauch from committing any violent acts or impairing NRG's right to drill on the property pursuant to the 1975 lease. Pursuant to the temporary injunction, NRG began preparations for a drill site, expending over $36,000. The trial court heard the case on the merits on April 28, 1983 and rendered final judgment denying all declaratory and injunctive relief requested by NRG.
On appeal of the trial court's judgment in Rauch I, NRG argued that by filing suit in 1980, the Rauches repudiated the 1975 lease; therefore, the 1975 lease was still in effect.[3] This Court held that the Rauches had repudiated the 1975 lease and that the lease should remain in full force and effect as between the Rauches and NRG, but that as between intervenors and NRG, the lease was terminated because the intervenors were bona fide purchasers. Rauch I, 671 S.W.2d at 654. The opinion concluded: "[T]he trial court's judgment will not operate as a bar to any future legal or equitable relief sought against the Rauches by appellant." Id.
While the appeal in Rauch I was pending, the Rauches filed a lawsuit against NRG, alleging trespass and interference with property. This Court issued its opinion in Rauch I in May 1984, and NRG filed a counterclaim against the Rauches on August 6, 1984 for fraud and breach of contract and then an amended answer and counterclaim on February 28, 1992.[4] At the beginning of the trial, the parties agreed to realign the parties, and NRG proceeded to trial as plaintiff on its second amended counterclaim.
At the close of trial on March 31, 1992, the court took the case under advisement. On November 8, 1993, R & R Resources filed an intervention, claiming that it had acquired an interest in a portion of the leased property in dispute. The trial court allowed the intervention and reopened the trial on November 16, 1993. Although the court initially rendered judgment awarding NRG the costs of preparing the drill site, the trial court vacated that judgment. On September 9, 1994, the trial court rendered a take-nothing judgment against NRG.
DISCUSSION
On appeal, NRG raises five points of error, contending that the trial court erred: (1) in ruling that NRG was not entitled to recover on its claim for breach of contract; (2) in failing to award NRG damages for the costs of preparing the drill site on the 215-acre tract; (3) in failing to award NRG damages for the undisputed value of the 215-acre tract; (4) in ruling that NRG's leasehold interest in the 215-acre leasehold estate had expired; and (5) in ruling that NRG was not entitled to recover prejudgment interest and attorney's fees.
In its first point of error, NRG claims that the trial court erred in ruling that NRG was not entitled to recover on its claim for breach of contract; NRG further contends in its third point of error that the trial court erred in failing to award it damages for the undisputed value of the 215-acre leasehold estate. The Rauches respond that NRG was not entitled to recover on its claim for breach of contract because NRG's rights under the lease had been extinguished.
NRG relies on the "law of the case" doctrine to support its contentions. The law of the case doctrine is the legal principle under which questions of law decided on appeal will govern the case throughout subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). We disagree *409 that the law of the case doctrine is applicable to the instant case; the doctrine applies to a single case throughout all of its subsequent stages, including retrial and ensuing appeal. Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540, 543 (Tex.Civ.App. Houston [14th Dist.] 1971, writ ref'd n.r.e.). Because the instant case involves a different lawsuit from the one on appeal in Rauch I, the law of the case doctrine does not apply. Instead, the doctrine of collateral estoppel controls NRG's first and third points of error.
Whenever a party to a suit attempts to relitigate the same matter that was in issue and adjudicated in a previous action between the party and its opponent, the doctrine of collateral estoppel applies. See Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 927 (Tex.1988). To establish the elements of collateral estoppel, a party must show: (1) the facts sought to be litigated in the second suit were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.1990). The third element is clearly met; NRG and the Rauches were cast as adversaries in the prior action. Therefore, the question of whether collateral estoppel bars the Rauches from relitigating the issue of breach of contract in the second action turns on the first two elements.
The issue of whether NRG was entitled to recover on its claim for breach of contract was fully and fairly litigated in Rauch I. This Court rejected the Rauches' argument that the 1975 lease had expired when we held that the 1975 lease was in full effect as between NRG and the Rauches and concluded that NRG could pursue legal or equitable relief against the Rauches in the future. In reaching our holding in Rauch I, we relied upon the same facts the Rauches sought to relitigate in the present action; those facts were essential to the judgment in Rauch I. We thus conclude that collateral estoppel operates to bar the Rauches from relitigating the issue of whether they breached the 1975 lease.
The Rauches contend that because NRG "could have and should have" brought a claim for damages in Rauch I, the doctrine of res judicata bars NRG's cause of action for damages in the instant cause. Res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated, "as well as related matters that, with the use of diligence, should have been litigated in the prior suit." Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). We do not agree that the doctrine of res judicata bars NRG's cause of action for damages. In Rauch I, NRG did not pursue a cause of action for damages but instead brought a cause of action solely for declaratory relief. This Court expressly recognized that the trial court's judgment in Rauch I would not operate as a bar to "any future legal or equitable relief" sought by NRG against the Rauches. Rauch I, 671 S.W.2d at 654.
We thus hold that the trial court erred in ruling that NRG could not recover on its claim for breach of contract against the Rauches and in failing to award NRG damages for the value of the 215-acre leasehold estate and render judgment awarding NRG damages for the undisputed value of the estate in the amount of $43,000.[5] We therefore sustain NRG's first and third points of error.
In its second point of error, NRG argues that the trial court erred in failing to award it damages for the cost of preparing a drill site on the 215-acre tract. On March 18, 1983, the trial court granted a temporary injunction prohibiting the Rauches from interfering with NRG's attempts to drill on the lease. On April 28, 1983, the trial court reversed its ruling and rendered judgment denying all declaratory and injunctive relief requested by NRG. According to NRG, it incurred over $36,000 in expenses preparing the drill site on the 215-acre tract during the period between March 18 and April 28, 1983. *410 NRG contends that it is entitled to recover damages for those costs because it was acting in reliance on the temporary injunction order when it incurred the expenses. The Rauches respond that NRG incurred the expenses at its own risk after obtaining the temporary injunction, which was subject to being changed, because it knew or should have known of an adverse claim by a bona fide purchaser.
"To be in good faith in developing a tract of land for oil and gas, one must have both an honest and a reasonable belief in superiority of one's title." Mayfield v. de Benavides, 693 S.W.2d 500, 504 (Tex.App. San Antonio 1985, writ ref'd n.r.e.). When a party enters onto property and makes improvements with full knowledge of the pendency of an action to enforce an adverse claim, the party is conclusively considered a trespasser in bad faith. Id. A party's entry onto land may be determined to be unlawful even if that party obtained a temporary injunction beforehand. Moore v. Rotello, 719 S.W.2d 372, 377 (Tex.App.Houston [14th Dist.] 1986, writ ref'd n.r.e.).
NRG knew of the pendency of an adverse claim when it incurred expenses to prepare the drill site. Therefore, it did not have an honest and reasonable belief in the superiority of its title over the title of a bona fide purchaser. The purpose of a temporary injunction is to maintain the status quo, not to adjudicate a case on the merits. Recon Exploration, Inc. v. Hodges, 798 S.W.2d 848, 853 (Tex.App.Dallas 1990, no writ). It was unreasonable for NRG to rely on the temporary injunction as establishing the superiority of its title. We thus hold that the trial court did not err in refusing to award NRG damages for the cost of preparing the drill site and overrule NRG's second point of error.
NRG complains in its fourth point of error that the trial court erred in ruling that its leasehold interest in the 215 acres had expired. According to NRG, when the 1982 lease expired and the 215-acre tract reverted to the Rauches, the NRG lease should have become effective again. However, NRG's argument runs head-on into two obstacles. First, the doctrine of election of remedies bars NRG from recovering both damages for breach of the lease and specific performance of the lease. See Seegers v. Spradley, 522 S.W.2d 951, 957 (Tex.Civ. App.-Beaumont 1975, writ ref'd n.r.e.) (holding that plaintiff cannot recover both actual damages and specific performance of contract); Redding v. Ferguson, 501 S.W.2d 717, 720 (Tex.Civ.App.Fort Worth 1973, writ ref'd n.r.e.) (concluding that when party obtains final judgment for damages, party can no longer demand specific performance of contract). NRG sought damages for the value of the 215-acre leasehold estate; it cannot recover both damages and specific performance of the remaining lease term. If the election of remedies doctrine were the only obstacle, NRG would have the option of electing its remedy: damages or specific performance of the lease.
However, a second obstacle bars NRG from electing the remedy of specific performance of the lease. In Rauch I, this Court held that as between NRG and the intervenors, the 1975 lease was expired and terminated. As long as the 1982 lease, under which the intervenors acquired their interest in the leased property, is in effect, NRG cannot recover specific performance of the 1975 lease. See Rauch I, 671 S.W.2d at 653 ("A bona fide purchaser will prevail over the holder of a prior equitable title.").
NRG contends that the 1982 lease has expired because K & C's assignees ceased commercial production on the leased property. However, NRG has no standing to request a determination of whether the 1982 lease has expired because it is neither a party to the 1982 lease agreement nor a party in interest to the lease agreement. The object of a lease is to secure development of the leased property for the mutual benefit of the parties to the lease. Garcia v. King, 139 Tex. 578, 164 S.W.2d 509, 512 (1942). The 1982 lease had a one-year primary term, extended for so long as oil or gas was produced. The purpose of the lessors, the Rauches, in executing such a lease was to have oil and gas produced on the premises and marketed so that they could receive their royalty under the lease. Id. 164 S.W.2d at *411 511. They included the production clause so that they would "not be required to suffer a continuation of the lease after the expiration of the primary period merely for speculation purposes on the part of the lessees." Id. 164 S.W.2d at 513.
It logically follows that the right to terminate a lease based on lack of commercial production is vested exclusively in the lessor. While NRG argues otherwise, it concedes that there is no authority for its proposition that a stranger to a lease can seek termination of the lease based on lack of commercial production. We thus decline to entertain its argument[6] and overrule NRG's fourth point of error.
In its fifth point of error, NRG claims that the trial court erred in ruling that it was not entitled to recover prejudgment interest and attorney's fees. The Rauches argue that NRG failed to plead for an award of prejudgment interest and is thus barred from recovery of such. See Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex.1987) (noting that prejudgment interest must be pled in order to be recovered). However, NRG pled for an award of prejudgment interest in its third amended pleading. After the trial had begun, NRG filed a motion to allow a post-trial amendment to assert a claim for prejudgment interest. Although there is no signed order in the record granting NRG leave to file the amended pleading, the court's ruling is evidenced by the fact that NRG's third amended pleading was filed on January 5, 1994, the Rauches opposed the motion in a response dated February 11, 1994, and the first judgment signed by the trial court dated April 13, 1994 included an award of prejudgment interest to NRG. See Lloyd's of London v. Walker, 716 S.W.2d 99, 103 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) ("The record here does not disclose whether leave for either the trial amendment or the amended pleading was granted, but since it was obviously considered by the court, leave is presumed."). We therefore sustain NRG's fifth point of error with regard to prejudgment interest.
With regard to the issue of attorney's fees, we overrule NRG's fifth point of error. Section 38.001 of the Texas Civil Practice and Remedies Code entitles a party to recover reasonable attorney's fees from an individual or corporation if the claim is for an oral or written contract. Tex.Civ.Prac. & Rem.Code Ann. § 38.001(8) (West 1986). However, in order to recover attorney's fees under section 38.001, the party must comply with the requirements of section 38.002, which requires the claimant to present the claim to the opposing party. Id. § 38.002. The Rauches contend that NRG is not entitled to recovery of attorney's fees because it failed to meet the prerequisites for recovery set out in section 38.002, and NRG concedes that there is no evidence of presentment in the record. We thus hold that NRG is not entitled to recovery of its attorney's fees.[7]
CONCLUSION
The trial court erred in ruling that NRG was not entitled to recover on its claim for breach of the 1975 lease, in failing to award NRG damages for the value of the 215-acre leasehold estate, and in ruling that NRG was not entitled to recover prejudgment interest. We thus reverse the trial court's judgment and render judgment that NRG recover $43,000 in actual damages, prejudgment interest on that amount at the rate of ten percent per annum from September 24, 1980[8] through the date of this judgment, and post-judgment interest at the maximum legal rate from the date of this judgment until paid. See Tex. R.App.P. 81(b)(3) (requiring appellate court to render such judgment as trial court should have rendered, except when necessary to *412 remand to court below for further proceedings).
NOTES
[1] The Rauches took a voluntary nonsuit in this lawsuit on October 13, 1982.
[2] This 215-acre leasehold estate is the subject of the present lawsuit.
[3] NRG argued that because the Rauches repudiated the lease by filing the lawsuit, the period of time between the filing of the 1980 suit and the taking of the nonsuit should be excluded from the running of the two-year delay rental period.
[4] This lawsuit is the subject of the present appeal.
[5] The value of the leasehold estate was established by two different witnesses who testified that the 215-acre tract had a value of not less than $200 per acre. Thus, NRG's damages are 215 times $200, which amounts to $43,000.
[6] Where an appellant cites no authority in support of a point of error, the court should overrule the point of error. Teague v. Bandy, 793 S.W.2d 50, 58 (Tex.App.Austin 1990, writ denied).
[7] Because of our disposition of NRG's points of error, it is unnecessary to address R & R Resources's cross-points.
[8] As a matter of law, the date of repudiation has been established as September 24, 1980. See Rauch I, 671 S.W.2d at 651-53.
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905 S.W.2d 35 (1995)
KE-NAN PAO, Appellant,
v.
BRAYS VILLAGE EAST HOMEOWNERS ASSOCIATION, INC., Appellee.
No. 01-94-01291-CV.
Court of Appeals of Texas, Houston (1st Dist.).
July 20, 1995.
*36 Bruce Ian Schimmel, P.C., Rodney D. Kapp, Houston, for appellant.
Donald Michael Stull, Houston, for appellee.
Richard L. Petronella, Houston, for Vincent Bustamante, a Party Adversely Interested.
Vincent Bustamante, Houston, pro se.
Before MIRABAL, HUTSON-DUNN and HEDGES, JJ.
OPINION
MIRABAL, Justice.
This is an appeal by writ of error from a default judgment. We affirm.
Appellee, Brays Village East Homeowners Association, brought suit against appellant, Ke-Nan Pao, to collect unpaid annual maintenance assessments. Appellee sought recovery of unpaid principal, interest, and attorneys fees. When appellant failed to file an answer in the lawsuit, the trial court granted default judgment.
To successfully attack a default judgment by writ of error, the petitioner must (1) file the writ within six months after the final judgment is rendered; (2) be a party to the lawsuit; (3) have not participated at trial; and (4) demonstrate error apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985). It is undisputed that appellant has satisfied the first three of these requirements. The only issue for this Court to decide is whether error appears on the face of the record.
In points of error one and two, appellant asserts the trial court lacked personal jurisdiction over him because appellee did not strictly comply with the rules governing issuance, service and return of citation.
A default judgment cannot withstand direct attack by a defendant who shows that he was not served in strict compliance with applicable requirements. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990). In contrast to the usual rule that all presumptionsincluding valid issuance, service and return of citationwill be made in support of a judgment, there are no such presumptions in the face of a direct attack on a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex.1985). "[F]ailure to affirmatively show strict compliance with the Rules of Civil Procedure renders the attempted service of process invalid and of no effect." Id.
In point of error two, appellant asserts the trial court lacked jurisdiction because the affidavit supporting appellee's application for substituted service was defective.
Rule 106(b) of the Texas Rules of Civil Procedure authorizes substituted service on a defendant when attempts at actual service have been unsuccessful. The rule provides:
(b) Upon motion supported by affidavit stating the location of the defendants *37 usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
TEX.R.CIV.P. 106(b) (emphasis added). In support of its application for substituted service, appellee filed the affidavit of Deputy R.E. Rice, which states in relevant part:
It is impractical to secure service of citation on the Defendant, Ke-Nan Pao, in the above numbered and entitled cause, by delivering to said Defendant, Ke-Nan Pao, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the Petition attached thereto, because he absents or secretes himself, or otherwise evades such service each time I have attempted to effect such service on him in this cause.
The said Defendant's usual place of abode or the place where the said Defendant can probably be found is 6134 Gladewell, Houston, Texas (77072).
I have attempted service on the said Defendant, Ke-Nan Pao, by attempting to deliver to him, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the Petition attached thereto at the said above described location on the following dates and at the indicated times but I have not been successful:
Date Time Results
3/21/94 8:18 p.m. Vehicles in driveway,
lights on; no answer.
3/22/94 9:45 p.m. Vehicles in driveway,
lights on; no answer.
3/23/94 7:10 a.m. Vehicles in driveway,
lights on; no answer.
Appellant complains about the portion of the affidavit in which Deputy Rice stated: "The said Defendant's usual place of abode or the place where the said Defendant can probably be found is 6134 Gladewell, Houston, Texas (77072)." According to appellant, this statement is conclusory and unsupported by probative evidence. He maintains that an affidavit in support of substituted service must contain evidence of probative value that the location stated is the usual place of business or abode. Appellant relies on two cases: Garrels v. Wales Transportation, Inc., 706 S.W.2d 757 (Tex.App.-Dallas 1986, no writ), and Light v. Verrips, 580 S.W.2d 157 (Tex.App.-Houston [1st Dist.] 1979, no writ). Both are factually distinguishable.
In Garrels, the constable's affidavit stated merely that he had attempted service at a certain location on four occasions. Garrels, 706 S.W.2d at 758. Although the unsworn motion for substituted service indicated that this location was the defendant's usual place of abode, the affidavit did not. Reasoning that the motion was not evidence, the court held that service was defective since the affidavit did not contain the statement. Id. at 759.
Similarly, in Light, this Court noted there was "no showing in the record that the address in the court's order was the defendant's `usual' place of abode." Light, 580 S.W.2d at 159. The affidavit in support of the trial court's order did not indicate that the location was his usual place of abode, and, perhaps more importantly, the record contained a letter from defendant's father stating affirmatively that it was not his place of business or abode. Id. at 158.
Contrary to appellant's assertions, neither Garrels nor Light require the affiant to state how he came to the conclusion that the address was the usual place of abode of the defendant. Deputy Rice's affidavit contained the necessary recitations required by rule 106(b). The trial court's order authorizing substituted service was proper.
We overrule point of error two.
In point of error one, appellant asserts the trial court lacked jurisdiction because the rule 106 order authorizing substituted *38 service did not "specify the manner in which proof of service was to be made." Appellant relies on rule 107, which reads as follows:
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.
Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.
No default judgment shall be granted in any cause until the citation, or process under Rules 108 or 108a, with proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed under Rule 106, shall have been on file with the clerk of the court ten days exclusive of the day of filing and the day of judgment.
Tex.R.Civ.P. 107 (emphasis added).
Appellant contends that the italicized language mandates that the trial court set out, in the order authorizing substituted service, the specific manner by which proof of service should be made. He maintains that because the court did not so specify, the return is necessarily invalid and the trial court was not authorized to even consider it. We disagree.
The trial court's order for substituted service authorized service in any one of the following manners:
by leaving a true copy of the citation, with a copy of the petition attached, at the usual place of abode of the party to be served; by delivering same to anyone over sixteen (16) years of age at the party's usual place of abode, the location of which is 6134 Gladewell, in Houston, Texas (77072); by registered or certified mail; or, in any other manner which will be reasonably effective to give the defendant, Ke-Nan Pao, notice of the suit, including, but not limited to, attaching a true copy of the citation, with a copy of the petition attached, to the entry door, entry gate, garage door, or other conspicuous place at the usual place of abode of the party to be served.
The order did not specify how the serving officer was to prove he served the citation and petition.
The deputy constable who served the petition filed a typical form "officer's return" that complied with the first paragraph of rule 107. The return is attached to the citation; it states when the citation was served and the manner of service; and it is signed by the deputy constable. Specifically, the return states the citation and petition were served on Ke-Nan Pao on May 4, 1994, at 12:10 p.m., at 6134 Gladewell, "per 106-attached to front door." The return reflects strict compliance with the trial court's rule 106 order authorizing substitute service. See Brown v. Magnetic Media, Inc. 795 S.W.2d 41, 43 (Tex.App.-Houston [1st Dist.] 1990, no writ).
We hold that, in the absence of a specification in the trial court's rule 106 order of a different manner of proving service, proof of service in the normal manner authorized by rule 107 is sufficient. See State Farm Fire and Casualty Co. v. Costley, 868 S.W.2d 298, 299 (Tex.1993). Accordingly, we overrule appellant's point of error one.
In point of error three, appellant complains about the portion of the trial court's judgment that unconditionally awards appellee "additional attorney's fees of $5,000.00 in the event of an appeal to the Court of Appeals, plus $5,000.00 in the event of an appeal to the Supreme Court." Appellee agrees the trial court should have conditioned this award upon an unsuccessful appeal, and concedes the trial court's failure to do so constitutes error. Both parties agree *39 the proper remedy is for this court to reform the judgment. See Sipco Serv. Marine, Inc. v. Wyatt Field Serv. Co., 857 S.W.2d 602, 608 (Tex.App.-Houston [1st Dist.] 1993, no writ) (op. on reh'g); Westech Eng'r, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 205 (Tex.App.-Austin 1992, no writ).
We reform the judgment to read that the award of additional attorney's fees to appellee, in the event of appeal by appellant, is conditioned upon appellee's prevailing on appeal. As reformed, the judgment is affirmed.
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441 A.2d 265 (1982)
In The Matter of George F. KNOX, Sr., A Member of the Bar of the District of Columbia Court of Appeals.
No. M-71('81).
District of Columbia Court of Appeals.
January 12, 1982.
*266 No appearance was entered on behalf of respondent.
Fred Grabowsky, Bar Counsel, Washington, D. C., filed the Report and Recommendation of the Bd. on Professional Responsibility.
Before HARRIS and PRYOR, Associate Judges, and YEAGLEY, Associate Judge, Retired.
HARRIS, Associate Judge:
The Report and Recommendation of this court's Board on Professional Responsibility in a disciplinary matter involving George F. Knox, Sr., is before us for review. The Board recommends that respondent be suspended from the practice of law for six months. We accept the Board's findings of fact as being supported by substantial evidence of record, but conclude that its recommended disposition is unwarranted on the facts of this case. We conclude that a three-month suspension is the appropriate sanction.
I
The Specification of Charges attached to the Petition Instituting Formal Disciplinary Proceedings, dated January 17, 1980, charged respondent with violations of DR [Disciplinary Rule] 6-101(A)(3) and DR 7-101(A)(1), (2), and (3) in connection with his representation of Carolyn Minor over a period of nine years.[1] The Hearing Committee conducted a hearing on June 17, 1980, and filed its Report with the Board on August 13, 1980.
The facts may be summarized as follows: In November of 1970, respondent agreed to represent Minor in her effort to recover damages for an injury she sustained on October 13, 1970, at her place of work. Respondent and Minor discussed the possibility of pursuing both a claim through Workmen's Compensation and a personal injury lawsuit against one of Minor's fellow employees. Minor received a partial disability payment for approximately three and a half weeks after the accident, but respondent took no action to forward Minor's claim for Workmen's Compensation through the proper channels. Respondent also failed to take any action on the personal injury claim before the statute of limitations expired. Respondent maintained that he exercised his judgment not to follow through on the personal injury suit, but Minor testified that respondent never communicated his unilateral decision to her and, thus, she did not have notice that this claim was not being pursued. Respondent did not offer any evidence to refute her testimony. From the date of Minor's injury to the time she filed her complaint with the Office of Bar Counsel (a period of nine years), Minor had only two visits with respondent.[2] She never received any correspondence from respondent and her telephone calls to him were not returned.
*267 After hearing testimony from Minor and from respondent, the Hearing Committee concluded:
The area of controversy is narrow. Mr. Knox states that he determined that a claim against the employer based on the liability of a fellow employee was unsupportable. Mrs. Minor believed the claim was being pursued. Mrs. Minor's testimony is unrefuted.
The Hearing Committee found that respondent had neglected the legal matter entrusted to him, thereby violating DR 6-101(A)(3), and that his client had been prejudiced by his neglect.[3] In recommending that respondent be suspended from the practice of law for six months, the Hearing Committee considered respondent's prior disciplinary record, which consisted of an informal admonition for violation of DR 6-101(A)(3) in a situation similar to the instant case.[4] It used as guidance disciplinary sanctions suggested by the Board in previous cases.
II
In response to the Hearing Committee's Report, respondent filed a brief with the Board in which he characterized the recommended discipline as "harsh, unjust, arbitrary, and punitively excessive."[5] The Board filed its Report and Recommendation on March 18, 1981. It concurred in the Hearing Committee's findings of fact and its conclusion with respect to respondent's violation of DR 6-101(A)(3). The Board concluded:
Respondent held himself out to Mrs. Minor as her attorney for nearly nine years. The Hearing Committee found that during this entire time Mrs. Minor believed that respondent was pursuing her claim. Mrs. Minor based this belief on representations made to her by respondent. Indeed it was respondent's position throughout these proceedings that he was actively pursuing Mrs. Minor's interests. The record tells a different story. As found by the Hearing Committee, respondent did nothing on the Workmen's Compensation after November, 1970, and allowed the statute of limitations to extinguish the tort claim. Respondent's abuse of his client's trust is incompatible with the standards which must be adhered to in the practice of law in the District of Columbia. We thus recommend that respondent be suspended from the practice of law for six months.
One member of the Board concurred in the Report of the Board but would have recommended a suspension of three months, reasoning that "although respondent's neglect cannot be condoned, his conduct is mitigated by the complainant's own failure to display any sense of urgency concerning her case as evidenced by her failure to bring respondent's inaction to the attention of the Board or to retain other counsel for a period of nearly nine years."
Rule XI, § 7, of the Rules of this Court Governing the Bar permitted respondent to file exceptions to the Report with the court within 20 days of the date of the filing of the Report. Respondent has not made any submission to the court.
III
Under our standard of review as set forth in § 7(3) of Rule XI,
the Court shall accept the findings of fact made by the Board unless they are unsupported *268 by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or otherwise would be unwarranted.
The Rule thus affords the Board considerable discretion in disciplinary matters. "The rule requires that we enforce a general sense of equality in the sanctions handed out, but it otherwise commands that we should respect the Board's sense of equity in these matters unless that exercise of judgment proves to be unreasonable." In re Haupt, D.C.App., 422 A.2d 768, 771 (1980), quoting In re Smith, D.C.App., 403 A.2d 296, 303 (1979). While we strive to observe the Rule's mandate to achieve consistency in the disposition of disciplinary cases, each case must be decided on its own particular facts. In re Russell, D.C.App., 424 A.2d 1087, 1088 (1980). We recognize that instances of misconduct in disciplinary matters do not lend themselves to easy equations. Nevertheless, when we have imposed suspensions for attorneys found to have neglected a client's legal matters, the conduct complained of has been particularly aggravated or has been compounded by other violations. See, e.g., id. (respondent suspended for six months for serious neglect of client's cause, coupled with failure to cooperate with Bar Counsel); In re Haupt, supra (respondent suspended for three years for neglect of a legal matter, deceit, misrepresentations to client, and intentional failure to seek client's objectives); In re Fogel, D.C.App., 422 A.2d 966 (1980) (respondent suspended for a year and a day for neglecting client's appeal and making misrepresentations to both the client and to the court concerning the same); In re Smith, supra (respondent suspended for 18 months for neglecting two civil matters and for misrepresentation to client concerning case). See also In re Dwyer, Bar Dockets No. 374-78 and 356-78 (recommended three-month suspension adopted by an unpublished Memorandum Opinion and Judgment, No. M-61('80), June 9, 1981); In re Schattman, Bar Docket No. 135-79 (recommended three-month suspension adopted by an unpublished Memorandum Opinion and Judgment, No. M-63 ('81), June 2, 1981).
We do not consider the neglect evidenced in respondent's case to be as pronounced as that which occurred in other cases in which a six-month suspension has been imposed. Therefore, we decline to adopt the Board's recommended disposition. We conclude that a three-month suspension is the proper sanction, with that suspension to become effective 30 days after the issuance of this opinion.
So Ordered.
NOTES
[1] DR 6-101(A)(3) provides that "A lawyer shall not [n]eglect a legal matter entrusted to him."
DR 7-101 provides:
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
(3) Prejudice or damage his client during the course of the professional relationship except as required under DR 7-102(B).
[2] In her testimony before the Hearing Committee, Minor stated: "I had two visits. One visit I actually sat down and talked with him [respondent].... It was quite a time in between there for that second visit because it was the second visit that he had a gentleman with him and he introduced him, I don't recall his name, and he gave me some papers to sign, but we never actually sat down and talked."
[3] The Hearing Committee also concluded in its Report: "The Committee believes Mr. Knox's conduct clearly constituted neglect of the legal matter entrusted to him by Mrs. Minor and therefore, it is unnecessary to determine if the same conduct also violates DR 7-101(A)(1), (2), or (3)."
[4] Respondent, however, characterizes his career as years during which he "has served the Courts, the Bar and the Public with an unblemished record."
[5] Earlier, in submissions filed with the Hearing Committee after the proceedings had been held but before the Hearing Committee's Report was written, respondent admitted that his handling of the representation of Minor "certainly is indicative of a degree of negligence attributed to the reasons enunciated at the Hearing." Respondent also urged that formal or informal admonition would be appropriate.
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905 S.W.2d 457 (1995)
David Wayne BRYANT, Appellant
v.
The STATE of Texas, Appellee.
No. 10-94-177-CR.
Court of Appeals of Texas, Waco.
August 31, 1995.
Gary L. Medlin, Fort Worth, for appellant.
Mark F. Pratt, County Atty., Hillsboro, for appellee.
Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.
OPINION
THOMAS, Chief Justice.
A jury convicted David Bryant of making a terroristic threat to Bud Raulston, a Hill County Commissioner, and assessed his punishment at ninety days in jail, probated. See TEX.PENAL CODE ANN. § 22.07(a)(2) (Vernon 1994). Specifically, the jury convicted him of intentionally threatening to commit an offense involving violence to Raulston, "by stating to [Raulston] that if [Raulston] did not grade the road in front of [Bryant's] house that he was going to kick [Raulston's] god damn ass, with intent to place [Raulston] in fear of imminent serious bodily injury...." Bryant contends he is entitled to an acquittal because the evidence is insufficient to prove that he intended to place Raulston in fear of imminent serious bodily injury. We agree.
On December 3, 1992, Raulston was sitting in his pickup on a county road in Hill County where his precinct road crew was grading a gravel road. Bryant and his wife drove by in their vehicle, and Bryant stopped to talk to Raulston. He was angry that the county road in front of his house was in such poor condition that an ambulance, which had recently come to take Bryant's mother to the hospital after she suffered a heart attack, was delayed almost an hour in transporting her to much-needed emergency medical care.[1] At first, Bryant sat in his vehicle while he complained to Raulston about the condition of the road.
*458 When Raulston responded to Bryant's complaints with the comment, "I ain't no ambulance driver," Bryant jumped out of his vehicle and approached Raulston, who was still seated in his pickup. Raulston described the tone of their conversation at that point:
"[H]e said he was going to whup ... my god damn ass.... He said if I wasn't over there working his road immediately, the next day, that I better have Sheriff's deputies between me and him, because he was coming after my a double s."
When Bryant approached his pickup, Raulston believed that Bryant was going to attack him then, and Raulston said he was in fear of imminent serious bodily injury. Members of Raulston's road crew also witnessed the incident and testified that they believed Bryant was going to attack Raulston at that time. They described Bryant as yelling at Raulston in a loud voice and pointing his finger in Raulston's face.
Raulston admitted on cross-examination that one of Bryant's threats was made in the context of future violence: that "if [I] didn't come out there and blade his road in the future, then he was going to be on [me]." He reiterated, though, that Bryant had also threatened to "drag [me] out of the vehicle and whip [me] right then."
The State charged Bryant in two counts with making terroristic threats, and the court included both counts in the charge. However, the jury acquitted Bryant under count one, which was charged as follows:
NOW, THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that [Bryant] ... did then and there intentionally threaten to commit an offense involving violence to [Raulston], namely, by stating to [Raulston] that he was going to whip [Raulston's] god damn ass with intent to place [Raulston] in fear of imminent serious bodily injury, then you will find [Bryant] guilty as to said Count One of the Information herein as charged.
If you do not so find and believe, or if you have a reasonable doubt thereof, you will find [Bryant] not guilty as to said Count One.
The jury, instead, convicted him under count two:
NOW, THEREFORE, if you find and believe from the evidence beyond a reasonable doubt that [Bryant] ... did then and there intentionally threaten to commit an offense involving violence to [Raulston] namely, by stating to [Raulston] that if [Raulston] did not grade the road in front of [Bryant's] house that he was going to kick [Raulston's] god damn ass, with intent to place [Raulston] in fear of imminent serious bodily injury, you will find [Bryant] guilty of Count Two of the Information herein as charged.
Thus, the charge authorized the jury to convict Bryant under count two if it found from the evidence beyond a reasonable doubt that he (1) intentionally threatened to commit an offense involving violence to Raulston, (2) by stating to Raulston that if he did not grade the road in front of Bryant's house that "he was going to kick [Raulston's] god damn ass," (3) with intent to place Raulston "in fear of imminent serious bodily injury."
Bryant's first point is that the evidence is insufficient to prove that Raulston was in fear of imminent injury. The State points out, quite correctly, that section 22.07 does not require the victim or anyone else actually to be placed in fear of imminent serious bodily injury. See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982). However, the State construes Bryant's first point too narrowly because, in the argument under his point, Bryant attacks the sufficiency of the evidence to prove the third element chargedi.e., that he acted with the intent to place Raulston in fear of imminent serious bodily injury. He asserts, essentially, that a conditional threat of future violence, which is the second element charged, is insufficient to prove that he intended to place Raulston in fear of imminent serious bodily injury. See TEX.PENAL CODE ANN. § 22.07(a)(2).
Section 22.07(a)(2) of the Penal Code provides:
(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
. . . . .
*459 (2) place any person in fear of imminent serious bodily injury.
Id. This section requires the accused to have the specific intent to "place any person in fear of imminent serious bodily injury." Dues, 634 S.W.2d at 305. As already noted, however, it does not require that the victim or anyone else be actually placed in fear of imminent serious bodily injury. See id. The accused's threat of violence, made with the intent to place the victim in fear of imminent serious bodily injury, is what constitutes the offense. Id. at 306. The offense is complete if the accused, by his threat, sought as a desired reaction to place a person in fear of imminent serious bodily injury. Id.
The Court of Criminal Appeals has defined "imminent," as used in the robbery statute[2], as meaning "near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous." Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989) (citing Black's Law Dictionary 676 (rev. 5th ed. 1979)). It therefore construed the word "imminent" to require a present and not a future threat of harm. Id.
Considering the plain language of section 22.07(a)(2), the legislature clearly intended that the accused must act with the specific intent to "place any person in fear of imminent serious bodily injury." Tex.Penal Code Ann. § 22.07(a)(2); Dues, 634 S.W.2d at 305. A presumption exists that the legislature intended section 22.07 to be effective in its entirety, which requires us to give meaning and effect to its every word, if reasonably possible. See Tex.Gov't Code Ann. § 311.021(2) (Vernon 1988) (Code Construction Act).[3]
We accept the definition of "imminent," as adopted by the Court of Criminal Appeals in Devine, because there is no indication that the legislature intended the word to have one meaning in section 29.02 (robbery) and a different meaning in section 22.07 (terroristic threats). Consequently, by the word's explicit use in section 22.07(a)(2), the legislature clearly intended that Bryant act with the specific intent to place Raulston in fear of serious bodily injury that was "impending" or "close" or "on the point of happening" or "near at hand."
The question is whether the evidence is sufficient for a rational jury to find that Bryant acted with the requisite intent. Evidence is sufficient to sustain a conviction if, when viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316-318, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App.1995). We will measure the sufficiency of the evidence by the charge given. See Boozer v. State, 717 S.W.2d 608, 610 (Tex.Crim.App.1984).
Raulston and several of his road crew thought that Bryant was going to harm him at the scene. Thus, there is evidence that Bryant threatened Raulston with an act of violence accompanied by the imminent infliction of harm. There is evidence, then, of a present threat of harm. See Devine, 786 S.W.2d at 270. This present threat of imminent violence was charged in count one, but the jury acquitted Bryant under that count. Under the circumstances, we must measure the evidence's sufficiency by the second count.
Considering the evidence in light of count two, a rational jury could find that (1) Bryant intentionally threatened to commit an offense involving violence to Raulston, (2) by stating to Raulston that if he did not grade the road in front of Bryant's house that "he was going to kick [Raulston's] god damn ass." Raulston's testimony, and that of his road crew, is sufficient to establish the first two elements charged. The evidence is insufficient, however, to prove the third elementi.e., that Bryant acted with the specific intent to place *460 Raulston in fear of imminent serious bodily injury. There is no evidence that he accompanied the conditional threat embodied in the second elementeither you blade my road or I am "going to kick [your] god damn ass" with a threat of serious bodily injury to be inflicted imminently.[4] The jury could infer Bryant's intent from his acts, words or conduct. See Dues, 634 S.W.2d at 305. Based on the evidence before it, when considered in the light of the charge in count two, no rational jury could infer or find from Bryant's acts, words or conduct that he intended Raulston to believe that he would inflict the harmful consequences connected to Raulston's non-performance of a future act the grading of Bryant's roadat the scene of their confrontation. In other words, there is no evidence that he had the specific intent to place Raulston in fear at that time. Raulston readily admitted that the harmful consequences threatened by Bryant were connected to and conditioned on the non-occurrence of a future event.
Conditioning a threat of harm on the occurrence or non-occurrence of a future event does not necessarily mean that the harmful consequences threatened are not imminent. One must look to the proximity of the threatened harm to the condition. See Green v. State, 567 S.W.2d 211, 213 (Tex.Crim.App. [Panel Op.] 1978). In Green the robber told his victim, "If you don't give me the money, I'm going to cave your head in." Id. at 212. The Court in Devine noted that the proximity of the threatened harm in Green, although conditioned, was sufficient to prove that the victim was placed in fear of imminent bodily injury. Devine, 786 S.W.2d at 270. Here, however, there is no evidence from which the jury could rationally infer from Bryant's words, acts or conduct that the threatened harm was impending or in close proximity to the confrontation. Restating Bryant's threat in the vernacular of the parties, as embodied in count two, Bryant's threat was this: "I'm going to kick your god damn ass in the future if you don't blade my road in the future." Contrast Bryant's threat of future harm with the conditional threat in Green: "If you don't give me the money [right now], I'm going to cave your head in [right now]." There is simply no evidence from which the jury could rationally infer that Bryant acted with the intent to place Raulston in fear of imminent serious bodily injury or, stated another way, that he intended to place Raulston in fear of serious bodily injury that was in close proximity to their confrontation.
Finding that the evidence is insufficient to prove the third element of count two, we sustain point one, reverse the judgment, and render a judgment of acquittal under the second count. We do not reach Bryant's remaining point.
VANCE, J., dissents.
VANCE, Justice, dissenting.
Because we must view the evidence in the light most favorable to the verdict, I would follow the Beaumont Court of Appeals in Hadnot v. State and hold that the evidence is sufficient for a rational jury to find that Bryant intended to place Raulston in fear of imminent serious bodily injurybased on the evidence of Bryant's words, gestures, and conduct and on Raulston's testimony. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.App.1991); Hadnot v. State, 884 S.W.2d 922, 924-26 (Tex.App.Beaumont 1994, no pet).
Raulston testified:
Q. When he got out of his car and approached you, did you feel that you were going to be attacked at that time?
A. Yes, sir.
Q. So you were in fear of imminent serious bodily [in]jury?
*461 A. Well, I'm 57 years old and he's, I don't know how old, but he's a whole lot younger, whole lot bigger than I am.
The interpretation of this testimony was for the jury. See Hadnot, 884 S.W.2d at 925.
In addition, "[t]he requisite intent can be inferred from the acts, the words, and the conduct of an accused." Id. We should not substitute our view of the evidence for that of the jury; we only assure the rationality of the fact finder. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).
Because I believe that the evidence is sufficient to support the verdict of the jury, I dissent.
NOTES
[1] Raulston admitted at trial that the gravel road in front of Bryant's house was virtually "impassable."
[2] A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he "intentionally or knowingly threatens or places another in fear of imminent bodily injury." TEX.PENAL CODE ANN. § 29.02(a)(2) (Vernon 1994).
[3] Section 311.021 of the Code Construction Act applies to the construction of the Texas Penal Code. Tex.Penal Code Ann. § 1.05(b) (Vernon 1994).
[4] The State argues that, in measuring the sufficiency of the evidence, we should consider evidence showing that Bryant made a direct threat of imminent harm to be inflicted on Raulston at the scene. According to Raulston, Bryant threatened to "drag [him] out of the vehicle and whip [him] right then." We reject this contention because the jury acquitted Bryant under the first count, which charged a present threat of imminent harm. To consider such evidence in connection with count two, which charged a conditional threat of future violence, would be wholly inconsistent with the court's charge that authorized a conviction under this count.
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733 F. Supp. 544 (1988)
Carmine L. ELMORE, Jr., Plaintiff,
v.
SHELL OIL COMPANY, Larry Whittaker, Carl Masquardsen and John Kessler, Defendants.
No. 87 CV 0366.
United States District Court, E.D. New York.
May 5, 1988.
*545 Schlachter & Mauro (David Schlachter, of counsel), Commack, N.Y., for plaintiff.
Wildman, Harrold, Allen, Dixon & Smith, New York City, for defendants.
MEMORANDUM AND ORDER
McLAUGHLIN, District Judge.
Defendants move this Court for an order to dismiss the second, third and fourth claims pursuant to Fed.R.Civ.P. 12(b)(6). The Court, treating the motion as one for partial summary judgment pursuant to Fed.R.Civ.P. 56, ordered the parties to submit supplemental motion papers. See Fed. R.Civ.P. 12(b). For the reasons set forth below, defendants' motion is denied.
FACTS
Plaintiff brings this action alleging his discharge from the employ of defendant Shell Oil Company ("Shell Oil") was racially motivated in violation of 42 U.S.C. § 1981. In his second, third and fourth claims, plaintiff alleges defamation in connection with the discharge. These three claims form the basis of defendants' motion for partial summary judgment.
Plaintiff, a black male, was employed as a territory manager for Shell Oil from January 1973 until his discharge in February 1986. His territory included Nassau and Suffolk Counties in New York. During 1986, Shell Oil conducted an investigation into possible violations of Shell Oil policies in the New York Retail Sales District.
On February 13, 1986, a meeting was called to discuss these violations. Present at the meeting were defendant Larry Whittaker, who was the district manager for the New York Retail Sales District in 1986, defendant Carl Masquardsen, supervisor of investigations of Shell Oil Corporate Security, defendant John T. Kessler, a representative of Corporate Security, and plaintiff.
During the meeting, plaintiff was advised that information had been received that he had accepted large cash gifts from Shell Oil dealers. Acceptance of these gifts is a violation of Shell Oil's policies. Specifically, plaintiff alleges that defendants Masquardsen and Kessler stated to plaintiff: "We know you have taken money from dealers." Defendant Whittaker allegedly told plaintiff: "We got you, son," and then stated in substance that plaintiff had wrongfully taken money from dealers. These statements form the basis of plaintiff's second claim. Defendants allegedly told plaintiff that the matter would be investigated *546 further. The following day, plaintiff was fired.
In March 1986, Whittaker met with various Shell Oil dealers to discuss problems in the district. Only Shell Oil employees and dealers were present at the meeting. Whittaker allegedly told those present that "we have gotten rid of a cancer." Although Whittaker never mentioned plaintiff by name, plaintiff alleges that Whittaker meant, and was understood by those who heard the statement to mean, that plaintiff had been fired by Shell Oil for wrongdoing. This statement forms the basis for plaintiff's third claim.
Plaintiff's fourth claim alleges that he was compelled to republish the statements that were made by the defendants at the February 16, 1986 meeting to prospective employers, and as a result, he was hindered in his search for employment.
DISCUSSION
Summary judgment is appropriate "`against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Daniel P. Foster, P.C. v. Turner Broadcasting System, 844 F.2d 955, 959 (2d Cir.1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)).
Defendants claim that they are entitled to summary judgment as a matter of law inasmuch as each of the statements is entitled to qualified privilege.
Defendants also argue that as a matter of law plaintiff cannot recover on his fourth claim. The general rule states that if plaintiff in a defamation action voluntarily republishes the actionable statement, the defendant is not held accountable for the damages thereby caused. See Weidman v. Ketcham, 278 N.Y. 129, 133, 15 N.E.2d 426, 428 (1938); Horowitz v. Weidenmiller, 53 N.Y.S.2d 379, 390 (Sup. Ct.N.Y.Co.1945); Shepard v. Lamphier, 84 Misc. 498, 503, 146 N.Y.S. 745, 748 (Sup.Ct. Erie Co.1914); Galligan v. Kelly, 31 N.Y.S. 561, 563 (Sup.Ct.N.Y.Co.1894).
Although New York courts have not addressed the issue, there appears to be a growing trend in other jurisdictions to make an exception to this rule where "the originator of the defamatory statement has reason to believe that the person will be under strong compulsion to disclose the contents of the defamatory statement to a third person." McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 796, 168 Cal. Rptr. 89, 93-94 (1st Dist.1980); see Colonial Stores, Inc. v. Barrett, 73 Ga.App. 839, 840, 38 S.E.2d 306, 307 (1946); Belcher v. Little, 315 N.W.2d 734, 738 (Iowa 1982); Grist v. Upjohn Co., 16 Mich.App. 452, 485, 168 N.W.2d 389, 406 (1969); Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876, 888 (Minn.1986); Bretz v. Mayer, 1 Ohio Misc. 59, 203 N.E.2d 665, 669 (Ct.Common Plea 1963); First State Bank v. Ake, 606 S.W.2d 696, 701 (Tex.Civ. App.1980). The exception is justified, particularly in cases where the plaintiff seeks new employment after being discharged for alleged wrongdoing, because there exists a causal connection between the making of the statement and the compelled repetition. See Lewis, supra, 361 N.W.2d at 881. Plaintiff's ability to fabricate a story to prospective employers about the circumstances surrounding his discharge is simply not a viable alternative. See id. Since plaintiff was in the employ of Shell Oil for a substantial period, he was compelled to repeat the alleged slander to explain his sudden departure. Accordingly, I find that plaintiff has stated a claim for defamation.
However, plaintiff does not dispute the existence of a qualified privilege with respect to the allegations contained in both his fourth and his second claims. Qualified privilege attaches to otherwise actionable defamatory words when "[a] communication [is] made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty ... if made to a person having a corresponding interest or duty." Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 60, 194 N.Y.S.2d 509, 512, 163 N.E.2d 333, 335 (1959). To defeat the privilege, plaintiff *547 must prove "malice, ill will, personal spite, or culpable recklessness or negligence." LaScala v. D'Angelo, 104 A.D.2d 930, 931, 480 N.Y.S.2d 546, 547 (2d Dep't 1984).
Plaintiff argues that he has alleged facts sufficient to establish malice precluding summary judgment. In the alternative, he argues that if he has not sufficiently established malice, summary judgment should be denied as premature because discovery has not yet commenced. Assuming, arguendo, that the facts insufficiently establish malice, plaintiff should be given an opportunity to gather evidence that may overcome the qualified privilege. See Baldwin v. Shell Oil Co., 71 A.D.2d 907, 910, 419 N.Y.S.2d 752, 756 (2d Dep't 1979). Accordingly, summary judgment against plaintiff's second and fourth claims is inappropriate.
Plaintiff challenges defendant's assertion of qualified privilege with respect to plaintiff's third claim, which involves statements made in March 1986 by defendant Whittaker to Shell Oil dealers. Defendant argues that the statement is protected by a qualified privilege because the defendants and the audience shared a common economic or business interest.
Qualified privilege, however, is a defense that must be pleaded and proved by the defendant. See Ostrowe v. Lee, 256 N.Y. 36, 41, 175 N.E. 505 (1931); Whelehan v. Yazback, 84 A.D.2d 673, 674, 446 N.Y. S.2d 626, 627 (4th Dep't 1981); Mink Hollow Development Corp. v. State of New York, 87 Misc. 2d 61, 65-66, 384 N.Y.S.2d 373, 377 (Ct.Claims 1976). The only competent evidence submitted by the defendants tending to prove the existence of a qualified privilege is an affidavit from defendant Whittaker that reads in pertinent part:
During March 1986 I met with various Shell dealers. The purpose of the meeting was to discuss business problems in the district. During the meeting I did not mention Elmore although I may have told the dealers that problems in the area had been corrected. I do not remember saying, "we have gotten rid of a cancer." The only persons present at the meeting were Shell employees and Shell dealers.
I find that this statement alone is an insufficient basis upon which to conclude that defendants are entitled to a qualified privilege as a matter of law. First, there exists a question of fact with respect to whether the statement "we have gotten rid of a cancer" was made at all. Second, defendants have failed to prove that any statement made to Shell Oil dealers about plaintiff or plaintiff's termination was "essential" and prompted by "some sort of duty, be it only moral or social." Posa, Inc. v. Miller Brewing Co., 642 F. Supp. 1198, 1207 (E.D.N.Y.1986). Having concluded that defendants failed to prove their entitlement of a qualified privilege, the issue whether plaintiff has demonstrated malice sufficient to overcome the privilege is premature.
CONCLUSION
Accordingly, defendant's motion for partial summary judgment is denied in all respects.
SO ORDERED.
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733 F. Supp. 791 (1990)
Fred CHALAWSKY, Plaintiff,
v.
SUN REFINING AND MARKETING COMPANY, INC., Defendant.
Civ. A. No. 89-114-JLL.
United States District Court, D. Delaware.
February 23, 1990.
*792 Roger A. Akin and Christopher J. Curtin of Sawyer & Akin, Wilmington, Del., for plaintiff.
Richard D. Allen and R. Judson Scaggs, Jr. of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant.
MEMORANDUM OPINION
LATCHUM, Senior District Judge.
This is an age discrimination case. Plaintiff, Fred Chalawsky ("Chalawsky"), contends that defendant, Sun Refining and Marketing Company, Inc. ("Sun"), discriminated against him when it refused to give him a job following an employee reorganization at the plant at which Chalawsky worked. Chalawsky alleges claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, the Fair Labor Standards Act, 29 U.S.C. § 216(b), and Delaware state law, 19 Del.C. § 711 et seq. Sun has moved for summary judgment on all claims. This Court has jurisdiction under 28 U.S.C. § 1331.
FACTS
Chalawsky was trained and educated in chemical engineering. (See Docket Item ["D.I."] 26 at A-1-A-3, Deposition of Fred Chalawsky ["FC Dep."] at 8-10.) He joined the SunOlin Chemical Company ("SunOlin") in March of 1967 as a process engineer in technical services. After approximately six months of service, in the fall of 1967, Chalawsky became a technical service superintendent, a position he held until December of 1968, when he was named area superintendent of his plant. In January of 1975, Chalawsky was transferred to become the area superintendent of another plant, an ethylene plant located in Claymont, Delaware. He held this position until his alleged involuntary termination in December of 1987, at which point Chalawsky was 56 years old.
Chalawsky's employer, SunOlin, was a joint venture between Sun and a company named Olin. (D.I. 23A, Exhibit 3, Deposition of John G. Harron ["JH Dep."] at 4.) Sun, a Pennsylvania corporation, bought out Olin's share in SunOlin on November 4, 1987, thereby obtaining sole ownership of the ethylene plant at which Chalawsky worked. (See id. at 15.) Sun's plan was to integrate the ethylene plant with a refinery it owned, in nearby Marcus Hook, Pennsylvania, in order to make the ethylene plant more efficient and improve Sun's position in the chemical industry. (See D.I. 23A, Exhibit 4, Deposition of Joseph Mazzei ["JM Dep."] at 20-21.) To achieve this integration, a decision was made to reduce the SunOlin employee force from 49 positions to 15. (See D.I. 23A, Exhibit 3, JH Dep. at 32.) Eventually, however, the 49 positions were only reduced to 23. (See id.) Chalawsky's area superintendent job was one of those eliminated.
On October 7, 1987, John G. Harron, president of SunOlin, sent a memorandum to all employees at the ethylene plant, including Chalawsky. (D.I. 26 at A-26.) The memorandum discussed the pending integration of SunOlin with Sun's Marcus Hook facility, and the staffing cuts that would result. Attached to the memorandum *793 were sheets describing the various job options available to SunOlin workers, including an involuntary termination plan. Chalawsky selected the option that consisted of consideration for another position within the Marcus Hook refinery. These preference sheets were used by SunOlin's management in making hiring recommendations to Sun.
Shortly after Sun bought out Olin, in early November of 1987, Chalawsky was called into Harron's office. He was informed he would be terminated on November 30, 1987, and would not be hired by the reorganized company. (D.I. 26 at A-34-A-35, FC Dep. at 48.) Harron gave him ten working days to submit a second preference sheet indicating one of the involuntary termination options. (Id.) On this second sheet, Chalawsky chose early retirement, but noted he still preferred to be employed. (See D.I. 26 at A-35.) Chalawsky also noted on the sheet that he believed he was qualified for five different positions in the reorganized company, two of which were still unfilled at that point. (Id.)
The five positions, for which Chalawsky stated he thought he was qualified, were: Operating Superintendent, Area Supervisor (two positions), and Operating Technical Specialist or "OTS" (two positions). (Id.; see also D.I. 23A, Exhibit 5, FC Dep. at 78.) The Operating Superintendent position was filled by Gerald O'Rourke, who was 49 years old. (D.I. 24, Affidavit of Gloria M. Rebori ["Rebori Aff."] at ¶ 2.) One of the Area Supervisor jobs was filled by Wayne Roser, 56 years old. (Id.) One of the OTS positions was filled by Robert Knorr, who was 33 years old. (Id.) The two slots that were left open when Chalawsky was terminated were an Area Supervisor job, later filled by 56 year-old Marshall Short, and an OTS position that was eventually filled by 30 year-old Curtis Zimmerman. (See D.I. 23A, Exhibit 5, FC Dep. at 2; D.I. 26 at 4.)
On January 18, 1988, Chalawsky filed age discrimination charges against Sun with the Delaware Department of Labor ("DDOL"). (See D.I. 23A, Exhibit 5, FC Dep. at Dx6.) Following a hearing in May of 1988 (Id. 122), the DDOL determined Chalawsky's charges of age discrimination could not be substantiated. (Id. at Dx7.) The EEOC also reviewed Chalawsky's charges and, in December of 1988, concluded the evidence gathered in the DDOL investigation did not establish any violation. (See D.I. 24, Exhibit A, Rebori Aff.)
Chalawsky instituted this suit on March 10, 1989. (D.I. 1.) Discovery has been completed. Sun moved for summary judgment on November 7, 1989. (D.I. 22.) The Court heard oral argument on the motion on January 12, 1990.
DISCUSSION
Summary judgment is appropriate only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the Court must "view the evidence in the light most favorable to the non-moving party ... and resolve any conflicts in his favor." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir.1988) (citations omitted). Summary judgment must be granted, however, if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
I. The ADEA Claim
The ADEA prohibits discrimination against any individual who is "at least 40 years of age," 29 U.S.C. § 631(a) (West Supp.1989), with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age...." Id. at § 623(a)(1). To recover under the ADEA, a plaintiff must "prove that age was a determinative factor in the defendant employer's decision ... The plaintiff need not prove that age was the employer's sole or exclusive consideration, but must prove that age made a difference in the decision." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987) (in banc) (citations omitted), cert. dismissed, *794 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987).
Direct evidence of discriminatory motivation is not required, as the proverbial "smoking gun" is usually not found in employment discrimination cases. See id. A plaintiff can therefore establish his case by indirect proof that satisfies the McDonnell Douglas-Burdine allocation of burdens of production. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981)); see also Bartek v. Urban Redevelopment Authority of Pittsburgh, 882 F.2d 739, 742 (3d Cir.1989) (noting that the McDonnell Douglas-Burdine allocation of burdens is still controlling).
That three-part allocation of burdens requires, first, that the plaintiff prove "by the preponderance of the evidence a prima facie case of discrimination." Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093. If the plaintiff is able to make this prima facie showing, "the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Id. at 253, 101 S.Ct. at 1093 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). Lastly, if the defendant satisfies its burden, the plaintiff must then prove by a preponderance of the evidence that the defendant's legitimate reasons "were not its true reasons, but were a pretext for discrimination." Id. (citation omitted). The plaintiff, however, always retains "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against [him]...." Id. (citations omitted).
a. The Operating Superintendent and Two Area Supervisor Jobs
Sun argues that Chalawsky cannot even establish a prima facie case for three of the five positions he claims Sun should have offered him. These three positions are the Operating Superintendent and the two Area Supervisor slots.
Chalawsky has not offered any direct evidence of age discrimination. Without such evidence, an ADEA plaintiff can establish his prima facie case of discrimination
by proving by a preponderance of the evidence that (1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination.
Chipollini, 814 F.2d at 897 (citation omitted). Sun concedes for purposes of its summary judgment motion that Chalawsky has met the first three elements of a prima facie case. Sun argues, however, that Chalawsky cannot prove the fourth element because the individuals chosen to fill the three positions in question were not "sufficiently younger" than Chalawsky.
Chalawsky's answering brief (D.I. 26) does not address this argument. Nor does it offer any rationale for why this fourth element should be considered satisfied or inapplicable. More importantly, however, at oral argument counsel for Chalawsky conceded that a prima facie case could not be made as to two of the three positions Sun challenges. Accordingly, Sun is entitled, at the very least, to summary judgment with respect to Chalawsky's allegations that he was denied those two jobs because of his age. Cf. Fowle v. C & C Cola, 868 F.2d 59, 62 (3d Cir.1989) (ADEA defendant can prevail on summary judgment by showing plaintiff's prima facie case is deficient).
Chalawsky does not concede that he failed to make out a prima facie case with regard to the third position, one of the Area Supervisor slots. At oral argument, Chalawsky's counsel indicated that this position was still at issue because it was not filled at the time Chalawsky left Sun. (The position was eventually filled by someone who was 56 years old, the same age as Chalawsky.)
The point of the prima facie showing is to establish that the plaintiff was rejected "under circumstances which would give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. *795 at 1093 (footnote omitted); cf. EEOC v. Metal Service Co., 892 F.2d 341, 347 (3d Cir.1990) (McDonnell Douglas test should not be viewed as rigid formula because its significance is that it helps to indicate when sufficient evidence has been offered to create an inference of discrimination). Therefore, it seems unlikely that a plaintiff could make out a prima facie ADEA case just by showing that there were jobs left unfilled when he was rejected. But even if such a showing, perhaps coupled with evidence that numerous individuals in the protected class were rejected for the same position, would be sufficient to make out the fourth element of a prima facie case where a position goes unfilled, here the position was filled. Moreover, since the position was filled by someone who was exactly the same age as Chalawsky, the circumstances do not give rise to an inference of age discrimination. Sun is therefore also entitled to summary judgment on Chalawsky's claim that it discriminated against him when it failed to offer him the second Area Supervisor position.
b. The OTS Jobs
Sun does not dispute that Chalawsky can make out a prima facie case as to the two positions remaining in this case, namely the OTS jobs.[1] (D.I. 27 at 3.) Both of them were filled by significantly younger individuals. One OTS position was filled by 33 year-old Robert Knorr; the other was filled, after Chalawsky's termination, by 30 year-old Curtis Zimmerman.
Since Chalawsky can establish a prima facie case, the burden shifts to Sun "to articulate some legitimate non-discriminatory reason for the discharge." Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 202 (3d Cir.1987) (citing McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824), cert. denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988). Sun contends it did not offer Chalawsky either of the two OTS positions because he did not possess certain necessary skills:
Chalawsky was not selected for any of the positions because it was believed he lacked the management, leadership and hands-on skills needed to fill the positions within the integrated operating department....
(D.I. 23 at 7; see also id. at 16.)
Because Sun has proffered a legitimate, non-discriminatory reason for not placing Chalawsky into one of the OTS jobs, the burden now shifts back to Chalawsky. He must produce sufficient evidence to permit a reasonable trier of fact to infer that Sun was actually motivated by a discriminatory reason, and not by the legitimate reason it claims. Chipollini, 814 F.2d at 898. Chalawsky can also meet his burden by merely proving that the reasons offered by Sun are "pretextual," somehow inconsistent, or otherwise unworthy of belief. See id.
Chalawsky points to numerous aspects of the record to demonstrate that Sun's reason for terminating him is pretextual. First, Chalawsky contends that he was more than just an average performer. He underscores his numerous salary increases and the many complimentary comments in his salary increase memos. (See D.I. 26 at A-6-A16.) Secondly, Chalawsky argues that Harron, SunOlin's president, conceded that Chalawsky was qualified for the OTS positions. Thirdly, Chalawsky contends his salary increase memos demonstrate he performed well in the areas Harron specifically stated were significant to him in deciding who would best fill the OTS positions. Fourthly, Chalawsky asserts that SunOlin historically put younger people in OTS jobs. And lastly, Chalawsky points outs that Sun's reason is a post hoc rationale based on subjective criteria and unsupported by the information in Chalawsky's personnel file.
Viewing all of the evidence in a light most favorable to him as non-movant, the Court concludes that Chalawsky has presented sufficient evidence to create a genuine issue of material fact with regard to Sun's reasons for not offering him one *796 of the two OTS positions. The numerous salary increase memos that discuss Chalawsky's performance contain favorable comments that contradict Harron's description of the essential skills Chalawsky was lacking. (See D.I. 26 at A-8-A-16; D.I. 27A at SA-6.) Harron characterized Chalawsky's alleged shortcomings as follows:
Q. What type of characteristics in your view was Mr. Chalawsky lacking?
A. Fred is not an aggressive, strong person. He's not strong in hands-on, the kinds of things you need to do to run the plant physically right down where the rubber meets the road, and he's not strong as a leader of those people. He's a phlegmatic individual. He's a nice person but he is not an aggressive change agent.
* * * * * *
Q. How about the operating technical specialist, was it required that those slots be filled with a person who has the characteristics you just gave me?
A. That person doesn't necessarily have to be a charismatic leader, for example, in the same sense as the person who manages the whole plant, like O'Rourke. That person has to be an aggressive person who looks around and analyzes what all the data in the plant seems to be saying, where they're standing compared to optimal conditions, where business changes occur, examining what the economics are of those business changes, whether it's a pricing change going on for refinery streams that would result in it being desirable to shut the unit down and steam air de-coke a heater, reducing through-puts at times when the value added wasn't there, making changes to take advantage of economics. That person is somebody that works with the operating people and the process engineers, has to be looking for lots of ways to improve things and has to be aggressive in getting there, getting to those changes.
(D.I. 26 at A-37-A-39, FC Dep. at 42-44 [emphasis added].) The following are some of the pertinent comments included in the salary increase memos, which were written throughout the years by Chalawsky's various supervisors:
Chalawsky has "[b]een a leader in the design and implementation of the skills evaluation program...." (Salary Increase Memo of 10-31-83, D.I. 26 at A-14 [emphasis added].)
Chalawsky "[r]educed overtime ... for an annual savings of $18,000 ... [i]nitiated the concept of the removal of one stage from the 203/204 compressor wheel ... for and [sic] annualized savings of approximately $350,000." (Id. [emphasis added].)
Chalawsky "has spent extra time and effort to learn the technological and personnel needs of this area and has initiated new cost-control methods. Cost savings generated during this period were substantial." (Salary Increase Memo of 9-25-86, D.I. 26 at A-16 [emphasis added].)
"Fred has been personally responsible for the initiation and follow up of the Selexsorb Mol Sieve project which should permit increased sales volume ... The safety program in the ethylene unit will have reached an all time record for no lost-time accidents in early December...." (Salary Increase Memo of 10-13-87, D.I. 27A at SA-6. [emphasis added].)
Because one could reasonably view these and other comments contained in the salary memos as inconsistent with Sun's rationale that Chalawsky lacked necessary leadership skills and initiative, summary judgment would not be appropriate.[2]
*797 Sun relies on Healy v. New York Life Insurance Co., 860 F.2d 1209 (3d Cir.1988), cert. denied, ___ U.S. ___, 109 S. Ct. 2449, 104 L. Ed. 2d 1004 (1989), an ADEA case in which the Third Circuit upheld the district court's grant of summary judgment in the defendant-employer's favor. In Healy, the court concluded that the plaintiff-employee, who had been discharged pursuant to a reduction in force, had not created a factual dispute as to pretext merely by showing that generally he had performed competently in his previous positions. See Healy, 860 F.2d at 1220. The court reasoned that "the essence of a RIF [i.e., reduction in force] is that competent employees who in more prosperous times would continue and flourish at a company may nevertheless have to be fired." Id.
Chalawsky's case is not, however, similar to Healy. In Healy the employer produced evaluations that specifically mentioned the plaintiff-employee's weaknesses. See id. at 1211. The employer was also able to point to a particular project that the employee did not complete satisfactorily. See id. at 1216. Chalawsky worked for Sun for two decades, but Sun has not produced a single negative comment from its files. Sun has also not pointed to any project or task that Chalawsky might have performed inadequately. Healy, therefore, does not help Sun.
II. Liquidated Damages[3]
Liquidated damages are available in an ADEA action only if the alleged violation is proved to be "willful." 29 U.S.C. § 626(b); see Dreyer v. Arco Chemical Co., 801 F.2d 651, 656 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S. Ct. 1348, 94 L. Ed. 2d 519 (1987). "Willful" means something more than just a violation of the ADEA, which the Third Circuit has noted "is almost always intentional." Dreyer, 801 F.2d at 657. What is needed is "some additional evidence of outrageous conduct."[4]Id. at 658 (emphasis added). Examples of such conduct would be "the systematic purging of older people from the employee staff ...," or "termination of an employee at a time that would deprive him or her of an imminent pension...." Id. Chalawsky has not pointed to any evidence that would substantiate his claim that Sun's alleged violation was somehow outrageous.
Chalawsky essentially argues that the requisite outrageousness is shown because Sun did not give full consideration to his "unblemished 20 year career at SunOlin." (D.I. 26 at 24.) To support this contention, Chalawsky underscores (see id. at 25) the following portion of the deposition testimony of SunOlin President John G. Harron: "Q. Have you looked at Mr. Chalawsky's other 17 or 18 salary increase letters? A. No. No. That's water under the dam." (Id. at A-36, JH Dep. at 51.) But the rest of Harron's deposition reveals that Chalawsky's historic performance was not only considered, but also well known to the SunOlin management.
*798 Q. Who made the judgment that Mr. Chalawsky did not fill that bill?
A. I think several people over the years have basically realized that Fred is not as strong as perhaps he should have been. But he was a 20 some year employee of SunOlin and he was taken care of because of that. He was okay but he's not a star. And if you're looking for a star like O'Rourke would be, then he would not compete with O'Rourke.
Q. You said several people over the years had made the judgment that Chalawsky did not have these characteristics. Who were those people, if you know?
A. I came to those conclusions in the '73-77 era. My staff basically supported that.
Q. Who on your staff?
A. Jerry O'Rourke, Joe Young and Don Bobish, his supervisor.
(D.I. 26 at A-39, JH Dep. at 44.)
Thus, even assuming Chalawsky is correct in his statement that Harron was the final authority in the decision not to give him a job in the reorganized company,[5] Chalawsky has not produced any evidence to show his twenty year record was ignored. The single deposition comment referred to by Chalawsky is, as a matter of law, insufficient to allow a reasonable trier of fact to conclude that Sun deliberately and completely ignored the twenty year work history of a prospective employee. As shown by Harron's subsequent deposition comments, Chalawsky simply takes this comment out of context. More importantly, however, even if it were true that Chalawsky's work record did not receive the attention it merited, as a matter of law such conduct does not rise to the level of outrageousness, at least not on these facts. Not only is the character of the alleged harm by Sun not outrageous, but similarly, the nature and extent of the alleged harm is not "beyond that normally associated with an employee's discharge resulting from age discrimination...." Lockhart, 879 F.2d at 58.
Chalawsky also contends that Sun's conduct should be considered willful because "Sun does not contest Chalawsky's qualifications for two OTS positions which were to survive the reorganization," and "[o]ne of those positions was still vacant when Chalawsky was terminated." (D.I. 26 at 25.) A similar claim was rejected in Dreyer. There, the Third Circuit noted that the fact that the employer failed to appoint the plaintiff, "to other available jobs filled by younger employees," was relevant "at most" to "a violation of the ADEA, but not [to] the outrageous conduct needed to distinguish a violation from willful action." Dreyer, 801 F.2d at 658-59.
In sum, Chalawsky has pointed to no evidence that could support a finding of outrageousness. Accordingly, the Court concludes that Sun is entitled to summary judgment on Chalawsky's liquidated damages claim.
III. State Law Claim
In addition to his federal claims, Chalawsky asserts a pendent claim under Delaware law. He alleges that Sun violated 19 Del.C. § 711(a), by discriminating against him on the basis of age. Sun argues that Chalawsky has exhausted any rights he may have had under state law. The Court finds that Sun's challenge has merit.
Delaware law prohibits employment discrimination on the basis of "race, marital status, color, age, religion, sex or national origin...." 19 Del.C. § 711(a) (emphasis added). The statute directs the state Department of Labor ("DDOL") to investigate charges of discrimination. See 19 Del.C. § 712(b). It further provides that "[i]f the Department determines after such investigation that there is reasonable cause to believe that the charge is not true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the *799 respondent of its action." 19 Del.C. § 712(b).
If, however, the DDOL determines that "there is reasonable cause to believe that the charge is true," it will first attempt to secure voluntary compliance. 19 Del.C. § 712(c). If voluntary compliance cannot be attained, the DDOL will issue a complaint and institute proceedings before a review board. 19 Del.C. § 712(e). Following a hearing and the taking of evidence, the review board issues its findings and orders the appropriate relief. 19 Del.C. § 712(g). The review board's findings may be appealed in state court. See 19 Del.C. § 712(h).
In this case, the DDOL determined that Chalawsky's charge of discrimination could not be substantiated. (See D.I. 23A, Exhibit 5 at Dx7 [letter from DDOL].) Therefore, the subsequent hearing before a review board, from which Chalawsky could appeal in court, never took place.
Chalawsky argues that even though the statute does not authorize an independent cause of action or judicial review of the DDOL's findings, this Court should presume that the statute grants such a right because judicial review is not specifically prohibited. Chalawsky's reasoning is seriously flawed. Although the state legislature authorized judicial review of the review board's findings, it also expressly insulated from review the DDOL's determination that a complaint should be issued because voluntary compliance would not be forthcoming. See 19 Del.C. § 712(e) ("If the Department determines, after attempting to secure voluntary compliance ... that it is unable to secure from respondent a conciliation agreement acceptable to the Department and to the person aggrieved, which determination shall not be reviewable in any court, the Department shall issue ... a complaint...." [emphasis added]). It therefore seems unlikely that a matter such as an initial determination of probable cause, which is also within the DDOL's discretion, was meant to be reviewable in court. Likewise, given the unreviewable discretion granted to the DDOL, it seems unlikely a private right to suedespite an unfavorable determination by the DDOLwas intended. This Court will not presume the Delaware legislature intended remedies it did not include in the statute. Cf. Public Service Commission v. Diamond State Telephone Co., 468 A.2d 1285, 1300 (Del.1983).
The case relied on by Chalawsky is completely inapposite. See Giles v. Family Court of Delaware, 411 A.2d 599 (Del. 1980). Giles involved an appeal from a review board decision. See id. at 600-01. Chalawsky's case was not heard by a review board; it never made it beyond the first step in the Delaware statutory scheme because the DDOL found, following its investigation, that there was no probable cause to believe any violations had occurred. The Court concludes that Chalawsky does not have a right to sue under 19 Del.C. §§ 711-12 because he has exhausted his state remedies.
Chalawsky alternatively suggests that his right to challenge the DDOL's determination that no probable cause existed should be inferred from the state's Administrative Procedures Act, which attempts "to standardize the procedures and methods whereby certain state agencies exercise their statutory powers and to specify the manner and extent to which action by such agencies may be subjected to judicial review." 29 Del.C. § 10101. Even assuming that Chalawsky is correct that the Administrative Procedures Act applies to the DDOL's initial probable cause determination under the state employment discrimination law,[6] Chalawsky's alleged right to appeal the agency "decision" has expired.
The Act limits a party's right to seek judicial review of an agency decision to thirty days from "the day the notice of the decision was mailed." 29 Del.C. § 10142(b). The DDOL notice is dated *800 June 22, 1988. (See D.I. 23A, Exhibit 5 at Dx7.) Chalawsky did not bring this suit until March 10, 1989 (D.I. 1), surely more than thirty days after the DDOL notice was mailed.[7] The state discrimination statute similarly limits the time period for seeking judicial review of review board findings. See 19 Del.C. § 712(h) (30 days after copy of review board order is received). Accordingly, Chalawsky's reliance on the state Administrative Procedures Act is untimely.
CONCLUSION
Sun's motion for summary judgment as to all of Chalawsky's claims will be granted in part. Judgment will be entered in favor of Sun on both the liquidated damages claim and the pendent claim under Delaware law. With regard to the ADEA claim, however, Sun is entitled to summary judgment only as to three of the five positions Chalawsky alleges he was unlawfully denied; Chalawsky may proceed to trial with his claims as to the two OTS positions.[8] An appropriate order follows.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
For the reasons set forth in the Court's Memorandum Opinion entered in this action on this date, it is:
ORDERED, ADJUDGED, and DECREED that:
1. The motion for summary judgment filed by defendant Sun is granted in part and denied in part.
2. Judgment is hereby entered in favor of Sun, and against plaintiff Chalawsky, insofar as Count I of the complaint alleges a claim under the ADEA, 29 U.S.C. § 621 et seq., with respect to the one Operating Superintendent and two Area Supervisor jobs described in the accompanying Memorandum Opinion.
3. Sun's motion for summary judgment on Count I of the complaint is hereby denied insofar as Chalawsky asserts an ADEA claim with respect to the two OTS jobs described in the accompanying Memorandum Opinion.
4. Judgment is hereby entered in favor of Sun on Chalawsky's claim for liquidated damages.
5. Sun's motion for summary judgment on Count II of the complaint, which alleges a claim under the FLSA, 29 U.S.C. § 216(b), is denied except to the extent stated in # 4 above.
6. Judgment is hereby entered in favor of Sun on Count III, Chalawsky's claim under Delaware law, 19 Del.C. § 711(a).
NOTES
[1] Sun characterizes the OTS positions as lower in level than the Area Superintendent job held by Chalawsky before the reorganization of SunOlin. Chalawsky also describes the OTS positions as lesser jobs.
[2] Sun argues that even if Harron's testimony is somehow inconsistent with the salary memos, such a discrepancy is not sufficient to cast doubt upon Sun's articulated reason for not hiring Chalawsky because Harron was not the person who made the final hiring decisions. The exact extent to which Harron may have influenced the new management's trimming of the SunOlin workforce is not clear. Nevertheless, it is not disputed that Harron had some role. (See, e.g., D.I. 27 at 8; D.I. 23A, JM Dep. at 33-35.) More to the point, however, Sun itself supports its articulated reason for not hiring Chalawsky with Harron's testimony regarding Chalawsky's alleged deficiencies. (See D.I. 23 at 16-17 [citing JH Dep. at 42-44].)
The only other evidence on which Sun relies, to establish that Chalawsky "lacked the initiative as a problem solver and the leadership skills to fill any of the positions in the integrated operating department ..." (id. at 16), is the testimony of Joseph Mazzei, manager of the Marcus Hook refinery. (See id.) But Mazzei himself relied at least in part on Harron's characterization of Chalawsky. (See D.I. 23A, Exhibit 4, JM Dep. at 53.) Moreover, although Mazzei also states that he relied on the conclusions of his subordinate, Malcolm Flint, Mazzei does not explain on what Flint's opinions were based. (See id.) Sun has not offered Flint's testimony. Thus, while we know that Flint concluded Chalawsky was not right for the OTS jobs, we do not know why.
Harron's testimony regarding the skills Chalawsky allegedly lacked offers the only explanation for why he was not hired. Hence, it is material.
[3] Although his complaint initially requested both punitive and liquidated damages, plaintiff later conceded that punitive damages were not available in this action. (D.I. 26 at 24 n. 8.)
[4] Because this case involves disparate treatment of an individual, the Supreme Court's Thurston formulation of willfulness"if an employer knew or showed reckless disregard for the matter of whether its conduct violated the ADEA" is not the governing standard. Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57 (3d Cir.1989) (discussing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-30, 105 S. Ct. 613, 623-26, 83 L. Ed. 2d 523 (1985)).
[5] Sun strongly disputes this assertion. (See, e.g., D.I. 27 at 13.) In light of the Court's conclusions, however, this dispute is not material.
[6] The Court does not express any opinion on this portion of Chalawsky's argument. See 29 Del.C. § 10142(a) ("Any party against whom a case decision has been decided may appeal such decision to the Court." [emphasis added]); see also 29 Del.C. § 10102(3) (defining "case decision").
[7] Chalawsky admits receiving notice of the DDOL's determination on June 22, 1988. (See D.I. 10 at ¶ 10.)
[8] Count II of Chalawsky's complaint alleges a cause of action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). (See D.I. 10 at ¶ 15.) That portion of the FLSA authorizes a court to award various legal and equitable remedies, and is incorporated by reference into the ADEA. See 29 U.S.C. § 626(b) ("Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title...."). The FLSA remedy provisions do not, however, come into play until an ADEA violation is made out. See id. Therefore, Chalawsky's claim under section 216(b) survives to the extent that his ADEA claim does (with the exception that liquidated damages will not be available for the reasons set forth in this opinion).
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441 A.2d 553 (1982)
Robert BOTTOMLEY
v.
KAISER ALUMINUM & CHEMICAL CORPORATION.
No. 80-54-Appeal.
Supreme Court of Rhode Island.
February 19, 1982.
Raul L. Lovett, Lauren E. Jones, Providence, for petitioner.
Quinn, Cuzzone, Geremia & Pennacchia, Bruce Q. Morin, Providence, for respondent.
*554 OPINION
BEVILACQUA, Chief Justice.
This is an employee's original petition for compensation under the Workers' Compensation Act. The trial commissioner denied and dismissed the petition. The full commission affirmed that decree. The case is before us on appeal from the decree of the full commission.
The facts are not in dispute. The employee worked on the 7 a.m. to 3 p.m. shift as a sweeper-cleaner, responsible for emptying waste baskets, cleaning men's rooms, and mopping floors. Each day, after completing his regular duties, but before punching out and leaving the premises, he would go to the main locker room provided by his employer and change his clothes. While so engaged on a rainy August 7, 1978, the employee bent over to put on his rubbers and injured his back. He punched out and, upon arriving home, made an appointment to see his family doctor, Dr. Peter J. Sansone, that same afternoon. As a result of the injury the employee was unable to return to work until September 6, 1978.
The employee filed the instant petition seeking benefits for the period during which he did not work. The trial commissioner convened a hearing on the petition, at which Dr. Sansone testified that he had examined the employee on August 7, 9, 11, 21, 24, and 31. Relying on these examinations, Dr. Sansone concluded that the injury sustained on August 7, 1978, had totally disabled the employee.
The trial commissioner found that the employee failed to prove by a fair preponderance of the evidence that his injury arose out of and in the course of his employment and that at the time of the injury the employee was not fulfilling the duties of his employment or doing anything incidental thereto. The full commission affirmed the trial commissioner's decree.
General Laws 1956 (1979 Reenactment) § 28-33-1 provides that an injured worker is entitled to receive compensation for injuries that arise "out of and in the course of his employment, connected therewith and referable thereto * * *." Thus, the sole issue presented is whether the commissioner erred in holding that the employee failed to prove that his injury arose out of and in the course of his employment.
The employee contends that because the accident occurred both before he had punched out for the day and as he was changing from his work clothes to his street clothes in the locker room provided by his employer for that purpose, his injury arose in the course of his employment and was causally connected thereto. The employer asserts that because the employee had terminated his employment when he completed his daily duties and was acting on his own behalf when the accident took place, the injuries arose outside the course of his employment.
We consider it well settled that an employee's injury is compensable if the particular facts and circumstances presented establish a "nexus" or a "causal relationship" between the injury and the employment. Beauchesne v. David London & Co., 118 R.I. 651, 375 A.2d 920 (1977); Knowlton v. Porter Trucking Co., 117 R.I. 28, 362 A.2d 131 (1976); Lima v. William H. Haskell Manufacturing Co., 100 R.I. 312, 215 A.2d 229 (1965); Perri v. Scott Testers, Inc., 84 R.I. 91, 121 A.2d 644 (1956). To establish such a nexus or causal relationship, the employee must show that his injury occurred within the period of his employment, at a place where he might reasonably have been, and while either fulfilling the duties of his employment or doing something incidental thereto or to the conditions under which those duties were to be performed. Beauchesne v. David London & Co., supra; Carvalho v. Decorative Fabrics Co., 117 R.I. 231, 366 A.2d 157 (1976); Montanaro v. Guild Metal Products, Inc., 108 R.I. 362, 275 A.2d 634 (1971); Lima v. William H. Haskell Manufacturing Co., supra.
Whether or not the claimant has met his burden is a mixed question of law and fact. DeNardo v. Fairmount Foundries Cranston, Inc., R.I., 399 A.2d 1229 (1979). This court is bound by the commission's *555 findings regarding the facts surrounding the accident, and it reviews those findings only to determine if the record contains competent legal evidence in support thereof. We have said, however, that if the facts as found lead only to one permissible conclusion, then the question of whether the injury arose out of and in the course of the employment will be treated as a question of law. Id. 399 A.2d at 1234.
In the instant case the facts are not in dispute. When injured, the employee was at a place where he was authorized to be in fulfilling his duties, and he was changing his clothes, which was customary prior to leaving the premises.
This court has long recognized that the period of employment includes a reasonable interval before work starts and after work is completed. See, e.g., Montanaro v. Guild Metal Products, Inc., and Lima v. William H. Haskell Manufacturing Co., both supra; Di Libero v. Middlesex Construction Co., 63 R.I. 509, 9 A.2d 848 (1939); Distante v. United Electric Railways, 53 R.I. 258, 165 A. 772 (1933). We have also recognized that the duties of employment and those activities incidental thereto include many activities customary at the place of employment which benefit the employee or further his personal comfort. See, e.g., DeNardo v. Fairmount Foundries Cranston, Inc., and Beauchesne v. David London & Co., both supra; Boullier v. Samsan Co., 100 R.I. 676, 219 A.2d 133 (1966); Lima v. William H. Haskell Manufacturing Co., supra.
Thus, our decisions are consistent with the well-accepted principles that the course of employment, for employees having a fixed time and place of work,
"embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts," (footnote omitted) 1A Larson Workmen's Compensation Law § 21.60 at 5-36 (1979),
and
"embraces all activities connected with changing clothes before and after work, including * * * actually changing clothes * * *." (Footnote omitted.) Id. § 21.61 at 5-42-43.
In Distante v. United Electric Railways, this court held that a worker injured while retrieving his clothing and preparing to leave his place of employment is entitled to compensation. We stated:
"At the time of the accident petitioner had not left the premises upon which his work was carried on nor had he entirely finished his employment for the day. It is true that he had ceased manual labor * * *. However, when he was injured he was in the place where he was employed, and before leaving his work for the day he had to get his jumper which he had laid aside when beginning work.
"We are of the opinion that an employee who has reported to his employer in the place appointed for him to work has a right before beginning or when finishing work to make such use of the premises as is necessary or customary in the circumstances.
"In the instant case the employee violated no rule of his employer; at the time of the accident he was still acting in the course of his employment." Distante, 53 R.I. at 260, 165 A. at 772.
The commission, by ruling that the employee departed from his duties when he sat down to put on his rubbers prior to punching out, held that he was not justified in putting on a part of his wearing apparel. In view of the foregoing authorities it is, however, apparent that changing attire during, before, or after termination of services is incidental to the duties of employment, and thus, the employee's injury is directly related to his employment. We hold, therefore, that the employee's injury arose out of and in the course of his employment, was connected therewith, and referable thereto.
The employee's appeal is sustained, the decree appealed from is reversed, and the matter is remanded to the Workers' Compensation Commission for further proceedings consistent with this opinion.
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186 Conn. 360 (1982)
MARGARET R. SATTI
v.
FRANCIS J. RAGO, ADMINISTRATOR (ESTATE OF MARY W. RAGO), ET AL.
Supreme Court of Connecticut.
Argued December 1, 1981.
Decision released March 2, 1982.
SPEZIALE, C. J., PETERS, PARSKEY, ARMENTANO and SHEA, JS.
Joel M. Ellis, with whom was George J. Sherman, for the appellant (defendant).
A. A. Washton, with whom, on the brief, was Peter W. Rotella, for the appellee (plaintiff).
PARSKEY, J.
This is an appeal from a judgment revoking an order of the Probate Court approving a sale of certain real property in the estate of Mary Rago and remanding the case to the Probate Court for the purpose of a resale.[1]
*361 The basic facts are not in dispute. The sole heirs of the Mary W. Rago estate are three children of the decedent, one of whom, the named defendant Francis J. Rago, is the administrator of the estate and one of whom, Margaret R. Satti, is the plaintiff. The assets of the estate included two pieces of real property. One piece was located on Harwich Street in Hartford. It was distributed to the heirs, who, thereafter, agreed among themselves to sell it to Francis for $6000 less than the inventory value. The other piece, the subject of this appeal, is a cottage located in Waterford on the Connecticut shore. The parties attempted without success to use the cottage jointly. Conflicts arose among them over fair usage, maintenance and responsibility for the property. Francis Rago and Nicholas Rago, the third heir, decided that the property should be sold in order to lessen family tension, avoid the consequences of deterioration and realize a financial return. Francis had the property evaluated by a real estate brokerage firm for the purposes of sale and was notified that a reasonable offering price was between $28,900 and $33,900. He calculated the median in that range to be $31,900, discounted it by a 6 percent real estate commission and offered the property on December 7, 1976, to his brother Nicholas and to the plaintiff for $29,986. Nicholas was not interested in purchasing the cottage.
The plaintiff raised a number of questions relating to the sale of the property and the price, which Francis attempted to answer. When over a period of three months the plaintiff would not give a firm response as to whether she was interested in buying the property at the offered price, Francis placed the property with a real estate agent for the asking price of $34,000. The property remained on the *362 market from March until June, 1977. The plaintiff saw the "for sale" signs on the property but continued to stall about buying it at the $29,986 price. Her stated reason for refusing to buy the property at the offered price was that she expected a discount equivalent to what Francis had received in his purchase of the Harwich Street property.
In March, 1977, the plaintiff called the Probate Court and told the clerk, Dorothy Clark, that she was living at 87 Moore Street in Providence, Rhode Island and requested that all notices from the court be sent to that address. This request was reduced to writing on a piece of paper and stapled to the file of the estate of Mary Rago. The paper contained the following typewritten information: "3-3-77 Change of Address Mary R. Satti, 87 Moore Street, Providence, Rhode Island, 02907." In the lower right-hand corner are the initials "dc". Several letters were sent to the plaintiff at that address from the Probate Court. One of these was postmarked March 3, 1977.
No offers from potential purchasers were received for the shore property between March and June, 1977. This was significant to the administrator because those months were the best selling period for shore property. In June, 1977, Margaret M. O'Briant, Francis' stepdaughter, indicated she was interested in purchasing the property and was willing to pay the inventory value of $30,000. Francis thereupon applied to the Probate Court for permission to sell the property at that price to Margaret O'Briant and her husband John. When the application was filed, the administrator, through his attorney,[2] did not reveal that the interested purchaser *363 was his stepdaughter. His attorney was asked "whether the sale was to a relative," to which he responded that "it was not a blood relative" and the assistant clerk of the Probate Court did not pursue the matter further. Had the clerk been informed that the purchaser was a stepdaughter of the administrator, she would have given notice by mail to all the heirs. As it was, notice of the hearing on the application for sale was given to the administrator and to his attorney by letter, and was given to the other heirs, including the plaintiff, by publication in the Hartford Courant. The plaintiff did not see the publication or receive any actual notice of the pending application.
The application was approved by the Probate Court on July 11, 1977. The O'Briants obtained a bank mortgage for $28,000 and the sale was consummated on July 21, 1977. Thereafter the O'Briants spent substantial sums of money in repairing and renovating the cottage.
The trial court found that (1) because of a failure to disclose the relationship between the administrator and the prospective purchaser, the plaintiff did not receive the notice of the application for sale which she would have otherwise received and (2) because of the administrator's failure to discharge his fiduciary obligation by notifying the plaintiff of the pending application in view of his previous communications with the plaintiff respecting this property, the plaintiff was deprived of an opportunity to bid on the property which she might otherwise have had. The trial court found that the Probate Court had not given the plaintiff the "proper notice" required by General Statutes § 45-33 but in view of the plaintiff's opportunity to litigate fully *364 before the Superior Court the issues of the sale, such defect in procedure was not harmful. The court concluded that under those circumstances a sale of the subject property to the O'Briants for $30,000 may not be in the "best interests of the parties." The court established as conditions for the revocation of the probate order of sale that the plaintiff submit a bid in excess of $30,000 accompanied by a $3000 deposit and a cash or surety bond for $8000 to cover any claim by the O'Briants against the estate for the value of improvements made to the subject property during their occupancy. Both conditions having been met, the court, thereafter, revoked the probate order of sale and remanded the case to the Probate Court with direction to order another sale upon the giving of proper notice to all interested parties.
The defendant administrator asserts that the trial court erred (1) in considering the sales price for the subject property in an appeal from probate under an allegation in the reasons of appeal that the sale was not in the "best interests of the parties," (2) in considering whether and in concluding that the plaintiff should have an opportunity to bid on the subject property, and (3) in concluding that a sale of the subject property to the administrator's stepdaughter for $30,000 was not in the best interests of the parties.
"The appeal taken by the plaintiff from the order and decree of the Probate Court was purely statutory. General Statutes § 45-288; Sacksell v. Barrett, 132 Conn. 139, 146, 43 A.2d 79 [1945]. The appeal brought before the Superior Court for review only the order appealed from. Hotchkiss' *365 Appeal, 89 Conn. 420, 432, 95 A. 26 [1915]; 1 Locke & Kohn, Conn. Probate Practice § 186, p. 382. It did not vacate the order, and that order remained untouched until modified by a judgment in the Superior Court. Avery's Appeal, 117 Conn. 201, 205, 167 A. 544 [1933]; Merrells v. Phelps, 34 Conn. 109, 112 [1867]; Curtiss v. Beardsley, 15 Conn. 518, 523 [1843]; Bryan v. Hinman, 5 Day 211, 217 [1811]. It carried the subject matter embraced in it to the Superior Court, sitting as a Probate Court, for a trial de novo. Beach's Appeal, 76 Conn. 118, 121, 55 A. 596 [1903]; Davis' Appeal, 39 Conn. 395, 401 [1872]. . . . While the Superior Court could, on appeal, review the order of the Probate Court, it could not exercise any greater powers than the Probate Court. Reiley v. Healey, 122 Conn. 64, 79, 187 A. 661 [1936]; Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504 [1922]. And the issues presented for review were those defined in the reasons of appeal. Berkeley v. Berkeley, 152 Conn. 398, 402, 207 A.2d 579 [1965]; Boschen v. Second National Bank, 130 Conn. 501, 504, 35 A.2d 849 [1944]; Williamson's Appeal, 123 Conn. 424, 427, 196 A. 770 [1937]." Stevens' Appeal, 157 Conn. 576, 580-81, 255 A.2d 632 (1969).
Title to real property passes upon death to the heirs of the owner subject to the right of administration. Lundberg v. Kovacs, 172 Conn. 229, 232n, 374 A.2d 201 (1977); O'Connor v. Chiascione, 130 Conn. 304, 306, 33 A.2d 336 (1943). The power of the Probate Court to order the sale of such property is special and statutory and the authority must be strictly followed, otherwise the order of sale will be void. Offredi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948). Before a sale can be ordered, the court must find that it is in the "best interests of the *366 parties in interest." General Statutes § 45-238.[3] If the sale is to be private, the court must also find that the price and terms of the sale are in the "best interests of the estate." General Statutes § 45-241.[4] The issues being statutory, the burden is on the proponent, in this case the administrator, to establish in the Probate Court, and in the Superior Court, on appeal, the statutory predicate for the *367 court's order. Pastir v. Bielski, 174 Conn. 193, 194, 384 A.2d 367 (1978); D'Agostino v. Amarante, 172 Conn. 529, 530-31, 375 A.2d 1013 (1977); Crane v. Manchester, 143 Conn. 498, 501, 123 A.2d 752 (1956). The burden remains the same on appeal whether the proponent is the appellant or the appellee and whether or not the opponent, as appellant, asserts in her reasons of appeal the negative of the statutory issue or issues. Ibid. If the proponent seeks a private sale, then he must prove that the price and terms of such sale are in the best interests of the estate, even in the absence of a specific claim to the contrary in the reasons for appeal.
The trial court correctly found that the relationship of the defendant administrator to the plaintiff heir was fiduciary in character. O'Connor v. Chiascione, supra, 307; Schwartz v. Schwartz, 104 Conn. 271, 277, 132 A. 461 (1926). Occupying a position toward the plaintiff analogous to that of trustee; Hall v. Meriden Trust & Safe Deposit Co., 103 Conn. 226, 233, 130 A. 157 (1925); he owed her a duty of equity and fair dealing in respect to any transaction of mutual concern. Schwartz v. Schwartz, supra; State v. Culhane, 78 Conn. 622, 628, 63 A. 636 (1906). Candor and fidelity are the hallmarks of the relationship. Dealing by a fiduciary with a near relative, whether by blood or marriage, is not prohibited but it is a factor to be considered in determining the fairness and good faith of the transaction. Setaro v. Pernigotti, 105 Conn. *368 685, 687, 136 A. 571 (1927).[5] In the absence of actual notice or waiver, disclosure of such relationship by the fiduciary to the Probate Court and interested parties is the necessary predicate to such consideration. The trial court found that the administrator, acting through his attorney, failed to disclose to the Probate Court his relationship to the prospective purchaser when candor would have required such disclosure because the Probate Court in such circumstance would have sent the plaintiff notice of the hearing on the proposed sale. The trial court also found that because the administrator had had a series of discussions with the plaintiff concerning the subject property, fairness obligated him to notify her of the proposed transaction. The trial court's findings in those respects are not clearly erroneous nor is the court's further finding that, as a result of the administrator's failure to discharge those obligations, the plaintiff was deprived of an opportunity to bid on the cottage property. In these circumstances, we need not consider whether the plaintiff's request to the Probate Court satisfied the requirements of General Statutes § 45-33[6] such that that court was thereby obligated to send her a special notice of a hearing on the application for *369 sale. The administrator's breach of his fiduciary duty was sufficient justification for revocation of the Probate Court order and for remand to that court for a fresh start. Although the trial court arrived at the correct result through a different route, we do not regard such circumstance as significant. Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).
The administrator correctly contends that in an appeal from probate involving the disposition of real estate, the Superior Court cannot consider events that occurred after the Probate Court hearing; Thomas v. Arafeh, 174 Conn. 464, 469, 391 A.2d 133 (1978); Stevens' Appeal, supra, 582; and therefore the trial court erred in receiving evidence of the plaintiff's current interest in purchasing the subject property. In the present case, however, the significant fact is the plaintiff's loss of a chance to bid on the cottage property when faced with the proposed sale to the O'Briants. The error of admitting evidence of her current interest being irrelevant to the issue of past opportunity lost is, therefore, harmless.
There is no error.
In this opinion the other judges concurred.
NOTES
[1] The court also ordered the plaintiff to furnish a bond in the amount of $8000, which she has posted. The propriety of this order is not an issue on appeal.
[2] We note that the defendant's counsel on appeal did not represent him before the Probate Court.
[3] "[General Statutes, prior to July 1, 1981] Sec. 45-238. SALE OR MORTGAGE OF REAL PROPERTY. (a) Upon the written application of the conservator of the estate of any incapable person, guardian of the estate of any minor, administrator or trustee appointed by the court, including a trustee of a missing person, the executor or trustee under any will admitted to probate by the court or any overseer appointed under the provisions of subsection (f) of section 53a-47, after public notice and other notice which the court may order and after hearing, the court may authorize the sale or mortgage of the whole or any part of, or any easement or other interest in, any real property in this state of any incapable person, minor, missing person, deceased person or trustee, or of any real property the legal title to which has been acquired by such administrator, executor or trustee, if the court finds it would be for the best interests of the parties in interest to grant the application.
"(b) The court may empower the conservator, guardian, administrator, executor, trustee or overseer to execute a conveyance of such property or to execute a note and a mortgage to secure such property upon his first giving a probate bond faithfully to administer and account for the proceeds of the sale or mortgage according to law. The application shall set forth a description of the property to be sold or mortgaged.
"(c) If any person having an interest in such real property is not in being or is not ascertained or is under a disability, the court shall appoint a guardian ad litem to represent the interests of such person at the hearing, unless such person already is represented by a guardian or by a conservator.
"(d) The order and the sale or mortgage under the order shall be conclusive upon all persons then or thereafter existing whose interests have been so represented."
[4] "[General Statutes] Sec. 45-241. PUBLIC OR PRIVATE SALE OF REAL PROPERTY. DISTRIBUTION OF PROCEEDS. (a) The court of probate in ordering a sale under the provisions of sections 45-238, 45-240 to 45-244, inclusive, and 45-271d shall direct whether the sale shall be public or private. If a public sale is directed, the court shall direct the notice thereof which shall be given. If a private sale is directed, the court may, if it appears to be for the best interests of the estate, determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.
"(b) The net proceeds of the sale shall be divided or distributed in the same manner as such real property would have been divided or distributed if it had not been sold."
[5] While it is unnecessary to define specifically the relationships which would require disclosure, a useful guide would be those relationships which would disqualify a judge or juror. See Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981); McCarten v. Connecticut Co., 103 Conn. 537, 542, 131 A. 505 (1925).
[6] "[General Statutes] Sec. 45-33. SPECIAL NOTICE TO BE GIVEN ON WRITTEN REQUEST. (a) Any person who is interested in any estate, trust or other matter pending in any court of probate, or who is interested in any application that may be made to any court of probate for the probating of a will or the granting of administration, may, in person or by attorney, file with the court a written request for special notice to be given to him or his attorney of any application to the court and of any order passed by the court of probate in such estate, trust or other matter. The request shall state the estate, trust or other matter, cause or proceeding of which notice is desired and the post-office address of the person desiring the notice. Thereupon the court of probate shall give notice to such person or his attorney of any hearing in such estate, trust or other matter at least seven days before the time assigned for the hearing, in whatever manner the court finds to be resonable under the circumstances.
"(b) Any request for a special notice in the matter of probating a will or granting administation, before any application is made therefore, shall be obligatory upon the court for a period of thirty days from the date of filing the same."
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733 F. Supp. 396 (1989)
BRIAN RUUD INTERNATIONAL, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. A. No. 85-2917.
United States District Court, District of Columbia.
April 21, 1989.
*397 John M. Wood, Reed, Smith, Shaw and McClay, Washington, D.C., Thomas Fraser, Fredrickson and Byron, of counsel, Minneapolis, Minn., for plaintiff.
Edward J. Snyder, Michael J. Salem, Attorneys, Tax Div., U.S. Dept. of Justice, Joseph E. diGenova, U.S. Atty., of counsel, Washington, D.C., for defendant.
MEMORANDUM
HAROLD H. GREENE, District Judge.
Brian Ruud International (BRI), a religious organization devoted to the ministry of Brian Ruud, seeks a declaratory ruling that it is a tax-exempt religious organization under 26 U.S.C. § 501(c)(3). Presently before the Court is plaintiff's motion for *398 summary judgment. At a hearing on that motion, the parties agreed to treat defendant's opposition to that motion as a motion for summary judgment on its own behalf. Therefore, this controversy can be determined on the basis of these cross-motions.
I
Background
Sections 501(a) and (c) of the Internal Revenue Code allow tax exemptions for organizations that are organized and operated exclusively for religious, charitable, and other specified exempt purposes, provided that no part of the net earnings of the organization inures to the benefit of any private shareholder or individual. Treasury Regulation § 1.501(c)(3)-1(a)(1) requires that, in order to be exempt pursuant to section 501(c)(3), an organization must be both organized and operated exclusively for any one or more of the purposes enumerated in that Code section. An organization is not operated exclusively for such exempt purposes if its net earnings inure in whole or in part to the benefit of private shareholders or individuals, Treasury Regulation § 1.503(c)(3)-1(c)(2), or if it serves a private rather than a public interest. Treasury Regulation § 1.503(c)(3)-1(d)(1)(ii).
Applying these principles to the facts offered by plaintiff, defendant revoked plaintiff's exemption. In its final action of June 19, 1985, defendant stated:
You are not operated exclusively for charitable, religious or any other exempt purpose as described in section 501(c)(3) of the Internal Revenue Code. You have been operating in such a manner that a portion of your net earnings has inured to the benefit of private individuals. Moreover, you have been operated to confer a private rather than a public benefit.
In actions for declaratory judgments such as this, the scope of review is confined to the administrative record unless good cause is shown. Big Mama Rag, Inc. v. United States, 494 F. Supp. 473, 474 n. 1 (D.D.C.1979). The standard of review is de novo. Id. Since defendant relies in its motion here on the same reasons given plaintiff in the final administrative action, the burden is upon plaintiff to show that defendant's determination is wrong. Basic Bible Church v. United States, 74 T.C. 846, 855 & n. 7 (1980). Thus, in order to succeed plaintiff must show (1) that it is operated for public, rather than private, benefit and (2) that no portion of the organization's net income inures to the benefit of a private individual.
One of the most serious problems cited by defendant is plaintiff's failure to maintain satisfactory internal financial controls. Plaintiff concedes that this is the case. This alone is not sufficient to justify the denial of tax exempt status, but it has frustrated the efforts of both parties to determine the extent to which BRI paid for personal expenses of the Ruuds. Nevertheless, the parties have submitted a lengthy administrative record detailing the various accounts and expenses at issue. The Court has reviewed the record in detail, and it concludes that plaintiff has met its burden of showing that defendant's determination was incorrect. Accordingly, plaintiff's motion for summary judgment will be granted.
II
Public versus Private Benefit
Section 501(c)(3) sets out the specific standards that govern the determination as to whether an organization should be exempt from taxation. The corporation must be "organized and operated exclusively for religious, charitable ... or educational purposes ... no part of the net earnings of which inures to the benefit of any private shareholder or individual...." Courts have long recognized that the two parts of the test are closely interrelated, but plaintiff must satisfy both parts in order to prevail.
It cannot seriously be disputed that plaintiff is a religious organization whose primary purpose is to convey Brian Ruud's teachings to others. The administrative record contains Brian Ruud's speaking schedule and copies of newspaper articles *399 and promotional material regarding his appearances, all of which indicate that preaching his religion occupied a vast amount of Ruud's time. Further, the record contains the calendar for a retreat in Victoria which also indicates that much time was devoted to prayer meetings, youth groups, and counseling.
Thus this organization differs dramatically from the organizations in the cases cited by defendant which were found not to be organized for religious purposes. See, e.g., Bubbling Well Church of Universal Love, Inc. v. Commissioner, 74 T.C. 531 (1980); Western Catholic Church v. Commissioner, 73 T.C. 196 (1979). In both of those cases, the leaders of the organizations spent virtually no time on religious matters, and it was clear that their only purpose was to act as a tax shelter or as an "incorporated pocketbook" for their founders. Id.
Even a bona fide religious organization which devotes substantial time to carrying out its religious purposes may still not satisfy the first test. The existence of any nonexempt purpose, if it is "not insubstantial," destroys the exemption. Freedom Church of Revelation v. United States, 588 F. Supp. 693, 696 (D.D.C.1984); see also, Better Business Bureau v. United States, 326 U.S. 279, 283, 66 S. Ct. 112, 114, 90 L. Ed. 67 (1945). It should be noted that, despite the strong language of Freedom Church, it, too, was a case in which the organization's primary purpose was tax avoidance for its members. 588 F.Supp. at 696. Even applying this strict test, however, the Court finds that BRI was not formed for any substantial nonexempt purpose.
In an effort to identify nonexempt purpose of BRI, the IRS contends that BRI operated essentially as a source of credit for Brian Ruud and his wife Gayle. They used a corporate charge card and a corporate account to pay for personal expenses. These expenses were charged to an officer loan account and only later repaid by deducting these amounts from their salary. In one year, Ruud actually only received $1,000 in salary because so much was deducted to repay the corporation for the Ruuds' personal expenses. Defendant does not claim, however, that the Ruuds did not repay their accumulated debts to plaintiff, or that they obtained substantial loans from plaintiff at favorable rates of interest.
Thus, while the argument is made that the corporation served as a private source of credit to the Ruuds, all that this really amounts to is a claim that the corporation paid personal expenses of the Ruuds for which it either was or was not later repaid. This argument relates to the second test, not the first. In fact, one of the decisions that defendant relies on for the proposition that use of the corporation as a private source of credit "in and of itself, indicates a violation of the private benefit rule" actually held that such use of the corporation may violate the rule against private inurement (the second part of the test). Founding Church of Scientology v. United States, 412 F.2d 1197, 1202, 188 Ct. Cl. 490 (1969).
Defendant has not identified any specific nonexempt purpose for which BRI was organized. Of course, if the corporation was operated for the financial benefit of Brian Ruud, in violation of the second part of the test, it would also violate the first part of the test. It is clear, then, that the real issue in this case is whether any of the net earnings of the corporation inured to the private benefit of the Ruuds. It is to that issue that the parties have devoted the most attention.
III
Private Inurement
The payment of reasonable compensation to ministers does not constitute private inurement. Founding Church of Scientology v. United States, 412 F.2d 1197, 1200, 188 Ct. Cl. 490 (D.C.Cir.1969). The question here is whether payments for the benefit of the Ruuds in addition to strict salary payments constitute private inurement or are part of reasonable compensation.
*400 Defendant has identified two different categories of private inurement allegedly received by the Ruuds during 1979 and 1980. The first are personal expenses charged on the corporate "Chargex" account, and the second are personal expenses paid out of the corporate checking account.
According to defendant, the Chargex amounts at issue total $4,153.66 for 1979 and $4,811.29 for 1980. The other personal items paid for by the corporation total $16,299.56 in 1979 and $10,812.02 in 1980. Thus, defendant maintains, corporate earnings amounting to $36,076.53 inured to the benefit of the Ruuds during the two-year period.
While plaintiff does not deny that personal expenses of the Ruuds were paid by the corporation, it does dispute the $36,076.53 figure. First, plaintiff concedes that food and gasoline expenses listed on the Chargex account and the other personal expenditures category are a mixture of personal and business expenses. While plaintiff is unable to determine precisely what portion of these expenses were personal, it notes that the personal expense portion was covered by food and auto allowances given to the Ruuds by the corporation. The allowance provided for $3,000 in food expenditures, and $2,400 in automobile-related expenditures. See Exhibit 209-HB. According to Joint Exhibits 104-CZ and 133-EC, the Ruuds exceeded their $3,000 food allowance in 1979 and 1980. Their automobile expenses in those years amounted to approximately $1,000 per year. See, e.g., Exhibit 96-CR.
These food and automobile allowances were recommended by BRI's accountant in recognition of the fact that many such expenses were for a combination of business and personal purposes. They were recorded as income and reported on the Ruuds' personal income tax statements. See Joint Exhibit 209-HB. Such employee expenses may legitimately be paid to employees without constituting inurement. Saint Germain Foundation v. Commissioner, 26 T.C. 648 (1956); A.A. Allen Revivals, Inc. v. Commissioner, 22 T.C.M. 1435 (1963). The Court finds that the total amount of personal inurement should not include the food and automobile expenses that were covered by the allowance, and that the personal expenditures category should be reduced by $3,000 per year, and the Chargex expenses by approximately $1,000 per year. The reductions bring the total down to $28,076.53.
Plaintiff next claims that the amount of personal inurement identified by defendant should be further reduced because $8,966.00 in personal expenditures during calendar year 1978 were identified by the corporation, charged to Ruud's officer receivable account, and repaid by salary withholding. See Joint Exhibit 209-HB. Furthermore, plaintiff asserts that medical expenses totalling $2,644.03 in 1979 and $2,300.19 in 1980 (Canadian dollars) should not be included as personal inurement because BRI's Board of Directors had voted in 1977 to cover the medical expenses of Ruud and his family. See Joint Exhibit 34-AH. Such expenses of employees may be paid under Section 105 of the Internal Revenue Code.
Defendant challenges these explanations as insufficient because they are based on authorization by the Board of Directors at a time when the Board was controlled entirely by Brian Ruud. Thus, although the $8,966 charged to the officer receivable account was repaid by salary withheld, the Board retroactively authorized whatever annual salary was needed in order to pay off the account. Similarly, in 1977 when the Board "voted" to pay medical expenses of the Ruuds, there was only one member of the Board who was not a member of the Ruud family. See Exhibit No. 34-AH. In fact, it appears that the Board did not even actually meet to approve many of its decisions.
This is a terrible way to conduct business. And decisions by corporations whose Boards of Directors are dominated by one person to this degree are subject to more careful scrutiny than are others. Basic Unit Ministry v. United States, 511 F. Supp. 166, 168 (D.D.C.1981), aff'd, 670 F.2d 1210 (D.C.Cir.1982). Nevertheless, *401 this alone is not sufficient to deprive the corporation of its tax exempt status. Bubbling Well, 74 T.C. at 535. It is important to look not to what the corporation potentially could do, but to what it actually does in determining whether net proceeds inured to any individual's benefit. Universal Church of Scientific Truth v. United States, 74-1 U.S. Tax Cas. (CCH) P9360 (N.D.Ala.1973). In this case, although the Board could have authorized retroactively any outrageous salary to cover the Ruuds' personal expenses, in 1979 it in fact authorized a salary of only $22,500, an amount that was very reasonable in light of past practice and of Ruud's value to the corporation.[1] The fact that it was authorized retroactively does not alter the fact that this was reasonable compensation. Similarly, the fact that Ruud controlled the Board that authorized payment of his family's medical expenses does not make this an unreasonable practice. Thus the payments of medical expenses and the repayment of $8,966 authorized by the Board of Directors should also be deducted from the estimated amount of personal inurement. This reduces the total to approximately $15,000 for the two-year period.
Finally, plaintiff claims that only $2,686.21 of the remaining amount consists of pure personal expenses. These expenses include pre-school tuition, drycleaning bills, and traffic tickets. According to plaintiff, the remaining travel and restaurant expenses, the housekeeper's salary, photography expenses, and several other expense items are mixed personal and business expenses which it cannot separate.
Defendant maintains that this very inability to determine what percent of the remaining $12,000 in expenditures were personal is fatal to plaintiff's casethat if its accounting system is unable to break down these expenses, then the plaintiff, and not the government, must bear the responsibility for and the cost of such a failure. Defendant cites Basic Unit Ministry v. United States for the proposition that in cases where there is evident potential for abuse, the plaintiff must disclose all facts pertaining to the operation and finances of its organization. 511 F. Supp. 166, 168 (D.D.C.1981), aff'd, 670 F.2d 1210 (D.C.Cir.1982); see also, Bubbling Well, 74 T.C. at 535. In those cases, however, plaintiffs had simply refused to cooperate with the government. They refused to supply any information about their source of funds or their membership. That is entirely different from the instant case in which plaintiff has supplied the government with substantial amounts of information and records, has actively negotiated with the government, and is simply unable, several years after the fact, to determine whether business was or was not conducted in the course of specific meals eaten at specific restaurants on specific days.
Furthermore, although the state of the records in this case is indefensible, it is not necessary to determine precisely what portion of these expenses is business related and what portion is personal. Even if all of these expenses are personal, they still constitute reasonable compensation when added to the salaries paid to the Ruuds. As stated above, the expenses that have not satisfactorily been accounted for total approximately $15,000, or $7,500 per year. When added to Brian Ruud's salary in 1979, the total is $30,000. Moreover, although the salary approved for Ruud in 1980 was $36,000, he was actually only paid $6,000. Therefore when the $7,500 is added to Ruud's payments in 1980, he still received less than the salary approved by the Board.
Several courts have held that payments in addition to salary are not necessarily private inurement if, when these payments are added to the salary, compensation is still reasonable. A.A. Allen, 22 T.C.M. 1435 (1963); Universal Church of Scientific Truth v. United States, 74-1 U.S. Tax Cas. (CCH) P9360 (N.D.Ala.1973); Saint Germain Foundation *402 v. Commissioner, 26 T.C. 648 (1956). The amounts received in A.A. Allen were approximately equal to the salary plus personal expenditures of Brian Ruud. And that case was decided in 1958. Whether compensation is reasonable or not is a question of fact to be decided in light of all the circumstances. Founding Church, 412 F.2d at 1200; Enterprise Railway Equip. Co. v. United States, 161 F. Supp. 590, 595, 142 Ct. Cl. 192 (1958). Brian Ruud was almost singlehandedly responsible for the earnings of the corporation. In 1979 those earnings totalled $331,628 and in 1980 they totalled $309,841. Joint Exhibits 139-EJ and 142-EM. Brian Ruud's compensation, even including payments for personal expenses by the corporation, was not excessive.
It is true that some courts have stated that the amount of the inurement is not determinative. See, e.g., Founding Church of Scientology, 412 F.2d at 1200; Freedom Church, 588 F.Supp. at 698; Church of the Transfiguring Spirit, Inc. v. Commissioner, 76 T.C. 1, 5 (1981). In these cases, however, the amounts received could not be justified as part of reasonable compensation. In Freedom Church, for example, no claim was raised that the expenditures at issue were part of reasonable compensation. In fact, no explanation was given for corporate expenditures totalling $335,592.23.
In Transfiguring Spirit, an amount less than the $15,000 at issue in this case was found to constitute personal inurement. Id. However, as a percentage of the corporation's net earnings it was very large, the Court holding that payments totalling $1,390.32 for the church leader's housing allowance constituted personal inurement because that amount represented virtually all of the corporation's earnings. Id. This raised serious questions not only as to private inurement, but also as to what public purpose the corporation served. In this case, the corporation earned over $300,000 and Ruud kept a relatively modest amount for himselfeven counting all of the personal expenditures listed by the government.
The court in Founding Church of Scientology considered payments to L. Ron Hubbard and his family. These payments exceeded over $108,000 during the years between 1955 and 1959. In addition, Hubbard received a percentage of the gross income from affiliated Scientology organizations. Payments to Hubbard included royalties, commissions, loans and reimbursements for expenses. The nature of the loans and reimbursements was not explained in the record. In addition, there were unjustified or unexplained payments to Hubbard's family including loans, rent that was not shown to be reasonable, and salary paid to Hubbard's daughter without any showing that she performed any services to the organization. On this basis, the Court concluded that the payments to the Hubbards were "disguised and unjustified distributions of plaintiff's earnings." 412 F.2d at 1201. They therefore constituted personal inurement and could not be justified as part of reasonable compensation.
The government does not allege that payments to Ruud are disguised distributions of corporate dividends. Rather, the claim is that the accounts of the organization and of the Ruuds were not kept sufficiently separate so that the organization may have paid up to $15,000 in personal expenditures for Ruud over a two-year period. Any suggestion of an effort to disguise distributions of corporate dividends is belied by the fact that the nature of the expenditures was clearly recorded and an effort was made to repay personal expenditures through the officer receivable account. Furthermore, any personal expenditures that remained unaccounted for were more than compensated for in 1980 when Ruud received only $6,000 of the $36,000 salary that was approved for him. The Court finds there was no private inurement because the sums at issue are part of reasonable compensation.
IV
Conclusion
There is no question that there was ample potential for abuse in this case. Brian *403 Ruud and his family controlled completely a religious organization with income exceeding $300,000 per year. In addition to its income, the corporation owned valuable assets including the retreat where the Ruuds lived and several cars. The corporate and personal accounts were not adequately separated. In the end, however, after a lengthy investigation, the government has no quarrel with the cars or the retreat. It only disputes relatively minor expenses that easily fall within the bounds of reasonable compensation. Thus it does not appear to this Court that any such abuse actually occurred. Because the Court finds that BRI was organized exclusively for religious purposes and no portion of its earnings inured to the personal benefit of Brian Ruud, the Court finds that its tax exempt status should not have been revoked, and summary judgment will be granted to the plaintiff.
ORDER
Upon consideration of the parties' cross-motions for summary judgment, the oppositions thereto, the entire record herein, and in accordance with the Memorandum issued contemporaneously herewith, it is this 21st day of April, 1989
ORDERED that plaintiff's motion for summary judgment be and it is hereby granted; and it is further
ORDERED that defendant's motion for summary judgment be and it is hereby denied; and it is further
ORDERED that judgment be and it is hereby entered in favor of plaintiff declaring that plaintiff is a tax-exempt organization pursuant to 26 U.S.C. § 501(c)(3).
NOTES
[1] The 1980 salary was $36,000 for Brian Ruud and $12,000 for Gayle Ruud. It was not authorized retroactively. See Joint Exhibits 66-BN and 68-BP. In fact, for reasons that are not explained by BRI or the government, Brian Ruud only received $6,000 and Gayle Ruud was paid nothing. Joint Exhibit 209-HB.
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441 A.2d 936 (1981)
UNITED STATES, Appellant,
v.
Vivian ALEXANDER, Appellee.
Nos. 79-1280, 80-116.
District of Columbia Court of Appeals.
October 29, 1981.
Before NEWMAN[*], Chief Judge, and KELLY, KERN, NEBEKER, HARRIS[**], MACK[*], FERREN[*], PRYOR, and BELSON, Associate Judges.
ORDER
PER CURIAM.
On consideration of appellant's petition for rehearing, or in the alternative, for rehearing en banc, it is
ORDERED by the merits division that appellant's petition for rehearing is denied. It appearing that the majority of the judges of this court has voted to deny appellant's petition for rehearing en banc, it is
FURTHER ORDERED that appellant's petition for rehearing en banc is denied.
Statement of Associate Judge BELSON, with whom Associate Judges KERN and NEBEKER join.
I vote to deny the motion for rehearing en banc. Application of the holding of Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), must lead to the conclusion that the police engaged in custodial interrogation of appellee after she stated that she was unwilling to answer any *937 questions without a lawyer present.[1] Application of the holding of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), must lead to the conclusion that appellee did not effectively relinquish her right to remain silent unless an attorney was present. Consequently, her confession is inadmissible.
It is noteworthy that the United States Supreme Court decided Edwards, supra, after the ruling of this court as to which rehearing is sought. Edwards, rather than this court's opinion in the instant case, is controlling precedent as to the law to be applied when a person in custody suspected of a crime has stated that he does not wish to answer any questions without a lawyer present.
Finally, it is observed that this court's statement that the appellee's "confession was not voluntary for Fifth Amendment purposes," United States v. Alexander, D.C. App., 428 A.2d 42, 52 (1981) (footnote omitted), can be read in context only as a reference to a violation of the rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The holding of this court, therefore, cannot be read as precluding the government's use of appellee's statement as impeachment evidence should appellee take the stand during trial. See Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).
NOTES
[*] Denotes merits division.
[**] Associate Judge Harris did not participate in this matter.
Associate Judge Pryor would grant appellant's petition for rehearing en banc.
[1] At the suppression hearing, the circumstances that led up to appellee's statement were fully developed. Significantly, it was established that shortly after appellee indicated that she was not willing to answer any questions without a lawyer present, a detective stated to her "we know you did it" or "we know you are responsible." Further, the detective admitted that his statement was an interrogation technique designed to get appellee to talk.
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184 Conn. 109 (1981)
ROBERT DAMORA
v.
VICTOR CHRIST-JANER
Supreme Court of Connecticut.
Argued March 11, 1981.
Decision released May 5, 1981.
BOGDANSKI, C. J., PETERS, HEALEY, ARMENTANO and SHEA, Js.
Richard B. Cramer, with whom, on the brief, was Daniel Y. Sachs, for the appellant (plaintiff).
Gordon R. Paterson, for the appellee (defendant).
PER CURIAM.
The plaintiff brought this action seeking to recover the value of services performed pursuant to an oral agreement and for a breach of an oral agreement with the defendant. From the judgment rendered in favor of the defendant, the plaintiff has appealed.
The trial court could have reasonably found the following: The plaintiff is a highly respected architectural photographer, and the defendant is a highly regarded architect. At the time of this lawsuit the two had known and intermittently worked with each other for twenty-five years.
Prior to 1976, the defendant had designed the renovation of unused factories and loft space into commercial space in Bridgeport. In the spring of 1976, the two parties met in the defendant's office in New Canaan. During the meeting, the defendant's work in Bridgeport was discussed. The parties became enthusiastic about the potentiality of publicizing *110 the defendant's revitalization efforts in Bridgeport. The two agreed to work together in a two-part program designed to promote Bridgeport: first, by magazine publication, and, second, by an exhibition. The two parties agreed that the defendant would try to raise funds for the proposed project from his sources in Bridgeport.[1]
In August of 1976, the parties met again in the defendant's office. The plaintiff had prepared a letter dated August 17, 1976, which was read in the office, and which began with a description of a two-part proposal concerning (1) a feature on Bridgeport in the December, 1976, "revitalization issue" of Architectural Record and (2) a "revitalization of Bridgeport" exhibit. The letter concluded by stating that the plaintiff's fees and costs for the work would be $15,000. The plaintiff testified that the defendant made no objection to the amounts in the letter, and that the $15,000 was for his photographic work. The defendant testified that he never agreed to any amount for photographic work. This testimony was supported by that of his associates.
Later in August, the plaintiff told the defendant that he needed some money in order to get the pictures and article in the Architectural Record. To ensure that publication, the defendant gave the plaintiff $3500 from his personal funds. In addition, the defendant solicited $2000 from the People's Savings Bank for the project, which sum was matched by the Chamber of Commerce. These monies were paid by the defendant to the plaintiff and, according to the defendant, they represented the portion of the money allocated for the publication *111 of the article. The article, as planned, was published in 1976. Because additional funds could not be raised, the exhibition never materialized.
In a two-count complaint, the plaintiff brought this action seeking to recover monies from the defendant for work done pursuant to alleged oral agreements between the parties. The first count alleged an oral agreement and sought damages for the reasonable value of services rendered between May and November, 1976. The second count alleged an oral agreement, entered into on or before August 17, 1976, and claimed that the defendant agreed to pay a certain sum for services. The court found in favor of the defendant on both counts; the plaintiff has appealed only from the second count. He raises three claims on appeal, and contends that the trial court erred (1) in allowing the defendant to raise the defense of joint venture for the first time at trial, and in accepting that characterization; (2) in permitting extrinsic parol evidence to contradict the terms of the parties' August 17, 1976 memorandum of agreement; and (3) "in importing certain conditions into the defendant's unconditional obligation to pay, and in holding that the non-occurrence of these conditions released [the] defendant from further liability."
The plaintiff first claims that the court erred in allowing the defendant to raise the defense of joint venture for the first time at trial. Under the circumstances of this case, he contends that, pursuant to Practice Book § 164,[2] the existence of a joint venture must be specially pleaded, which was not done.
*112 Even assuming that, under the facts of this case, the characterization of the relationship between the parties as a joint venture had to be specially pleaded, and could not have been raised under a general denial, we note that the plaintiff never objected at trial to the introduction of evidence on this issue. We have repeatedly held that "[t]he failure to file a special defense may be treated as waived when it appears that no objection was raised to the offer of evidence on the issue at the trial." Frager v. Pennsylvania General Ins. Co., 161 Conn. 472, 479, 289 A.2d 896 (1971); see Alderman v. Hanover Ins. Group, 155 Conn. 585, 590, 236 A.2d 462 (1967); Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964); see also Mainolfi v. Brazee, 135 Conn. 435, 437, 65 A.2d 261 (1949); O'Donnell v. Groton, 108 Conn. 622, 625, 144 A. 468 (1929). Accordingly, we find no error on this issue.
The plaintiff also claims that even if such evidence were admissible, the court erred in accepting that characterization of the relationship between the parties. The court did not expressly find a joint venture between the parties, but rather concluded that the plaintiff did not meet his burden of proof with regard to his version of the agreement as alleged. This issue is essentially one of credibility.
We have repeatedly held that "nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981), quoting Steinman v. Maier, 179 Conn. 574, 576, *113 427 A.2d 828 (1980). "The trier is privileged to adopt whatever testimony it reasonably believes to be credible." Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974); Branford Sewer Authority v. Williams, 159 Conn. 421, 424-25, 270 A.2d 546 (1970). We will not reverse the decision of the trial court unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Practice Book § 3060D; Miller v. Appleby, 183 Conn. 51, 55-56, 438 A.2d 811 (1981); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). Upon review, we find no error in the court's conclusion that the plaintiff failed to meet his burden of proof with respect to his characterization of the agreement between the parties.
Invoking the parol evidence rule, the plaintiff's second contention is that the trial court erred in permitting parol evidence to contradict the clear terms of the August 17, 1976 letter between the parties. He claims that this letter clearly and unambiguously contained all the terms of the agreement between the parties.
Under the parol evidence rule, which is a rule of substantive law rather than a rule of evidence, "if a written contract is found to be the final repository of agreements made between the parties, evidence of a prior unwritten agreement would not be allowed to have any effect on the agreement as integrated in the writing. Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885 [1955]; Jarvis v. Cunliffe, 140 Conn. 297, 299, 99 A.2d 126 [1953]; 3 Corbin, Contracts § 573.... Whether the written contract was actually the final repository of the oral agreements and dealings between the parties depends on their intention, *114 evidence as to which is sought in the conduct and language of the parties and the surrounding circumstances. If the evidence leads to the conclusion that the parties intended the written contracts to contain the whole agreement, evidence of oral agreements is `excluded,' that is, excluded from consideration in the determination of the rights and obligations of the litigants, even though it is admitted on the issue of their intention. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 [1930]." Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 254-55, 188 A.2d 493 (1963); Panaroni v. Johnson, 158 Conn. 92, 106, 256 A.2d 246 (1969); see also Restatement (Second), Contracts § 235 (Tent. Draft 1973); 9 Wigmore, Evidence (3d Ed.) § 2400, p. 3.
"It is well settled that the parol evidence rule does not prevent a party from using contemporaneous or prior negotiations or expressions to show that the writing was never intended to be operative...." Calamari & Perillo, Contracts (2d Ed.) § 3-4, p. 111. Professor Corbin notes that in determining the issue of whether the parties have made a contract, "there is no `parol evidence rule' to be applied. On [this issue], no relevant evidence, whether parol or otherwise, is excluded." 3 Corbin, Contracts § 573, p. 360. "When the oral testimony goes directly to the question whether there is a written contract or not, it is always competent...." Smith v. Dotterweich, 200 N.Y. 299, 305, 93 N.E. 985 (1911); see Arnold Palmer Golf Co. v. Fuqua Industries, Inc., 541 F.2d 584, 588 (6th Cir. 1976); C & N Trading Co. v. Johnstown Fur Dressing Corporation, 60 Misc. 2d 1012, 304 N.Y.S.2d 405 (1969).
In the present case, we initially point out that the plaintiff, in his pleadings, relied on the existence of *115 an oral agreement between the parties as his cause of action. It is also clear that the defendant, by offering parol evidence with regard to the alleged agreement, attempted to show that the letter offered by the plaintiff was not the contract between the parties, and that the terms included in that letter had not been agreed to by him. Clearly, the court committed no error in admitting and considering such evidence.
Finally, the plaintiff claims that the court erred in importing certain conditions into the defendant's obligation to pay, and in finding that since these conditions did not occur, the defendant was released from liability. He specifically contends that the court's conclusion that the plaintiff was not entitled to the full $15,000 unless the exhibit took place was erroneous.
In its memorandum of decision, the trial court was careful to set out the conflicting testimony of the plaintiff and the defendant, and the reasons why it found the defendant's version of the agreement more credible. The court stated that the plaintiff was "surprisingly evasive and uncandid," and that the defendant was "the much more credible witness." Credibility was focal. Based on several factors, including a careful reading of the August 17, 1976[3] letter, the finding that the plaintiff padded his bill "ex post facto in a most patent manner," and the "very impressive testimony" of three former associates of the defendant, the court concluded that the *116 defendant's "version of what occurred rings much truer than the Damora version." It accordingly rendered judgment for the defendant.
As discussed above, the trier is the final judge of the credibility of witnesses, and his decision will not be reversed unless it is clearly erroneous. Upon review, we conclude that the trial court's decision was not clearly erroneous.
There is no error.
NOTES
[1] The defendant had been working with the People's Savings Bank in Bridgeport, the Chamber of Commerce, and others.
[2] Practice Book § 164 states in part: "No facts may he proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged."
[3] The court pointed out that the crucial letter of August 17, 1976, shows that if the "proposed `revitalization of Bridgeport' exhibit" became a reality the other $7500 would be raised by the defendant "probably from his same sources." The exhibit, of course, never became a reality.
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162 B.R. 831 (1993)
Duane OLSON, et al., Appellants,
v.
UNITED STATES of America, Appellee.
No. 4:CV92-3257.
United States District Court, D. Nebraska.
August 23, 1993.
Memorandum and Order on Reconsideration/Rehearing November 8, 1993.
*832 Albert P. Burnes, Omaha, NE, for appellants.
Ann Sachar and Virginia Lowe, U.S. Dept. of Justice, Tax Div., Washington, DC, Susan L. Knight, Asst. U.S. Atty., Lincoln, NE, for appellee.
Richard Lydick, Omaha, NE, U.S. Trustee.
Memorandum and Order on Appellants' Motion for Reconsideration/Rehearing November 8, 1993.
MEMORANDUM OF DECISION
URBOM, Senior District Judge.
The appellants Duane and Janice Olson (the Olsons) appeal the May 5, 1992, Journal Entry of the bankruptcy court[1] denying the their motion for reconsideration of claim of the United States of America, acting through the Internal Revenue Service (the IRS), and the June 2, 1992, journal entry of the bankruptcy court denying the their request for hearing. Having carefully reviewed the record and the applicable law, I find that the bankruptcy court did not abuse its discretion in denying the requests.
I. BACKGROUND
The Olsons are debtors in a Chapter 12 bankruptcy proceeding, which they commenced on August 10, 1987. The IRS filed a proof of claim against the bankruptcy estate in the amount of $1,635,510.53 for unpaid federal income taxes for the tax years 1978 through 1983. The Olsons filed an objection and subsequently an amended objection to the IRS's proof of claim and commenced an adversary proceeding to contest the tax claim (Adversary No. A88-4077). The bankruptcy court overruled the Olsons' amended objection because they failed to comply with the court's previous order to file a more definite statement of their objection and because the one objection that was sufficiently definite was "frivolous." The bankruptcy court also dismissed the adversary proceeding, finding that the Olsons' arguments had no basis in law or in fact, and awarded sanctions against the debtors. The Olsons appealed to this court (CV88-L-591 and CV89-L-319), and the decisions below were affirmed. The Olsons then appealed this court's decision in CV88-L-591 to the Eighth Circuit Court of Appeals, which affirmed, 894 F.2d 1342 (1989).
On April 25, 1991, the Olsons filed a fourth amended plan of reorganization, which made no provision for the IRS's tax claim. The IRS filed an objection to the plan, and a joint preliminary pretrial statement was filed by the parties. On November 4, 1991, the IRS filed a motion for summary judgment on the basis that the Olsons' contentions regarding their federal income tax liability were barred by res judicata. The IRS further requested the bankruptcy court to allow its claim. On March 10, 1992, a telephonic hearing was held on the motion for summary judgment and objection to plan. At the conclusion of the hearing the bankruptcy court sustained the objection to plan and allowed the claim of the IRS to stand as allowed, unless the Olsons succeeded with an objection to the claim. Noting that the Olsons had previously objected to the claim and that the objection had been overruled, the bankruptcy court instructed that the Olsons must either file a plan consistent with the IRS's proof of claim or, alternatively, file a motion under Bankruptcy Rule 3008 for reconsideration of the allowance of the tax claim.
On March 24, 1992, the Olsons filed a motion for reconsideration; the IRS filed a resistance to the motion. A telephonic hearing was held the following month, and in a journal entry filed May 5, 1992, the bankruptcy court denied the Olsons' motion for reconsideration on the basis that they did not show "good cause" as required by Rule 3008. On May 15 the Olsons filed a request for hearing, asking the bankruptcy court to rehear their motion for reconsideration. The bankruptcy court denied the request on June *833 2, 1992, noting that the Olsons had already been provided a hearing and that their motion for reconsideration had been denied after the hearing. On June 12, 1992, the Olsons filed a notice of appeal from the May 5, 1992, and June 2, 1992, journal entries.
II. LEGAL DISCUSSION
Bankruptcy Rule 3008, which implements Bankruptcy Code § 502(j), permits a party in interest to move for reconsideration of the bankruptcy court's order allowing or disallowing a claim against the estate. Section 502(j) permits reconsideration of a claim "for cause." Neither the Bankruptcy Code nor the Bankruptcy Rules, however, explain what constitutes "cause."
One commonly cited case provides examples of the types of situations where a motion to reconsider would be appropriate. Above The Belt, Inc. v. Bohannan Roofing, Inc., 99 F.R.D. 99 (E.D.Va.1983) (cited in In re Blinder, Robinson & Co., Inc., 131 B.R. 872 (D.Colo.1991); Pine Top Ins. Co. v. Century Indemnity Co., 123 B.R. 287 (N.D.Ill.1990); L.P. Maun, M.D., Ltd. v. Salyapongse, 105 B.R. 464 (S.D.Ill.1989); In re Electro-Met Coal Co., Inc., 121 B.R. 480 (Bankr.W.D.Pa. 1990); In re Leroy, 55 B.R. 666 (Bankr. D.Nev.1985)). Motions to reconsider should be granted where: (1) "the Court has patently misunderstood a party," (2) the court "has made a decision outside the adversarial issues presented . . . by the parties," (3) the court has "made an error not of reasoning but of apprehension," or (4) there is a "controlling or significant change in the law or facts since the submission of the issue to the Court." Above the Belt, 99 F.R.D. at 101.
The Olsons looked to other legal authority for an explanation of what constitutes "cause" for reconsideration. They argue that the bankruptcy court should have applied the standards set forth in Rule 60(b) of the Federal Rules of Civil Procedure. When a motion for reconsideration is filed after the expiration of the ten-day period during which appeals are permitted, some courts treat the motion analogous to one filed under Bankruptcy Rule 9024, which incorporates Fed. R.Civ.P. 60(b). See, e.g., In re Aguilar, 861 F.2d 873 (5th Cir.1989); In re Cleanmaster Indus., Inc., 106 B.R. 628 (Bankr. 9th Cir. 1989); In re FERCO Fabricators, Inc., 153 B.R. 40 (Bankr.E.D.Mo.1993); In re Stoecker, 151 B.R. 989 (Bankr.N.D.Ill.1992).
Fed.R.Civ.P. 60(b) authorizes relief from a judgment or order for any of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
The Olsons assert that the bankruptcy court could have granted their motion for reconsideration under Fed.R.Civ.P. 60(b)(1) for mistake of fact. They contend that the following evidence offered at the telephonic hearing should have caused the bankruptcy court to question the accuracy of the IRS's claim: (1) they have not had an opportunity to fully litigate the objections set forth in their amended objection to the IRS's claim; (2) the Nebraska Department of Revenue has withdrawn its Proof of Claim; and (3) the unsecured creditors of the estate will be paid if the tax claim is reconsidered and the amount of the claim is amended. With regard to the first basis, I note that the Olsons were given the opportunity to explain their objections to the tax claim in the earlier contested matter with the IRS concerning the claim. The other asserted grounds are merely conclusional statements that provide no substantive legal or factual basis on which to reverse the bankruptcy court's decisions.
The Olsons alternatively seek reversal under the catchall rule of Fed.R.Civ.P. 60(b)(6), which would allow reconsideration of their motion for any reason "justifying relief." Because the Olsons fail to assert any reason that would justify reconsideration, however, *834 even the catchall provision is not of avail. Accordingly, I find that the bankruptcy court was within its discretion in denying the Olsons' motion for reconsideration and request for hearing.
MEMORANDUM AND ORDER ON APPELLANTS' MOTION FOR RECONSIDERATION/REHEARING
This cause is before the court on the appellants' motion for reconsideration or rehearing pursuant to Federal Rule of Bankruptcy Procedure 8015. The appellants, Duane and Janice Olson, seek this court's reconsideration of its August 23, 1993, memorandum and order, filing 12, which affirmed the bankruptcy court's[1] May 5, 1992, journal entry denying the Olsons' motion for reconsideration of the claim of the United States of America, acting through the Internal Revenue Service, and the bankruptcy court's June 2, 1992, journal entry denying the Olsons' request for a hearing. Having reviewed the appellants' motion and the record on appeal, I find no reason for altering or amending the order.
Bankruptcy Rule 8015 is silent as to the appropriate standards for granting relief. However, because Rule 8015 was derived from Fed.R.App.P. 40, it is appropriate to look to the appellate rule for guidance. 9 Collier on Bankruptcy ¶ 8015.04 at 8015-4 (15th ed. 1993). Federal Rule of Appellate Procedure 40(a) provides in part, "[t]he petition shall state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended." In their motion[2] the appellants merely contend:
Upon the record and argument submitted by the appellants, the Court should have reversed the Decision of Bankruptcy Judge John C. Minahan, Jr. denying the Olson's Motion to Reconsider, Bankruptcy Filing 164, and the June 2, 1992, Journal Entry of the United States Bankruptcy Judge John C. Minahan, Jr. denying the Olson's request for hearing, Bankruptcy Filing 167.
Because the appellants do not advert to any points of law or fact overlooked or misapprehended in the August 23, 1993, memorandum and order, their motion must be denied. "A petition for rehearing was not designed to be a `crutch for dilatory counsel, nor, in the absence of a demonstrable mistake, to permit reargument of the same matters.'" United States v. Vasquez, 985 F.2d 491, 497 (10th Cir.1993) (quoting United States v. Doe, 455 F.2d 753, 762 (1st Cir.) (citation omitted), vacated on other grounds sub nom., Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972)).
IT IS THEREFORE ORDERED that the appellants' motion for reconsideration/rehearing, filing 14, is denied.
NOTES
[1] The Honorable John C. Minahan, Jr., United States Bankruptcy Judge for the District of Nebraska.
[1] The Honorable John C. Minahan, Jr., United States Bankruptcy Judge for the District of Nebraska.
[2] The appellants did not file a brief in support of the motion.
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905 S.W.2d 43 (1995)
Jose VELEZ and Manuel Munoz, Jr., Appellants,
v.
Jose Garcia DELARA and Jose Botello, Appellees.
No. 04-93-00369-CV.
Court of Appeals of Texas, San Antonio.
July 31, 1995.
*44 Armando Lopez, Lopez, Sinderson & Fraga, L.L.P., Houston, for appellants.
Ricardo G. Cedillo, Susan G. Lozano, Davis, Adami & Cedillo, Inc., San Antonio, for appellees.
Before CHAPA, C.J., and RICKHOFF and STONE, JJ.
OPINION
STONE, Justice.
This is an appeal from an order entered by one district court judge setting aside a previous sanctions order entered by a different district court judge. Appellants contend the second trial judge was without authority to vacate the sanctions order because such orders can be reviewed on appeal only after entry of a final judgment on the merits. We find that the trial court had authority to set aside the order of sanctions and that it did not abuse its discretion in ruling on appellants' motions for additional sanctions. To the extent the trial court's order was a contempt adjudication, this court has no jurisdiction and expresses no opinion as to its validity.
Appellees Jose Garcia DeLara and Jose Botello were the national president and treasurer, respectively, of the League of United Latin American Citizens (LULAC), which maintained a bank account with the International Bank of Commerce (IBC). Appellees also maintained a separate undisclosed account at another bank under LULAC's name. At their 1990 annual meeting, the LULAC National Board of Directors elected appellants Jose Velez and Manuel Munoz to be the new president and treasurer, respectively, and authorized them to make signatory changes on all bank accounts. IBC instituted this suit as an interpleader action. Appellants filed a cross action on behalf of LULAC against Appellees for a full accounting and a turnover of all LULAC funds. IBC was ultimately dismissed from the litigation by agreement of all parties.
During the discovery process appellants claimed that appellees failed to respond to a subpoena duces tecum and did not willingly disclose the other bank account. Appellants filed a motion for sanctions and on February 25, 1991, the Honorable Judge Antonio Cantu ordered appellees to each pay a $100.00 fine and an additional $500.00 for each Friday after March 1, 1991, that they did not produce the information. Subsequently, appellees accidently produced a copy of one check from the other account. Appellants again moved for sanctions citing violations of the court's February 25th order. On August 1, 1991, Judge Cantu signed an order finding that appellees had violated his earlier order and fined each $500.00 for each Friday from March 1, 1991 to July 26, 1991, totalling $10,500.00 each, jointly and severally, and he reaffirmed the $100.00 penalty against each. The order specifically recites that a motion for contempt will be entertained by the court if the parties refuse to abide by the terms of the order.
Appellees filed motions for reconsideration to have the sanctions order set aside, but these motions were never presented to the trial court. Appellants filed a motion for contempt alleging appellees' failure to comply with the order of August 1st signed by Judge Cantu. Appellants also filed motions to compel answers to interrogatories and for additional sanctions. The motions were heard by the Honorable Judge Susan Reed, who entered an order on November 18, 1991 which denied the motion for contempt, ruled that the previous sanctions granted by Judge Cantu for contempt were unenforceable as a matter of law, ordered appellants to clarify their objections to appellees' answers to interrogatories, ordered appellees to file any supplemental answers before November 25th, and ordered appellees to each submit to another deposition. Appellants thereafter non-suited their claims against appellees and perfected their appeal to this court complaining of the rulings issued by Judge Susan Reed.
*45 AUTHORITY OF THE TRIAL COURT
Appellants contend that Judge Cantu's order was not reviewable by Judge Reed, but was only reviewable on appeal after final judgment. Appellants rely on Tex.R.Civ.P. 215(2)(b)(8), which states that a sanctions order "shall be subject to review on appeal from the final judgment." Appellants further note that discovery sanctions are not appealable until the trial court renders a final judgment, and that this means of appealing a sanction order is an adequate remedy. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex.1986) (per curiam) (discovery sanctions not appealable until final judgment is rendered by trial court); Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 802 (Tex.1986) (per curiam) (right to appeal discovery order after final judgment is adequate remedy). Appellants thus conclude that Judge Reed was without authority to modify or withdraw the sanctions orders previously signed by Judge Cantu.
While the legal principles cited by appellants are generally true, they do not mandate the conclusion reached by appellants. We recognize that discovery sanctions cannot be the subject of an interlocutory appeal, and are rarely a proper subject for mandamus review. Rather, as Rule 215(2)(b) states, such sanctions can be reviewed on appeal after entry of a final judgment. Nonetheless, trial courts retain authority to reconsider any interlocutory order until the judgment becomes final. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993); Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281, 286 (1958). The Fort Worth Court of Appeals has specifically ruled that a subsequent judge can withdraw a previous sanctions order entered by another judge. Carrizales v. Wal-Mart Stores, Inc., 794 S.W.2d 129, 130 (Tex.App.-Fort Worth 1990, writ denied) (successor judge had absolute right to set aside multimillion dollar sanction order entered by predecessor judge).
Further, the record does not support appellants' claims that appellees engaged in "judge shopping" until they found a judge willing to set aside the sanctions order. Our state constitution provides that district judges may exchange districts or hold court for one another whenever it is expedient. TEX. CONST. art. 5, § 11. In Bexar County, which utilizes a central docket system, the presiding judge assigns cases to any available judge, including currently elected judges and visiting judges. See Local Rules of the Civil District Courts of Bexar County, Rule 3.2. Since the jurisdiction to reconsider an interlocutory ruling is vested in the court rather than the individual judge, and since one district judge may hold court for another district judge, Judge Reed had authority to rule on the motions for sanctions and for contempt. That authority was not vested solely in Judge Cantu as the judge who issued the sanctions order. See Hyundai Motor America v. O'Neill, 839 S.W.2d 474, 481 (Tex.App.-Dallas 1992, no writ).
SANCTIONS ORDER
To the extent Judge Reed's order constituted a review of the interlocutory sanctions order issued by Judge Cantu, it was an authorized exercise of her authority. Likewise, Judge Reed had authority to rule on the motions to compel and for sanctions.[2] We find no abuse of discretion in her ruling. A hearing on a motion for sanctions is like a non-jury trial and the trial judge's order will not be disturbed if it is supported by any evidence of probative force. Tate v. Commodore County Mut. Ins. Co., 767 S.W.2d 219, 224 (Tex.App.-Dallas 1989, writ denied). In determining whether a trial court abused its discretion in issuing a sanctions order, appellate courts should view the evidence in the light most favorable to the trial court's ruling. Vaughn v. Texas Employment Comm'n, 792 S.W.2d 139, 142-43 (Tex.App.-Houston [1st. Dist.] 1990, no writ); Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex. App.-Houston [1st Dist.] 1983, writ dism'd). A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial *46 error of law. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); City of Dallas v. Ormsby, et al., 904 S.W.2d 707, 709 (Tex. App.-Amarillo 1995, n.w.h.). In the instant case the court heard extensive argument from all parties, and rather than imposing monetary sanctions, the court: (1) ordered appellants to clarify their objections to the discovery produced by appellees; (2) established a deadline for appellees to furnish supplemental responses; and (3) ordered both appellees to submit to second depositions. We find no abuse of discretion in this ruling.
CONTEMPT RULING
In addition to the motion to compel and for sanctions, appellants presented to Judge Reed their motion for contempt based upon appellees' alleged failure to comply with the order of August 1, 1990. That motion was denied by Judge Reed because she found the prior sanctions order to be unenforceable as a matter of law. This court has no jurisdiction to entertain an appeal from a refusal to hold a party in contempt because it is not a final, appealable judgment. Norman v. Norman, 692 S.W.2d 655, 655 (Tex.1985) (per curiam); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); see also Gawlik v. Gawlik, 707 S.W.2d 256, 257 (Tex.App.-Corpus Christi 1986, no writ).
To the extent appellants complain of the trial court's order refusing to hold appellees in contempt, this court has no jurisdiction and renders no opinion. In all other regards the judgment of the trial court is affirmed.
NOTES
[2] The motions to compel answers to interrogatories and for sanctions are not included in this Court's transcript; however, all parties argued the merits of these motions at the hearing before Judge Reed.
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185 Conn. 510 (1981)
ARMOND R. PIETRORAZIO
v.
OLINDO SANTOPIETRO ET AL.
Supreme Court of Connecticut.
Argued October 8, 1981.
Decision released December 8, 1981.
SPEZIALE, C. J., PETERS, HEALEY, ARMENTANO and SHEA, JS.
*511 Harvey F. Wachsman, with whom was Kathryn M. Wachsman, for the appellant (plaintiff).
Gregory C. Willis, for the appellee (named defendant).
Ronald D. Williams, for the appellee (defendant Robert H. Sturman).
SHEA, J.
In this medical malpractice action, the jury returned a verdict for both defendants. The plaintiff appeals from the judgment rendered on the verdict, claiming that the verdict was against the weight of the evidence and that several rulings of the court pertaining to the admissibility of testimony were erroneous.
The jury could reasonably have found the following facts: The plaintiff was admitted to the hospital on January 22, 1976, by the defendant Olinda Santopietro, his internist, for evaluation of back and leg pain. Santopietro did not perform a complete baseline neurological examination, nor did he arrange for a specialist to perform such an examination that day. On January 23, Santopietro asked the codefendant Robert H. Sturman, a neurosurgeon, for a consultation. Sturman examined the plaintiff on January 23, but withdrew from the case on January 24. On January 28, A. Roger Bobowick, a neurologist, examined the plaintiff and ordered a myelogram, which was not successfully *512 completed until January 30. The myelogram indicated surgery was required, and a laminectomy was performed that day to relieve compression of a disc on the plaintiff's nerve roots. The plaintiff sustained neurologic damage, paraparesis, bilateral footdrop and low back pain following the laminectomy.
The plaintiff failed to file a motion to set aside the verdict in accordance with Practice Book § 320[1] and General Statutes § 52-228b.[2] We must consider the effect of this omission before undertaking a discussion of the merits of the issues raised by the plaintiff in this appeal. The failure to file such a motion does not affect the jurisdiction[3] of this court *513 over the appeal, because the acceptance of the jury verdict at the time it is rendered is deemed to constitute a final judgment; Grzys v. Connecticut Co., 123 Conn. 605, 607n, 198 A. 259 (1938); Hull v. Thorns, 82 Conn. 386, 391, 73 A. 793 (1909); unless a motion to set aside is later filed. Tough v. Ives, 159 Conn. 605, 606, 268 A.2d 371 (1970). General Statutes § 52-263[4] expressly authorizes an appeal to this court from any final judgment except those specifically excluded. See Rickey v. E. H. Jacobs Mfg. Co., 142 Conn. 495, 496, 115 A.2d 336 (1955).
Under our practice it has long been thought essential to move to set aside a verdict in order to obtain appellate review of a claim that the evidence was insufficient to support the verdict. Gordon v. Feldman, 164 Conn. 554, 557, 325 A.2d 247 (1973); Warner v. Pandolfo, 143 Conn. 728, 729, 122 A.2d 738 (1956); State v. Schofield, 114 Conn. 456, 459, 159 A. 285 (1932); East v. Turley, 111 Conn. 253, *514 260-61, 149 A. 673 (1930); State v. Frost, 105 Conn. 326, 331,135 A. 446 (1926). A compelling reason for this view is the great weight accorded on appeal to the action of the trial court upon the motion. Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954); State v. Chin Lung, 106 Conn. 701, 704-705, 139 A. 91 (1927); Bissell v. Dickerson, 64 Conn. 61, 72, 29 A. 226 (1894). On the other hand, where the basis of the appeal is a ruling of the trial court claimed to be erroneous, commentators have opined that it is unnecessary for an appellant to move to set aside the verdict, because the original ruling is the real gravamen of the appeal and to assign error in the denial of a motion to set aside grounded upon the same ruling is simply redundant. 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 205 (d); James & Hazard, Civil Procedure (2d Ed.) § 7.17.
We need not decide whether this analysis is consistent with our practice prior to the adoption of the statute relied upon by the defendants. Practice Book § 3063; see Lavoie v. Antupit, 138 Conn. 422, 424, 85 A.2d 900 (1951); cf. Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928). The enactment in 1965 of General Statutes § 52-228b, which declares that "[n]o verdict in any civil action involving a claim for money damages shall be set aside except on written motion by a party to the cause ..." is applicable to this case and is controlling. The evident purpose of the statute is to provide an opportunity for the trial court to pass upon claims of error which may become the subject of an appeal. This procedure is not a mere superfluity with respect to rulings made at trial, as suggested by the commentators. The opinion of the trial court with respect to the error claimed may dissuade a prospective appellant from pursuing an unmeritorious *515 appeal and also may be helpful to the appellate court, particularly with respect to evaluating the effect of a ruling upon a verdict. See Munson v. Atwood, supra, 289. The first-hand perception of the atmosphere of a trial available to the court below, which we have regarded as highly significant in deciding claims related to the sufficiency of the evidence, may be equally valuable in assessing the importance of rulings during a trial.
To require a written motion to set aside a verdict as a prerequisite to consideration on appeal of trial rulings assigned as error as well as for review of insufficiency of the evidence claims is no marked deviation from current practice, since trial counsel often file such motions as a matter of course immediately following the rendition of an adverse verdict. See 2 Stephenson, Conn. Civ. Proc. (2d Ed.) § 202. This requirement also serves to implement our policy against review of questions not distinctly raised in the trial court. Practice Book § 3063. Even where a claim of error has been sufficiently preserved for appellate review it is seldom that its articulation in the heat of trial approaches the clarity and thoroughness of the presentation at a post-trial motion. The statute was designed to afford the trial court a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.
Our conclusion that a motion to set aside a verdict is essential for a full review of claims of error in civil jury cases seeking money damages limits our consideration of the issues raised in this appeal to ascertaining whether there has been "plain error." Practice Book § 3063. "The supreme court may in the interests of justice notice plain error *516 not brought to the attention of the trial court." Practice Book § 3063; Levine v. Randolph Corporation, 150 Conn. 232, 243,188 A.2d 59 (1963); Columbus Industrial Bank v. Miller, 125 Conn. 313, 315-16, 6 A.2d 42 (1939); Sellew v. Middletown, 121 Conn. 331, 334,185 A. 67 (1936); Stevens v. Neligon, 116 Conn. 307, 311, 164 A. 661 (1933).
None of the plaintiff's claims qualifies for the exercise of our discretionary authority under this rule. His main contention regarding the sufficiency of the evidence, that the failure of the defendants to follow the established standards of care for their medical specialties had been proved as a matter of law, is highly questionable. Even if it were sound, there would remain the major issue of whether an earlier operation upon the plaintiff would have left him with less adverse consequences. It is not disputed that there was testimony which the jury might reasonably have credited that the delay of approximately one week had no appreciable effect upon the plaintiff's condition.
With respect to the rulings upon evidence relied upon by the plaintiff, aside from his failure to file a motion to set aside, his brief does not conform to the requirement of Practice Book § 3060F (c) (3) that the pertinent question, ground of admissibility or objection, answer, if any, and any exception be set forth. This omission creates many difficulties in identifying the particular ruling involved. The plaintiff's claims of error relate mainly to rulings made during the qualification of his expert witnesses, but it appears that all of his experts who came to court were ultimately allowed to give their opinions as sought by the plaintiff. His claim that he was so discouraged by the rulings made by the *517 court during his attempt to qualify those experts that he did not produce two others whom he had planned to use is supported by nothing in the record. We have not discovered anything in our limited study of these rulings which even remotely approaches the "plain error" category.[5]
There is no error.
In this opinion the other judges concurred.
NOTES
[1] Practice Book § 320 provides as follows: "Motions in arrest of judgment, whether for extrinsic causes or causes apparent on the record, motions to set aside a verdict and motions for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered, exclusive of such days as the clerk's office is not required to be open for at least two hours; provided that for good cause the court may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies."
[2] General Statutes § 52-228b provides in part as follows: "No verdict in any civil action involving a claim for money damages shall be set aside except on written motion by a party to the cause, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court."
[3] The defendants previously moved to dismiss this appeal upon the grounds (1) that the plaintiff's appeal "from Superior Court Judicial District of New Haven at New Haven, Connecticut" was not taken from a final judgment; and (2) that the failure to file a motion to set aside the verdict barred his appeal to this court. We concluded that the deficiency in the form of the appeal did not render it void; Lengel v. New Haven Gas Light Co., 142 Conn. 70, 75, 111 A.2d 547 (1955); and that the failure to move to set aside the verdiet did not affect the right to appeal from a judgment which had become final.
Our denial of the motion to dismiss, however, is not dispositive of whether the plaintiff is entitled to review of the particular errors claimed. Not infrequently we refuse to consider claims of error which have not been properly preserved in the trial court. The failure to raise a certain claim upon appeal does not defeat the jurisdiction of an appellate court to consider such matters as the jurisdiction of the trial court; Salamandra v. Kozlowski, 173 Conn. 136, 139, 376 A.2d 1103 (1977); alleged deprivations of constitutional rights; State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973) ; or "plain error." Practice Book § 3063. The denial of the motion to dismiss in this case signified only that a motion to set aside a verdict is not a prerequisite to an appeal, although its absence may limit the extent of the appellate review afforded.
[4] General Statutes § 52-263 provides: "APPEALS FROM SUPERIOR COURT. Upon the trial of all matters of fact in any cause or action in the superior court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal from the final judgment of the court or of such judge, or he may appeal from the decision of the court granting a motion to set aside a verdict, except as provided in sections 51-164t, 51-164v and 51-197b. Such appeal shall be taken to the supreme court."
[5] It must not be inferred from the fact that we have based our opinion on "plain error" that explicitly addressing all the plaintiff's claims would produce a different result; in fact, our review indicates the outcome would be the same.
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905 S.W.2d 570 (1995)
William Michael MASON, Appellant,
v.
The STATE of Texas, Appellee.
No. 71479.
Court of Criminal Appeals of Texas, En Banc.
April 26, 1995.
Rehearing Overruled June 21, 1995.
*572 Allen C. Isbell, James Sims, Houston, on appeal only, for appellant.
John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Jeannine Southwick & Craig Goodhart, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
McCORMICK, Presiding Judge.
Appellant was convicted of the offense of murder in the course of committing kidnapping. V.T.C.A., Penal Code, Section 19.03(a)(2). The jury answered the special issues affirmatively and punishment was assessed accordingly at death. Article 37.071 § 2(b), V.A.C.C.P. Appeal to this Court is automatic. Article 37.071 § 2 (h), V.A.C.C.P. Appellant raises eleven points of error. We will affirm.
In his first point of error, appellant challenges the sufficiency of the evidence to support the underlying crime of kidnapping. See V.T.C.A., Penal Code, Section 20.03. Therefore, he posits that he can only be guilty of the lesser-included offense of murder.[1]
The evidence at trial established that on January 16, 1991, appellant, his daughter, Mandy Mason, and Mandy's daughter, Brittany, were all staying at the home of appellant's wife, Deborah Ann Mason, along with her son, Staton. At approximately six o'clock that evening, Thomas Mullins, a friend, arrived at Deborah's home in Humble looking for appellant's half-brother, Lonnie *573 Carney, who was not present. Mullins decided to stay and talk to appellant and Mandy.
At about 8:00 p.m., appellant and Deborah argued over Deborah being "on drugs."[2] Appellant apparently had found some needles in the bathroom. When Deborah tried to go to her car and leave, appellant grabbed her by the hair and pulled her back in the house and into the bedroom. Deborah was hollering that appellant was hurting her, to let her go, and that she loved him. Deborah's hair at this time measured about three inches past her shoulders. Mullins testified he then heard about four or five "slapping noises" and Deborah saying "don't hit me. Don't hit me. I love you." She further said that she was sorry.
At this point, Mullins and Mandy took the two children to the store for some candy because Staton was crying. When they returned to the house, Mandy went inside to see if appellant and Deborah had finished their argument. They had not. Mullins, Mandy, and the children then drove around the block for about ten to fifteen minutes before returning to the house. Mullins testified that when they returned he did not notice any injuries to Deborah. At about 9:00 p.m., Mullins, Mandy, and the children again left to get dinner. Afterwards, they went to the home of appellant's mother, Juanita Carney, where they picked up Lonnie and then they all returned to Deborah's home to play poker.
Upon their arrival, Deborah showed Mandy a large bruise on her right hip. She said it was caused by appellant throwing her into the bathtub. Otherwise, Deborah did not appear to be injured.
The poker game lasted until about 1:30 a.m. After the game, Lonnie, Mandy, and Mullins began listening to the radio or watching television. Appellant was standing outside drinking his coffee and hollered in for Deborah to turn down the radio. Mullins testified that she responded that "it was her radio, that she wanted to listen to it loud and she would listen to it loud." Lonnie then bet Deborah that he could turn it down and proceeded to knock her into the couch and on to the floor.
Appellant came inside, picked up Deborah by the hair, and dragged her to the bedroom. Mullins testified that he then "heard somebody hitting something in there," and Deborah saying "don't hit me. Don't hit me. I love you. I love you." Appellant then stated, "I'm going to kill you, bitch." Deborah managed to run out into the kitchen. Appellant followed and began hitting her again for thirty to forty minutes, once slamming her hard enough into a wall to knock items off the wall on the opposite side.[3] Deborah pleaded that she was "human" and appellant told her, "[N]o, you're not. You are a whore. You are a dog. You need to go live in a doghouse."
During this fight, Mandy and Mullins went into the bedroom to check on the children. Mullins remained there for the duration of the fight, but Mandy went in and out periodically. When Mandy went back into the kitchen, she heard appellant again tell Deborah, who was sitting on the kitchen floor, that he was going to kill her. Mandy could see no blood on Deborah's face.
Appellant then went into the bedroom to get a towel from the adjoining bathroom. On his way back to the kitchen, he passed Mullins and told him, "It's all over, Ace."[4] Upon returning to the kitchen, appellant tore the towel into strips. He yelled to Mandy to get his wallet and Terry Goodman's phone number. Appellant then had Lonnie call Goodman and tell him to come over, that he knows what is going on, and to bring some garbage bags, "[h]e knows what they're for." Mandy testified that she then heard Deborah say "[H]uman, Billy. Don't do this," and appellant replying "no, you are a whore. You are a dog. You need to die." Deborah's hands were now tied behind her back with a strip of towel. She was lying on the floor *574 with her face up against the wall and her knees bent.
Appellant next told Mandy to go and pack all of their things because they were going to his mother Juanita's home. She went to the bedroom and began packing when she again heard appellant say he was going to kill Deborah. Mandy returned to the kitchen where she saw appellant kick Deborah in the side. Deborah merely grunted. Mandy returned to the bedroom and continued packing. She never saw Deborah again. During this time, Mullins observed appellant carrying Deborah out the door with her feet and arms tied together behind her back. Deborah's hair was much shorter and there was a towel in her mouth. No blood was coming from her face or head. Mullins then heard the trunk of a car being closed. Mullins did not see Deborah again.
Terry Goodman and appellant's half-sister, Sandra, then arrived with the garbage bags. Mandy used two of the bags to finish packing her and appellant's things. After all of appellant's and Mandy's things were loaded in Goodman's truck, Mullins heard appellant tell Goodman that he wanted the garbage bags to stick Deborah in, weigh them down with rocks, and put them in the river. Goodman and Sandra then took Mandy and Brittany to Juanita's house. Before he left, Mullins noticed a clear plastic bag full of hair on the kitchen counter. He also saw appellant cleaning blood off the floor in the bedroom with a towel. Mullins and Lonnie then went to Juanita's in Mullin's truck. Appellant soon followed.[5]
About forty minutes after arriving at Juanita's home, appellant, Lonnie and Goodman left. The three returned about one and a half hours later. Appellant's pants were wet up to his knees and his boots were muddy. He told Mullins, Mandy, and Lonnie to tell anyone who asked that Deborah had left with two guys in a car and no one had seen her since. Later, appellant told Mandy that he took Deborah to the river, tied her up, hit her in the head with a brick, put her in garbage bags, and buried her under some logs because "she ruined my good name."
Deborah's body was found under some logs in a backwash ditch along the San Jacinto River on January 27, 1991. She was "hogtied" with strips of towel and covered with eleven garbage bags. Some of the bags contained pieces of concrete. Dr. Vladimir Parungao, Harris County Assistant Medical Examiner, performed the autopsy. Parungao testified that Deborah's death was caused by a "skull fracture due to blunt traumas" to her head. He stated the two head injuries were consistent with being caused by a rock or piece of concrete. He further testified the victim received several other injuries prior to her death: a fractured jawbone, contusions and bruises to the face, a bruise on the left leg, and a blunt laceration to her left hand. The body was dead when it was placed in the water.
Following appellant's arrest, he confessed to a friend, Rudolpho Perez Garcia. He told Garcia that he tied Deborah up in the car and drove her out to the river. When he pulled her from the car she begged, "please don't kill me. I love you." Appellant then stated that he hit her in the head with a rock.
In reviewing a sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Gribble v. State, 808 S.W.2d 65, 73 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1232, 111 S. Ct. 2856, 115 L. Ed. 2d 1023 (1991).
A person commits the offense of kidnapping when he knowingly or intentionally abducts another person. V.T.C.A., Penal Code, Section 20.03(a). "Abduct" means to restrain a person with the intent to prevent his liberation by either: (1) secreting or holding him in a place where he is not likely to be found, or (2) using or threatening to use deadly force. V.T.C.A., Penal Code, Section *575 20.01(2). Appellant claims that there is insufficient evidence to show he "abducted" his wife. He argues his intent was to conceal a murder victim's body not a living person, and that he did not use or threaten to use deadly force.
Secretion and the use of deadly force are part of the mens rea of kidnapping, not the actus reus as appellant's argument presumes. Brimage v. State, ___ S.W.2d ___, ___ slip op. at 10 [1994 WL 511395] (No. 70,105, Tex.Cr.App., delivered September 21, 1994, rehearing pending). A kidnapping becomes a completed offense when a restraint[6] is accomplished, and there is evidence that the actor intended to prevent liberation and that he intended to do so by either secretion or the use or threatened use of deadly force. Id., slip op. at 11, ___ S.W.2d at ___. Therefore, the State had the burden to prove that a restraint was completed and that the appellant evidenced a specific intent to prevent liberation by either secretion or deadly force. Id., slip op. at 12, ___ S.W.2d at ___.
Appellant concedes that a "restraint" did occur. Thus, the only remaining issue is whether appellant had the specific intent to prevent his wife's liberation by secretion or deadly force. The record supports evidence of the former. Appellant hogtied and gagged his wife and put her in the closed trunk of the car, where she could not escape or be seen, in order to transport her to the river. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant intended to abduct his wife. Id., slip op. at 12-13, ___ S.W.2d at ___-___; see also Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. We hold the evidence was sufficient to support appellant's conviction for capital murder. Point of error one is overruled.
In appellant's second through fifth points of error, he complains that the trial court submitted an improper jury instruction on mitigating evidence. Specifically, he argues that: (1) the charge speaks to appellant's "personal culpability" as opposed to his "personal moral culpability;" (2) the trial court erred in refusing to submit his requested special issues;[7] and (3) the court failed to instruct the jury that they need not unanimously agree as to what evidence was mitigating. We disagree.
At punishment, the jury must be allowed to consider and give effect to proffered evidence regarding the defendant's background, his character, and circumstances surrounding the offense that reasonably could be thought truly mitigating and thus reasonably *576 warranting a sentence less than death. Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 874, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 605-06, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978). As the Supreme Court stated in Penry v. Lynaugh:
"Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, `evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.'" (Emphasis added.) 492 U.S. 302, 319, 109 S. Ct. 2934, 2947, 106 L. Ed. 2d 256 (1989).
The special issues required by Article 37.071, V.A.C.C.P., allow the jury to consider and give effect to most types of mitigating evidence. Jurek v. Texas, 428 U.S. 262, 273-74, 96 S. Ct. 2950, 2957, 49 L. Ed. 2d 929 (1976). However, defendants occasionally proffer mitigating evidence that is not relevant to the special issues or that has relevance to the defendant's moral culpability beyond the scope of the special issues. Penry, 492 U.S. at 329, 109 S.Ct. at 2952. In such a case, the jury must be given a special instruction in order to allow it to consider and give effect to such evidence.
The trial court in the instant case submitted the following charge:
"You are instructed that when you deliberate on the questions posed in the special issues, you are to consider all relevant mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the State or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character, background, record, emotional instability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, you must decide how much weight they deserve, if any, and thereafter, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the special issue. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding to the issue under consideration, rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to that special issue under consideration."
We have already held that a nullification instruction such as this one is sufficient to meet the constitutional requirements of Penry, supra. See Coble v. State, 871 S.W.2d 192, 206-207 (Tex.Cr.App.1993), cert. denied, ___ U.S. ___, 115 S. Ct. 101, 130 L. Ed. 2d 50 (1994); see also Coleman v. State, 881 S.W.2d 344, 356 (Tex.Cr.App.1994). The trial court did not err. Points of error two through five are overruled.
In points of error six and seven, appellant maintains that his First and Fourteenth Amendment rights were violated when the trial court allowed the State to present evidence concerning his membership in the Aryan Brotherhood or Aryan Nation. He complains that the State failed to show a nexus between his association with the organizations and the offense charged, and, also, failed to show appellant subscribed to the tenets of those organizations. Specifically, appellant posits that the evidence was not relevant.
The First Amendment protects an individual's right to join groups and associate with others holding similar beliefs. Dawson v. Delaware, 503 U.S. 159, 161, 112 S. Ct. 1093, 1096, 117 L. Ed. 2d 309 (1992). However, the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing merely because those beliefs and associations are protected by the First Amendment. Id. at 165, 112 S.Ct. at 1098. Such evidence may be admissible if it is shown to be "relevant" to the issues involved *577 in the case.[8]Id. at 163-67, 112 S.Ct. at 1097-98. Future dangerousness is an issue relevant at the sentencing stage of a capital murder trial. See Tex.R.Crim.Evid. 401; Article 37.071 § 2(b), V.A.C.C.P.
In order to prove the relevance of a defendant's membership in an organization or group, the State must show: (1) proof of the group's violent and illegal activities, and (2) the defendant's membership in the organization. See Dawson, 503 U.S. at 163-67, 112 S.Ct. at 1097-98; Fuller v. State, 829 S.W.2d 191, 196 n. 2 (Tex.Cr.App.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 2418, 124 L. Ed. 2d 640 (1993). In the instant case, the State presented both.
Mandy Mason testified that appellant told her on more than one occasion that he was a member of the Aryan Brotherhood and the Aryan Nation. Moreover, evidence from appellant's pen packets show he had been determined by the Texas Department of Criminal Justice to be a member of the Aryan Brotherhood. Royce Smithey, an expert on prison gangs, testified that the Aryan Brotherhood is a white-supremacist organization that recruits white inmates and engages in protection of members, drug activities, prostitution, weapons manufacture, escapes, contract killings and assaultive behavior. Qualifications for membership in the gang included not only being a member of the white race, but also the ability to "take care of business" in return for the organization supplying certain needs of the inmate.
The trial court did not err in admitting the evidence of appellant's gang membership because it was relevant to the issue of future dangerousness and outside the protection of the First Amendment. See Dawson, 503 U.S. at 163-67, 112 S.Ct. at 1097-98; Fuller, 829 S.W.2d at 196. Points of error six and seven are overruled.[9]
In his eighth and ninth points of error, appellant asserts that the trial court erred in sustaining the State's challenge for cause of venireperson Guidry. The court granted the challenge because Guidry stated that he would be unable to fully concentrate on the case if he was required to miss too much school. Specifically, appellant argues that Guidry should not have been excused because he was not disqualified for service under Article 35.19, V.A.C.C.P., or subject to challenge under Article 35.16, V.A.C.C.P. Further, Guidry did not request to be excused from jury service under a provision of Article 35.03, Section 1, V.A.C.C.P.
A challenge for cause can be properly asserted on grounds which are not specifically enumerated in Article 35.16, V.A.C.C.P., where such a challenge is based on facts that show that the prospective juror would be "incapable or unfit to serve on the jury." Allridge v. State, 850 S.W.2d 471, 484 (Tex.Cr.App.1991), cert. denied, ___ U.S. ___, 114 S. Ct. 101, 126 L. Ed. 2d 68 (1993) (venireman preoccupied with business); Nichols v. State, 754 S.W.2d 185, 193 (Tex. Cr.App.1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 819, 102 L. Ed. 2d 808 (1989)[10] (venireman preoccupied with personal problems). Challenges which are not based upon any ground specifically enumerated in the statutes are ordinarily addressed to the sound discretion of the trial judge. Allridge, 850 S.W.2d at 484-85; Nichols, 754 S.W.2d at 193.
During his voir dire, Guidry, a college freshman, stated that he would have trouble concentrating and giving his full attention *578 to the case if he were to miss too much school. Prior to making his final ruling on the State's challenge for cause, the trial judge asked the following:
"THE COURT: I can't tell what you're talking about. Would you be a fair and impartial juror no matter what happened?
"MR. GUIDRY: Yes.
"THE COURT: With your job or schooling? I want your truthful answer.
"MR. GUIDRY: Not with my schooling.
"THE COURT: You feel if it interfered with your schooling you wouldn't pay attention? You would let that influence your verdict, is that correct?
"MR. GUIDRY: Yes."
The record in the instant case supports the trial court's decision that Guidry would be an unfit juror due to his preoccupation with school. Allridge, 850 S.W.2d at 484-85; Nichols, 754 S.W.2d at 193-94. The trial court did not abuse its discretion in granting the State's challenge for cause. Points of error eight and nine are overruled.
Finally, in points of error ten and eleven, appellant contends that the trial court erred in overruling his challenge for cause against venireperson Kwoka. When a trial court errs in denying a challenge for cause, the defendant is harmed only if he uses a peremptory strike and, thereafter, suffers a detriment from the loss of that strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Cr.App.1986), cert. denied, 482 U.S. 920, 107 S. Ct. 3197, 96 L. Ed. 2d 685 (1987). In order to preserve error, appellant must: (1) use all of his peremptory strikes; (2) ask for and be refused additional peremptory strikes; and (3) be forced to take an identified objectionable juror whom appellant would not otherwise have accepted had the trial court granted his challenge for cause or granted him additional peremptory strikes.
In the instant case, appellant used all of his peremptory strikes, asked for and received three additional peremptory strikes, and named an objectionable juror. However, because appellant was granted three additional peremptory strikes, he did not suffer the loss of three strikes. Therefore, for appellant to demonstrate harm and, hence, reversible error, he must show that challenges for cause on at least four venirepersons were erroneously denied. Martinez v. State, 763 S.W.2d 413, 425 (Tex.Cr.App. 1988); Rector v. State, 738 S.W.2d 235, 247 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872, 108 S. Ct. 202, 98 L. Ed. 2d 153 (1987). Appellant identifies only one venireman that he maintains should have been excused for cause. Consequently, even if his challenge for cause against Kwoka was valid, he suffered no loss of a strike and, therefore, no harm. Points of error ten and eleven are overruled.
Finding no reversible error, we affirm the judgment of the trial court.
MALONEY, J., concurs in the result.
CLINTON, Judge, dissenting.
I.
In his first point of error appellant contends the evidence was not sufficient to prove that when he "restrained" his wife before he killed her, he did so with the intent to prevent her liberation. Thus, although he admittedly murdered her in the course of falsely imprisoning her, he did not murder her in the course of a kidnapping. Compare V.T.C.A. Penal Code, §§ 20.02 & 20.03. Specifically he contends that the evidence shows he restrained his wife with the exclusive intent to kill her, and that there is no evidence he specifically intended to prevent her liberation.
The majority rejects this contention on authority of a single citation, viz: Brimage v. State, ___ S.W.2d ___ (Tex.Cr.App., No. 70,105, delivered September 21, 1994). Brimage, however, is a plurality opinion. It is, moreover, pending this Court's grant of the State's motion for rehearing, and although the State's motion does not assail the particular holding in Brimage that the Court relies upon today, this does not alter the fact that Brimage is not yet authoritative. In any event, the majority does not explain how Brimage serves to rebut appellant's argument. The Court has more work to do.
*579 Appellant concedes he "restrained" his wife before he killed her. I take this to mean he admits that the evidence shows he "restrict[ed her] movements without [her] consent [i.e., by force]," either "by moving [her] from one place to another or by confining [her]." V.T.C.A. Penal Code, § 20.01(1) & (1)(A). He contends, however, that he did not "abduct" her in that he did not restrain her with the specific "intent to prevent [her] liberation by ... secreting [her] or holding [her] in a place where [she] is not likely to be found" or "using or threatening to use deadly force." See V.T.C.A. Penal Code, § 20.01(2)(A) & (B).
The majority answers that because appellant 1) admits he restrained his wife, and 2) the evidence clearly shows he did, in fact, "secrete" her, by placing her hog-tied body in the "closed" trunk of a car, ipso facto, the evidence shows an intent to prevent her liberation. Maj. op. at 575. The majority apparently relies on Brimage for this proposition.
In Brimage the plurality opined that in order to commit the offense of kidnapping, it is not necessary to actually secrete the victim or use or threaten to use deadly force against her. The only actus reus element of kidnapping is restraint. The act of restraining amounts to kidnapping, not just false imprisonment, when it is accompanied by a specific intent to prevent the victim's liberation; an intent to do so, moreover, in one of the two statutorily enumerated ways, either by secreting the victim or by using or threatening to use deadly force. Id., Slip op. at 10-12, ___ S.W.2d at ___-___. The evidence need not show an actual secreting or use or threat of deadly force to justify a kidnapping conviction.
When the evidence does establish a secreting in fact, however, the majority evidently believes this necessarily establishes an intent to prevent liberation by secreting. In short, actual secreting equals a specific intent to prevent liberation. I do not accept this equation. In my view it is possible to restrain by actually secreting without harboring a specific intent to prevent liberation. The instant cause presents a good example.
To say that one restrains and secretes another with the intent to prevent liberation is to say it is one's "conscious objective or desire" thus to prevent liberation. V.T.C.A. Penal Code, § 6.03(a). It is also possible, however, both to restrain and to secrete, not with the "conscious objective or desire," but only "with knowledge" that it will prevent liberation. V.T.C.A. Penal Code, § 6.03(b). That is to say, it is possible to restrain and secrete, being "aware" that it will prevent liberation, though preventing liberation is not the specific "conscious objective or desire."
In the instant cause, it is clear appellant's conscious objective or desire was to kill his wife and hide the body. It is clear that in order to do so he restricted her movement by force, substantially interfering with her liberty, by moving her from one place to another and by confining her. Thus, he "restrained" her. § 20.01(1) & (1)(A), supra. Moreover, when he hog-tied her and placed her in the trunk of the car and closed it, he "secreted" her; at least the jury could rationally have found he thereby "deposit[ed] or conceal[ed her] in a hiding place." Webster's New Collegiate Dictionary (1979), at 1036. What is not so clear, however, is that in so secreting her it was his "conscious objective or desire" to prevent her liberation. His conscious objective was to take her to the river and kill her, and then dispose of the body. Undoubtedly the evidence supports a finding he was at least "aware" she would not likely be liberated while in the trunk. But "awareness" does not support a jury verdict that he kidnapped her, and thus cannot support a conviction for capital murder.
It may be consistent with the evidence presented to conclude that appellant had a "conscious objective or desire" to prevent his wife's liberation. But it is equally, if not more, consistent with the circumstantial evidence to conclude that he at best harbored an awareness that it was not reasonably likely she would be liberated if he put her in the trunk of the car in order to carry out what was his clear conscious objective, viz: to take her to the river (i.e., to "restrain" her) and kill her. The State offered no evidence to cause a rational jury to prefer one theory over the other. I have noted elsewhere that *580 "[t]his is no more than to say that as to the element of specific intent, the State has failed to carry its burden of production." Nelson v. State, 848 S.W.2d 126, 138-39 (Tex.Cr.App. 1992) (Clinton, J., dissenting). As in Nelson, the Court today "sanctions jury confabulation; plugging evidentiary gaps with speculation about what might have happened that is at least consistent with what the State has proved. But confabulation is not itself proof." Id., at 139. For this reason I am inclined to hold the evidence insufficient to establish the requisite specific intent.
When it comes to the mens rea element of an offense, however, this Court has effectively excused the State from this burden of production. In Matson v. State, 819 S.W.2d 839, 843-46 (Tex.Cr.App.1991), the Court held that the former "reasonable alternative hypothesis" method for analyzing sufficiency of the evidence, rejected in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), had never in any event applied to appellate review of sufficiency of the evidence to prove a culpable mental state. In essence this means that if all of the State's circumstantial evidence, viewed in the light most favorable to the verdict, is consistent both with a culpable mental state and a non-culpable mental state, but does not lead a rational jury to prefer one theory over the other, we will nevertheless hold the evidence sufficient. The notion seems to be that when it comes to proving what is in the mind of a criminal, it would just be too onerous to hold the State to its full, albeit constitutionally mandated, burden of proof. Matson, supra, at 846.
Writing for a plurality of the Court in Brimage, I deferred to stare decisis and held the circumstantial evidence sufficient, despite the fact there was nothing in the evidence to lead a rational jury to prefer the theory that Brimage harbored a specific intent to prevent liberation over the theory that he simply meant to sexually assault his victim and then immediately kill her. Slip op. at 13-14 & n. 9, ___ S.W.2d at ___-___ & n. 9. For this proposition I cited Matson. Given the ghastly nature of crimes like Brimage's and appellant's, it is oftentimes tempting to relieve the State of its burden to prove the full capital component of an offense; to join, as it were, in the collective retributive impulse. Alas, as judgeseven as popularly elected judges we do not enjoy that liberty. In my view Matson legitimates that retributive impulse, and we should re-examine it.
II.
The instruction given by the trial court in this cause in an attempt to satisfy the Eighth Amendment limitations of Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), is identical to that given by the trial court in Riddle v. State, 888 S.W.2d 1 (Tex. Cr.App.1994). The majority in Riddle held it to be a sufficient Penry instruction, likening it to one we had earlier approved in Fuller v. State, 829 S.W.2d 191, 209 (Tex.Cr.App.1992). In my concurring opinion in Riddle I disagreed, pointing out that the instruction was much more like the one we expressly disapproved in Rios v. State, 846 S.W.2d 310 (Tex.Cr.App.1992). I nevertheless concurred in the result in Riddle because there the defendant failed "to identify any mitigating evidence that either cannot be accounted for in mitigating fashion within the confines of the special issues, see Johnson v. Texas, 509 U.S. ___, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993), or that this Court has seen fit to agree has mitigating significance apart from the special issues." 888 S.W.2d at 9. I cannot say the same thing here. Thus I dissent to the Court's disposition of appellant's second through fifth points of error. Maj. op. at 575-576.
At the punishment phase of trial appellant adduced evidence that from his earliest childhood he was beaten and abused by his natural father, and by a succession of alcoholic stepfathers, usually after trying to save his mother from a similar fate. This exposure to violence, according to Dr. Wendell Dickerson, a forensic psychologist, in combination with substance abuse, produced in appellant an antisocial personality disorder. Another psychologist, Dr. Jerome Brown, affirmed that "there is a cause and effect relationship between [appellant's] upbringing ... and the fact that he's sitting here at counsel table today[.]" This level of childhood abuse and its formative effect on appellant's personality can only have aggravating significance as it *581 relates to the special issues under former Article 37.071, V.A.C.C.P. And it clearly has mitigating significance apart from the special issues. Moreover, appellant has even adduced evidence of so-called "nexus." See Goss v. State, 826 S.W.2d 162, 165-66 (Tex. Cr.App.1992). The Eighth Amendment prohibits execution of appellant in the absence of jury consideration of the mitigating impact of this evidence. Gribble v. State, 808 S.W.2d 65, 75 (Tex.Cr.App.1990).
For reasons given in Rios and in my concurring opinion in Riddle, the instruction appellant got was not adequate. The Court should at least vacate the judgment of the trial court and remand the cause for a new punishment hearing under Article 44.29(c), V.A.C.C.P. Because the Court does not, I respectfully dissent.
NOTES
[1] Appellant does not contend that the evidence was insufficient to show beyond a reasonable doubt that he murdered his wife.
[2] At least one other non-physical argument occurred earlier in the evening.
[3] Mullins, Mandy, and Lonnie never attempted to help Deborah or stop appellant. Both Mullins and Mandy testified that they were too afraid of appellant to help her.
[4] "Ace" was a nickname appellant had for Mullins.
[5] It appears from the record that the group left Deborah's two and a half-year old son alone at the house for the remainder of the evening. Appellant and Mandy retrieved him the next morning.
[6] V.T.C.A., Penal Code, Section 20.01(a) defines "restrain" as restricting a person's movement without consent, so as to interfere with his liberty, by confining him or moving him from one place to another. The restraint is "without consent" if it is accomplished by force, intimidation, or deception.
[7] The following are appellant's proposed special issues:
"1. If you have answered "yes" to Special Issues One and Two, then you will answer the following question:
"DO YOU FIND BY A PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT WAS THE VICTIM OF CHILD ABUSE AND THAT THE DEPRIVATIONS SUFFERED BY DEFENDANT AS A CHILD TEND TO REDUCE DEFENDANT'S MORAL CULPABILITY AND THE DEFENDANT SHOULD BE SENTENCED TO LIFE IN THE PENITENTIARY?
"2. If you have answered "yes" to Special Issues One and Two, then you will answer the following question:
"TAKING INTO CONSIDERATION ALL OF THE EVIDENCE, INCLUDING THE CIRCUMSTANCES OF THE OFFENSE, DO YOU FIND FROM A PREPONDERANCE OF THE EVIDENCE THAT THE ABUSE AND DEPRIVATIONS SUFFERED BY THE DEFENDANT AS A CHILD TEND TO REDUCE DEFENDANT'S MORAL CULPABILITY SO AS TO WARRANT THAT A SENTENCE OF LIFE IMPRISONMENT RATHER THAN A DEATH SENTENCE BE IMPOSED?
"3. If you have answered "yes" to Special Issues One and Two, then you will answer the following question:
"TAKING INTO CONSIDERATION ALL OF THE EVIDENCE, INCLUDING THE CIRCUMSTANCES OF THE OFFENSE, THE DEFENDANT'S CHARACTER AND BACKGROUND, AND THE PERSONAL MORAL CULPABILITY OF THE DEFENDANT, DO YOU FIND THAT THERE IS A SUFFICIENT MITIGATING CIRCUMSTANCE OR CIRCUMSTANCES TO WARRANT THAT A SENTENCE OF LIFE IMPRISONMENT RATHER THAT A DEATH SENTENCE BE IMPOSED?"
[8] This is contrary to appellant's narrow belief that there must be a nexus between membership in the organization and the type of crime committed.
[9] Without argument, appellant notes that the evidence was more prejudicial than probative because it was only introduced to incite the passions of two black jurors. See Tex.R.Crim.Evid. 403. We disagree. As the trial court notes, other evidence that was introduced "far outweighs anything this evidence might cause." The other evidence consisted of appellant's actions involving shaving his niece's eyebrow, head and pubic hair and calling her a "whore" because she had accepted a ride to her grandmother's from a black man. Also, Ted Stewart, a black man, testified that he observed the "white" appellant shoot and kill Stewart's (presumably black) friend for no apparent reason and then turn the gun on Stewart.
[10] Overruled on other grounds, Harris v. State, 784 S.W.2d 5, 19 (Tex.Cr.App.1989), cert. denied, 494 U.S. 1090, 110 S. Ct. 1837, 108 L. Ed. 2d 966 (1990).
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905 S.W.2d 33 (1995)
William R. COURTNEY and Sharon Courtney, Appellants,
v.
David GELBER, M.D., Appellee.
No. 01-94-00976-CV.
Court of Appeals of Texas, Houston (1st Dist.).
July 20, 1995.
Les Cochran, Houston, for appellants.
John C. Marshall, Todd J. Broussard, Matthew McCracken, Houston, for appellee.
Before OLIVER-PARROTT, C.J., and DRAUGHN[1] and HILL[2], JJ.
OPINION
HILL, Justice (Assigned).
William R. Courtney and Sharon Courtney appeal from a summary judgment that they take nothing in their medical malpractice action against David Gelber, M.D. They contend in two points of error that the trial court erred in granting Dr. Gelber's motion for summary judgment without giving notice that the motion was being considered by the *34 court for a dispositive ruling, and that the trial court erred in granting summary judgment for defendant because the response filed by plaintiff, at the invitation of the court at the hearing on plaintiff's motion for new trial, created a fact issue precluding summary judgment.
We reverse and remand for further proceedings consistent with this opinion, because the trial court did not proceed as contemplated by rule 166a(c) of the Texas Rules of Civil Procedure when it granted Dr. Gelber's motion for summary judgment without a hearing or submission date, and prior to the time that the Courtneys' response was due to be filed under the rule.
On November 29, 1993, Dr. Gelber filed a motion for summary judgment, giving notice of hearing on December 20, 1993. On December 6, 1993, before the Courtneys' response was due, the hearing date was passed by agreement of the parties. On June 3, 1994, the trial court, without any notice to either party of a subsequent hearing or submission date, granted Dr. Gelber's motion for summary judgment.
The Courtneys contend in point of error number one that the trial court erred in granting Dr. Gelber's motion for summary judgment without giving notice to them that the motion was being considered by the court for a dispositive ruling. They urge that the trial court's action violated the provisions of rule 166a(c) of the Texas Rules of Civil Procedure, and that it was a violation of their due process rights under the provisions of article I, secs. 13 and 19 of the Texas Constitution and the Fourteenth Amendment to the United States Constitution.
Rule 166a(c) of the Texas Rules of Civil Procedure provides that, "Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Before the deadline for the filing of the Courtneys' response had been reached, the summary judgment hearing date was passed by agreement. Consequently, no due date for the Courtneys' response has ever expired. By the time such a date would have been reached with respect to the initial hearing date, the hearing had been passed by agreement, never to be reset. Accordingly, the Courtneys' response was not due at the time the trial court made its ruling on Dr. Gelber's motion for summary judgment. The rule contemplates the setting of a hearing or submission date so that the Courtneys might determine when their response to the motion is due. In this case the trial court did not afford the Courtneys a hearing or submission date; therefore, their response was not yet due when the trial court granted Dr. Gelber's motion for summary judgment.
Dr. Gelber relies on the case of Brown v. Capital Bank, N.A., 703 S.W.2d 231 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.), as authority for his position that the trial court had the authority to consider his motion for summary judgment without a new hearing date being set on his motion, and without further notice to the Courtneys. We find that case to be distinguishable in two ways. First, in that case the trial court set a hearing date on more than one occasion, including the final occasion in which the trial court granted the summary judgment. Id. at 233. Also, in that case the time for filing a response had expired with respect to two of the three hearing dates on which the motion had been set. Id. Brown does not support Dr. Gelber's argument that the trial court has the authority to rule on a motion for summary judgment without setting a hearing or submission date, or that the Courtneys' response had become due prior to the time that the trial court ruled on Dr. Gelber's motion.
In his argument under point of error number two, Dr. Gelber relies on several cases in support of his argument that the trial court's ruling on his motion for summary judgment in this manner was proper. Those cases are Birdwell v. Texins Credit Union, 843 S.W.2d 246 (Tex.App.-Texarkana 1992, no writ); Gordon v. Ward, 822 S.W.2d 90 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Owen Elec. Supply, Inc. v. Brite Day Const. Inc., 821 S.W.2d 283 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Martin v. Cohen, 804 S.W.2d 201 (Tex.App.-Houston [14th Dist.] 1991, no writ); Finkelstein v. Southampton Civic Club, 675 S.W.2d 271 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.); and International Ins. Co. v. Herman *35 G. West, Inc., 649 S.W.2d 824 (Tex. App.-Fort Worth 1983, no writ).
We have examined all of these cases and find that none of them involved a trial court ruling on a motion for summary judgment without any notice of a hearing or submission date for the motion. Consequently, we find those cases to be distinguishable on that basis. In International Insurance Company, the Court reversed a summary judgment because the non-movant had not received at least seven days notice of the hearing on the motion. 649 S.W.2d at 826. As in this case, the original hearing date for the motion for summary judgment had been passed. Id. at 825. This court reversed a summary judgment for the same reason, under similar circumstances, in Nickerson v. E.I.L. Instruments, Inc., 817 S.W.2d 834 (Tex.App.-Houston [1st Dist.] 1991, no writ). It follows that if a summary judgment must be reversed because the non-movant did not receive sufficient notice of a subsequent hearing date on the motion so as to know when its response was due, a summary judgment must also be reversed for the same reason when no hearing or submission date is set at all.
Dr. Gelber argues that the Courtneys had more than adequate time from the time they received the initial notice of a hearing on his motion for summary judgment in which to file a response, that they had the evidence for a response in hand prior to the date the trial court ruled on the motion, and that the Courtneys could have, but did not, file a motion asking the trial court to postpone consideration of Dr. Gelber's motion for summary judgment. Even if all of Dr. Gelber's assertions are true, none of them justify the action of the trial court in ruling on the motion for summary judgment without setting a hearing or submission date. We sustain point of error number one. In view of our determination of this point of error, we need not determine point of error number two.
We reverse and remand for further proceedings consistent with this opinion.
NOTES
[1] The Honorable Joe Draughn, former Justice, Court of Appeals, 14th District of Texas at Houston sitting by assignment.
[2] The Honorable John G. Hill, former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.
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441 A.2d 268 (1982)
Nathaniel HARRIS, Appellant,
v.
UNITED STATES, Appellee.
Nos. 13241, 80-1284.
District of Columbia Court of Appeals.
Argued May 20, 1981.
Decided January 21, 1982.
*269 Silas J. Wasserstrom, Public Defender Service, with whom Vito T. Potenza, Public Defender Service, Washington, D. C., was on the brief, for appellant. Kenneth E. Labowitz, Alexandria, Va., appointed by the court, also entered an appearance for appellant.
Darryl W. Jackson, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Theodore A. Shmanda, and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. John R. Fisher, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.
Before KELLY, MACK and PRYOR, Associate Judges.
PRYOR, Associate Judge:
A two-count indictment was filed charging appellant with second-degree murder while armed and second-degree murder, D.C.Code 1973, §§ 22-2403, -3202, in connection with the death of one Furman R. Turner. Following a trial by jury, appellant was found guilty of the greater offense and sentenced to a term of imprisonment of 15 years to life. Appellant's motion for a new trial, alleging ineffective assistance of counsel, was denied. Although the trial court found that counsel's representation had, in fact, been inadequate, it concluded that the essence of appellant's theory of the case self-defense had not been blotted out, Angarano v. United States, D.C.App., 312 A.2d 295, 298 n.5 (1973), rehearing denied, D.C.App., 329 A.2d 453 (1974) (en banc), but was sufficiently presented to the jury by appellant's own testimony. Focusing primarily upon the factors of pretrial investigation, consultation and preparation, we conclude, in the circumstances of this case, that the conviction must be reversed and the case remanded for a new trial.
I
Trial
The evidence adduced at trial, revealed the following: Sharon Turner, a resident of Southeast Washington, was appellant's girlfriend and the mother of his child. During the early morning hours of August 1, 1975, appellant went to the home of his girlfriend and knocked on the front door. Both Sharon's *270 brother, Charles Watkins, and Furman Turner, the decedent, were sleeping in the living room when they were awakened by the banging. Watkins, who heard someone softly calling "come on Sharon," noticed that the front screen door had been propped open. Since the family never left the screen door in that position, Watkins and Turner decided to find out who was outside.
Watkins admitted that he and Turner armed themselves with a stick and a poker or paper picker as they exited the back door to investigate.[1] Upon approaching the front of the house, the two observed appellant standing at the corner of the block. When Watkins called to him, appellant fled in the direction of his home, pursued by Turner and Watkins. Appellant ran to his back yard, through the gate, toward the back door of his house repeatedly calling for his mother. Although Turner continued chasing him into his yard, Watkins remained at the gate, a distance of about 25 feet away from appellant's back door. Watkins testified that he saw appellant turn around and stab Turner with a shiny object that appeared to be a "triangle knife." Watkins acknowledged that when appellant turned around, the decedent was pursuing him with the paper picker or poker in his hand.
Responding to a radio broadcast of a stabbing at 4903 F Street, S.E., two police officers arrived at the location at about 5:25 a. m., and observed Turner lying on the pavement on his back. The officers were informed by an unidentified person that Nathaniel Harris, whose address was given to the officers, had stabbed Turner. As the officers entered appellant's back yard, they noticed that a clothesline in the yard had apparently been broken in a struggle. There were clothes on the ground covered with blood as well as a pool of blood in the grass, with a poker lying near it. When the officers knocked on the door, appellant answered, and in response to officers' questions, identified himself and allowed them to enter the house. The officers asked appellant if he had any knowledge of a person being injured outside; appellant replied that he stabbed Turner. The officers observed blood on his hands and clothing, and that his knuckles were bruised. While the officers were escorting appellant out of the house, a sergeant informed them that Turner had died. A detective from the Homicide Unit advised appellant of his constitutional rights and asked him if he wanted to make a statement; appellant signed a waiver of rights card and replied in the affirmative. He thereupon began to recount the circumstances surrounding the stabbing. The statement was reduced to writing and signed by appellant.
Dr. Leroy Riddick, a Deputy Medical Examiner for the District of Columbia, performed an autopsy on the decedent which disclosed that Turner had suffered multiple stab wounds. Dr. Riddick concluded that the manner of death was homicide and stated that the poker or paper picker could not have been the instrument used to inflict the decedent's wounds.
Appellant and his mother, Mrs. Hattie Harris, testified on behalf of the defense. Mrs. Harris stated that at approximately 5:20 a. m. on the day in question, awakened by her son's scream, she ran to the back door and observed him engaged in a fight. She went out into the yard, grabbed her son and brought him inside. She did not see any weapons, nor any injuries or blood on Turner as he left her yard. Mrs. Harris also stated that it was not until she returned to the yard to speak to the police officer that she noticed blood.
Appellant admitted going to the home of Sharon Turner in the early morning hours of August 1, 1975, and knocking on the door. He was starting to return to his house when he saw Watkins and Turner coming toward him with weapons. Appellant ran home, calling for his mother to open the back door. Having been struck several times with the weapons of his pursuers, appellant stated that he reached for a garden tool and struck out at Turner.
*271 The jury returned a verdict of guilty of second-degree murder while armed.
Post-Trial Hearing
At the hearing on appellant's claim of ineffective assistance of counsel, the trial court received the testimony of appellant's mother who stated that shortly after the stabbing, she spoke to her next door neighbor, Ms. Vermelle Wages, who stated that she had witnessed the incident between appellant and the decedent. Mrs. Harris related this information to trial counsel, giving him the name and address of this potential witness. Although he told appellant's mother he would contact this person, he never did. Ms. Wages submitted an affidavit indicating that she had observed appellant standing in his yard, calling his mother, and attempting to get inside. She also observed a person enter appellant's yard and attack him with a stick. "After [appellant] turned around, the two boys started to fight." This witness was never interviewed by trial counsel or any of his representatives.
Mrs. Harris tried to maintain contact with defense counsel by telephone. She called several times leaving messages for him, but her calls were never returned. Similarly, appellant's sister attempted to reach counsel by telephone on innumerable occasions without success. She also sent him a registered letter to which she received no response.
Counsel testified at the outset that he was unable to locate the file used during his representation of appellant. He therefore was unable to recall many of the matters pertinent to the court's inquiry. It is clear, however, that he did not visit the scene of the crime but relied instead on a sketch prepared by other counsel. Similarly, he did not attempt to locate any of the potential witnesses in the neighborhood nor contact the known defense witnesses. He did not interview any government witnesses nor attempt to determine whether any of them had criminal records.
While there was a conference with the prosecutor where discovery and a plea bargain were discussed, counsel did not recall asking for or receiving any documents; nor did he request a copy of the medical examiner's report, or attempt to see photographs of the scene or any of the other physical evidence.
Appellant testified that in preparation for trial he had spoken to defense counsel on only one occasion, which consisted of a 20-minute conversation on the day of the status hearing in the cellblock of the Superior Court building. While this conversation concerned the charges and various participants to the incident, appellant stated that he was never advised of the maximum and minimum penalties he faced, nor informed of any plea offer. Counsel disputed this testimony asserting that he informed appellant of a plea offer to second-degree murder, but conceded that he did not explain the consequences of going to trial as compared to the advisability of entering a guilty plea.[2] There was also dispute as to whether the defense theory was ever discussed in earnest. In this regard, appellant stated that he did not talk with his attorney about testifying until the day of trial. Mrs. Harris, appellant's mother, likewise related that counsel did not discuss her testimony with her prior to calling her as a witness.
At the conclusion of the hearing, the trial court noted the investigative deficiencies which had been demonstrated and referred particularly to
trial counsel's inattention to plea negotiations and failure to adequately advise and inform defendant of possible sentence and plea alternatives. The inadequacy of trial counsel's preparation in this regard is illustrated by the fact that even at sentencing, counsel believed the defendant (who had been served repeat papers) was eligible for sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5010(c).... [Mem.Op. at 51-52.]
*272 In reviewing the circumstances presented, the court denied relief on the basis that appellant had received a fair trial.
II
This kind of challenge to a criminal conviction raises difficult questions for an appellate court. The prevailing test that guides us in this area has been stated on a number of occasions; namely, that an accused has a Sixth Amendment right to effective assistance of counsel. To show a violation of this right, one must prove gross incompetence of counsel resulting in the blotting out of a substantial defense. Angarano v. United States, supra. In adopting this approach we have recognized that a lawyer, like any other professional, must be accorded sufficient latitude to make decisions or judgments which bring one's professional abilities to bear. Thus, mere errors of judgment as disclosed by hindsight do not constitute ineffectiveness. Woody v. United States, D.C.App., 369 A.2d 592, 594 (1977). Further, a defense which is blurred due to incompetence must be shown to be a substantial defense as a matter of law and available from known facts or those obvious to the trial attorney. Id.
In short, it is not our function, nor should it be, to second guess the countless decisions, particularly those involving trial strategy or tactics, which counsel must make. Notwithstanding these admonitions regarding the proper scope of appellate review in ineffective assistance cases, it is still true that an essential prerequisite to counsel's presentation of an intelligent and knowledgeable defense is the requirement that he consult, investigate and prepare for trial. Monroe v. United States, D.C.App., 389 A.2d 811 (1978).[3] Highlighting the importance of pretrial preparation in Monroe, this court stated:
[It] is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation and study of legal points which precede the trial.... The adversary process assumes that its proper functioning demands that both sides have prepared and organized their cases in advance of trial.... Thus, investigation and preparation are the keys to effective representation in the broad sense in a trial.... Neglect of any of these steps may preclude the presentation of an effective defense.... It is impossible to overemphasize the importance of appropriate investigation to the effective and fair administration of criminal justice. [Id. at 817, quoting ABA Standards Relating to the Defense Function § 4.1, Introductory Note at 224-25, and Commentary at 228 (citation omitted) (Approved Draft 1971).]
Viewing this case within the bounds of our earlier decisions, it is clear without belaboring the undisputed facts, that trial counsel did not investigate this case, nor minimally consult with his client, nor make even rudimentary preparation for trial. The order of the trial judge confirms this. Thus, the narrower question presented is whether, as a result of this incompetence, trial counsel's conduct blotted out the essence of a substantial defense.
Viewing the evidence in the light most favorable to the government, and without purporting to weigh the merits, we first conclude that in the context of this case, appellant could claim a substantial or nonfrivolous defense. The government's evidence, as presented by its key witness, revealed that appellant was chased to his residence by two armed persons and ultimately killed the one who pursued him into his own back yard. Prosecuted on a charge of second-degree murder while armed, a substantial defense could derive from lack of proof of the elements of the charge, Johnson v. United States, D.C.App., 413 A.2d 499, 504 (1980), or on the affirmative ground of self-defense.
In a case of this nature the defenses are interrelated; a jury must determine if there has been proof of malice necessary for a conviction of murder, or alternatively, proof of homicide in the heat of passion *273 necessary to support a finding of a lesser offense. Lastly, the factfinders must consider whether to completely exonerate the defendant on the basis of self-defense. These determinations, however, can only be made when the jury is informed by counsel of the various defense theories through a coherent presentation of the facts and a cogent application of the law to the facts both of which stem from adequate pretrial consultation, investigation and preparation.
In attempting to show that his defense was blotted out, appellant has relied upon numerous instances of counsel's ineptitude at trial which were the result of his lack of preparation. Mindful of our admonitions regarding appropriate review, we choose not to explore each allegation. Three instances of conduct, however, had a particularly significant impact on the development of appellant's self-defense theory at trial and thus merit discussion.
First, the prosecutor was allowed to inaccurately argue the respective heights of appellant and the decedent, even though the correct data was available from the medical examiner's report. Specifically, Charles Leon Watkins, the government's key witness, had described the deceased as standing about five feet tall. The prosecutor emphasized this fact in both his redirect questioning of Watkins and in his closing argument where he described the decedent as standing about five feet three. In cross-examining appellant, the prosecutor queried:
Q. You don't agree with Mr. Watkins that [Turner] was about an inch smaller than him, and Mr. Watkins told us yesterday that he was about five four?
A. No. [Turner] was taller than Leon.[4]
Proper preparation would have made trial counsel aware that the autopsy protocol listed the decedent's height at five feet nine inches. This fact bore significantly on the government's excessive force theory.
Secondly, despite the fact that counsel acknowledged at the post-trial hearing the significance of the medical examiner's testimony, he admitted that no pretrial effort to interview him was made. This failure resulted in virtually no cross-examination of this witness at trial. Additionally, the substance of the medical examiner's direct testimony revealed that the decedent was inflicted with an instrument which had a serrated edge; the prosecutor argued that the instrument was a knife. Appellant's counsel did not inquire if the instrument used could have been, as was alleged by appellant, a garden tool; nor did counsel make any effort to establish that the pattern of wounds and the fact that some were of a superficial nature, were consistent with appellant's claim of a heat of passion response to an apparent threat.
Finally, after appellant had testified that he had earlier been convicted of an assault with a dangerous weapon (knife), the prosecutor inquired:
Q. Is it not true that you have used knives before on people?
A. What do you mean by that?
Q. Is it not true that you have used knives on people, attacked people before with knives?
A. No. I have not attacked people with knives.
Q. Your answer is no?
A. To people, yes.
THE COURT: What do you mean by "people?" What do you understand the question "people" to mean?
APPELLANT: I had an incident with one person before this.
THE PROSECUTOR: That was June of the proceeding year, was it not?
APPELLANT: Yes.
THE PROSECUTOR: That person was Mr. Hart [the previous complainant], was it not?
The prosecutor was then permitted to elicit the facts underlying the conviction and by his argument to the jury to suggest that because the appellant had used a knife aggressively before against Hart (who lived at the same address as the appellant's girlfriend), he probably used one in like fashion *274 here as well.[5] No limiting instruction was given and in his closing statement the prosecutor argued the facts underlying the conviction to the jury as substantive evidence from which he asked them to infer that the appellant had a knife when he went to Sharon Turner's house and that he possessed the requisite malice to support second-degree murder. Counsel did not object.
The court, in its post-hearing order, recognized that, consistent with our decisions, such evidence of "other crimes" was not generally admissible and was objectionable.[6] Furthermore, the trial court opined that the error, while constituting "negligence" on counsel's part, was not a significant one. We disagree, finding that the error was significant in view of the fact that one of the paramount questions for the jury was whether the decedent was killed in the heat of a struggle. Moreover, where the type of weapon used here was a crucially contested factual issue, the otherwise inadmissible fact of a prior use of a knife was prejudicial to appellant's case.
We conclude, however, that the strength of appellant's ineffective assistance challenge does not depend upon counsel's action or inaction in the courtroom. Rather, the failure to make reasonable efforts to interview and utilize known witnesses having a direct bearing on the substantial defense, the failure to make minimal efforts to discover available information central to the case, as well as the omission of basic communication between client and counsel, culminated, in this instance, in a lack of preparedness which nullified any meaningful plea negotiations and manifested itself in the courtroom so as to blot out a substantial defense.
All that happened here was that appellant and his mother were allowed to testify in court. The manifest inadequacies in trial counsel's preparation thwarted the effective presentation of appellant's self-defense theory to the jury a presentation appellant was not required to make alone. We are unable to characterize this circumstance as a matter of trial tactics.
Accordingly, we hold that counsel's failure to investigate, consult and prepare, amounted in this case to "gross incompetence which denied a substantial defense."
Reversed and remanded.
NOTES
[1] Watkin's stick was about a foot and one-half long; Turner's was an "iron paper picker" approximately two feet in length with a six inch handle.
[2] The trial court found that appellant received "minimal or no assistance" with respect to a possible plea and characterized trial counsel's conduct in this area as constituting "excusable neglect."
[3] We are mindful that the Monroe case involved a pretrial determination of the question.
[4] The prosecutor used this inconsistency to attack appellant's credibility and to undermine his claim of fear which, of course, was crucial to his claim of self-defense.
[5] The prosecutor also misstated the law of self-defense on a crucial issue in this case when he twice informed the jury that if the appellant was the aggressor he could not claim self-defense.
[6] Fields v. United States, D.C.App., 396 A.2d 522 (1978) (prosecutor may not impeach defendant with prior convictions in a manner which suggests to jury that because of his prior criminal acts the defendant is guilty of the crime charged). See also Ward v. United States, D.C.App., 386 A.2d 1180, 1182 (1978).
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733 F. Supp. 892 (1990)
Michael R. SHEMONSKY, Plaintiff,
v.
OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF the TREASURY, and Director of the Office of Thrift Supervision, Defendants.
No. 3:CV-90-0180.
United States District Court, M.D. Pennsylvania.
March 29, 1990.
*893 Michael R. Shemonsky, Taylor, Pa., pro se.
Scott T. Kragie, Squire, Sanders & Dempsey and Jordan Luke and Michelle Kosse, OTS, Chief Counsel, Washington, D.C., for defendants.
MEMORANDUM AND ORDER
CONABOY, Chief Judge.
I
Plaintiff, a pro se litigant, brought this suit in federal court on January 29, 1990, after filing a document entitled "Application for Issuance of a Special or Preliminary Injunction, Ex Parte and Without Hearing". Doc. No. 1. The crux of Plaintiff's grievance centers around the activities of the Office of Thrift Supervision (hereinafter "OTS") and its dealings with Atlantic Financial Federal (hereinafter "Atlantic" or "the Association"), a federally-chartered and insured savings and loan association.[1]
After determining that Atlantic was in an unsafe and unsound condition to transact business, the Director of OTS appointed the Resolution Trust Corporation as a receiver for the Association on January 11, 1990. Soon afterwards, Plaintiff filed suit in the United States District Court for the Middle District of Pennsylvania challenging the constitutionality of the government's actions. Acting as "the newly elected Chairman of the Board, President, and Chief Executive Office of Atlantic Financial Federal", Plaintiff Shemonsky sought to have this court enjoin the Defendants from enforcing the "Receivership Order". Doc. 1 at ¶ 1. Plaintiff believes that the OTS has improperly "stripped (Atlantic) of its Corporate rights, and its Federal Banking Charter" causing "immediate, serious, and irreparable harm" to the Association, its employees, stockholders, and customers. Id. at ¶ 10.
On February 1, 1990, this court issued an order directing the Defendants to show cause why the Plaintiff's request for injunctive relief should not be granted and the OTS enjoined from enforcing the Receivership Order. Doc. No. 3. In response, the Defendants filed a motion to dismiss with a supporting brief pursuant to Federal Rule of Civil Procedure 12. Doc. Nos. 7 and 8. Shemonsky has filed a brief in opposition and also has supplemented the record with additional facts[2] and moved to dismiss the attorney of record representing the Defendants.[3] Doc. Nos. 9, 10, and 11.
II
Defendants seek to dismiss this action on the grounds that jurisdiction is lacking, venue is improper, service of process is insufficient, and the complaint fails to state a claim upon which relief can be granted. Of primary concern to this court is the jurisdictional issue raised by the Defendants since it strikes at the very heart of this court's power to hear Plaintiff's grievance.
Specifically, the Defendants' challenge this court's authority to temporarily or preliminarily enjoin the actions of the appointed *894 receiver until a challenge to the actual appointment is made pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act (hereinafter "FIRREA")[4]. See Act of Aug. 9, 1989, Pub.L. No. 101-73, § 301, Sec. 5(d)(2)(E), 1989 U.S. Code Cong. & Ad.News (103 Stat.) 187; Doc. No. 8 at 8. Plaintiff questions such an assertion and basically argues that Congress cannot limit the authority of the court to review the merits of any legal claim. Doc. No. 11 at 1-3. After reviewing the parties' briefs, however, this court is of the opinion that jurisdiction, as well as venue, is lacking and that Defendants' motion to dismiss must be granted.
III
The relevant statutory provision under FIRREA concerning judicial intervention into these matters reads as follows:
(E) POWER OF APPOINTMENT; JUDICIAL REVIEW.The Director (of the Office of Thrift Supervision) shall have exclusive power and jurisdiction to appoint a conservator or receiver for a Federal savings association. If, in the opinion of the Director, a ground for the appointment of a conservator or receiver for a savings association exists, the Director is authorized to appoint ex parte and without notice a conservator or receiver for the savings association. In the event of such appointment, the association may, within 30 days thereafter, bring an action in the United States district court for the judicial district in which the home office of such association is located, or in the United States District Court for the District of Columbia, for an order requiring the Director to remove such conservator or receiver, and the court shall upon the merits dismiss such action or direct the Director to remove such conservatory or receiver.
Pub.L. No. 101-73, § 301, Sec. 5(d)(2)(E), 1989 U.S.Code Cong. & Ad.News (103 Stat.) 187.
Moreover, FIRREA provides the following as to the court's authority to restrain the actions of a receiver:
(G) COURT ACTION.Except as otherwise provided in this subsection, no court may take any action for or toward the removal of any conservator or receiver or, except at the request of the Director, to restrain or affect the exercise of powers or functions of a conservator or receiver.
Thus, Congress has explicitly limited not only the circumstances under which the court can act but also the place a party can challenge a receiver's appointment since venue lies
... in the United States district court for the judicial district in which the home office of such association is located, or in the United States District Court for the District of Columbia ...
Pub.L. No. 101-73, § 301, Sec. 5(d)(2)(E), 1989 U.S.Code Cong. & Ad.News (103 Stat.) 187.
Contrary to Plaintiff's arguments as to the jurisdictional authority of the federal courts, historical as well as legal precedent has long ago established that they are tribunals of limited jurisdiction and can only act based upon an explicit grant of authority under the Constitution and law of the United States. Congress and the courts have acted, through legislation and case precedent, to delineate the scope of judicial review throughout the history of the Republic. Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (1803) (establishing the concept *895 of judicial review as a cornerstone of American jurisprudence); Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L. Ed. 97 (1816) (Article III is "not mandatory, and congress may constitutionally omit to vest the judicial power in courts of the United States); Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264 (1869) (Congress does have some power to limit the appellate jurisdiction of the Supreme Court); Lauf v. E.G. Shinner & Co., 303 U.S. 323, 58 S. Ct. 578, 82 L. Ed. 872 (1938) (Norris-LaGuardia Act of 1932 sustained depriving federal courts of "jurisdiction" to issue injunctions in labor disputes).
Thus, in citing relevant statutory provisions and case law on the subject, counsel has made a strong argument that Congress has limited the authority of the courts to intervene in these regulatory proceedings so that swift action can be taken to stabilize precarious economic situations and minimize the losses caused by troubled and failing financial institutions. See Biscayne Federal Savings & Loan Association v. Federal Home Loan Bank Board, 720 F.2d 1499, 1503 (11th Cir.1983). Of course, the courts are not wholly precluded from reviewing the actions of the regulatory banking agencies and appropriate statutory provisions exist which allow for judicial intervention at the appropriate time. See FIRREA at § 301, Sec. 5(d)(2)(E), 1989 U.S. Code Cong. & Ad.News (103 Stat.) 187, cited in Defendants' Memorandum of Law, Doc. No. 8 at 8. As currently framed, however, the instant suit is not the appropriate vehicle to accomplish the relief sought by the Plaintiff.[5]
In light of the above, we hold that this court lacks jurisdiction to enter the injunctive relief requested by the Plaintiff. Furthermore, proper venue for this suit lies in the Eastern District of Pennsylvania, since that is were Atlantic's home office is located, or in the United States District Court for the District of Columbia.
Accordingly, we shall grant the Defendants' motion and dismiss this suit.
NOTES
[1] According to the Defendants, Atlantic Financial Federal was the largest savings and loan association in Pennsylvania with 78 branch offices located throughout the Commonwealth. At the time the OTS took action against it, Atlantic was among the thirty (30) largest savings institutions in the United States. Defendants' Memorandum of Law, Doc. No. 8 at 4.
[2] It is unclear whether Plaintiff is attempting to file an Amended Complaint pursuant to Federal Rule 15(a) or is merely providing the court with the omitted original complaint to this action. See Doc. No. 1 and 10. For purposes of clarity, this court has reviewed and considered the information contained in the document entitled "New Matter" in writing this decision.
[3] Plaintiff has moved to dismiss counsel for the Defendants based on what is perceived to be a conflict of interest involving said counsel and Atlantic. Doc. No. 9. How counsel's representation of another banking institution somehow alters the legal arguments it has presented here, however, is difficult to discern. We shall, therefore, deny Plaintiff's motion and proceed to examine the arguments presented.
[4] In the hope of salvaging the thrift industry and addressing some of the causes of the current crisis facing the banking community, Congress passed FIRREA which was signed into law by President Bush on August 9, 1989. According to a recent article published by the Federal Bar Association,
The primary purposes of FIRREA are to provide and administer the funding necessary to resolve failed thrifts and to dispose of these institutions' assets, to establish a distinction between the regulatory and insurance functions of the thrift industry, to establish stronger capital standards for thrifts and to enhance the enforcement powers of the regulatory agencies to protect against fraud and insider abuse.
See Glancz, Thrift Industry Restructured: An Overview of FIRREA, Vol 36, Federal Bar News & Journal, No. 10 at 473-74 (December 1989); see also, Act of Aug. 9, 1989, Pub.L. No. 101-73, Section 101, 1989 U.S.Code Cong. & Ad.News (103 Stat.) 187.
[5] Even if this court considers Plaintiff's pro se status and construes Shemonsky's petition as a challenge to the appointment of the receiver rather than for injunctive relief, we could not justify transferring this suit pursuant to 28 U.S.C. § 1406(a) since there appears to be several flaws in Plaintiff's case.
First, there remains a genuine question as to whether Plaintiff has standing to sue under FIRREA since the Act requires that "the association bring suit in the district court. See Id., § 301, Sec. 5(d)(2)(E), 1989 U.S.Code Cong. & Ad.News (103 Stat.) 187. Moreover, Plaintiff's claim that he was denied due process by the actions of the OTS in appointing a receiver would appear to lack merit in light of past case law. See Fahey v. Mallonee, 332 U.S. 245, 67 S. Ct. 1552, 91 L. Ed. 2030 (1947); Haralson v. Federal Home Loan Bank Board, 655 F. Supp. 1550, 1557 (D.C.C. 1987); Fidelity Savings and Loan Association v. Federal Home Loan Bank Board, 689 F.2d 803 (9th Cir.1982), cert. denied, 461 U.S. 914, 103 S. Ct. 1893, 77 L. Ed. 2d 283 (1983); but compare, Olympic Federal Savings and Loan Assoc. v. Director, OTS, 732 F. Supp. 1183 (D.D.C.1990). Finally, there were no legitimate grounds presented by the Plaintiff to show that the OTS was incorrect in its assertions concerning the application for FIRREA in the case of Atlantic Financial.
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933 S.W.2d 588 (1996)
Joe ISAAC, Appellant,
v.
WESTHEIMER COLONY ASSOCIATION, INC., Appellee.
No. 01-95-00764-CV.
Court of Appeals of Texas, Houston (1st Dist.).
August 1, 1996.
Rehearing Overruled September 12, 1996.
*589 Robert H. Fisher, Houston, for appellant.
Cynthia Owens, Jack M. Terry, Houston, for appellee.
Before SCHNEIDER, C.J., and ANDELL and TAFT, JJ.
OPINION
SCHNEIDER, Chief Justice.
By writ of error, Joe Isaac appeals the default judgment rendered against him, awarding Westheimer Colony Association, Inc., $28,456.30 in compensatory damages and $75,000 in exemplary damages. Westheimer did not file an appellate brief in this cause. We reverse and remand for a new trial.
In four points of error, appellant contends the trial court erred: (1) in granting default judgment because service of process was defective; (2) in granting default judgment because the petition fails to state a valid cause of action; (3) in failing to appoint an attorney to defend the suit in behalf of the non-appearing defendant; and (4) in awarding compensatory tort damages and exemplary damages without holding a hearing to inquire into the causal nexus between the event sued upon and the alleged injuries incurred.
Four elements must be present for a review by writ of error: (1) the petition must be brought within six months of the judgment; (2) by a party to the suit; (3) who did not participate at trial; and (4) error must be apparent on the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985). It is clear that Isaac's writ of error was brought within six months of the judgment, that Isaac was a party to the suit, and that Isaac did not participate at trial. The issue to be addressed here is whether error is present on the face of the record.
On August 3, 1993, Westheimer filed an original petition against Isaac alleging breach of express warranty and fraud. Service of process was initially attempted pursuant to rule 103 by Jeff Watts. Watts attempted to personally serve Isaac at his last known address. *590 Isaac's driver's license listed this address as his residence and the individual who answered the door claimed to be Isaac's father. This individual would not, however, confirm Isaac's whereabouts other than to say Isaac was in Houston.
Neither Isaac's home nor his business address could be confirmed. Had one of these locations been confirmed, Westheimer could have requested service of process via rule 106, which authorizes service at either location by leaving a copy of the citation, with a copy of the petition attached, with anyone over 16 years of age at either location or in any manner that evidence shows would be reasonably effective to give Isaac notice of the suit. TEX.R. CIV. P. 106. Because Westheimer could not confirm either location, Westheimer was forced to seek service of process through an alternative method. On February 8, 1994, Westheimer filed its motion for rule 109a substitute service. In the motion, Westheimer stated:
Plaintiff, after the exercise of due diligence, has not been able to serve the defendant. The current address of the defendant is unknown. A diligent effort has been made to locate the Defendant, including a check of Texas Driver's license Records, all of which indicate that defendant still resides at 225 W. Broadway, Pasadena, Texas. Information gathered indicates that there are three individuals with the name Joe Isaac, all lineally related (grandfather-father-son), using that address as their address.
....
Plaintiff's diligence in this matter satisfies the requirements for Citation by Publication provided by rule 109 of the Texas Rules of Civil Procedure. To effectuate service upon Defendant, Plaintiff desires to utilize the provisions of Rule 109a and allow service of the Original Petition upon anyone over 16 years of age residing at 225 W. Broadway, Pasadena, Texas. Based upon the foregoing, Plaintiff asserts that service would be as likely to give Defendant actual notice of the commencement of this lawsuit.
Attached to this motion was Jeff Watts's affidavit. In his affidavit, Watts stated that the current residence of Isaac was unknown and that he made a diligent search and inquiry to locate Isaac. Watts noted that he spoke with Isaac's father, who informed Watts that Isaac was in Houston, though the father would not say where.
Finding that Westheimer exercised due diligence in attempting service upon Isaac, the trial court authorized Jeff Watts to serve citation and a copy of the original petition upon anyone over the age of 16 residing at Isaac's last known address. The return of service, filed and entered on February 24, 1995, recited that service was made by Jeff Watts upon a male over the age of 16 at the listed address.
No request was ever made for, and the court did not appoint, an attorney ad litem to appear on behalf of Isaac. Isaac argues the trial court erred in failing to appoint an attorney to defend the suit on behalf of the non-appearing Isaac. Isaac points out that rule 109a requires, in conjunction with rule 244, the appointment of an attorney to defend the suit on behalf of a non-appearing defendant. Rule 109a provides:
Whenever citation by publication is authorized, the court may, on its own motion, prescribe a different method of substitute service, if the court finds, and so recites in its order, that the method so prescribed would be as likely as publication to give defendant actual notice. When such method of substituted service is authorized, the return of the officer executing the citation shall state particularly the manner in which service is accomplished, and shall attach any return receipt, returned mail, or other evidence showing the result of such service. Failure of defendant to respond to such citation shall not render the service invalid. When such substituted service has been obtained and the defendant has not appeared, the provisions of Rules 244 and 329 shall apply as if citation had been served by publication.
TEX.R. CIV. P. 109a (emphasis added). Rule 244 states that, "[w]here service has been made by publication, and no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other cases." TEX.R. CIV. P. 244; see Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex.1992).
*591 Both rules 106 and 109a provide for alternate methods of service of process. The primary distinction between the two rules is that rule 109a additionally requires, pursuant to rule 244, that the trial court "appoint an attorney to defend the suit in behalf of the defendant." TEX.R. CIV. P. 244 (emphasis added). The purpose of the portion of rule 244 requiring the appointment of an attorney ad litem is to provide a non-appearing defendant effective representation. Terry v. Howard, 546 S.W.2d 66, 69 (Tex.App.Dallas 1976, no writ).
Here, there is no evidence in the record of the trial court having appointed an attorney ad litem in Isaac's behalf. Absent strict compliance with the essential requirements of rule 244, a trial court commits reversible error. Albin v. Tyler Prod. Credit Ass'n, 618 S.W.2d 96, 98 (Tex.App.Tyler 1981, no writ).
The trial court's error in failing to appoint an attorney ad litem on Isaac's behalf is apparent on the face of the record. Therefore, we sustain Isaac's third point of error, reverse the judgment of the trial court and remand the cause for a new trial.
We need not address Isaac's first, second and fourth points of error.
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839 A.2d 566 (2003)
2003 VT 106
STATE of Vermont
v.
Vernon T. SHIPPEE.
No. 02-081.
Supreme Court of Vermont.
November 5, 2003.
*568 Present AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.
ENTRY ORDER
¶ 1. Defendant Vernon T. Shippee appeals his conviction after a jury found him guilty of lewd and lascivious conduct in violation of 13 V.S.A. § 2601. He argues on appeal that: (1) he was subjected to arbitrary and discriminatory enforcement because he was charged under 13 V.S.A. § 2601, a felony, rather than under 13 V.S.A. § 2632, a misdemeanor; (2) the trial court erred by admitting, as signature evidence, a videotape and testimony regarding defendant's prior conduct at another store; (3) it was plain error for the court to admit a police officer's testimony because it impermissibly bolstered the credibility of the hearsay statements made by the child victim; and (4) the court erred in denying defendant's motion to require the State to produce the child victim as a witness. We hold that the trial court failed to exercise its discretion under V.R.E. 403 when it admitted the evidence regarding defendant's prior conduct and, therefore, reverse and remand.
¶ 2. The State charged defendant with lewd and lascivious conduct for exposing himself and masturbating in front of a young child at a department store. The charge was based on the following alleged facts. On May 31, 1998, T.P. (mother) was shopping at Wal-Mart with her five-year-old daughter, E.P., when a man, later identified as defendant, approached them. According to the testimony, defendant followed them closely throughout the store. Subsequently, on July 19, 1998, the family was watching a news story on television that showed defendant's picture in connection with a court case. E.P., who was playing in the room during the news story, approached mother and said to her unexpectedly that the man on television was a "bad man" who "had his private parts sticking out" and "was scratching himself" when they were at Wal-Mart. Mother promptly notified the police, and a police detective and SRS investigator interviewed E.P. at the police special investigations office. Defendant was then arrested and eventually charged under 13 V.S.A. § 2601.
¶ 3. Prior to trial, the State moved to introduce hearsay statements of E.P., pursuant to V.R.E. 804a. Specifically, the *569 State sought to introduce statements made by E.P. to her mother and the detective during the police interview. In ruling that the child's statements were admissible hearsay under Rule 804a, the court noted the presence of "substantial indicia of trustworthiness sufficient to allow the jury to consider, weigh and dispose of the information."
¶ 4. In February 2000, the State filed a "Notice of Prior Bad Acts" in which it stated its intent to introduce testimony by a loss prevention specialist at Ames Department Store that, on May 3, 1998, he observed, and recorded on closed circuit video, defendant approach a young child in the store and "play" with himself. The court denied the motion, subject to further motion for introduction at trial, finding that the "unfair prejudicial effect [of the evidence] is not outweighed by its probative value."
¶ 5. One week before trial, the State informed defendant's counsel by letter that the State was uncertain as to whether it would call E.P. to testify and that, therefore, defendant's counsel would have to subpoena E.P. if he wished to ensure her presence at trial. Defendant requested that E.P. be required to testify on the morning of trial, and the court denied the motion as untimely. During the jury trial, held on October 18, 2000, the State again sought to introduce the videotape and testimony of the Ames employee. After reviewing the tape, the trial judge granted the request, and allowed the State to admit the tape and testimony. The jury returned a verdict of guilty.
¶ 6. On October 20, 2000, two days after trial, defendant filed a motion to dismiss based on his argument that the State should have charged him with a prohibited act under 13 V.S.A. § 2632, a misdemeanor, instead of lewd and lascivious conduct under 13 V.S.A. § 2601, a felony. The court denied the motion, and this appeal followed.
I.
¶ 7. First, defendant claims he was subjected to arbitrary and discriminatory enforcement because he was charged with a felony under 13 V.S.A. § 2601 instead of a misdemeanor under 13 V.S.A. § 2632, and that the court therefore erred by denying his motion to dismiss. This argument lacks merit. When there are overlapping criminal offenses with which a defendant could be charged based on the facts, it is within the prosecutor's discretion to choose among them. State v. Perry, 151 Vt. 637, 641, 563 A.2d 1007, 1010 (1989); United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) ("This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.").
¶ 8. Defendant further argues that, under the void-for-vagueness doctrine, 13 V.S.A. § 2601 lacks "sufficiently precise standards to avoid arbitrary and discriminatory enforcement." See State v. Purvis, 146 Vt. 441, 442, 505 A.2d 1205, 1206-07 (1985). Because First Amendment interests are not implicated here, we must base our examination of the statute on its application to defendant and the facts presented, and not on the statute's possible application to others. State v. Dann, 167 Vt. 119, 128, 702 A.2d 105, 111 (1997). Section 2601 provides that "[a] person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both." 13 V.S.A. § 2601. Defendant was charged with violating 13 V.S.A. § 2601 based on facts that he exposed himself and masturbated in front of *570 a young child at a department store. As we found in Purvis, 146 Vt. at 443, 505 A.2d at 1207, "the statute is sufficiently certain to inform a person of reasonable intelligence that this type of conduct is proscribed." Thus, the court did not err by denying defendant's motion to dismiss.
II.
¶ 9. Second, defendant argues that the trial court erred by admitting, under Vermont Rule of Evidence 404(b), a videotape and testimony regarding defendant's prior conduct at another department store as signature evidence. Defendant also claims that the court failed to exercise its discretion under V.R.E. 403.[*]
¶ 10. In order to claim error on appeal, a defendant is required to make a timely objection to the admission of evidence, and if it is not apparent from the context, he or she must state the specific ground for the objection. V.R.E. 103(a)(1). One of the primary purposes behind this rule requiring specific objections is to sufficiently alert the trial court to the theory behind the objection so that the judge can rule intelligently and quickly. State v. Bissonette, 145 Vt. 381, 392, 488 A.2d 1231, 1237 (1985); Bryant v. Consol. Rail Corp., 672 F.2d 217, 220 (1st Cir.1982). In this case, prior to trial in September 2000, the court denied the State's proffer of the prior act testimony and videotape under Rule 404(b) because its probative value did not outweigh its unfair prejudicial effect. One month later at trial, when the State again moved to admit that evidence, defendant objected to its admission on the grounds that it was "propensity" evidence.
¶ 11. Rules 403 and 404(b) "go hand in glove" because 404(b) "describes a particular form of evidence that might create the `unfair prejudice' anticipated under [Rule] 403." United States v. Currier, 836 F.2d 11, 17 (1st Cir.1987). Thus, even where the single issue on appeal was whether the trial court erred in improperly admitting a prior bad act pursuant to 404(b), we have proceeded to examine the admissibility under Rule 403: "[A]ssuming that the proffered evidence meets the requirements of Rule 404(b), the evidence must also pass the Rule 403 balancing test, in which the probative value of the evidence is compared to any unfair prejudicial effect." State v. Winter, 162 Vt. 388, 399, 648 A.2d 624, 631 (1994).
¶ 12. Given the necessary interaction between 404(b) and 403 in determining the admissibility of prior acts evidence, the context in which the objection was made, and the court's pretrial 404(b) ruling on Rule 403 grounds, the defendant's "propensity" objection was sufficiently specific to alert the trial court to defendant's theory behind the objection and to preserve the objection for our review. Cf. Bissonette, 145 Vt. at 392, 488 A.2d at 1237 (finding that defendant's objection to prior bad acts evidence on grounds that it was "collateral" and not on 404(b) grounds was not sufficient to preserve objection for review under V.R.E. 404(b) because it did not draw the court's attention to defendant's *571 concerns under Rules 403 and 404). Therefore, we first turn to the discretionary action of the trial court in making a decision under the 403 test because our decision on this issue is determinative.
¶ 13. The discretion of the trial court is broad when reaching a decision based on the balancing test under Rule 403. State v. Wheel, 155 Vt. 587, 604, 587 A.2d 933, 944 (1990). To prevail on his claim, defendant must prove the court either completely withheld its discretion or exercised it on grounds clearly untenable or unreasonable. State v. Dorn, 145 Vt. 606, 616, 496 A.2d 451, 457 (1985).
¶ 14. While we have not required the trial court to specify the precise weight it accords each factor in the balancing test, there must be some indication especially in cases like this one where the potential for unfair prejudice is high that the court actually engaged in the balancing test and exercised its discretion under V.R.E. 403. State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989) (holding that record was sufficient to show exercise of discretion by trial court). We find no such indication here. The court admitted the evidence during trial, stating:
I did just review that tape ... it's remarkable that the child is in the shopping cart and the mother is pushing the shopping cart and is immediately behind the child. But because it's in a department store with the racks, in effect, Mr. Shippee is around a corner from the child's mother and in the tape they are within a few feet of one another, Mr. Shippee and the child's mother, but the mother can't see Mr. Shippee. The child can, and Mr. Shippee is obviously playing with himself as charged. So I view this as signature evidence. I don't think this is propensity. This is a specific manner of committing this offense so I'm I have to agree with [the State] that this is admissible for that reason because the argument has been made to the jury where the mother being right there, you know, it couldn't happen that way but, in fact, here's a tape that tells me this is precisely what happened it has happened before and how this person has done it. So for that reason I am going to find that that's admissible. So you can you can put on that testimony to show that tape.
Although we accord a court "wide discretion" in balancing the probative value of the evidence against the danger of unfair prejudice, we have found abuse of discretion notwithstanding a showing that the trial court performed the balancing. Winter, 162 Vt. at 399-400, 648 A.2d at 631 ("The trial court performed the balancing here.... [but][e]ven accounting for the court's wide discretion, we conclude that probative value was substantially outweighed by the danger of unfair prejudice."). Here the court reviewed the admissibility of the evidence under V.R.E. 404(b), but there is no sign that it weighed the evidence under V.R.E. 403, despite the high risk of unfair prejudice.
¶ 15. We are not persuaded by the dissent's view that defendant "opened the door" to admission of the tape. First, we note that the trial court did not indicate that it was admitting the evidence on that basis. Second, the pretrial ruling balancing the danger of unfair prejudice created by admission of the tape against its probative value concluded that the risk of prejudice was too great absent "developments at trial" that presumably would lead to a different outcome only if an increase in the probative value of the evidence outweighed the danger of prejudice. No such weighing took place, and we do not share the dissent's view that the probative value of the evidence was clear and the unfairness of its prejudicial impact not apparent. Cf. *572 In re Nash, 149 Vt. 63, 66, 539 A.2d 989, 991 (1987) (holding that there was no abuse of discretion in admitting evidence where trial court considered the appropriate factors of unfair prejudice, the "probative value of the evidence [was] clear, and the unfairness of any claimed prejudice [was] not readily apparent").
¶ 16. In light of our disposition of defendant's argument regarding the admission of evidence, it is unnecessary to address defendant's other arguments on appeal.
Reversed and remanded.
¶ 17. SKOGLUND, J., concurring.
I concur with the plurality opinion that the trial court abused its discretion by failing to weigh evidence under V.R.E. 403 when deciding whether prior crime evidence is admissible under V.R.E. 404(b). I write separately, however, because I would also find that the trial court erred in finding the testimony of the department store clerk and the closed-circuit video regarding past acts to be signature evidence admissible under V.R.E. 404(b).
¶ 18. Rule 404(b) is designed to exclude evidence of prior similar acts if the evidence is introduced to show that the defendant has a propensity to commit the charged offense. State v. Bruyette, 158 Vt. 21, 27, 604 A.2d 1270, 1272 (1992). Prior act evidence can be admitted, however, if it is relevant to prove a different, legitimate element in the case such as identity, intent, plan, or knowledge. State v. Cardinal, 155 Vt. 411, 414, 584 A.2d 1152, 1154 (1990).
¶ 19. When evidence of past acts is offered to prove identity, we require that it meet a strict relevance test to be admissible. Bruyette, 158 Vt. at 27, 604 A.2d at 1272. Identity must be a material issue before the jury, the prior act evidence must be logically relevant to the issue of identity, and the probative value of the evidence must outweigh its potential for prejudice. See id. at 27-29, 604 A.2d at 1272-73; State v. Winter, 162 Vt. 388, 392-400, 648 A.2d 624, 626-32 (1994); Sweet v. Roy, 173 Vt. 418, 434-42, 801 A.2d 694, 706-12 (2002). If identity is at issue in the case, the question for the court is whether the characteristics of the past act are so similar and idiosyncratic as to be earmarked the handiwork of the accused, in effect, to constitute the defendant's signature. Bruyette, 158 Vt. at 27, 604 A.2d at 1273.
¶ 20. In Bruyette, we examined whether testimony of the defendant's girlfriend about their prior consensual sexual conduct was relevant to identity and therefore admissible as signature evidence under Rule 404(b) when the specific sexual acts were distinct and substantially similar to those perpetrated on the victim of a sexual assault. Id. After establishing that identity was at issue because the victim was blindfolded during the assault, we noted that to admit the testimony as signature evidence, the pattern and characteristics of the prior act "must be so distinctive, in effect, to constitute the defendant's signature." Id. at 27, 604 A.2d at 1273. We further articulated the standard saying:
Although the prior acts of the accused and the charged acts do not have to be identical, they must possess common features that make it highly likely that the unknown perpetrator and the accused are the same person. Whereas a few common features that are unique may be sufficient, a larger number of them, less remarkable, but taken together, may also have significant probative value.
Id. at 28, 604 A.2d at 1273.
¶ 21. Applying this rule, we held that "[w]hen the sexual acts are taken together *573 with the specific statements that the girlfriend and the victim were forced to repeat, and the defendant's frequent use of cocaine during the activity, the evidence strongly tended to show that defendant was the perpetrator." Id. at 29, 604 A.2d at 1273. See also Sweet, 173 Vt. at 438-39, 801 A.2d at 709-10 (applying Bruyette in case where evidence of past pattern of distinctive conduct and vandalism of mobile home park owner was admissible in case brought by mobile home owner when identity of the perpetrator was at issue and the prior act was unique and sufficiently similar to the charged offense to make it highly likely that defendant and perpetrator were the same person).
¶ 22. We have emphasized that in order to admit signature evidence under Rule 404(b) "[t]he State has the burden to show precisely how the proffered evidence is relevant to the theory advanced, how the issue to which it is addressed is related to the disputed elements in the case, and how the probative value of the evidence is not substantially outweighed by its prejudicial effect." Winter, 162 Vt. at 393, 648 A.2d at 627. To hold otherwise would permit the State to use prior act evidence to identify the defendant as the perpetrator simply because he or she has, at other times, committed the same garden variety criminal act. This type of identification is based on nothing more than the forbidden inference of propensity. See 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence § 404.22[5][c] (J. McLaughlin ed., 2d ed.2003).
¶ 23. The prior act evidence offered by the State in this case was not signature evidence for two reasons. First, identity was not at issue in the case. As noted, we have consistently held that when prior acts are proffered as signature evidence, the identity of the perpetrator must be a material question before the jury. Whether the defendant was present at the scene was never in dispute here. The only question was whether the defendant committed the offense, and the prior act evidence was offered to illustrate the manner in which the offense could have been committed.
¶ 24. Second, although the prior act and the charged offense share some common features, there is nothing within the pattern or characteristics of the prior act that is so distinct that it constitutes the defendant's "signature." Neither the way in which the defendant followed the shopper and positioned himself in view of the child and not the parent, nor the manner in which he exposed himself, is in any way unique or idiosyncratic. There is also nothing unique about the act of getting only the child's attention, as many other shoppers could have done so with solely benign intentions. Similarly, it is an unfortunate reality that nothing about the way the defendant exposed himself to and allegedly masturbated in front of the child is unusual or distinct. This type of conduct certainly does not constitute "signature" criminal behavior sufficient to identify the defendant as the perpetrator to the exclusion of others.
¶ 25. The prior act evidence offered by the State should not have been admitted as signature evidence in this case where identity was not at issue and the pattern and characteristics of the past acts were insufficiently distinct to identify the defendant as the perpetrator. On this basis, I would reverse the trial court's ruling that the department store clerk's testimony and the closed-circuit video were signature evidence admissible under V.R.E. 404(b).
¶ 26. I am authorized to state that Justice Johnson joins this concurrence.
¶ 27. ALLEN, C.J. (Ret.), Specially Assigned, dissenting.
I would not reverse defendant's conviction on the grounds identified by the majority and therefore dissent.
*574 ¶ 28. Defendant offers virtually no support for his claim that the court erred by failing to conduct a balancing test under V.R.E. 403 before admitting evidence of defendant's prior bad act. Defendant's argument on appeal consists solely of the following sentence: "Furthermore, the trial court never viewed the testimony in light of V.R.E. 403, as did Judge Burgess, who found that its prejudicial effect was not outweighed by any probative value." This is clearly inadequate briefing, and I would not address this claim. See V.R.A.P. 28(a)(4); Johnson v. Johnson, 158 Vt. 160, 164 n. *, 605 A.2d 857, 859 n. * (1992) (Supreme Court will not consider arguments not adequately briefed).
¶ 29. More importantly, to the extent the court is required to conduct a Rule 403 balancing test prior to admitting evidence under V.R.E. 404(b), the record demonstrates that such balancing occurred. Before trial, the State gave notice pursuant to V.R.Cr.P. 26(c) of its intent to introduce evidence that defendant had engaged in the same type of activity four weeks earlier in another department store. The evidence consisted of testimony from an employee at the store and a closed circuit videotape. The court conducted the Rule 403 balancing before trial and in a written opinion concluded that this evidence should be excluded on Rule 403 grounds absent a claim by defendant that the allegation against him was "incredible" or "until developments at trial make the introduction of the other bad acts imperative, or unless the defense otherwise opens the door to its admission."
¶ 30. Defense counsel later opened the door to admission of this evidence by implying that it would have been impossible for defendant to expose himself to the victim given the close physical presence of the child's mother. The State moved to introduce defendant's prior bad act to rebut this insinuation. The videotape of defendant's earlier act showed how defendant used store shelves to shield his activity from the mother's view. Defendant objected on propensity grounds but did not raise a Rule 403 objection. The court admitted the prior bad act as signature evidence, explaining that "the argument has been made to the jury where the mother being right there, you know, it couldn't happen that way but, in fact, here's a tape that tells me this is precisely what happened it has happened before and how this person has done it. So for that reason I am going to find that that's admissible." Thus, the record reflects that the court engaged in the Rule 403 balancing test before trial and defendant later opened the door to the admission of this evidence.
¶ 31. The majority erroneously concludes that the trial court's failure to conduct a Rule 403 balancing test warrants reversal of defendant's conviction. However, this Court has conducted the balancing test itself in cases where the probative value and prejudicial effect are evident from the record. In State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989), for example, we concluded that the trial court had exercised its discretion under Rule 403 based on the trial court's statement that it was "going to let in the cocaine evidence." We concluded that the record did not indicate that the prejudicial effect of the admitted evidence "so overweighed the probative value that the evidence should have been excluded as a matter of law." Id. As in Derouchie, the record here amply demonstrates that the probative value of the admitted evidence outweighed its prejudicial effect, particularly in light of defendant's insinuation that this incident could not have occurred in the mother's presence. Defendant has not met his heavy burden of establishing that the trial court withheld its discretion or exercised it on *575 grounds clearly untenable or unreasonable. See State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988).
¶ 32. Finally, to the extent this alleged error should be addressed at all, I believe our review should be for plain error rather than abuse of discretion because defendant did not object on Rule 403 grounds at trial. A defendant cannot claim error in the admission of evidence unless he has made a timely and specific objection during trial. V.R.E. 103(a)(1); State v. Fisher, 167 Vt. 36, 43, 702 A.2d 41, 45 (1997). "The objection must have been made at the time the evidence was offered or the question was asked, and objection on one ground does not preserve the issue for appeal on other grounds." Fisher, 167 Vt. at 43, 702 A.2d at 45-46 (internal citations omitted); see also 2 J. Weinstein & M. Berger, Weinstein's Federal Evidence §§ 403.02[1][b], 404.23[5][e] (J. McLaughlin ed., 2d ed.2003) (trial court's decision to admit evidence under F.R.E. 404(b) generally subject to review for abuse of discretion, but if no objection made at trial to claimed evidentiary error, review will be for plain error only). To preserve a Rule 403 objection to the admission of evidence under Rule 404(b), a party must raise a specific objection during trial. Federal courts addressing the same issue under the Federal Rules of Evidence have reached a similar conclusion. See Reporter's Notes, V.R.C.P. 1 ("Federal cases interpreting the Federal Rules are an authoritative source for the interpretation of identical provisions of the Vermont Rules."); see also United States v. Gomez-Norena, 908 F.2d 497, 499-501 (9th Cir.1990) (objection on F.R.E. 404(b) grounds did not preserve claim of error under F.R.E. 403); United States v. Manso-Portes, 867 F.2d 422, 426 (7th Cir.1989) (objection to evidence premised on F.R.E. 404(b) did not preserve objection under F.R.E. 403); United States v. Sandini, 803 F.2d 123, 126-27 (3d Cir.1986) (objection that evidence was "irrelevant" did not preserve claim of error under F.R.E. 403 or F.R.E. 404).
¶ 33. The need for a timely and specific objection is particularly relevant where, as here, the judge who presided at trial did not consider the pretrial motion concerning the admissibility of defendant's prior bad act. See State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349, 351 (1985). In Senecal, we concluded that a defendant had waived his claim that the court erred in denying his motion to suppress where defendant failed to object at trial to the admission of the evidence that he had earlier sought to suppress. Id. at 557-58, 497 A.2d at 351. We explained that defendant's failure to object would not have resulted in a waiver of his claim had no new facts been adduced at trial and had the same judge presided at trial as had decided the motion to suppress. Id. at 558, 497 A.2d at 351. However, because the trial judge had not ruled on defendant's earlier motion, the trial judge "never had an opportunity to consider the defendant's objection to the evidence." Id. We stated that, "[p]articularly since pretrial rulings are tentative and subject to revision, it cannot be said that objection at trial would have been a useless performance or would not have served to further apprise the court or the State of [defendant's] claim." Id. (citations, internal quotation marks, and ellipses omitted). Thus, because defendant failed to object at trial, our review was for plain error only. Id.; see also Morrisseau v. Fayette, 164 Vt. 358, 363-64, 670 A.2d 820, 824 (1995) ("[I]n criminal cases, we require defendants to seek a `horizontal appeal' of pretrial rulings made by a different judge so that the trial judge is not put in error by another judge's ruling."); State v. Jewell, 150 Vt. 281, 282, 552 A.2d 790, 791 (1988) ("Failure to object to the admission of evidence at trial that was earlier the subject *576 of a motion to exclude will constitute a waiver where a different judge presided at trial than decided the motion.").
¶ 34. In this case, the pretrial judge decided that evidence concerning defendant's prior bad act was not admissible on Rule 403 grounds unless defendant opened the door to its admission at trial. The trial judge later ruled that the evidence was admissible because defendant had implied that he could not have committed the charged act. In the absence of a Rule 403 objection at trial, defendant may not now raise this claim of error on appeal. This Court has consistently held that to preserve an issue for appeal a party must "present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it." In re White, 172 Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (internal quotation marks and citation omitted). The purpose behind the preservation rule "is to ensure that the original forum is given an opportunity to rule on an issue prior to our review." Id. at 343, 779 A.2d at 1270-71. Holding that a "propensity" objection under Rule 404 is sufficiently specific to alert a trial judge to conduct a Rule 403 balancing test flies in the face of our precedents on preservation. Defendant failed to raise a Rule 403 objection at trial, and the court's admission of this evidence does not rise to the level of plain error. See State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) ("Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.") (internal quotation marks and citation omitted).
NOTES
[*] Rule 403 provides that:
evidence may be excluded 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, waste of time, or needless presentation of cumulative evidence.
Rule 404(b) states that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
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733 F.Supp. 776 (1989)
UNITED STATES of America
v.
Ruth SHIELDS.
Civ. No. 87-219.
United States District Court, D. Vermont.
December 11, 1989.
*777 Helen M. Toor, Asst. U.S. Atty., Burlington, Vt., for the Government.
Alexander Scherr, Vermont Legal Aid, Inc., St. Johnsbury, Vt., for defendant.
OPINION AND ORDER
COFFRIN, District Judge.
Plaintiff, the United States of America, commenced a foreclosure action in this Court against David and Ruth Shields on September 17, 1987, due to substantial delinquency on their rural housing loan administered by the Farmers Home Administration (the "FmHA"). A default judgment was entered against Mr. Shields on February 5, 1988. Mrs. Shields moved for summary judgment in her favor pursuant to Fed.R.Civ.P. 56(b) on January 3, 1989.
Mrs. Shields contends that the undisputed material facts in this case establish: (1) FmHA's failure to advise her of the availability of post-acceleration moratorium relief in 1986 violated FmHA regulations effective at the time, (2) FmHA's regulation barring post-acceleration moratorium relief conflicts with the provisions of the Housing Act of 1949 and is void, and (3) FmHA's failure, prior to acceleration, to assist Mr. Shields in preparing his family household budget before entering into a Supplemental Payment Agreement violated FmHA regulations.
For the reasons which follow, we grant in part and deny in part Mrs. Shields' motion for summary judgment. Specifically, we grant it regarding the post-acceleration moratorium issues, and deny it regarding the Supplemental Payment Agreement issue.
UNDISPUTED MATERIAL FACTS
On January 8, 1982, David and Ruth Shields borrowed $36,400 from the United States in order to purchase a home in Danville, Vermont. They did so under the auspices of the Housing Act of 1949, as amended, 42 U.S.C. § 1441 et seq. (the "Act"). This loan program is administered by the Secretary of Agriculture (the "Secretary") *778 and the FmHA. Specifically, the Shields borrowed this amount pursuant to the rural housing provision in 42 U.S.C. § 1471(a)(3), enacted in 1961.
From the outset, the Shields applied for and received interest credits that substantially reduced their monthly payments. In 1982 and 1983, interest credits reduced their payments from $408 to $109 per month. In 1984, credits reduced their payments from $408 to $117 per month. Comparable interest credits were granted in 1985 and 1986. Nonetheless, as early as February 1983, the Shields were delinquent in making their monthly loan payments.
In December 1984, Mr. Shields entered into a repayment agreement with Richard Roderick, Assistant County Supervisor for the FmHA. The Shields brought their account current in January 1985. However, the Shields thereafter continued to demonstrate either the inability or unwillingness to make timely payments. Various FmHA officials communicated with the Shields throughout 1985, but the Shields rarely attended scheduled meetings with FmHA officials regarding their overdue payments.
On January 28, 1986, Mr. Shields met with Assistant County Supervisor Roderick. At that time, Mr. Shields applied for moratorium relief pursuant to 42 U.S.C. § 1475. The application had been signed by himself and Mrs. Shields. County Supervisor George Button denied the Shields' application two days later because their housing costs did not equal or exceed 35 percent of their household budget, a prerequisite for moratorium relief under regulations effective at that time. See 7 C.F.R. § 1951.313(a)(2)(i) (1986).
At the January 28 meeting, Mr. Shields discussed his various options with Assistant County Supervisor Roderick, including voluntary conveyance of the Danville residence. Mr. Shields entered into a Supplemental Payment Agreement meant to bring the Shields' account current by means of weekly $75 payments. Since Mr. Shields had failed to fill out the Household Financial Statement and Budget Form (the "Budget Form") that County Supervisor Button had previously mailed to him, calculations performed at the meeting were based upon Mr. Shields' oral representations. The Shields subsequently failed to comply with the terms of this agreement. Due to the Shields' substantial delinquency and their failure to cooperate with the FmHA in its efforts to resolve the situation favorably, District Director Everett Bailey decided to accelerate their loan on March 24, 1986. The Shields did not appeal this decision.
It appears from the record that throughout the Shields' dealings with the FmHA Mr. Shields was the spouse who primarily, if not solely, handled the details surrounding the FmHA loan. Mrs. Shields made this fact quite evident whenever she was contacted by the FmHA. It also appears from the record that all face-to-face negotiations with the FmHA from 1982 to 1986 were conducted exclusively by Mr. Shields.
In April 1986, the Shields' home suffered a small fire, which the FmHA learned about a month later. Then, on May 13, 1986, Caledonia County Superior Court issued an abuse prevention order against Mr. Shields at the behest of Mrs. Shields. Mrs. Shields, who was pregnant at the time, was granted custody of their three children and possession of the FmHA-financed home. Mrs. Shields subsequently spent some time outside Vermont with her children. On July 23, 1986, County Supervisor Button learned that the Shields were separated and that Mrs. Shields continued to reside in the Danville home with the children.
While the FmHA continued to communicate with Mr. Shields throughout 1986, there is no evidence that the FmHA contacted Mrs. Shields regarding the status of the FmHA loan until she received a letter by certified mail from County Supervisor Button dated November 12, 1986. This letter noted that the Shields had failed to attend a November 12 meeting regarding their application for 1987 interest credits and stated that another meeting had been scheduled for November 25. Mrs. Shields telephoned the FmHA to inform them she would be unable to attend the November 25 meeting due to the Thanksgiving holiday and her pregnancy, which was in its third trimester. Since Mr. Shields failed to attend *779 the November 25 meeting as well, the Shields subsequently lost their interest credits for 1987, increasing their loan payments to $408 per month.
On January 27, 1987, Mrs. Shields gave birth to her fourth child. Then, on March 2, 1987, Mrs. Shield visited the FmHA office and met with County Supervisor George Button. She inquired into the status of the Shields' loan and was told the FmHA was in the process of foreclosing. She sought information regarding the options available to her, pointing out that she was receiving regular payments from the Department of Social Welfare and was willing to assume the entire loan obligation herself. She also explained to County Supervisor Button that, after separating from Mr. Shields, she had been out of the state for a period of time. Therefore, she had not received information regarding the status of the FmHA loan and had not known Mr. Shields had not been making loan payments as he had previously assured her he would.
During the next two months, Mrs. Shields communicated on a number of occasions with the FmHA's county and state offices. She gathered information on the FmHA loan and inquired into what she must do to prevent foreclosure. On April 7, 1987, Mr. Shields filed for divorce. Three days later, County Supervisor Button advised Mrs. Shields that she could apply for interest credit and/or moratorium relief if she so desired. On April 28, County Supervisor Button reaffirmed this advice after conferring with the FmHA's state office, and gave Mrs. Shields a moratorium application.
Mrs. Shields submitted this application the next day. She explained on the application form how she had not known of Mr. Shields' failure to make payments the previous year. She also stated that Mr. Shields had assured her when they separated that he would continue making the loan payments so that she and the children would have a place to live. Therefore, during the period of time she was outside Vermont with her children, she had no reason to believe that the FmHA loan was in default. Nor did the FmHA contact her regarding the loan's status. Furthermore, she opined that Mr. Shields had ceased making payments in an attempt to gain custody of the children.
On May 26, 1987, Mrs. Shields' application for moratorium relief was denied by County Supervisor Button. The sole articulated reason for the denial was an FmHA regulation, which had become effective February 4, 1987, prohibiting post-acceleration moratorium relief. The United States subsequently filed its foreclosure action in this Court.
DISCUSSION
Mrs. Shields argues that the FmHA's failure to advise her of the availability of moratorium relief in 1986, after she and Mr. Shields separated, violated FmHA servicing regulations. She also contends that the current regulation barring post-acceleration moratorium relief is in conflict with the Act. Finally, she maintains that Assistant County Supervisor Roderick violated FmHA regulations by entering into a Supplemental Payment Agreement with Mr. Shields without the benefit of a properly completed Budget Form. Each of these issues will be considered in turn.
A. The Duty to Advise Mrs. Shields of The Availability of Moratorium Relief in 1986
According to servicing regulations effective in 1986, County Supervisor Button had a duty to advise Mrs. Shields "in writing of the possible availability of a moratorium when [he became] aware of a change in [Mrs. Shields'] circumstances which would likely justify the granting of a moratorium." 7 C.F.R. § 1951.313(b)(ii) (1986). The applicable moratorium regulations indicated that relief should be granted if a borrower's income is reduced so that housing costs rise to 35 percent or more of the household income. 7 C.F.R. § 1951.313(a)(2)(i) (1986).
These regulations required that the income reduction be caused in one of five listed ways indicating it was due to circumstances beyond the borrower's control. *780 Two of these are potentially applicable to Mrs. Shields' case:
(D) A situation in which a spouse is living apart from the borrower's family and away from the [FmHA] financed dwelling and legal action has been started in the appropriate court to commence divorce or legal separation proceedings provided: the remaining spouse is occupying the dwelling, owns a legal interest in the property, is liable for the debt, and the loan account is put in the remaining spouse's name only....
(E) A situation in which a spouse has lived apart from the borrower's family and away from the [FmHA] financed dwelling for 6 months or longer because of broken marriage or separation ... provided the conditions of paragraph (a)(2)(i) of this section are met by the borrower who is living in the dwelling.
7 C.F.R. § 1951.313(a)(2)(i) (1986).
On July 23, 1986, County Supervisor Button learned of the restraining order against Mr. Shields that was issued May 13, 1986. That order prevented Mr. Shields from continuing to reside in the Shields' FmHA-financed home. If this restraining order constituted appropriate legal action for the purposes of 7 C.F.R. § 1951.313(a)(2)(i)(D) (1986), then County Supervisor Button should have advised Mrs. Shields immediately of the possible availability of moratorium relief. At the very least, after the Shields were separated for six months (i.e., November 13, 1986), County Supervisor Button should have advised Mrs. Shields of the possible availability of moratorium relief pursuant to 7 C.F.R. § 1951.313(a)(2)(i)(E) (1986).
New FmHA regulations regarding moratorium relief became effective February 4, 1987. See 7 C.F.R. § 1951.313 (1989). These regulations included a new prerequisite that the FmHA loan not have been accelerated. 7 C.F.R. § 1951.313(b)(3) (1989). The United States points out, however, that the FmHA had a "policy" against granting post-acceleration moratorium relief prior to its promulgation as a formal criterion.
The United States argues that, due to its policy barring post-acceleration moratorium relief, the FmHA had no duty to advise Mrs. Shields about moratorium relief after the Shields' loan was accelerated, regardless of any change in her circumstances. However, even if the Secretary's promulgation of a formal regulation banning post-acceleration moratorium relief was a valid exercise of his authority, the FmHA's failure to notify Mrs. Shields of her right to apply for a moratorium prior to the effective date of that regulatory criterion was improper.
The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA"), defines and governs the rule-making duties of federal administrative agencies. Therefore, we must look to the APA in determining whether, at any particular time, the policies and regulations of the FmHA were proper.
The APA defines a "rule" as "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy...." 5 U.S.C. § 551(4). Clearly, a policy precluding moratorium relief pursuant to 42 U.S.C. § 1475 with regard to any loan that has been accelerated, regardless of any change in the borrower's circumstances, falls within the ambit of this definition and is properly considered a "rule."
Mrs. Shields takes issue with what she argues was an "unwritten policy" of the FmHA denying all applications for post-acceleration moratorium relief. At the time Mrs. Shields loan was accelerated, the Secretary had published proposed rules that explicitly acknowledged such an unwritten policy. 50 Fed.Reg. 38,662 (1985). This does not end the Court's inquiry, though. On its face, the APA exempts any "matter relating to ... public property, loans, grants, benefits, or contracts ..." from the operation of its rule-making requirements of notice and comment. 5 U.S.C. § 553(a)(2). Thus, FmHA loan programs facially do not need to comply with the APA's various notice and comment requirements to be effective.
*781 The Administrative Conference of the United States has recommended the repeal of this exemption from notice and comment requirements. See 1 C.F.R. § 305.69-8 (1989). On July 24, 1971, the Secretary promulgated a regulation accepting this recommendation. See 36 Fed.Reg. 13804 (1971). This regulation requires the Secretary to comply with the APA's notice and comment requirements with regard to loan programs he administers. Rodway v. United States Dep't of Agriculture, 514 F.2d 809, 814 (D.C.Cir.1975); Arlington Oil Mills, Inc. v. Knebel, 543 F.2d 1092, 1095 n. 6 (5th Cir.1976). This regulation has the force of law. Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974).
The Secretary expressly chose to perform notice and comment rule-making regarding the preclusion of post-acceleration moratorium relief, as evidenced by his proposal and eventual enactment of 7 C.F.R. § 1951.313(b)(3) (1989). However, formal notice and comment rule-making is not required by the terms of the APA if this criterion is simply an "interpretative rule" or a "general statement of policy," and thus not a substantive rule. 5 U.S.C. § 553(b)(3)(A).
The Second Circuit has recognized that "[t]he distinctions between formal rules and interpretive rules or general statements of policy are often vague." Grocery Mfrs. of America, Inc. v. Gerace, 755 F.2d 993, 1002 (2d Cir.), aff'd, 474 U.S. 801, 106 S.Ct. 36, 88 L.Ed.2d 29, cert. denied, 474 U.S. 820, 106 S.Ct. 69, 88 L.Ed.2d 56 (1985). See also Noel v. Chapman, 508 F.2d 1023, 1029-30 (2d Cir.), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975) (the distinction between rules and policies "is enshrouded in considerable smog ..."). Nonetheless, the Second Circuit has provided some guidance:
While it is unfortunate that Congress has provided little guidance in distinguishing interpretative from substantive rules, the case law in this circuit looks to whether a rule "changed existing rights and obligations." ... Only rules that do not change "existing rights and obligations" are considered interpretative.
Donovan v. Red Star Marine Services, Inc., 739 F.2d 774, 783 (2d Cir.), cert. denied, 470 U.S. 1003, 105 S.Ct. 1355, 84 L.Ed.2d 377 (1984) (quoting Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 482 (2d Cir.1972)).
In Donovan, the court held that including ex parte warrants within the definition of "compulsory process," as used by the statute in question, was an interpretative rule since "compulsory process" included ex parte warrants regardless of any agency rule. In contrast, Lewis-Mota concluded that imposing new entrance requirements on aliens seeking admission into the United States required notice and comment rule-making. The court stated in Lewis-Mota:
We find that the Directive changed existing rights and obligations by requiring aliens of the class of appellants to submit proof of specific job offers as well as a statement of their qualifications; it thereby made it more difficult for employers to fill vacancies in the occupations no longer precertified. By virtue of this substantial impact both upon the aliens and employers, notice and opportunity for comment by the public should first be provided.
469 F.2d at 482.
The case at bar is more similar to Lewis-Mota than Donovan. An FmHA policy precluding post-acceleration moratorium relief creates an additional hurdle for FmHA borrowers seeking such relief since it is conceivable that a borrower could make the requisite showings for relief absent such a prohibition. As was the case in Lewis-Mota, this additional requirement makes it "more difficult" for borrowers to receive moratorium relief, and subsequently has a "substantial impact" on the statutory moratorium remedy.
Therefore, the prohibition of post-acceleration moratorium relief is a substantive rule that must comply with the notice and comment requirements in 5 U.S.C. § 553. This conclusion is buttressed by the fact that the Secretary himself felt it prudent to perform notice and comment rule-making. *782 The resulting substantive rule, codified at 7 C.F.R. § 1951.313(b)(3) (1989) and effective February 4, 1987, was enacted in the only manner that the Secretary could have promulgated such a rule if it was within the scope of his statutory authority to do so. Therefore, any "policy" prior to February 4, 1987, that had not undergone the rigors of notice and comment rule-making was ineffective.
B. The Validity of Regulation Prohibiting Post-Acceleration Moratorium Relief
The Act provides moratorium relief for borrowers who participate in FmHA loan programs. The operative statute reads in part:
During any time that any such loan is outstanding, the Secretary is authorized under regulations to be prescribed by him to grant a moratorium upon the payment of interest and principal on such loan for so long a period as he deems necessary, upon a showing by the borrower that due to circumstances beyond his control, he is unable to continue making payments of such principal and interest when due without unduly impairing his standard of living.
42 U.S.C. § 1475.
On December 9, 1981, a number of regulations concerning FmHA loan programs became effective. See 46 Fed.Reg. 60,179 (1981). Less than four years later, on September 24, 1985, notice that the Secretary was proposing several new regulations was published in the Federal Register. See 50 Fed.Reg. 38,662 (1985). These new regulations did not become effective, however, until February 4, 1987. See 52 Fed.Reg. 243 (1987).
The 1981 regulations delineated certain circumstances that would establish that the borrower's income reduction had unduly impaired his or her standard of living. For instance, this requirement could be satisfied if the borrower demonstrated "[t]he need to pay certain essential family expenses which have resulted or may result in a lien being placed on the borrower's dwelling, and which if not paid are likely to result in a loss of the dwelling." § 1951.313(a)(2)(ii).
Alternatively, if a reduction in the borrower's income led to housing costs rising to 35 percent or more of that income, the above requirement would be satisfied. § 1951.313(a)(2)(i). However, one of the following circumstances needed to be the cause behind the borrower's income reduction:
(1) "Unemployment or underemployment caused by circumstances beyond the borrower's control...." § 1951.313(a)(2)(i)(A).
(2) "Loss or reduction in benefits which constituted a substantial part of the [borrower's] income...." § 1951.313(a)(2)(i)(B).
(3) "Illness, injury, or death of the borrower or other adult who contributed to the [borrower's] income...." § 1951.313(a)(2)(i)(C).
(4) "A situation in which a spouse is living apart from the borrower's family and away from the [FmHA] financed dwelling and legal action has been started in the appropriate court to commence divorce or legal separation proceedings provided: the remaining spouse is occupying the dwelling, owns a legal interest in the property, is liable for the debt, and the loan account is put in the remaining spouse's name only...." § 1951.313(a)(2)(i)(D).
(5) "A situation in which a spouse has lived apart from the borrower's family and away from the [FmHA] financed dwelling for 6 months or longer because of broken marriage or separation and not because of work assignment or military orders and legal papers have not been filed to commence divorce proceedings, provided the conditions of paragraph (a)(2)(i) of this section are met by the borrower who is living in the dwelling." § 1951.313(a)(2)(i)(E).
These substantive criteria for moratorium relief were clearly within the scope of the Secretary's authority. Specifically, the Secretary had prescribed regulations properly establishing when a borrower has shown, "due to circumstances beyond his *783 control, he is unable to continue making payments ... when due without unduly impairing his standard of living." 42 U.S.C. § 1475.
The 1985 proposed regulations, later enacted and codified at 7 C.F.R. § 1951.313 (1988), revamped the criteria for moratorium relief. Instead of the previous scheme, which tracked the Secretary's explicit statutory authority fairly closely, the new regulations delineated four requirements:
(1) "The borrower is temporarily unable ... to continue making scheduled payments without unduly impairing his or her standard of living." 7 C.F.R. § 1951.313(b)(1) (1989). This can be demonstrated in two ways: (a) the borrower's income has decreased by at least 30 percent, or (b) the borrower must pay certain unexpected and unreimbursed expenses.
(2) "The borrower must occupy the dwelling unless the dwelling is determined by FmHA to be uninhabitable." § 1951.313(b)(2).
(3) "The borrower's account has not been accelerated." § 1951.313(b)(3).
(4) "The borrower agrees to notify the County Supervisor if the circumstances on which the moratorium was based change and agrees to keep real estate taxes and hazard insurance premiums current during the moratorium period." § 1951.313(b)(4).
The new regulations direct that a moratorium will be granted, upon written request by the borrower, if the County Supervisor finds that the borrower is receiving all applicable interest credits and that he or she meets the above eligibility criteria. § 1951.313(c).
The dispute at bar concerns the new criterion barring moratorium relief for any and all FmHA loans that have been accelerated. The Secretary has stated that this new criterion simply "clarifies" prior FmHA policy regarding accelerated loans. See 52 Fed.Reg. 245 (1987). While there might be a question about the validity of unwritten, generally applicable eligibility criteria in light of the APA, that issue is not presented hereprior to acceleration of the Shields' FmHA loan, the policy was described in connection with the Secretary's proposed regulations in 1985.
At issue is whether the Secretary's blanket prohibition of post-acceleration moratorium relief is a valid exercise of his statutory authority. If, in the end, we find that the regulation lies beyond the scope of the Secretary's statutory authority, the regulation must give way to the statute since, in the words of Chief Justice Marshall, "that which is not supreme must yield to that which is supreme." Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 448, 6 L.Ed. 678 (1827).
While making this inquiry, we are guided by Justice Felix Frankfurter's "threefold imperative" regarding statutory interpretation: "(1) Read the statute; (2) read the statute; (3) read the statute!" H. Friendly, Benchmarks (1967) 202. Since the Act's legislative history sheds little light on this precise issue, we have little choice but to follow Justice Frankfurter's advice.
A few issues can be resolved at the outset. First, the language "is authorized" does not grant the Secretary discretion over whether to grant moratorium relief to a qualifying borrower. If a borrower qualifies for a moratorium, the Secretary must grant one. 7 C.F.R. § 1951.313(c) (1988); United States v. Garner, 767 F.2d 104 (5th Cir.1985); Johnson v. United States Dep't of Agriculture, 734 F.2d 774 (11th Cir. 1984).
Second, the statute clearly requires that the Secretary prescribe regulations governing the availability of moratorium relief. See Ramey v. Block, 738 F.2d 756 (6th Cir.1984) (distinguishing the language of 7 U.S.C. § 1981a, which does not require regulations, from the language of 42 U.S.C. § 1475, which does not require regulations). The Secretary's prescription of extensive regulations regarding moratorium relief throughout the period in question satisfies this requirement.
Third, moratorium relief is available only to borrower's who satisfy substantive criteria demonstrating that, due to circumstances beyond his or her control, the borrower *784 is unable to make scheduled loan payments without unduly affecting his or her standard of living. While these statutory grounds for relief do not preclude further refinement by the Secretary's regulations, Curry v. Block, 738 F.2d 1556 (11th Cir. 1984), the statute nonetheless remains the polestar that must guide any regulatory scheme. The approaches taken by the 1981 and 1987 regulations may differ, but they both serve to clarify and interpret the meaning of the statutory grounds for relief.
The real dispute is over the meaning of the following language in 42 U.S.C. § 1475: "During any time that any such loan is outstanding...." Mrs. Shields contends that this language mandates the availability of moratorium relief from the loan's closing until full repayment or actual foreclosure occurs, provided the borrower satisfies the statutory grounds for relief. She further asserts that a blanket prohibition of post-acceleration moratorium relief ignores the statute's broad phrasing in favor of an arbitrary and invalid time restraint.
On the other hand, the United States contends that a criterion requiring that the loan not have been accelerated simply reflects the reality of a deteriorating borrower/lender relationship. The decision to accelerate an FmHA loan is not made until all servicing efforts have failed and it has been determined that further attempts to resolve the situation would be fruitless. See 52 Fed.Reg. 245 (1987). Therefore, precluding post-acceleration moratorium relief is consonant with the temporary nature of moratoriathe County Supervisor will grant a moratorium only when the borrower's inability to pay is "temporary." 7 C.F.R. § 1951.313(b)(1).
At the outset, we observe: "The interpretation put on the statute by the agency charged with administering it is entitled to deference, but the courts are the final authorities on issues of statutory construction." Federal Election Comm'n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S.Ct. 38, 41-42, 70 L.Ed.2d 23 (1981). See also Ithaca College v. N.L.R.B., 623 F.2d 224 (2d Cir.), cert. denied, 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980). A plain reading of 42 U.S.C. § 1475 leads us to conclude that the blanket prohibition of post-acceleration moratorium relief embodied in 7 C.F.R. § 1951.313(b)(3) is invalid. Such a prohibition is contrary to the statutory mandate that the Secretary grant moratorium relief to a borrower who, at any time his or her FmHA loan is outstanding, can satisfy the requisite substantive grounds for relief.
It is conceivable that, after an FmHA loan is accelerated, but while it is still outstanding, a borrower could demonstrate the ability either to repay the loan in full or to resume scheduled payments after being afforded the opportunity to get back on his or her feet by means of a temporary moratorium. The FmHA's own regulations expressly recognize the possibility of post-acceleration rehabilitation and permit borrowers to make offers to cure any delinquency after acceleration has occurred. The FmHA then has the power to cancel foreclosure proceedings and to reinstate the loan. 7 C.F.R. § 1955.15(d)(3) (1989). The Congressional policy behind providing moratorium relief applies with as much force in the post-acceleration context as it does before acceleration.
County Supervisor Button's own notes indicate that he advised Mrs. Shields on April 10, 1987, that the FmHA has the discretion to cancel foreclosure proceedings if the borrower demonstrates the ability to recontinue periodic and timely payments. She apparently expressed some desire to cure the $3,872 delinquency and continue the loan in her name alone. County Supervisor Button apparently was amenable to Mrs. Shields' offer.
There is some evidence that Mrs. Shields could have demonstrated the ability to cure the loan defaults if afforded temporary moratorium relief. However, that is not the issue before us. What is the issue is that she was never given the opportunity to make such a showing. Her application for moratorium relief was not denied because of any substantive criterion founded upon the statute's directives; instead, her application was denied because the Shields' *785 FmHA loan had been accelerated, regardless of any change in her circumstances.
To deny a moratorium application solely because the loan has been accelerated is contrary to the language in 42 U.S.C. § 1475 providing moratorium relief "[d]uring any time that any such loan is outstanding...." As one court ruled: "The fact of acceleration does not take this loan out from under the protection Congress obviously intended by the enactment [of 42 U.S.C. § 1475]." United States v. Rodriguez, 453 F.Supp. 21, 22 (E.D.Wash.1978). Moreover, any borrower must demonstrate that his or her inability to make scheduled payments is temporary in nature in order to receive moratorium relief. 7 C.F.R. § 1951.313(b)(1). Hence, such a post-acceleration prohibition is not necessary to prevent borrowers with a non-temporary inability to pay from receiving moratorium relief.
The above construction of 42 U.S.C. § 1475 is consistent with the broad legislative policies behind the Act. In enacting the Act, Congress declared:
[T]he general welfare and security of the Nation and the health and living standards of its people require ... the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family, thus contributing to the development and redevelopment of communities and to the advancement of the growth, wealth, and security of the nation.
42 U.S.C. § 1441. To facilitate these goals, Congress directed housing agencies to "exercise their powers, functions, or duties ... consistently with the national housing policy declared by this Act and in such manner as will facilitate sustained progress in attaining the national housing objective hereby established." Id. These legislative policies, and the FmHA's attendant duties, are to be construed broadly. United States v. Gomiller, 545 F.Supp. 17 (N.D.Miss.1981).
In light of these wide-ranging objectives, the expansive time-frame contemplated by the language of 42 U.S.C. § 1475, and the sufficient safeguards provided by the FmHA's substantive criteria, a blanket prohibition of all post-acceleration moratorium relief goes beyond the Secretary's scope of statutory authority. Therefore, the regulation barring post-acceleration moratorium relief is invalid.
C. The Validity of The Supplemental Payment Agreement
Congress has authorized the Secretary to issue rules and regulations governing review of certain FmHA actions and determinations. 42 U.S.C. § 1480(g). Specifically, Congress mandated adequate written notice to adversely affected borrowers and review by a body other than that which made the initial adverse decision. Id. The Secretary subsequently promulgated such regulations. See 7 C.F.R. § 1900.51 et seq.
The regulations in effect when the FmHA decided to accelerate the Shields' loan and commence foreclosure proceedings required written notice to the Shields of whatever appeal rights they possessed. 7 C.F.R. § 1900.53 (1986). These rights included a hearing before a body other than that which made the initial decision to accelerate.
Mrs. Shields does not allege that she or her husband did not receive adequate notice. They never appealed the FmHA's decision to accelerate, even though breach of the Supplemental Payment Agreement was one of the grounds for acceleration. Since they did not exhaust the administrative remedies available to them, judicial review of the basis for that decision is foreclosed.
It is a long-standing principle that a litigant's failure to exhaust available administrative remedies precludes judicial review of the agency action. See, e.g., Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Litigants must avail themselves of administrative appeal procedures before access to the courts may be had. This principle is meant to preserve administrative autonomy and promote judicial efficiency. McKart v. United States, 395 U.S. 185, 194-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969); Touche Ross & Co. v. S.E.C., 609 F.2d 570, 574-75 (2d Cir.1979).
While Mrs. Shields frames this issue as an interpretive one similar to those regarding *786 post-acceleration moratorium relief, it is distinguishable for two primary reasons. First, no administrative appeal procedure was available to contest denial of post-acceleration moratorium relief. An elaborate appeal procedure was available at the acceleration stage. Second, the reasonableness or appropriateness of an otherwise binding Supplemental Payment Agreement involved the FmHA's expertise in loan affairs and its factual findings regarding Mr. Shields' ability to make supplemental payments.
The issue of whether Mr. Shields' oral representations, after having failed to complete Budget Forms in the past, satisfied the FmHA's servicing regulations could have been raised and should have been raised at the time the FmHA accelerated the Shields' loan. Before litigants may successfully seek judicial review, they must avail themselves of administrative appeal procedures when agency expertise and fact-finding are involved. McGee v. United States, 402 U.S. 479, 486, 91 S.Ct. 1565, 1569, 29 L.Ed.2d 47 (1971).
Therefore, we decline to rule on the appropriateness of Assistant County Supervisor Roderick's use of Mr. Shields' oral representations while drafting the Supplemental Payment Agreement since the Shields failed to avail themselves of the appropriate administrative remedies.
CONCLUSION
In light of the foregoing, we grant Mrs. Shields' motion for summary judgment with regard to the two post-acceleration moratorium issues, and deny it with regard to the issue of the Supplemental Payment Agreement's validity. Summary judgment will be entered for the defendant as to the two post-acceleration moratorium issues and for the plaintiff on the issue of the Supplemental Payment Agreement's validity. This cause is remanded to the United States of America (FmHA) for reconsideration in light of this opinion.
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733 F. Supp. 1387 (1990)
STEBCO, INC., a California Corporation, Rafael Carrillo-Barron, an individual, Norma Fregoso Carrillo, an individual, Construcciones Industriales Otay, S.A. de C.V., a Mexican Corporation, Edificaciones Industriales Omar, S.A. de C.V., a Mexican Corporation, Concretos Ati, S.A. de C.V., a Mexican Corporation, Agregados Tijuana, S.A. de C.V., a Mexican Corporation, Ferreteria El Clavo, S.A. de C.V., a Mexican Corporation, Plaintiffs,
v.
UNITED STATES of America, Defendant.
No. 90-0149R(IEG).
United States District Court, S.D. California.
March 12, 1990.
Richard A. Shaw and Charles W. Becker, Shenas, Shaw & Spievak, San Diego, Cal., for plaintiffs.
Greg Addington, U.S. Dept. of Justice, Tax Div., Washington, D.C., for defendant.
*1388 ORDER DENYING DEFENDANT'S MOTION TO DISMISS; GRANTING PLAINTIFFS' MOTION FOR ABATEMENT OF JEOPARDY ASSESSMENT
RHOADES, District Judge.
BACKGROUND
On February 2, 1990, plaintiffs filed a complaint to determine the reasonableness and appropriateness of two jeopardy assessments levied against them by the Internal Revenue Service ("IRS"). The jeopardy assessment made by the IRS against Stebco, Inc. ("Stebco") and the individual taxpayers resulted from an IRS investigation.[1] The IRS gathered the following information, which was presented to the court by way of declaration of a Revenue Agent, Beatriz Cruz:[2]
1. Stebco failed to cooperate with Cruz, provided misleading and inconsistent information, and represented that it was exempt from United States internal revenue laws. Stebco's 1988 income tax return was overdue.
2. Stebco appeared to have no business address other than a telephone answering service and freight forwarding service. The assets of Stebco were believed to be easily liquidated and transferred out of the reach of the IRS.
3. Stebco's sole shareholder was Rafael Carrillo-Barron. Carrillo-Barron and his wife, Norma Fregoso Carrillo, are the individual taxpayers who were also investigated (husband and wife hereinafter referred to as "the individual taxpayers").
4. The individual taxpayers filed W-8 forms with various banks and brokerage houses despite the fact that they were not nonresident aliens during 1986 and 1987.
5. The individual taxpayers declined to produce income tax returns requested by the IRS agents.
6. The individual taxpayers failed to file appropriate federal income tax returns for 1986 and 1987 despite being residents of the United States.
7. The individual taxpayers used false taxpayer identification numbers in connection with bank accounts, which concealed the accounts from the IRS.
8. The individual taxpayers' claim that they were nonresident aliens during 1986 and 1987 was false as they owned a home in Bonita, California at that time.
9. Mr. Carrillo-Barron had a "green card" identifying him as a permanent resident alien and has applied for amnesty through the Immigration and Naturalization Service. He claimed to be a Mexican national but stated on his marriage license application (in 1974) that he was born in California and that his mother was American.
10. Mrs. Fregoso Carrillo claimed to have recently renounced her American citizenship and claimed on her marriage license application that she was a Mexican citizen. She and her husband moved to Tijuana, Mexico, in 1988 with the apparent intention of remaining residents of Mexico. Their home in Bonita was vacated and placed on the market for sale.
11. According to Stebco's authorized representative, Carrillo-Barron was not co-operating with the IRS because he believed the corporation and himself to be exempt from taxation.
12. According to the individual taxpayers' accountant, Stebco and the individual taxpayers avoided the payment of appropriate custom duties to the Mexican government by misrepresenting the nature and value of the merchandise being exported.
13. The assets of the individual taxpayers consisted of cash accounts, which could be easily transferred out of the reach of the IRS, and the home in Bonita. The IRS *1389 was informed by neighbors that the home was sold.
Based on the above information, the IRS believed that Stebco and the individual taxpayers were or appeared to be designing quickly to place themselves and/or their assets beyond the reach of the IRS. Accordingly, on September 25, 1989, the IRS made a jeopardy assessment against Stebco in the amount of $304,115.82, and against the individual taxpayers in the amount of $234,437.00 each. The amounts of jeopardy assessments were computed based upon constructive dividends being paid by Stebco to the individual taxpayers and the use of an individual federal income tax return for the individual taxpayers.
Stebco and the individual taxpayers have petitioned this court for review of that assessment.
DISCUSSION
1. Government's Motion to Dismiss the Individual Taxpayers
Under 26 U.S.C. § 7429, an action for abatement of a jeopardy assessment must be brought in the judicial district described in § 1402(a)(1) or (2) of Title 28, U.S. Code. Section 1402(a)(1) provides that the proper district in the case of an individual plaintiff is "the judicial district where the plaintiff resides." As the individual taxpayers are nonresident aliens, the government argues that they may not maintain an action in this court. The government contends that these plaintiffs must pursue their remedy in Tax Court.
Two cases support the government's position: Bigio v. United States, 710 F. Supp. 790 (S.D.Fla.1988); and Bautista v. United States, (CCH) 88-2 U.S.T.C. ¶ 9599 (N.D. Cal.1988). However, this court declines to follow the reasoning of those cases, and instead finds support in Williams v. United States, 704 F.2d 1222 (11th Cir.1983) and Garzon v. United States, 605 F. Supp. 738 (S.D.Fla.1985).
First, Bigio and Bautista were decided after Williams, the only appellate court case that discusses the right of a nonresident alien to sue in a district court in a jeopardy assessment proceeding. However, neither district court addressed the Williams decision.
Second, Bigio and Bautista relied upon cases in which the plaintiffs were nonresident alien taxpayers attempting to file suits for the refund of taxes.[3] In such cases, the constitutional rights of the plaintiffs were not implicated because they had the same remedy available to them, but had to pursue the remedy in the Tax Court or the Court of Claims. Consequently, the cases simply involved a choice of forum issue and raised no serious due process concerns. See, e.g., Malajalian v. United States, 504 F.2d 842, 844 n. 1 ("While an alien who must sue in the Court of Claims lacks the choice between forums available to a resident and may incur additional time and travel costs, this slight unequal treatment does not amount to a convincing Equal Protection claim in view of Congress' apparent desire to have all alien suits brought in one court, the Court of Claims").
In contrast, denying the plaintiffs the right to a prompt post-seizure hearing in a jeopardy assessment proceeding necessarily gives rise to questions concerning a plaintiff's due process rights under the Fifth Amendment of the United States Constitution. Williams, 704 F.2d at 1227 n. 5; see also Commissioner v. Shapiro et. ux., 424 U.S. 614, 629, 96 S. Ct. 1062, 1071, 47 L. Ed. 2d 278 (1976). "The provisions for swift review in section 7429 ... suggest that Congress was ... aware that such assessments are made by the [IRS] without time to fully investigate all the factors required for a proper determination as to whether the making of the assessment was reasonable and/or the amount assessed was appropriate." Garzon, 605 F.Supp. at 743. Like the plaintiff in Garzon, the *1390 present plaintiffs had no opportunity to present their case or be heard in court before the seizure of their assetsin effect, the plaintiffs have been "saddled with all of the burdens and obligations of taxation yet the Government contends that [they are] not entitled to the expedited remedies allowed to all other taxpayers." Id.
Further, allowing resident aliens to seek review in a federal district court while forcing nonresident aliens to pursue a remedy one that is not likely to be promptin the Tax Court or Court of Claims raises equal protection problems. There can be no rational basis for this rule. See id. citing Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982).
This court scrutinizes the constitutionality of § 1402(a)(1) only as applied to the present case. See Broadrick v. Oklahoma, 413 U.S. 601, 610-612, 93 S. Ct. 2908, 2914-16, 37 L. Ed. 2d 830 (1973); United States v. Raines, 362 U.S. 17, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960). As the Supreme Court has consistently extended due process and equal protection to aliens without regard to resident or nonresident status, this court holds that a nonresident alien taxpayer may establish venue under 28 U.S.C. § 1402(a)(1) for purposes of contesting a jeopardy assessment. See Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382.
2. Plaintiffs' Motion for Abatement of Jeopardy Assessment
Generally, the United States may not assess and collect taxes until a statutory notice of deficiency has been issued to the taxpayer, enabling the taxpayer to seek pre-collection review by the Tax Court. A jeopardy assessment, however, allows the IRS to protect revenues believed due from a taxpayer who appears to be designing "to do an act which would tend to prejudice proceedings to collect the income tax." Treas.Reg. § 1.6851-1(a)(1). Consequently, the IRS may freeze the assets of the taxpayer until the question of liability is determined.
Under § 7429(b)(2), the district court shall determine whether the making of the jeopardy assessment is reasonable under the circumstances, and whether the amount assessed is appropriate under the circumstances. If the court determines that the assessment is unreasonable, or the amount inappropriate, the court may order abatement, redetermination of the assessment, or other such action as the court deems appropriate. 26 U.S.C. § 7429(b)(3). The district court's determination in a case such as this is nonreviewable. 26 U.S.C. § 7429(f).
The district court should make a de novo determination of whether the making of the assessment was reasonable. 26 U.S.C. § 7429. Accordingly, a court may consider not only information available to the IRS at the time of the assessment, but also any relevant information gathered after that date. See, e.g., Perillo v. United States, (CCH) 86-2 U.S.T.C. ¶ 9638 (E.D.N. Y.1986); Bean v. United States, 618 F. Supp. 652, 657 (D.C.Ga.1985); Miller v. United States, 615 F. Supp. 781, 785 (D.C. Ohio 1985); Revis v. United States, 558 F. Supp. 1071, 1074-75 (D.R.I.1983); Berkery v. United States, 544 F. Supp. 1, 5 (E.D.Pa.1982); McAvoy v. Internal Revenue Service, 475 F. Supp. 297, 298 (W.D. Mich.1979). The court may consider evidence which would not be admissible at a trial. Hecht v. United States, 609 F. Supp. 264, 266 (S.D.N.Y.19895). This de novo review is not, however, a trial on the merits of plaintiff's tax liabilities; the determination has no effect on a subsequent tax proceeding. See Loretto v. United States, 440 F. Supp. 1168, 1175 (E.D.Pa.1977).
The government bears the burden of proving that the making of the assessment was reasonable under the circumstances. 26 U.S.C. § 7429(g)(1). "Reasonable" has been defined as "something more than not arbitrary and capricious, and something less than supported by substantial evidence." See S.Rep. No. 94-938, 94th Cong., 2d Sess. 365 (1976), U.S.Code Cong. & Admin.News 1976, p. 2897.
The standards to be employed in determining whether a jeopardy assessment is reasonable are (1) whether the taxpayer is or appears to be planning to quickly *1391 depart from the United States or to otherwise conceal himself or herself; (2) whether the taxpayer is or appears to be designing to place his or her property beyond the reach of the government either by removing it from the United States, or by concealing it or transferring it to other persons; or (3) whether the taxpayer's financial solvency appears to be imperiled. Perillo, 86-2 U.S.T.C. ¶ 9638 at 85, 479 citing Cantillo v. Coleman, 559 F. Supp. 205, 207 (D.N.J.1983).
Here, the government contends that the plaintiffs were or appeared to be designing quickly to place themselves and/or their assets beyond the reach of the IRS. Were this court to consider only the information available to the IRS agent at the time the assessment decision was made, this court would have little difficulty concluding that the assessment was reasonable. However, considering all evidence available to date, this court finds that the assessment was not reasonable.
First, much of the information in the IRS declaration has been refuted by several credible declarations submitted by the plaintiffs. More importantly, several infirmities in the IRS declaration cast doubt on the overall probative value of the document.
For example, the IRS agent relied on the statement of an unnamed neighbor and alleged that the taxpayers "may have sold the major known asset, the residence on Greenwood Drive." This assertion is incorrect. This court has been provided with the affidavit of a vice president of a title company which establishes that the individual taxpayers are the owners of the Bonita house. The taxpayers owned the house at the time of the jeopardy assessments and currently own the house.[4] What is most troublesome to this court is that this is an easily discoverable fact: an IRS agent need only check with the County Recorder's Office to uncover such information.
Also, IRS allegations that Carrillo-Barron held a "green card" with No. 4781707 is incorrect. In fact, Carrillo-Barron owned a nonresident alien border crossing card, No. 4781707, a copy of which has been attached as an exhibit to his declaration.
Because of his nonresident status, Carrillo-Barron was not required to obtain a Certificate of Compliance for departing aliens. Treas.Reg. § 1.6851-2(a)(2)(d). Moreover, Carrillo-Barron asserts, by way of affidavit, that he was advised by his accountants that he was a nonresident alien for income tax purposes, and as such, he was under no requirement to file United States income tax returns.
Further, the Carrillos' marriage certificate, which has been presented to this court as an exhibit, evidences an agreement to treat any property acquired during the marriage as separate property. Thus, it appears that Norma Fregoso Carrillo at no time earned income in an amount requiring her to file a United States income tax return.
By way of a bank manager's affidavit, the plaintiffs have refuted IRS allegations that they provided a bank with a false taxpayer identification number. Also, plaintiff Carrillo-Barron admits to filing W-8 Forms, but claims that he did this on the advice of investment firms, and did not intend to conceal the accounts from the IRS. Plaintiff has attached as an exhibit the information he received from the investment firms. Moreover, by way of several credible declarations, plaintiffs have established that they began building a home in Tijuana, Mexico in late 1984, and moved in upon completion in late 1987. The Carrillos resided at all times after December 1987 in Mexico.
Finally, plaintiffs have again showed, by way of trustworthy declarations, that Stebco was not designing to place its property beyond the reach of the IRS. Selling properties was part of Stebco's business, but at the time of the jeopardy assessment, Stebco held at least six parcels of real property *1392 with a cost of over $1,400,000 and a net fair market value of between $2,500,000 and $3,000,000. The IRS has presented no evidence that Stebco was attempting to sell this property quickly or at a loss. See Penner v. United States, 582 F. Supp. 432, 435 (1984). There are no mortgages, deeds of trust, or other liens on these properties (other than possible IRS liens imposed as a result of these proceedings).
While plaintiffs acknowledge that Stebco's 1988 corporate income tax return was filed late, they assert that much of the delay was caused by the imposition of the jeopardy assessments. The government does not dispute that all prior tax returns were timely filed.
In sum, the government has not carried its burden of showing that the plaintiffs were or appeared to be designing to quickly place themselves and/or their assets beyond the reach of the IRS. The plaintiffs have submitted evidence that they own a house and parcels of real property in the area, the total value of which exceeds the amount of the government's lien. Assuming that the property is of the value stated and is free from encumbrances, the jeopardy assessment is not reasonable to protect the interests of the IRS. See Perillo, 86-2 U.S.T.C. ¶ 9638. It is hereby ordered that the jeopardy assessment imposed upon the plaintiffs be abated.
IT IS SO ORDERED.
NOTES
[1] The parties have acknowledged that the relief sought by the five "non-taxpayer plaintiffs" is now moot due to actions taken by the parties.
[2] The plaintiffs have moved to strike substantial portions of the IRS declaration based on hearsay objections. For the reasons set forth in this opinion, this court finds that this declaration as a whole is not probative of the truth of the matter asserted therein. Thus, the plaintiffs' motion is moot.
[3] See, e.g., Malajalian v. United States, 504 F.2d 842 (1st Cir.1974); Shaw v. United States, 422 F. Supp. 339 (S.D.N.Y.1976). Bigio indirectly finds support in these two cases by citing to Botero v. United States, 560 F. Supp. 616 (S.D. Fla.1983), while Bautista directly cites to these cases.
[4] While the property was put up for sale during the summer of 1988, it was taken off the market one year before the jeopardy assessment. See declaration of real estate broker, Paul R. Kapler. Moreover, there was "no appearance that [p]laintiff was attempting to sell the residential property quickly or at a loss." Penner v. United States, 582 F. Supp. 432, 435 (1984).
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733 F. Supp. 935 (1989)
Barbara EKLOF
v.
BRAMALEA LIMITED, and Paul Muxworthy, and Michael Goman and Randi Lauseng and Gregory Goleff.
Civ. A. No. 89-5312.
United States District Court, E.D. Pennsylvania.
October 27, 1989.
Stephen Ansole, Philadelphia, Pa., for plaintiff.
Jeffrey Braff, Philadelphia, Pa., for defendants.
MEMORANDUM
NEWCOMER, District Judge.
This is a civil rights case involving the alleged wrongful firing of the plaintiff, a black female, by defendants, Bramalea Limited, as a result of race discrimination. Before me now is defendants' Motion to Dismiss Count I, alleged violation of 42 U.S.C. § 1981, and Count II, wrongful discharge tort based upon alleged violation of public policy against race discrimination. For the rationale which follows I will grant both motions.
I. Background.
Plaintiff is a black female who began working for defendant, Bramalea Limited, on or about February 11, 1985. While employed by Bramalea, plaintiff claims she performed her duties in a manner of competency and professionalism in excess of other similarly situated managers. She alleges that during her employment with Bramalea certain employees of defendant, including management level employees, made racially derogatory and slurring comments concerning her. On or about July 14, 1987, plaintiff was fired. She claims that she was wrongfully discharged as a result of racial discrimination.
II. Rule 12(b)(6) Standard.
Fed.R.Civ.P. 12(b)(6) instructs a court to dismiss an action for failure to state a cause of action only if it appears a certainty that no relief could be granted under any set of facts which could be proved. *936 Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984). Because granting such a motion results in a determination of the merits at such an early stage of the plaintiff's case, the trial court "must take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir.1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.1985)).
III. Discussion.
Defendants seek to have this court dismiss Counts I and II of the plaintiff's Complaint, alleging that two recent opinions, Patterson v. McLean Credit Union, ___ U.S. ___, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989) and Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989), require dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. I shall address these claims and the corresponding arguments for dismissal in sequence.
A. Count I: Alleged Violation of 42 U.S.C. § 1981
Count I of the Complaint alleges that plaintiff was wrongfully fired by defendants as a result of race discrimination and that certain employees of defendant Bramalea Limited, including defendant Muxworthy, made racially derogatory and slurring comments regarding plaintiff. Plaintiff alleges that by these acts the defendants violated 42 U.S.C. § 1981, the Civil Rights Act of 1866. Defendants argue that under the United States Supreme Court's recent decision in Patterson, such allegations do not state a cause of action under 42 U.S.C. § 1981.
The parameters of § 1981 with respect to employment discrimination were recently delineated by the Supreme Court in Patterson. The Court limited the substantive protections of § 1981 to those redressing discrimination in the "`mak(ing) and enforce(ment)' of contracts alone", finding that claims outside the scope of these two specific rights, such as "breach of the terms of the contract or imposition of discriminatory working conditions", are not actionable. ___ U.S. at ___, 109 S.Ct. at 2373, 105 L.Ed.2d at 151. The first protection extends only to the formation of contracts and does not include problems that may arise later from the conditions of employment. The second guarantee protects an employee only from employer conduct which impairs the employee's ability to enforce his established contractual rights through the legal process. Id.
The Patterson Court's interpretation of the scope of § 1981 makes clear that the plaintiff's allegations of the defendants' racially derogatory and slurring comments regarding her are not actionable under § 1981. Although such conduct is reprehensible if true, it does not involve discrimination in the making or enforcement of her employment contract as those terms were defined in Patterson.
Similarly, plaintiff's allegation of discrimination in her discharge is not actionable under § 1981. Discriminatory employment termination is post contract formation conduct, not protected against by § 1981, as it does not involve the right to make or enforce a contract as those terms were defined in Patterson.
Plaintiff further argues that defendants impaired her right to make a contract because they refused to consider her for the very position she vacated when she was fired due to alleged racial discrimination. Plaintiff bases her belief that the Patterson Court would permit such a claim under § 1981 on the following language of the opinion:
Of course some overlap will remain between the two statutes [Section 1981 and Title VII]: specifically a refusal to enter into an employment contract on the basis of race. Such a claim would be actionable under Title VII as a "refus[al] to hire" based on race ... and under § 1981 as an impairment of "the same right ... to make ... contracts ... as ... white citizens." *937 Patterson, ___ U.S. at ___, 109 S.Ct. at 2375, 105 L.Ed.2d at 154. However, as the defendant points out, the balance of the paragraph quoted makes clear that the Court was distinguishing between initial hiring, where there is no pre-existing employment relationship, and post contract formation conduct (such as termination) which involves an existing employment relationship. It is only the former which can state a cause of action under Section 1981. The balance of this paragraph states:
But this is precisely where it would make sense for Congress to provide for the overlap. At this stage of the employee-employer relation, Title VII's mediation and conciliation procedures would be of minimal effect, for there is not yet a relation to salvage. Id.
Plaintiff had a pre-existing employment relationship with the defendants. Their alleged discriminatory conduct "implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII (than by § 1981)." Id. ___ U.S. at ___, 109 S.Ct. at 2373, 105 L.Ed.2d at 151.
Moreover, the Patterson Court's discussion of the circumstances in which a promotion decision might be actionable under § 1981 makes it clear that termination of employment on the basis of race may not be maintained under § 1981. The Court stated that "only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and employer is such a claim actionable under § 1981." Id. ___ U.S. at ___, 109 S.Ct. at 2377, 105 L.Ed.2d at 156. Rehiring an employee into the very position from which she was discharged was clearly not what the Court contemplated as a "new and distinct relation".
Furthermore, even if plaintiff is correct in interpreting Patterson to allow a § 1981 claim for refusal to consider an applicant for a position where the applicant was previously terminated, based on race discrimination, plaintiff's § 1981 claim still cannot stand. Plaintiff did not re-apply for the position from which she was terminated nor did she apply for any other position with the defendant. Consequently, plaintiff cannot complain that the defendant impaired her right to make a contract by refusing to hire her since she never applied for any position with the defendant after she was fired. Plaintiff's claim for violation of 42 U.S.C. § 1981 must therefore be dismissed.
B. Count II: Tort of Wrongful Discharge on the Basis of Race
Count II of the Complaint states that the defendants' discharge of the plaintiff was in violation of the public policy of Pennsylvania against race discrimination and that the defendants' conduct constitutes a commission of the tort of wrongful discharge. Defendants argue that the Pennsylvania Supreme Court's recent decision in Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989), dictates that plaintiff has failed to state a cause of action for the tort of wrongful discharge in this case.
The Clay Court held that "the PHRA [Pennsylvania Human Relations Act] provides a statutory remedy that precludes assertion of a common law tort action for wrongful discharge based upon discrimination". Id. 559 A.2d at 918. The Court cited with approval a previous Superior Court decision, wherein it was held that, "in order to assert a claim for wrongful discharge from employment which is cognizable under the [PHRA] ... an aggrieved party must utilize administrative remedies available through the PHRC [Pennsylvania Human Relations Commission] before asserting a cause of action in court." Clay at 918, citing Householder v. Kensington Manufacturing Co., 360 Pa.Super. 290, 520 A.2d 461 (1987), appeal denied, 516 Pa. 629, 532 A.2d 1137 (1987). Furthermore, the Clay Court noted that "[a]llowing a discharged employee to commence an action in the courts without first exhausting administrative remedies would be logically inconsistent with the legislature's having created the PHRC to function as an efficient mechanism for handling such disputes." Id. 559 A.2d at 918.
*938 Plaintiff admits that she did not pursue the administrative remedies mandated by the PHRA. Nevertheless, plaintiff asserts that her Complaint states a cause of action even after the Pennsylvania Supreme Court's decision in Clay. She argues that Clay does not apply because her first attorney failed to inform her that it was necessary to file charges within a specific time period and that Clay is therefore distinguishable. Plaintiff's reliance on this argument to distinguish her case from Clay is misplaced. The reason the Clay plaintiffs failed to pursue the statutory remedy set out in the PHRA is not discussed in the opinion, nor is there any indication in the opinion that a plaintiff's reasons for failing to pursue the statutory remedy are relevant.
Plaintiff further argues that her reason for failing to pursue the statutory remedy is relevant because the rationale supporting the Clay decision is inapplicable where there was no intention to "circumvent the PHRC by simply filing claims in court." Clay at 920. However, just as with plaintiff's argument regarding her reasons for failing to pursue the statutory remedy discussed above, nothing in the Clay opinion suggests that an individual's motives for not pursuing the statutory remedy are relevant. The Clay Court pointed out that, in establishing the right to a remedy for discrimination in employment, the legislature declared this a "civil right which shall be enforceable as set forth in this act." PHRA, 43 P.S. § 953. The legislature's use of the word "shall" as opposed to "may" expresses its clear intent to make the administrative procedures a mandatory rather than a discretionary means of enforcing the right. See Clay at 919. The Court did not indicate that any circumstances would be sufficient to justify ignoring the statutory mandate.
Plaintiff's final argument in support of her cause of action in Count II of the Complaint is that employment discharge arising from race discrimination may be actionable at common law. Clay noted that "as a general rule, there is no common law cause of action against an employment for termination of an at-will employment relationship" and that "exceptions to this rule have been recognized in only the most limited of circumstances." Clay at 918, citations omitted. The Court then held that, notwithstanding the limited exceptions, "in as much as appellees failed to pursue their exclusive statutory remedy for sexual harassment and discrimination in the work place they are precluded from relief." Clay at 919.
The racial discrimination claim alleged here is more closely analogous to the sexual discrimination claim denied in Clay than it is to the few cases that have recognized the public policy exception. Accordingly, the Court finds that plaintiff's claim of wrongful discharge due to racial discrimination does not qualify as an exception to the general rule that there is no common law cause of action against an employer for termination of an at-will employment relationship. Plaintiff's claim for the tort of wrongful discharge must therefore be dismissed.
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933 S.W.2d 306 (1996)
Deputy Michael A. WOODS, Harris County, Texas and Harris County Sheriff's Department, Appellants,
v.
Virginia MOODY, Appellee.
No. 14-96-00769-CV.
Court of Appeals of Texas, Houston (14th Dist.).
October 17, 1996.
*307 Lana S. Shadwick, Houston, for appellants.
Timothy M. Purcell, Houston, for appellee.
Before YATES, HUDSON and FOWLER, JJ.
OPINION
YATES, Justice.
This is an interlocutory appeal from the denial of a motion for summary judgment.[1] Virginia Moody, the appellee, sued Deputy Michael A. Woods, Harris County, and the Harris County Sheriff's Department (collectively "appellants"). The chief issue in this appeal is whether Woods is entitled to official immunity. We affirm the judgment of the trial court.
This appeal arises from an auto accident involving Woods and Moody. The exact cause of the collision is disputed, but it is admitted that Woods struck Moody's vehicle from behing while on Harris County business.
Moody brought suit under the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(1) (Vernon 1986), alleging that Woods's negligence caused her injuries. Appellants filed a joint motion for summary judgment. Woods asserted the affirmative defense of official immunity, and Harris County and the Sheriff's Department asserted sovereign immunity based on Woods's immunity.
Official immunity is an affirmative defense, and the defendants have the burden to establish all elements of that defense. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). The standard for reviewing a motion for summary judgment is as follows: 1) the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and 3) every reasonable inference must be resolved in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
In the first point of error, appellants argue the trial court erred in denying their summary judgment motion based on Woods's claim of official immunity. Government employees are entitled to official immunity from suit arising from the good faith performance of discretionary duties when they act within the scope of their authority. City of Lancaster, 883 S.W.2d at 653. Moody argues only that Woods's actions were ministerial rather than discretionary.
The Texas Supreme Court stated that "[i]f an action involves personal deliberation, decision and judgment, it is discretionary; actions which require obedience to orders or the performance of a duty to which the actor has no choice, are ministerial." Id. at 654. The determination that an act is discretionary is "probably only a shorthand notation for a more complex policy decision." Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex.1994) (citing Prosser and Keeton on the Law of Torts § 132, at 1062 (W. Page Keeton et al. eds., 5th ed. 1984)).
The summary judgment evidence shows that when the accident occurred, Woods was on duty and en route to Harris County business. Woods's affidavit stated that the accident occurred when his foot slipped off the brake pedal when he was picking up a clipboard from the car's floorboard. Woods picked up the clipboard because he thought it might become dangerously lodged under the brake. Appellants argue Woods's action of picking up the clipboard required "personal deliberation, decision and judgment," making *308 it a discretionary act. Alternatively, appellants argue that the deputy's act of operating a car is discretionary.
Moody claims Woods's statement as to his actions is not uncontroverted summary judgment proof and argues a fact issue exists as to whether or not Woods was picking up a clipboard. In the alternative, Moody asserts that picking up the clipboard was not the cause of the accident.
We need not decide whether a fact issue exists regarding the cause of the accident. While it is true that picking up a clipboard may require discretion and judgment, "any official act that is ministerial will still require the actor to use some discretion in its performance." Burgess v. Jaramillo, 914 S.W.2d 246, 249 (Tex.App.Fort Worth 1996, no writ). If appellants were allowed to limit the focus of our inquiry simply to any minor decision requiring some judgment prior to an accident, plaintiffs would find it nearly impossible to make a viable claim under the Texas Tort Claims Act. Allowing such a limited focus would, in effect, merge the discretionary function element of the official immunity defense into the third element of the defense, whether the employee was acting within the scope of authority. An official cannot be immune from liability simply because he is on duty.
Our focus, and the question we must decide, is whether Woods was performing a discretionary function while operating his patrol car. The purpose behind official immunity is to "free government officials to exercise their duties without fear of damage suits that would consume their time and energy and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of polices of government." Victory v. Bills, 897 S.W.2d 506, 508 (Tex. App.El Paso 1995, no writ). It was not designed to "protect erring officials." Kassen, 887 S.W.2d at 8. Situations where peace officers have been found to have official immunity in the operation of their motor vehicles include, but are not limited to, high-speed chases, investigations, and traffic stops. See, e.g., City of Lancaster, 883 S.W.2d at 653-55 (high speed chase); Texas Dept. of Pub. Safety v. Perez, 905 S.W.2d 695, 698-700 (Tex.App.Houston [14th Dist.] 1995, writ denied) (traffic stop); City of Hempstead v. Kmiec, 902 S.W.2d 118, 120-22 (Tex.App.Houston [1st Dist.] 1995, no writ) (investigation preceding arrest); Harris County v. Ochoa, 881 S.W.2d 884, 887-89 (Tex.App.Houston [14th Dist.] 1994, writ denied) (high speed chase).
Unlike high speed chases or traffic stops, operating a car in a non-emergency situation does not involve personal deliberation or the exercise of professional expertise, decision, or judgment. To the contrary, driving a car is ministerial because it requires a person to "perform[] in a given state of facts and in a prescribed manner in obedience to the method of legal authority, without regard to ... the propriety of the act being done." Burgess, 914 S.W.2d at 249 (citing Miller v. State, 53 S.W.2d 838, 840 (Tex.Civ.App.Amarillo 1932, writ ref'd)) (emphasis and ellipses added). Thus, absent special circumstances that suggest the officer was performing a discretionary function, such as engaging in a high speed chase, we hold that an officer driving a motor vehicle while on official, non-emergency business is performing a ministerial act. See City of Lancaster, 883 S.W.2d at 655; see also Garza v. Salvatierra, 846 S.W.2d 17, 22 (Tex. App.-San Antonio 1992, writ dism'd w.o.j.) ("The act of driving a bus is ministerial, not discretionary."). Our refusal to apply official immunity in this case should not have the effect of discouraging officers from carrying out the "fearless, vigorous, and effective administration" of their duties.
Other jurisdictions facing this issue have come to similar conclusions. In Letowt v. City of Norwalk, 41 Conn.Supp. 402, 579 A.2d 601 (1989), the plaintiff was standing beside her automobile waiting for an officer to arrive after being involved in an accident. Id. at 601. Responding to the accident call, the police officer's vehicle struck and pinned the plaintiff between the officer's vehicle and her own. Id. The court determined that activities undertaken by the police officer at the scene of the accident would fall under the scope of the officer's discretionary function. Id. at 603. For example, if the officer decided to measure skid marks or decided not to *309 transport an injured victim to the hospital, then the officer would be performing a discretionary duty. Id. However, the court concluded that simply driving to the accident site was not part of a discretionary function. "Driving to the scene of an accident, however, is different. Ordinary citizens drive their cars every day, not just police officers, and hence the operation of a motor vehicle would be deemed ministerial."[2]Id.; see also Speck v. Bowling, 892 S.W.2d 309, 311-12 (Ky.Ct. App.1995); Duellman v. Erwin, 522 N.W.2d 377, 380 (Minn.Ct.App.1994); Brown v. Tate, 888 S.W.2d 413, 415 (Mo.Ct.App.1994). We overrule appellants' first point of error.
Appellants' second point of error argues the trial court erred in denying Harris County and the Sheriff's Department's motion for summary judgment claiming sovereign immunity. Section 101.21(1) of the Texas Tort Claims Act waives the liability of a governmental entity for the torts of its employees arising from the operation or use of motor-driven vehicles if "the employee would be personally liable to the claimant according to Texas law." TEX.CIV.PRAC. & REM.CODE ANN. § 101.102(1). If appellants could show Woods met all the elements for official immunity, then Harris County and the Sheriff's Department would retain their sovereign immunity. DeWitt, 904 S.W.2d at 653. Woods has not met that showing. The trial court did not err in denying appellants' summary judgment motion. We overrule appellants' second point of error and affirm the judgment of the trial court.
NOTES
[1] The Civil Practices and Remedies Code allows interlocutory appeals of orders denying motions for summary judgment based on the assertion of immunity by an employee or officer of the state. TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(5) (Vernon Supp.1996). If the governmental entity's sovereign immunity defense depends on the employee's official immunity, appeal of the denial of summary judgment is also covered by § 54.014(5). City of Houston v. Kilburn, 849 S.W.2d 810, 812 (Tex.1993).
[2] The Letowt court noted that "[j]udicial attempts to grapple with [the distinction between discretionary and ministerial acts has] become a multiaddered medusa [and] has resulted in confusion and uncertainty all too painfully apparent to legal scholars and an inability on the part of the courts to evolve any definite guidelines...." Letowt, 579 A.2d at 602 (quoting Vanderpool v. State, 672 P.2d 1153, 1154-55 (Okla.1983)). In order to devise a practical guideline for determining what is discretionary and what is ministerial, the court adopted the Rhode Island approach. Id. at 603. This approach distinguishes between activities that only municipal employees may perform, as contrasted with what ordinary citizens may perform. Id.
We find the holdings and tests used in other jurisdictions to be instructive; however, we are not to be interpreted as adopting the Rhode Island approach.
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933 S.W.2d 734 (1996)
Ronald G. BROWN and Suzanne G. Brown, Appellants,
v.
AMERICAN RACING EQUIPMENT, INC., Appellee.
No. 04-95-00914-CV.
Court of Appeals of Texas, San Antonio.
October 23, 1996.
Robert M. Stone, Law Offices of Franklin Y. Wright, San Antonio, for Appellants.
Robert F. Scheihing, Small, Craig & Werkenthin, P.C., San Antonio, for Appellee.
Before CHAPA, C.J., and STONE and GREEN, JJ.
OPINION
CHAPA, Chief Justice.
The appellant, Ronald Brown, was injured when working on a car owned by a manager for the appellee, American Racing Equipment, Inc. (American Racing). Brown and his wife appeal a take-nothing summary judgment granted in American Racing's favor. In one point of error, they challenge *735 the trial court's implicit finding that American Racing's employee was not within the course and scope of his employment at the time of the accident. Finding no genuine issue of material fact, we affirm.
Summary of Facts
Terry Harrison, a salesman for American Racing,[1] agreed to do a "favor" for his manager, Bill Martinez, on his way to get lunch. Martinez's personal car had broken down the night before, and he asked Harrison to meet with his mechanic, give him the car keys, and ensure that his car was towed with a flatbed truck.
With Martinez's knowledge and approval, Harrison used an American Racing van to pick up Brown and drive him to Martinez's car. After inspecting the vehicle, Brown determined that the car was stuck in "park." Rather than wait for a wrecker, he suggested that they try to fix the car by manually manipulating the gear shifter.
Brown laid down on the ground to reach underneath the car and put it into reverse. When Harrison started the engine at Brown's request, the car rolled backwards, pinning Brown's head between the tire and the curb. The Browns sued Harrison for negligence and alleged that American Racing was vicariously liable for their injuries.
Argument on Appeal
The Browns contend the trial court erred in granting summary judgment in American Racing's favor because a fact issue existed as to whether Harrison was acting within the course and scope of his employment.
American Racing is entitled to judgment when the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact about one or more essential elements of the Browns' cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); TEX.R. CIV. P. 166a(c). Once American Racing negates an essential element of the Browns' claim, the Browns must present issues precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 430 (Tex.App.San Antonio 1993, writ denied).
In deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the Browns is taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Every reasonable inference is indulged in their favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).
To determine American Racing's liability for Harrison's actions, we ask whether American Racing had the "right and power to direct and control [Harrison] in the performance of the causal act or omission at the very instance of the act or neglect." J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex.App.San Antonio 1993, no writ). To meet this test, Harrison's act must (1) fall within the scope of his general authority; (2) further his employer's business; and (3) accomplish the object for which he was hired. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 359 (Tex.1971); Salaiz, 866 S.W.2d at 636. For example, using the company vehicle to get lunch is not within the employee's scope of authority or in furtherance of the employer's business. Andrews v. Houston Lighting & Power, 820 S.W.2d 411, 414 (Tex.App.Houston [14th Dist.] 1991, writ denied).
If Harrison deviated from the performance of his duties for a personal purpose, then American Racing would not be liable for what occurred during the deviation. Drooker v. Saeilo Motors, 756 S.W.2d 394, 397 (Tex.App.Houston [1st Dist.] 1988, writ denied). For example, if the employer sends the employee on a business errand, but the employee stops to make a personal purchase, then the employee is not acting within the course and scope of his employment. Hudiburgh v. Palvic, 274 S.W.2d 94, 98-99 (Tex. Civ.App.-Beaumont 1955, writ ref'd n.r.e.).
Harrison testified that he was not performing his regular duties when Brown's accident occurred:
A. I was going out to get lunch, and Bill, my manager, asked me to do him a favor while I was out getting lunch.
....
*736 Q. And did you know where you were going or had you gotten directions or
A. No, I knew where I was going.
Q. Why was that?
A. Because I had gone and picked up Bill the night before, because he had called me at home to tell me that his car had broken down and he needed some help.
This evidence shows that Harrison was not acting within his authority as a salesman and was not furthering American Racing's business. Instead, he was driving to lunch and performing a personal favor for a co-worker. These activities removed him from the course and scope of his employment. See Andrews, 820 S.W.2d at 414; see also Salaiz, 866 S.W.2d at 637 (holding that defendant's ownership of the vehicle and employment of the driver are insufficient to raise a fact issue when a collision occurs while the driver is on a personal errand).
As rebuttal evidence, the Browns offered the testimony of Paul Bethel, American Racing's division manager, who also said that Harrison was performing a personal favor for Martinez. However, he testified that Harrison's use of American Racing's vehicle was "appropriate":
Q. Probably goes without saying, but it would have been certainly within the guidelines and policies of American Racing to allow this to happen, wouldn't it?
A. To get lunch?
Q. Yes.
A. Yes.
Q. And when I say that, I mean it would have been within the guidelines and policies to use an American Racing vehicle to go get lunch.
A. Yes.
Q. And would it have been within the guidelines and policies to go getor drop off the keys for Mr. Martinez's car?
A. I guess if Terry didn't mind doing it, then I wouldn't see no problem with it.
When viewed in the light most favorable to the Browns, this evidence raises a fact issue as to whether Harrison was acting within his authority when he took a company van to get lunch and run a personal errand. However, this evidence does not address American Racing's right to control Harrison's actions at the time of the accident, that is, when he left the company vehicle, got into Martinez's car, and started its engine.
The Browns argue that Harrison was on a "special mission" for his employer. The special mission doctrine is an exception to the general rule that an employer is not liable for its employee's negligent acts while traveling from one work site to another. Freeman v. Texas Compensation Ins. Co., 603 S.W.2d 186, 192 (Tex.1980); Salaiz, 866 S.W.2d at 632. Under this doctrine, "[w]hen the employer does not require any particular route, the employee is not engaged in the furtherance of the employer's business." Salaiz, 866 S.W.2d at 632; Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907-08 (Tex. App.Corpus Christi 1988, no writ).
The special mission exception is not applicable to this case because Ronald Brown was not injured by American Racing's vehicle while its employee was traveling from one work site to another; Brown was injured by Martinez's car when Harrison decided to help him manually adjust the transmission. Even if Harrison were running a business errand by waiting for the flatbed truck, there is no evidence that he was authorized to help Brown fix the car. Thus, at the time of the accident, Harrison's actions did not further American Racing's business, nor did American Racing direct Harrison's route or activity.
Conclusion
American Racing provided uncontroverted summary judgment evidence that Harrison was not acting within the course and scope of his employment when Brown was injured. We hold that there are no genuine issues of material fact and overrule the Browns' sole point of error. Because the trial court did not err in granting summary judgment in American Racing's favor, we affirm the trial court's judgment.
NOTES
[1] American Racing sells automotive accessories.
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733 F. Supp. 1355 (1990)
Vernon M. PUPPE, Deceased, by Wanda PUPPE, Surviving Spouse, and Candice Brouse and Deborah Lynn Puppe, Surviving Children, Plaintiffs,
v.
A.C. AND S., INC., et al., Defendants.
Civ. No. A2-86-78.
United States District Court, D. North Dakota, Northeastern Division.
March 28, 1990.
*1356 David Thompson, Fargo, N.D., and Harold Anderson, Grand Forks, N.D., for plaintiffs.
Jon Parrington, Edina, Minn., Paul Woutat, Grand Forks, N.D., Joseph T. Dixson, Jr., Minneapolis, Minn., Albert A. Wolf, Bismarck, N.D., Jay Feidler, Grand Forks, N.D., Eugene Buckley, St. Paul, Minn., Ralph Walker, Des Moines, Iowa, and Duane Arndt, Minneapolis, Minn., for defendants.
Ronald McLean, Fargo, N.D., for A.C. and S., Inc.
Michael Fiergola, Bismarck, N.D., for Raybestos-Manhatten, Inc.
Douglas Herman, Fargo, N.D., for Clarke Equipment Co.
Michael D. Nelson, West Fargo, N.D., and Gary R. Sharp, Cheatham & Acker, Detroit, Mich., for H.K. Porter Co., Inc.
Michael McNair, Fargo, N.D., for Atlas Turner, Inc.
David Welte, Polsinelli Law Firm, Kansas City, Mo., for Standard Asbestos Insulating & Mfg. Co.
MEMORANDUM AND ORDER
VAN SICKLE, District Judge.
INTRODUCTION
On March 15, 1990 defendants GAF Corporation; National Gypsum Company; Pfizer, Inc.; Union Carbide Corporation; and United States Gypsum Company filed a motion with this Court. Defendants requested that this Court "exclude any potential claim made by plaintiffs for punitive damages...." Several letters have been filed by defendants American Hoist and Derrick Company (now Amdura); and Clark Equipment Company. In their letters, these defendants ask to join in the motion to exclude "any potential claim by plaintiff for punitive damages." At the pretrial conference for this case held in Fargo, North Dakota on March 15, 1990 several other defendants expressed similar concerns. On March 23, 1990 the defendants who originally mentioned concerns with North Dakota's policy on punitive damages informed the Court they had settled. The case was removed from state court pursuant to 28 U.S.C. § 1441 on May 20, 1986 because of complete diversity to 28 U.S.C. § 1332. The case was assigned to this Court by Judge Webb on October 5, 1989.
FACTS
This case is a wrongful death action brought by the survivors of decedent Vernon Puppe. Puppe died of mesothelioma on April 26, 1984. Mesothelioma is a soft tissue cancer of the chest and abdomen, and has been attributed in causal terms to a victim's exposure to asbestos fibers. Mesothelioma is always fatal.
Plaintiffs claim that Puppe was employed as an asbestos insulation helper and handler by the C.W. Schmidt Plumbing and Heating Co. during 1959. He worked at a large insulation project in a heating plant at the Minot Air Force Base in Minot, North Dakota. Puppe's duties included the cutting of asbestos-containing block and pipe covering, the spraying of asbestos texturing compounds, and the mixing of powdered asbestos cements. Puppe's survivors claim that in the course of his employment, *1357 he inhaled and ingested asbestos fibers from the insulation products which he and his nearby co-workers were installing.
Also, Puppe was later employed as a crane operator by the Swingen Construction Co. of Grand Forks, North Dakota from 1966 through 1981. The cranes Puppe worked with employed friction clutches and brakes. The friction clutches and brakes used asbestos clutch linings, asbestos clutch facings, asbestos brake linings, and asbestos brake drums. Puppe's survivors claim that during the operation of these cranes, dust grindings from the brake linings would fill the cab of the vehicle, causing the operator's area to be heavily contaminated by asbestos fibers. Plaintiffs claim that as operator of the crane, Puppe inhaled and ingested these asbestos fibers.
Puppe had been dead for almost two years when this case was filed. His survivors have filed suit claiming the wrongful death was caused by the acts and omissions of the defendants. Plaintiffs claim compensatory damages for the wrongful death, medical and funeral expenses, punitive, and exemplary damages from the defendants. Defendant's motion requests the exclusion of any potential claim made by plaintiffs for punitive damages. Defendants claim that North Dakota law does not allow such a claim.
This is a diversity case. In diversity cases a federal court must apply the law of the state where the United States District Court is located. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). N.D.C.C. § 32-21-01 provides a cause of action for wrongful death. N.D.C.C. § 32-21-02, in determining the measure of recovery, provides:
In an action brought under the provisions of this chapter, the jury shall give such damages as it finds proportionate to the injury resulting from the death to persons entitled to recovery.
This Court must interpret this statute to give it the same effect as would a North Dakota court.
ISSUES
I. Whether North Dakota Law Allows Punitive Damages to Flow from a Claim for Wrongful Death.
II. Due Process Considerations.
A. Fairness to the Defendants of Multiple Punitive Verdicts.
B. Heightened Standard of Proof.
C. Interests of Future Plaintiffs.
III. Procedure for Trial.
DISCUSSION
I. Whether North Dakota Law Allows Punitive Damages to Flow from a Claim for Wrongful Death.
Punitive damages have been defined as appropriate "when the defendant has been guilty of oppression, fraud or malice, actual or presumed...." See N.D.C.C. § 32-03.2-11 (1987).[1] Punitive damages are given "in addition to the actual damages ... for the sake of example and by way of punishing the defendant." Id. Proponents of punitive damages believe that, by giving plaintiffs damages over and above the full compensation for their injuries, defendants are punished, taught not to repeat culpable behavior, and others are deterred from following defendant's dubious example. W. Prosser, The Law of Torts § 2, p. 9 (4th Ed.1971).
Defendants in the present case maintain that punitive damages are not available to the plaintiffs. In support of this assertion, they cite Johnson v. International Harvester Co., 487 F. Supp. 1176 (D.N.D.1980). In Johnson, Judge Benson made three findings:
1) That punitive damages could not be recovered under the North Dakota wrongful death statute,
2) That no common law action for wrongful death can exist in North Dakota, and
3) That the North Dakota wrongful death statute does not discriminate against wrongful death claimants in favor *1358 of personal injury and property damage plaintiffs, thereby foreclosing an equal protection argument.
Id. at 1177-80. Judge Benson reached a similar decision in Johnson v. American Aviation Corp., 64 F.R.D. 435 (D.N.D. 1974).
In reaching his conclusions, Judge Benson carefully examined North Dakota statutes and caselaw to determine what the North Dakota Supreme Court would do if faced with a similar problem. Judge Benson's most recent examination of the status of the wrongful death statute of North Dakota was in 1980. The decade since Johnson has seen the North Dakota Supreme Court make radical changes in the way it interprets recovery under its wrongful death statute. A fresh examination is necessary to determine whether it would allow recovery for punitive damages today.
Wrongful death statutes have had a peculiar and tortured history. See Hopkins v. McBane, 427 N.W.2d 85, 88-90 (N.D. 1988). In the early 19th century, Lord Ellenborough declared that "[i]n a civil Court, the death of a human being could not be complained of as an injury." Id. at 88 (citing Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (K.B.1808)). Lord Ellenborough's decision was widely criticized. Hopkins, 427 N.W.2d 85, 88 (N.D.1988). As such, the inability to recover for wrongful death made it more profitable for tortfeasors to kill plaintiffs than to injure them. Id. Families of the victim, who were often left destitute, were left without a remedy by the Baker decision. Id. In response to this problem, Parliament passed the Fatal Accidents Act of 1846,[2] also known as Lord Campbell's Act, to allow compensation for the families of those killed. Id. Every American state now has a similar statutory remedy for wrongful death. Id.
These statutes were not met with much favor by the courts of the time and were narrowly construed so as to permit recovery only for economic loss. See Hopkins v. McBane, 427 N.W.2d 85, 89 (N.D.1988). These holdings were the results of the mores of the time, a time in which life was cheap and suffering was common. Id. at 89-90. The social conditions of the day influenced the decisions limiting recovery under wrongful death statutes to lost wages. See id. at 89-90. In one of the first cases in which North Dakota applied its wrongful death statute, the North Dakota Supreme Court noted that
[u]pon one point the cases are united, and that is that the only damages recoverable in this action are for the pecuniary loss. Nothing can be recovered for the loss of society or for damages in the way of solatium.
Haug v. Great Northern Ry. Co., 8 N.D. 23, 77 N.W. 97, 101 (1898). It was upon Haug that the North Dakota Supreme Court based its decision to deny punitive *1359 damages unless expressly allowed in the statute. See Hyyti v. Smith, 67 N.D. 425, 272 N.W. 747, 750 (1937). In Hopkins v. McBane, Haug was overruled because it was felt "[t]hat this barbarous concept of the pecuniary loss ... should control our decisions today is a reproach to social justice." Id. at 90 (quoting Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, 121 (1960)). This Court believes that the Hopkins ruling casts serious doubt upon the continued validity of Hyyti.
Hopkins dealt with an action brought by a mother against a physician and hospital for the wrongful death of a viable fetus. After the trial court had entered judgment in favor of the mother, the defendants appealed. Defendants argued that damages for loss of society, comfort, and companionship could not be recovered under the wrongful death statute, which also was claimed to preclude damages for mental anguish. Defendant's argument was based on the premise contained in North Dakota caselaw that limited damages allowable under the wrongful death statute to pecuniary damages. This is the same premise, found in some of the same cases, which does not allow recovery of punitive damages in a case of wrongful death.
The North Dakota Supreme Court laid out the historical background cited above to begin its examination of the wrongful death statute. See Hopkins v. McBane, 427 N.W.2d 85, 88-90 (N.D.1988). The North Dakota Supreme Court noted that amongst the world's industrialized nations, only the United States and the British Commonwealth members fail to "simply treat wrongful death actions in the same way as personal injury actions...." Id. at 90. The Court described allowing jurors to determine certain issues, in this case mental anguish and loss of consortium, in personal injury cases but not in wrongful death cases to be an "anomaly". Id. at 93.
Such an anomaly was cited as "inconsistent with the high regard with which we view the right to a jury trial." Id. The North Dakota Supreme Court decided to eliminate this anomaly as an anachronism. Id. The policy of allowing certain damages in personal injury actions but not in wrongful death actions was labelled "illogical and unjust." Id. Addressing the concern that such changes in policy should be left to the legislature, the North Dakota Supreme Court responded that "it was judges ... who adopted the rule that such damages are not recoverable and judges can remove the prohibition." Id. at 93-94.
Hopkins has convinced this Court that North Dakota now recognizes a claim for punitive damages in wrongful death actions. Allowing certain claims for a personal injury case but not for a wrongful death claim places our judicial system into disrepute as inconsistent and contradictory. While there may exist good arguments against the use of punitive damages, these are best addressed on grounds other than that they do not exist under North Dakota law. This Court holds that Hopkins overruled the law that Judge Benson used to make his decisions to exclude punitive damages in Johnson and American Aviation. This Court is bound to follow North Dakota law; consequently, I find that punitive damages may be recovered in a wrongful death action.
II. Due Process Considerations.
Much of the recent discussion on punitive damages has focused on the possibility that the existing system for providing punitive damages violates a defendant's due process rights. When a court reviews a law to determine its procedural fairness, it reviews the system of decision making to determine whether or not a government entity has taken an individual's life, liberty, or property without the fair procedure or "due process" required by the fifth and fourteenth amendments.[3] J. Nowak, R. Rotunda, J. Young, Constitutional Law, 416-17 (2nd ed. 1983). Procedural review *1360 is limited in scope. Id. at 417. Procedural due process guarantees only that there is a fair decision-making process before the government takes some action directly impairing a person's life, liberty, or property. Id. This procedural aspect of the due process clause does not protect against the use of arbitrary rules of law which are the basis of those proceedings. Id.
The due process clause also has an aspect known as the "substantive guarantee of due process." Id. at 443. This substantive guarantee requires that legislation have a rational relationship to a legitimate end of government. Id. If a law has no such relationship, it unconstitutionally deprives those persons it affects of a liberty interest. Id. A party who wishes to challenge the constitutionality of economic legislation has a difficult task. In a situation "where the legislative judgment is drawn in question, [the inquiry] must be restricted to the issue whether any state of facts either known or which could reasonably be assumed, affords support for [the legislation]". United States v. Carolene Prods. Co., 304 U.S. 144, 154, 58 S. Ct. 778, 784, 82 L. Ed. 1234 (1938). Not only will courts presume that a legislature had a reasonable basis for enacting a particular economic measure, but they will also hypothesize reasons for the law's enactment if the legislature fails to state explicit reasons for its judgment. See Williamson v. Lee Optical Co., 348 U.S. 483, 490, 75 S. Ct. 461, 465, 99 L. Ed. 563 (1955). Justice Black eloquently stated the role of the judiciary when he stated "[courts must] refuse to sit as a `superlegislature to weigh the wisdom of legislation'.... Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes or some other is no concern of ours." Ferguson v. Skrupa, 372 U.S. 726, 731-32, 83 S. Ct. 1028, 1031-32, 10 L. Ed. 2d 93 (1963). This presents a difficult task for those challenging the constitutionality of punitive damages on a due process basis.
Several approaches to this problem have great merit and raise some interesting considerations for a trial court. Many of the recent issues concerning the constitutionality of punitive damage statutes have been noted, although not acted upon, by the Supreme Court. A brief examination of some of the more recent issues will be helpful in deciding whether to apply such matters to the present case.
A. Fairness to the Defendants of Multiple Punitive Verdicts.
Punitive damages are designed to punish defendants for their wrongdoing, and to deter the defendant and others from repeating harmful behavior. Punitive damages serve neither to compensate plaintiffs for their injuries nor as a bonus from which attorneys fees and other costs of litigation may be culled. This has raised a question with some as to just what exactly a finding by a jury that a plaintiff may recover punitive damages means. Some think that if awarded in a certain context, a punitive damage award, or awards, can preclude future awards.
Other federal courts have had more exposure to toxic tort litigation than our own. In the Eastern and Southern Districts of New York, for example, mass litigation has gone on for decades concerning such substances as asbestos, Agent Orange, and MER/29. Judge Weinstein certified a mandatory punitive damage class action under Rule 23(b)(1)(B) in the Agent Orange litigation before him. See In re Agent Orange Prods. Liab. Action, 100 F.R.D. 718, (E.D. N.Y.1983), aff'd, In re Diamond Shamrock Chems. Co., 725 F.2d 858, 862 (2d Cir.1983), cert. denied, 465 U.S. 1067, 104 S. Ct. 1417, 79 L. Ed. 2d 743 (1984). Judge Weinstein believes that, in theory, an award of punitive damages represents a finding by the jury that the defendant was sufficiently punished for the wrongful conduct. See In re Agent Orange, 100 F.R.D. 718, 728 (E.D.N.Y.1983). When a jury awards punitive damages Judge Weinstein therefore believes, as a matter of policy or as a matter of due process, there must be some limit to the number of times a defendant may be punished for a single transaction. Id. At the very least, Judge Weinstein would allow trial courts passing on future claims of punitive damages against the same defendant to admit evidence of *1361 prior awards to be used by a jury to reduce awards to other parties seeking additional punishment for the same misconduct. Id.
As a means for certifying a class action, this theory of punitive damages has great merit. In the context of an isolated toxic tort trial, begun nearly two decades after the first similar litigation, however, this Court is not so certain such an approach is helpful. Judge Weinstein refers to the number of times a defendant may be punished for a single transaction; this Court is not so certain that a decades long history of concealing the true effects of asbestos from different people under different circumstances, as alleged by plaintiffs, can be viewed as a "single transaction." Were the actions that plaintiffs allege to be negligent a single occurrence, for example a spill from an oil tanker, this Court could perhaps accept the theory that a limitation existed on the amount of times a defendant could be punished for that single event. Asbestos litigation concerns defendants who are alleged to have repeatedly and purposefully concealed the dangers of their products. These separate and continued acts of concealment are claimed to have caused the separate injuries of many. This Court does not believe that multiple punitive damage awards are an undue burden on a defendant accused of continued misconduct under a procedural or a substantive due process analysis if a jury finds that such conduct occurred.
B. Heightened Standard of Proof.
Another criticism of punitive damages centers on the "criminal" nature of punitive damages. See Browning-Ferris Indus. v. Kelco Disposal, Inc., ___ U.S. ___, 109 S. Ct. 2909, 2933, 106 L. Ed. 2d 219 (1989) (Justice O'Connor, dissenting). Such an examination would have to center on the procedural aspects of an alleged due process violation. Justice O'Connor,[4] in a case where the Supreme Court examined whether punitive damages violate the excessive fines clause of the Eighth Amendment, noted that punitive damages are "private fines levied by civil juries." Id. (emphasis in original). Justice O'Connor believes that "a governmental entity can abuse its power by allowing civil juries to impose ruinous punitive damages as a way of furthering the purposes of its criminal law." Id. As a method of correcting perceived problems with punitive damages, added procedural safeguards are suggested. This would include raising the burden of proof from "by a preponderance of the evidence" to "clear and convincing evidence." See Fisher v. Johns-Manville, 103 N.J. 643, 666-67, 512 A.2d 466 (1986) (Justice O'Hern, dissenting).
This Court finds many of the solutions to dealing with the "problem" of excessive punitive damages awards attractive at first blush but ultimately of little use to a trial court. First, this Court notes that such remedies are always designed to grant defendants relief from "excessive" punitive damages awards. A trial court has no idea of what size a jury verdict of punitive damages will be until it is returned. Any remedy to deal with "excessive" punitive damages would therefore have to be applied to every situation where an instruction on punitive damages is given. Absent a statutory ceiling on the permissible size of a punitive damage award, unless a court determines that any punitive damages award violates constitutional concepts of due process, which this Court does not, safeguards prior to jury deliberation cannot be applied only to "excessive" punitive awards.
The number of times a given defendant has previously been assessed punitive damages *1362 is indeed relevant to determining the amount necessary to deter certain conduct. A possible trial approach would be to allow the defendants to submit to the jury the amounts they have already paid out in punitive damages if they so choose. Such a procedure, however, might have the undesired effect of ensuring, rather than reducing, a punitive damage award.
The second oft mentioned concern relates to the right to due process as it concerns the actual proceedings held. This includes suggestions such as a bifurcated trial for the issues of liability and punitive damages, and the court rather than the jury determining the amount and the propriety of the punitive damage award. See Punitive Damages: Empirical Findings, a Study by the Rand Institute for Civil Justice (1987). But defendants against whom punitive damages are awarded have a right to a jury trial with a right to appeal. Seemingly, this would be sufficient process. Alert counsel also can make a process of bifurcation of little use. Intent and knowledge of one's actions needed to show malice for a punitive damages claim are often relevant in determining whether the elements of another claim, such as negligence or strict liability, have been met. Accordingly, this Court finds no procedural due process problems with punitive damages.
Punitive damages exist to discourage certain types of behavior. Proposals exist to limit punitive damage awards to a certain amount, or to limit these awards to two or three times actual damages. Such proposals often neglect the reason why punitive damages are allowed. Punitive damages exist to make certain behavior, what I will refer to as "bad" conduct, unprofitable. "Bad" is defined by statute as "when the defendant has been guilty of oppression, fraud, or malice." N.D.C.C. § 32-03-07. Sometimes the actual damages of a plaintiff are small, but a larger award may be necessary to punish the defendant. If determinations limiting the availability of punitive damages are to be made, this determination must be made by the state legislature. See Moran v. Johns-Manville Sales Corp., 691 F.2d 811 (6th Cir.1982).
This Court is aware that punitive damages have created issues of great concern to the court system. Amounts awarded for punitive damages have been skyrocketing. Justice O'Connor recently noted that as recently as fifteen years ago, the largest punitive damage award affirmed by an appellate court in a products liability case was $250,000. Browning-Ferris Indus. v. Kelco Disposal, Inc., ___ U.S. ___, 109 S. Ct. 2909, 2924, 106 L. Ed. 2d 219 (1989) (Justice O'Connor, dissenting). Since then, awards up to thirty times as high have been sustained on appeal. Id. Such awards can have a detrimental effect on the research and development of new products. Id. Justice O'Connor has referred to such a situation as a "grant of wholly standardless discretion to determine the severity of punishment ... [as] inconsistent with due process."
This Court is not convinced that a jury's determination of punitive damage awards is "standardless." The standard the jury applies in determining whether to grant an award is the culpability of the defendant. To determine the amount of the award, the jury determines the amount needed to deter such behavior in the future, the amount it takes to make certain types of conduct unprofitable. Toxic tort litigation, such as asbestos cases, can lead to large punitive damage awards that are "amply justified." City of Greenville v. W.R. Grace & Co., 640 F. Supp. 559 (D.S.C.1986). These large awards are often directly tied to the "recklessness and willfulness" of the defendant. Id. If there is no grounds for a punitive damage award, a court need not reach for a constitutional ground to reverse it. Such an unjustified award can and should be reversed by either the trial or appellate courts on the merits.
The Browning-Ferris case provides an example of the nature of due process now available. A jury awarded a verdict of $51,146 in compensatory damages and $6 million in punitive damages to a plaintiff whose business had been damaged by a larger competitor whose goal was to *1363 "squash [the plaintiff] like a bug." Id. 109 S. Ct. 2909, 2912 (1989). The trial court refused to reduce the amount awarded in punitive damages, trebled plaintiff's compensatory award under the Sherman Act and awarded him attorney's fees. The Second Circuit Court of Appeals affirmed the trial court's rulings both as to liability and damages. See 845 F.2d 404 (2nd Cir.1988). The United States Supreme Court also declined to reduce the damage awards as excessive under state law. 109 S. Ct. 2909. This Court can only assume that under the facts of the case, the jury, trial court, appellate court, and the Supreme Court felt the punitive damages not to be excessive. If this Court is in this case presented by a punitive damage award which appears excessive, it will be reduced; the constitutional argument that excessive punitive damages awards violate due process need never be reached.[5]
C. Interests of Future Plaintiffs.
A final argument against punitive damages in a toxic tort setting has been that the awarding of these impinges the rights and interests of future plaintiffs. See Jackson v. Johns-Manville Sales Corp., 727 F.2d 506, 524-30 (5th Cir.1984). Such concerns are based on a recent study for the U.S. Department of Labor that estimates more than 21 million American workers were significantly exposed to asbestos in the past forty years. Id. at 524. This same study projected over 200,000 deaths from asbestos-related cancers by the end of the century, a number that does not include deaths from asbestosis. Id. Over 20,000 personal injury lawsuits have been filed nationally in connection with workers's asbestos injuries, many of these asking for punitive damages. Id. This has made some courts fear that if punitive damages awards are allowed to the initial plaintiffs, inadequate funds will be available to meet future compensation liabilities to already injured persons. See id. at 524-25.
While these concerns are certainly not groundless, this Court sees two problems with such an approach. The first is that no one in the present case has standing to advance the claims of these unavailable plaintiffs. Parties to a lawsuit must generally assert their own legal rights and interests, not those of a third party. Fire Equip. Mfrs. Ass'n, Inc. v. Marshall, 679 F.2d 679 (7th Cir.1982) (citing U.S. Const. Art. 3, § 2, cl. 1). Since no one in this lawsuit has standing to assert such claims, they must be denied.
Even if this Court does consider the claim that the rights of future plaintiffs are harmed by North Dakota's allowing punitive damages in a wrongful death action, there exists no grounds to overrule such a policy. Using a substantive due process analysis, any rational reason supporting North Dakota's decision to allow punitive damages will defeat a challenge to that law. Part of the reason punitive damages exist is to discourage certain types of conduct. Rational people could determine that it is worthwhile to punish those whose conduct is objectionable in order to get them to cease their activities even if such a policy bankrupts the tortfeasor before all of the injured can recover. Toxic tort litigation usually involves defendant manufacturers accused of showing wanton indifference to the health of their employees and the public. Punitive damages, if large enough, can severely disrupt a defendant's business enterprises. While the disruption of a defendant's enterprises has harsh consequences to that concern's employees, stockholders, and future claimants, one court has suggested that the demise of the manufacturer in such circumstances is not a "necessarily untenable" result. Acosta v. Honda Motor Co., 717 F.2d 828, 838 n. 15 (3d Cir.1983). This Court agrees that in *1364 certain circumstances, this can indeed be the case.
III. Procedure for Trial.
Plaintiffs in the present case made a claim for punitive damages in their complaint. In its efforts to determine fair trial procedures, this Court has observed many proposals. It offers the following procedure to be used for punitive damages claims in the cases proceeding before it:
1) Plaintiffs having declared a claim of punitive damages in their complaint, the Court will omit all reference to this claim when explaining the nature of the case to the jury;
2) Counsel for neither side may mention the claim for punitive damages nor give evidence solely in support of that claim during the trial of the principal case;[6]
3) If the jury then proceeds to find a plaintiff's verdict as to liability and damages, the Court will then allow evidence as to an appropriate amount of punitive damages and a brief argument by counsel for each side. At this time the defendants only may show previous punitive damage awards recovered from them for the same type of misconduct (subject, of course, to attacks on the showing as to its accuracy); and
4) Issues of punitive damages would then be assigned to the same jury that heard the case in chief.
Such a procedure should not greatly alter the length of trial nor change significantly the preparation required of counsel. Only the order of evidence would need to be changed.
CONCLUSION
As a matter of North Dakota law, this Court has determined that punitive damages claims may be argued to a jury in wrongful death actions. In an effort to simplify matters, such an argument may be presented to the jury only after a verdict in favor of plaintiff is returned as to liability and damages. This Court also finds no due process bar to punitive damages in toxic tort litigation such as this.
THEREFORE IT IS ORDERED:
1) THAT DEFENDANT'S MOTION TO "EXCLUDE ANY POTENTIAL CLAIM MADE BY PLAINTIFFS FOR PUNITIVE DAMAGES" IS DENIED, AND
2) THAT THE PROCEDURE FOR PRESENTING PUNITIVE DAMAGES TO THE JURY DISCUSSED WITHIN THIS OPINION IS ADOPTED FOR THIS TRIAL.
NOTES
[1] N.D.C.C. § 32-03.2-11 became effective July 8, 1987 and applies only to claims accruing after that date. It is therefore inapplicable in this case.
[2] Lord Campbell's Act (9 & 10 Vict., ch. 93) was entitled "An Act for compensating the Families of Persons killed by Accidents." It provided:
WHEREAS no Action at Law is now maintainable against a Person who by his wrongful Act, Neglect, or Default may have caused the Death of Another Person, and it is oftentimes right and expedient that the Wrongdoer in such Case should be answerable in Damages for the Injury so caused by him: Be it therefore enacted by the Queen's most Excellent Majesty ... That whensoever the Death of a Person shall be caused by wrongful Act, Neglect, or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured, and although the Death shall have been caused under such Circumstances as amount in Law to Felony.
II. And be it enacted, That every such Action shall be for the Benefit of the Wife, Husband, Parent, and Child of the Person Whose Death shall have been so caused, and shall be brought by and in the Name of the Executor or Administrator of the Person deceased; and in every such action the Jury may give such damages as they may think proportioned to the Injury resulting from such Death to the Parties respectively for whom and for whose Benefit such Action shall be brought; and the Amount so recovered, after deducting the Costs not recovered from the Defendant, shall be divided amongst the before-mentioned Parties in such Shares as the Jury by their Verdict shall find and direct.
Hopkins v. McBane, 427 N.W.2d 85, 88-89 (N.D. 1988).
[3] The relevant provisions are:
"No person shall be ... deprived of life, liberty, or property, without due process of law...." U.S. Const. amend. V.; and
"[N]or shall any State deprive any person of life, liberty, or property, without due process of Law...." U.S. Const. amend. XIV, § 1.
[4] Throughout this memorandum, certain opinions are referred to as being those of "Justice O'Connor." This is not to imply that these views are hers alone. Indeed, several other Justices have expressed similar opinions, and certain Appellate Judges have also noted what they term due process problems with punitive damages. Justice O'Connor, however, has written several penetrating concurrences and dissents on cases involving punitive damages. See e.g.; Browning-Ferris Indus. v. Kelco Disposal, Inc., ___ U.S. ___, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). When this Court refers to those who wish to restrict punitive damages on due process grounds, while I may refer to Justice O'Connor, I mean all of those with similar views.
[5] Recent examples of trial or appellate courts striking awards for punitive damages in post verdict j.n.o.v. decisions include Maxey v. Freightliner Corp., 450 F. Supp. 955 (N.D.Tex. 1978) ($10 million punitive damage award overturned by court); Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981) (upheld trial court's reduction in punitive damage award from $125 million to $3.5 million); and Stambaugh v. Int'l Harvester, 106 Ill.App.3d 1, 61 Ill. Dec. 888, 435 N.E.2d 729 (1982) (reduced punitive damage award, which had already been reduced by trial court from $15 million to $7.5 million, to $65,000).
[6] As stated earlier, this Court has no doubt that counsel for plaintiffs will find some way of mentioning conduct of the various defendants to prove negligence or breach of warranty which could also be perceived as useful to proving the "oppression, fraud or malice" necessary to sustain a claim of punitive damages. See N.D.C.C. § 32-03-07. Be this as it may, no reference to damage amounts or the like will be allowed.
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733 F. Supp. 179 (1990)
FLAIR BROADCASTING CORPORATION, J. Timothy Harrington, and John N. Boden, Plaintiffs,
v.
Heidi Schmid POWERS, Manley P. Caldwell, Jr., and Citicorp Trust, N.A., Personal Representatives of the Estate of Robert A. Schmid; Heidi Schmid Powers, individually; and Manley P. Caldwell, Jr., individually, Defendants.
BROADCASTING COMPANY OF THE CAROLINAS; and Heidi Schmid Powers, Manley P. Caldwell, Jr. and Citicorp Trust, N.A., Personal Representatives of the Estate of Robert A. Schmid, Counterclaim Plaintiffs,
v.
FLAIR BROADCASTING CORPORATION, J. Timothy Harrington, and John N. Boden, Counterclaim Defendants.
89 Civ. 2528 (KC).
United States District Court, S.D. New York.
March 16, 1990.
*180 Irwin and Post, Frederick B. Polak and Mary H. Post, New York City, for plaintiffs/counterclaim defendants.
Richenthal & Birnbaum, P.C., David G. Richenthal, New York City, for defendants/counterclaim plaintiffs.
MEMORANDUM OPINION AND ORDER
CONBOY, District Judge:
BACKGROUND
This litigation involves a contract to sell a radio station in South Carolina. Flair Broadcasting Corporation, which was a Delaware corporation and is now a New Jersey corporation, and which has two shareholders John N. Boden and J. Timothy Harrington, was to be the Buyer (we will refer to these parties collectively as "Buyer" because of the counterclaim). Robert A. *181 Schmid (the "Seller") was, at all relevant times, the sole shareholder of Broadcasting Company of the Carolinas ("BCC" or the "Company") and was to sell to the Buyer his stock in BCC. BCC owned an AM-FM radio station based in Greenville, South Carolina called WESC. In August of 1988, Schmid died. The personal representatives of his Estate are his daughter, Heidi Schmid Powers, who is also the primary beneficiary of the Estate, Manley P. Caldwell, Jr., and Citicorp Trust, N.A., all of whom are parties to this action either individually or in their representative capacities (and whom we will include in the designation "Seller").
On September 23, 1987, the Seller and the Buyer entered into a Stock Purchase Agreement (the "Agreement") providing for the sale of all of the BCC stock to the Buyer.[1] The Agreement, which is quite long and detailed, is found at Exhibit A to the Affidavit of J. Timothy Harrington, sworn to May 21, 1989, and is governed under the law of South Carolina. See Agreement § 12.08. It is not necessary to detail all of the events as they transpired between the parties; it suffices to say that the transaction was not consummated. In essence, the question the parties are asking us to decide is who, if anyone, breached the Agreement. The Buyer claims the transaction was not consummated because the Seller did not perform all of its obligations under the Agreement which were conditions precedent to the Buyer's obligation to close, to wit: the Seller did not terminate the pension plan in the manner provided in section 4.07 of the Agreement.[2] The Seller claims that it fully or substantially performed all of its obligations under the Agreement, and that it was the Buyer who breached the Agreement by failing and refusing to close the deal because it was unable to assemble the financing. The Seller also claims that because the deal was not consummated, through no fault of its own, on the Closing Date of January 15, 1988, it was entitled to draw on the $500,000 in letters of credit provided by the Buyer pursuant to § 1.04 of the Agreement.[3] The Buyer claims that the Seller *182 was and is not entitled to this money and seeks its return.
This litigation has a somewhat checkered history which we will explain briefly. On or about May 4, 1988, Schmid and BCC commenced a declaratory judgment action against the Buyer in the United States District Court for the District of South Carolina, in which it sought a judgment that it was entitled to draw upon the letters of credit and keep the money as liquidated damages. In mid-November of 1988, the Buyer sought to have that action dismissed on various grounds, including improper venue. At the same time, the Buyer commenced an action against the Seller in the District of New Jersey, which the Seller moved to dismiss on January 10, 1989, alleging, inter alia, that the Seller had breached the Agreement. On January 23, 1989, the court in South Carolina dismissed the action there on the ground of improper venue, finding that venue was more appropriately laid in New York. On April 7, 1989, the court in New Jersey dismissed the action for lack of personal jurisdiction. The instant action was filed in this Court on April 14, 1988 and the counterclaim was filed May 31, 1989. On December 27, 1989, the Fourth Circuit Court of Appeals affirmed the decision of the district court in South Carolina. Broadcasting Company of the Carolinas v. Flair Broadcasting Corporation, 892 F.2d 372 (4th Cir.1989). Accordingly, we are now the only Court where there is litigation pending between all of the named parties.
There are three voluminous motions before this Court. First, there is the Buyer's motion for partial summary judgment, seeking a judgment that the Seller's Estate is liable for the purported breach by the Seller and that the Estate is liable for conversion of the $500,000 letters of credit. At this time, the Buyer does not seek judgment on its various other tort theories alleged in the complaint,[4] nor does it seek to assess the amount of damages. Also before the Court is the Seller's cross-motion for summary judgment on its counterclaim, by which the Seller seeks a declaration that it did not breach the contract, rather the Buyer did, and therefore it is entitled to keep the $500,000. Finally, there is a motion by the Buyer to strike certain of the affidavits submitted by the Seller on the cross-motion and in opposition to the Buyer's motion. We will address the question of whether the affidavits should be stricken before we deal with the merits of the summary judgment motions.
ANALYSIS
A. Motion to Strike
The Buyer requests, by extensive letter motion dated November 21, 1989, that we strike the affidavits of Grady Hubbard and William Blount, both sworn to on June 27, 1989, and submitted by the Seller in support of its motion for summary judgment and in opposition to the Buyer's motion. The Buyer cites Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) and In re Teltronics Services, Inc., 762 F.2d 185, 192 (2d Cir.1985) in support. The bases for the Buyer's objections to these affidavits essentially are that depositions of these individuals taken after the submission of their affidavits conclusively demonstrate that the affidavits contained untrue and misleading statements and that one of the affidavits was not made on *183 personal knowledge as required by Federal Rule of Civil Procedure 56.[5] Taking the Hubbard Affidavit first, we agree with plaintiff that the subsequent deposition testimony indicates that the key portion of the affidavit, specifically paragraph 6 relating to the termination of the pension plan, was not made on personal knowledge. Accordingly, we grant the Buyer's motion to strike that paragraph.[6]
With respect to the other portions of the Hubbard Affidavit as well as large sections of the Blount affidavit, the Buyer contends that these should be stricken because they contain information which is untrue and/or misleading. To support this contention, the Buyer has set forth in manageable, tabular form the disparities in the deposition and affidavit testimony. However, the cases cited by the Buyer do not support striking the affidavits on the ground that they contain false or misleading information; rather, the cases involve situations where affidavits contained hearsay and were not submitted on personal knowledge. This distinction is crucial. We are now faced with two essentially antithetical and inconsistent accounts by the same individuals as to what the terms of the Agreement were intended to mean. The Buyer would have us strike the affidavits because that testimony is less favorable to the Buyer. Were we to do so, however, we would be making a determination that the deposition testimony is the more credible. It is not appropriate to make such a credibility determination at this time and, accordingly, we cannot and will not strike these affidavits, or the portions thereof, on the ground that they are false and/or misleading.[7]
B. Summary Judgment Motions
As for the summary judgment motions, each side incredibly argues that, despite the volume of adverse documents submitted, there are no genuine issues of fact which preclude the grant of summary judgment in its favor. There are basically five issues which are raised on the summary judgment motions. They are: what is the meaning and intent of section 4.07 regarding termination of the pension plan; whether the conduct mandated by section 4.07 was a condition precedent to the Buyer's obligation to close; if section 4.07 is indeed a condition precedent under the Agreement, whether this condition may be waived by conduct or whether a waiver must be in writing; whether the closing date was "of the essence"; and whether the letters of credit posted pursuant to § 1.04 of the Agreement were "earnest money" or "liquidated damages."
Before we focus on these issues, it is necessary to examine the relevant principles of contract construction, particularly in the context of motions for summary judgment. The parties agree that South Carolina provides the controlling substantive law and that the standards for summary judgment under Federal Rule of Civil Procedure are also applicable. Rule 56(c) provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." The Court must first look to the substantive law of the case to determine which facts are material. Only disputes *184 over material facts will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The moving party bears the initial burden of establishing that no genuine dispute as to material facts exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). The burden then shifts to the opposing party to show that a genuine issue of fact exists. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986). Ultimately, "[i]n considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S. Ct. 2505, 2509-11, 91 L. Ed. 2d 202 (1986)), cert. denied, 480 U.S. 932, 107 S. Ct. 1570, 94 L. Ed. 2d 762 (1987). We observe that disputed "legal questions ... present nothing for trial and [are] appropriately resolved on a motion for summary judgment." Holland Indus. v. Adamar of New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y.1982) (legal questions relating to contract and statutory interpretation did not preclude summary judgment). Similarly, legal arguments presented in affidavits are no more sufficient to create a factual dispute than legal memoranda and oral argument. See 6 J. Moore & J. Wicker, Moore's Federal Practice ¶ 56.22; see also Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir.1985) ("Legal memoranda and oral argument are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion."), cert. denied, 475 U.S. 1013, 106 S. Ct. 1190, 89 L. Ed. 2d 305 (1986); New York State Energy Research and Development Authority v. Nuclear Fuel Servs. Inc., 561 F. Supp. 954, 960 (W.D.N.Y.1983) (affidavits were defective since they contained legal argument and interpretation).
"Where a motion for summary judgment presents a question concerning the construction of a written contract, the question is one of law if the language employed by the contract is plain and unambiguous." Moss v. Porter Bros., Inc., 292 S.C. 444, 357 S.E.2d 25, 27 (Ct.App. 1987); First-Citizens Bank & Trust Co. v. Conway Nat'l Bank, 282 S.C. 303, 317 S.E.2d 776, 777 (Ct.App.1984). Where the intention of the parties may be gathered from the four corners of the agreement, summary judgment is appropriate. Moss, 357 S.E.2d at 27; First-Citizens, 317 S.E.2d at 777.
The South Carolina Court of Appeals recently set forth the rules governing the construction of contracts.
In construing a contract, the primary objective is to ascertain and give effect to the intention of the parties. Williams v. Teran, Inc., 266 S.C. 55, 221 S.E.2d 526 (1977); Bruce v. Blalock, 241 S.C. 155, 127 S.E.2d 439 (1962). The parties' intention must, in the first instance, be derived from the language of the contract. Superior Automobile Insurance Co. v. Maners, 261 S.C. 257, 199 S.E.2d 719 (1973). If its language is plain, unambiguous, and capable of only one reasonable interpretation, no construction is required and the contract's language determines that instrument's force and effect. Blakeley v. Rabon, 266 S.C. 68, 221 S.E.2d 767 (1976); Fryar v. Currin, 280 S.C. 241, 312 S.E.2d 16 (Ct.App.1984). Mere lack of clarity on casual reading is not the standard for determining whether a contract is afflicted with ambiguity. McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (Ga.1945).
Gamble, Givens & Moody v. Moise, 288 S.C. 210, 341 S.E.2d 147, 150 (Ct.App.1986); accord Jacobs v. Service Merchandise Co. Inc., 297 S.C. 123, 375 S.E.2d 1 (Ct.App. 1988). Accordingly, there is no resort to extrinsic evidence if the intention of the parties can be determined from the terms of the agreement itself. E.g., Dibble v. Dibble, 248 S.C. 165, 149 S.E.2d 355, 364 (1966); Beard v. Ryder/P-I-E Nationwide, *185 Inc., 292 S.C. 250, 355 S.E.2d 872, 875 (Ct.App.1987). Furthermore, "when the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and with intention." Hellams v. Harnist, 284 S.C. 256, 325 S.E.2d 569, 571 (Ct.App.1985) (citing McPherson v. J.E. Sirrine & Co., 206 S.C. 183, 33 S.E.2d 501, 509-10 (1945)).
On the question of whether a term is a condition precedent, the case of Ballenger Corp. v. City of Columbia, 286 S.C. 1, 331 S.E.2d 365, 368 (Ct.App.1985) is instructive. There, the court set forth the relevant law:
Whether a stipulation in a contract constitutes a condition precedent is a question of construction dependent on the intent of the parties to be gathered from the language they employ.... Words and phrases such as "if," "provided that," "when," "after," "as soon as," and "subject to" frequently are used to indicate that performance expressly has been made conditional.
Id., see also Cobb v. Gross, 291 S.C. 550, 354 S.E.2d 573, 574 (Ct.App.1987).
Having identified the relevant legal standards, we now proceed to the issues raised by the parties. With regard to the Buyer's assertion that the Seller did not perform all of its obligations under the contract prior to the closing, the most important question concerns what the parties intended by § 4.07 of the Agreement, entitled "Termination of the Pension Plan." The Seller, in an attempt to create an ambiguity in the contractual language where there is none, asserts that it was not obligated to "complet[e] every detail of the pension termination process," but rather that the parties only intended that the Plan be terminated. In other words, to the Seller, there is a difference between the Plan being "terminated" and the completion of the "termination process," and that the parties intended only the former. To support this proposition, the Seller has submitted affidavits by actuaries for BCC, as well some of the company's officers. The Seller also asserts that the Plan was terminated and therefore it complied with its obligations under the contract. The Buyer, on the other hand, contends that Section 4.07 of the contract did not speak of a "termination process" or even "termination," but that it required the Seller to accomplish a list of tasks with reference to the termination of the Plan before the Buyer was obligated to close.
The Seller's argument is founded upon its assertion that the Buyer was focussing on only "a single phrase" in section 4.07, and that a careful reading of the entire section 4.07 as well as the rest of the contract indicates that the parties could not have intended that the Plan would have been completely terminated prior to the closing. See Seller's Main Memorandum of Law at 10-15. Upon examination of the entire section 4.07, we agree that there are particular events that the parties clearly intended might occur after the closing, such as the distribution of benefits under the Plan. However, we conclude that the same paragraph of the Agreement is unambiguous in mandating that the Seller take certain actions before the Closing of the deal, to wit: amendment of the Plan (§ 4.01(i)), prompt written notice of the plan amendment (§ 4.07(ii)), all actions required to terminate the plan under section 4041 of ERISA [29 U.S.C. § 1341] as of "the earliest date permitted under applicable law, but in no event later than the date before the Closing Date" (§ 4.07(iii))[8]; and filing of "Form 5310 (and all required attachments) with the IRS" (§ 4.07(iv)). Indeed, contrary to the Seller's assertion that the Buyer was relying on a single phrase in section 4.07, it is stated twice in the first part of section 4.07 that all of these events would take place "[a]s soon as practicable but in all events prior to the Closing Date" or "in no event later than the date before the Closing Date." Furthermore, if we look to other sections of the Agreement, *186 they also provide support for this conclusion. For example, section 7.02, entitled "Performance Obligations of Seller," states that the "seller shall have performed ... and shall have caused the company to have performed all covenants and agreements required to be performed by it prior to the Closing Date." Thus, we conclude, as a matter of law, that there is only one reasonable interpretation of this clear and unequivocal language: the actions listed above regarding the filing of forms with the IRS and the PBGC and the notification of interested parties had to be performed by the Seller, with the performance thereof a condition precedent to the Buyer's obligation to close on a certain date. Furthermore, we reject the Seller's argument that this construction of the contract would produce "an absurd result," which argument is founded upon the assertion, without any sort of evidentiary proof, that these obligations would take a year to fulfill and "the closing was scheduled as soon as possible."[9]
The next question is whether the Seller complied with all of these obligations and thus fulfilled the condition precedent to the Buyer's performance. The Buyer has come forth with evidence that the Seller did not take all of the actions required under section 4.07 prior to January 15, 1988, the date the Seller set for the closing. For example, the Buyer has demonstrated that with the possible exception of the Termination notice dated September 21, 1987,[10] none of the documents referred to in Section 4.07 were distributed or filed until long after January 15, 1988. Affidavit of Mary H. Post, sworn to on May 23, 1989, at ¶ 6 and Exhibit F appurtenant thereto. Indeed, the letter purporting to transmit many of the relevant forms to the IRS was dated February 8, 1988. Id. Moreover, it appears that prior to January 26, 1988, BCC had not even been authorized to amend its Pension Plan, or to generate, file or distribute the necessary documents or otherwise act to terminate the plan. Id. The Seller has made no attempt to contest this evidence. Thus, in light of all of the foregoing, we conclude that there is no genuine issue of fact precluding us from holding, as we hereby do, that the Seller had not satisfied certain of its obligations under the Agreement, which obligations were a condition precedent to the Buyer's performance under the contract.
In lieu of disputing the evidence that it did not comply with its obligations under section 4.07 of the Agreement, the Seller argues that if we find, as we have, that these obligations comprise a condition precedent, the Buyer waived strict compliance with this condition. See Seller's Main Memorandum of Law at 15-17; Seller's Reply Memorandum of Law at 4-6. The Seller further contends that the Buyer repudiated the contract in late December and thus is estopped from relying on any such condition. See Seller's Main Memorandum of Law at 17-18; Seller's Reply Memorandum of Law at 4-6. To rebut the waiver argument, the Buyer points to section 12.04 of the Agreement which clearly and unequivocally provides that there can be no waiver of any term, condition or provision of the Agreement "unless evidenced by a writing duly executed by the party sought to be charged with such waiver or consent." The Seller has come forward with no case authority suggesting that a waiver, as that term is defined, can be implied by conduct despite the contractual necessity of a writing. Accordingly, we reject the Seller's assertion that a waiver by the Buyer excused performance of the condition precedent by the Seller. If, however, we *187 are provided with case authority permitting this argument, we will allow the issue of waiver to be explored further at trial.
With regard to the contention that the Buyer repudiated the Agreement and therefore should be estopped from relying on the condition precedent, we believe genuine issues of fact remain. Specifically, there are questions as to whether the communications by Jacques D. Kerrest, a Vice President of Corporate Finance at Chemical Bank, constitute (1) an "anticipatory breach" of the contract (2) by the Buyer. Even if the communications can be so construed, we doubt that the Seller could demonstrate that this repudiation "contributed materially" to the nonoccurrence of the condition precedent to the Buyer's duty to perform. See Champion v. Whaley, 280 S.C. 116, 311 S.E.2d 404, 406-07 (Ct.App. 1984). However, we leave this question of whether there was an anticipatory repudiation of the contract by the Buyer for resolution by the trier of fact and, accordingly, this branch of the Seller's motion for summary judgment is denied on this ground.
In its summary judgment motion, the Seller asserts that the Closing Date was "of the essence." We are uncertain of the continued relevance of this contention of the Seller in light of our holding with regard to the condition precedent. Assuming the issue is still relevant, however, we do not believe that we are able to make this determination as a matter of law at this time. First, as the Seller concedes, there is no language in the contract expressly stating that "time is of the essence" with regard to a set closing date. See Seller's Reply Memorandum of Law at 7. Consequently, the Seller relies on letters by counsel for the Seller to counsel for the Buyer for the proposition that the conduct of the parties leaves no room for doubt that time was of the essence to the closing. Since we conclude that the Buyer has raised material, triable issues as to whether the Agreement was so modified, i.e., whether the correct individual was notified regarding the modification of the Agreement and whether the time allowed was reasonable under the circumstances, see Bishop v. Tolbert, 249 S.C. 289, 153 S.E.2d 912, 918 (1967), this issue will also be left for the trier of fact.
The final issue for resolution on the motions for summary judgment is whether the letters of credit posted pursuant to section 1.04 of the Agreement were to constitute "liquidated damages" as the Seller contends.[11] The Buyer asserts that these letters of credit were "earnest money" and that they bore no relationship to any damages that might flow from the Buyer's non-performance. Buyer's Reply Memorandum of Law at 13. "[T]he question of whether a sum fixed in a case of nonperformance is liquidated damages or a penalty can be determined by the trial judge or a question of fact to be determined by the jury." Rental Uniform Serv. of Greenville, South Carolina, Inc. v. K & M Tool & Die, Inc., 292 S.C. 571, 357 S.E.2d 722, 723 (Ct.App.1987) (citing Benya v. Gamble, 282 S.C. 624, 321 S.E.2d 57, cert. dismissed, 329 S.E.2d 768 (1985)). "[T]he question of whether a sum stipulated to be paid in case of breach of an agreement is to be regarded as liquidated damages or a penalty is one of construction and is generally determined by the intention of the parties." Id. at 724 (citing Retailers Service Bureau, Inc. v. Smith, 165 S.C. 238, 163 S.E. 649 (1932)). Having carefully examined the language in section 1.04 of the Agreement, we believe it is more likely than not that the parties intended that the $500,000 constitute liquidated damages and not a penalty. However, we will not preclude the Buyer from making an offer of proof to the contrary at trial, see K & M Tool & Die, 357 S.E.2d at 724, at which time we will determine whether the issue should be left for the jury or decided by the Court.
In sum, the Seller's motion for summary judgment is denied in its entirety, and the Buyer's motions to strike and for summary *188 judgment are each denied in part and granted in part.
SO ORDERED.
NOTES
[1] This Agreement codified a "letter of intent" agreed to by the parties on June 19, 1987.
[2] Because the interpretation of this section is of crucial importance to this litigation, we will quote it in its entirety.
4.07 Termination of Pension Plan. As soon as practicable and in all events prior to the Closing Date, Seller [Schmid] shall cause Company [BCC] to take the following actions with respect to the Pension Plan: (i) amend the Pension Plan to cease all benefit accruals and fully vest participants in their accrued benefits as of the earliest date permitted by Section 204(h) of ERISA, (ii) promptly issue the notice to participants and beneficiaries required by Section 204(h) of ERISA as soon as practicable after such is made, (iii) all other actions necessary to terminate the Pension Plan effective as the earliest date permitted under applicable law, but in no event later than the date before the Closing Date, in accordance with the terms of the Pension Plan and the procedures for standard terminations of single-employer plans contained in Section 4041 of ERISA, and (iv) file Form 5310 (and all required attachments) with the IRS to secure a determination that the Pension Plan as amended and terminated, continues to be a qualified plan. Buyer shall have the right to review all materials that are to be distributed to participants or beneficiaries or filed with a government agency in connection with the termination of the Pension Plan before such materials are distributed or filed, and such materials may not be distributed or filed without Buyer's Consent. Within ten (10) days after demand by Buyer, Seller shall reimburse Buyer or Company, as directed by Buyer, for all reasonable costs relating to the termination of the Pension Plan and the distribution of benefits hereunder that are incurred on or after the Closing Date or are not reflected on the Closing Statement or the Closing Balance Sheet. Notwithstanding anything herein to the contrary, if the assets of the Pension Plan are not sufficient to discharge all Benefit Commitments for any reason: (i) Company shall contribute sufficient assets to the Pension Plan to discharge all such Benefit Commitments, and (ii) if such contribution is made on or after the Closing Date or is not reflected on the Closing Statement or the Closing Report, Seller shall pay Buyer or Company, as directed by Buyer, the amount of such contribution within ten (10) days after demand by Buyer.
[3] This section provides in relevant part that:
1.04 Letter of Credit and Breach of Agreement. Contemporaneously with the execution hereof, Buyer has delivered to Seller irrevocable letters of credit in the form of Exhibit A attached hereto ("Letter of Credit") in the aggregate amount of Five Hundred Thousand Dollars ($500,000.00) to be held by Seller in accordance with the provisions of this Agreement. If the transactions contemplated by this Agreement are consummated in accordance with the terms hereof, the Letter of Credit shall be returned to Buyer by Seller upon Closing on the Closing Date. In the event that Buyer shall fail or refuse to consummate and close this Agreement on the Closing Date, all conditions to Buyer's obligation to close having been satisfied, or if Buyer shall commit a material breach of or a default under any representation, warranty, covenant or agreement herein, which is not cured as provided in Section 10.01 hereof, Seller shall be entitled to draw upon the Letter of Credit in the amount of Five Hundred Thousand Dollars ($500,000.00) as Seller's liquidated damages in lieu of any such action for damages (the parties hereto recognizing that the amount of damages which may be suffered by Seller in consequence of any such breach or failure to perform hereunder by Buyer may be difficult or impossible to quantify)....
[4] The other claims include tortious interference with contract, tortious interference with prospective economic advantage and defamation.
[5] Rule 56(c) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).
[6] Of course, to the extent that any of the affidavits contain legal argument or conclusion, the parties are assured that those impermissible sections were not considered by us on this motion. United States v. Alessi, 599 F.2d 513, 515 (2d Cir.1979); Chambless v. Masters, Mates & Pilots Pension Plan, 571 F. Supp. 1430, 1439 (S.D.N.Y. 1983).
[7] We note that in view of our analysis, infra at 184-86, with respect to the construction of section 4.07 of the Agreement, these affidavits are not necessary to the construction of what actions the parties intended be undertaken to terminate the pension plan as we can ascertain the intent of the parties by examining the language of the text, without resort to extrinsic evidence.
[8] These actions include written personal notice to affected parties of the intent to terminate; filing of a notice of intent to terminate with the Pension Benefit Guaranty Corporation ("PBGC") on the proper form; submission, again on the proper forms, to the PBGC of certifications of an enrolled actuary and by the Plan Administrator; and notice to each plan participant and beneficiary of the amount of benefit commitments. 29 U.S.C. § 1341.
[9] We observe that the assertion that the closing was scheduled as soon as possible is arguably deceptive, since the parties explicitly agreed that in no event would the closing occur prior to January 4, 1988. See Agreement § 9.01. Furthermore, there is no indication in the record that the filing and distribution of all of the required documents would in fact take a year, an impossibility given the "drop dead date" of July 31, 1988, nor is there evidence that these acts could not, in fact, be performed in three and one-half months, the period between the signing of the Agreement and January 15, 1988, the Closing Date set by the Seller.
[10] We include this document here in light of the issues raised as to whether it was distributed in accordance with the procedures outlined in the ERISA statute.
[11] Of course, this conclusion is only germane if the trier of fact concludes that the performance of the condition by the Seller was excused for whatever reason.
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733 F. Supp. 419 (1990)
NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs,
v.
Manuel LUJAN, Jr., et al., Defendants,
and
National Coal Association, et al., Defendants-Intervenors.
Civ. A. Nos. 87-1051, 87-1814 and 88-2788.
United States District Court, District of Columbia.
February 12, 1990.
*420 *421 L. Thomas Galloway, Galloway & Greenberg, Glenn P. Sugameli, National Wildlife Federation, Washington, D.C., Thomas J. Fitzgerald, Kentucky Resources Council, Frankfort, Ky., for plaintiffs.
Lisa K. Hemmer, Alfred T. Ghiorzi and Daria J. Zane, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.
John A. Macleod, Crowell & Moring, Washington, D.C., for defendants-intervenors.
MEMORANDUM OPINION
FLANNERY, District Judge.
In this matter, the court is again called upon to decide challenges to regulations implementing the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), 30 U.S.C.A. 1201 et seq. The Act seeks to protect society and the environment from the harmful effects of surface coal mining, sometimes known as "strip mining," as well as from surface damage caused by underground coal mining. In these three consolidated cases, five separable issues are before the court on cross motions for summary judgment: three deal with subsidence of land over underground mines; two others concern when the Act should begin to apply to certain kinds of coal mine operations.
Plaintiffs bring this action on behalf of "environmentalist" interests and seek to overturn regulations they argue violate SMCRA. In opposition, the government defendants ask the Court to uphold the rules as a valid exercise of their authority under the Act to regulate coal mining operations.[1]
This is the fourth time this court has reviewed rules under SMCRA.[2] Most of *422 the issues decided today arise from rulings the court made in 1984 during its third review of SMCRA regulations. In several instances, the Court remanded regulations back to the Secretary to be revised or for additional comment, and plaintiffs now challenge the Secretary's actions on remand.
I. Standard of Review
Before taking up plaintiffs' five challenges, the court will discuss the proper standard of review. SMCRA § 526(a)(1), 30 U.S.C.A. § 1276(a)(1), provides:
Any action subject to judicial review under this subsection shall be affirmed unless the court concludes that such action is arbitrary, capricious, or otherwise inconsistent with law.
The court has stated: "This is a narrow scope of review. This court will not substitute its judgment for that of the agency." PSMRL II, Round I, Mem. Op. at 2, 21 Env't Rep. Cas. at 1194. But, while "reasonable agency interpretive positions must be upheld," the Courts "remain the final arbiters of statutory meaning." Id. (Citations omitted.) This Court also recognized that:
The problem facing the reviewing court is exacerbated when an agency reverses its prior position. Although the court must not put the agency in a straight jacket to prevent any change in a course once set, the court must be satisfied that the agency states permissible reasons for this change....
This court will examine the regulations and uphold them to the extent they are consistent with the language of SMCRA as interpreted in light of the legislative history.... If [the Secretary's] interpretation frustrates the policy that Congress sought to implement, no amount of deference can save it.
Id., Mem. Op. at 3, 21 Env't Rep. Cas. at 1194-95 (internal quotation marks and citations omitted). As was the case in 1984, several issues before the Court today result from fundamental changes in the Secretary's original position when he first published the permanent regulations in 1979.
II. Subsidence Issues
"Subsidence occurs when a patch of land over an underground mine sinks, shifts, or otherwise changes its configuration. It is a costly and serious problem, particularly in urban areas, where land overlying and adjoining underground mines has been developed." Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694, 739 (D.C.Cir.1988).
A. 30 C.F.R. § 817.121(c), subsidence damage to structures.
NWF first challenges whether the Secretary may limit the duty of an underground coal operator to correct material damage to structures caused by subsidence. The court must disapprove the Secretary's rule.
Before 1983, the Secretary's rules required an operator to correct material subsidence damage both to structures and to land, regardless of state law. As the rule now reads, an operator must correct such damage to structures only to the extent state law requires. 30 C.F.R. § 817.121(c)(2) (1988).[3] NWF argues that *423 the state-law limitation on the duty to correct subsidence damage to structures is contrary to the Act and arbitrary. The court agrees with plaintiffs and finds that this limitation lacks a proper basis in the statute. The Court will remand the rule to be revised.
1.
Placing a state law limitation on the duty to correct subsidence damage has practical effects not plain from the text of the rule. As the Supreme Court noted in regard to Pennsylvania:
[State property law] recognizes three separate estates in land: The mineral estate; the surface estate; and "the support estate." Beginning well over 100 years ago, land owners began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. It is stipulated that approximately 90% of the coal that is or will be mined by [a number of large underground coal mining companies] in western Pennsylvania was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate [the underground coal operators] or their predecessors typically acquired ... a waiver of any claims for damages that might result from the removal of coal.
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 107 S. Ct. 1232, 1238-39, 94 L. Ed. 2d 472 (1987).[4] The upshot is that state property or contract law may let a coal operator dig a mine underneath a building someone else owns, cause the land to subside, damage the building, and bear no legal liability for the damage. This may arise because a building owner or his predecessor contracted away or waived the right to recover for damage from subsidence or other mining work. It may also arise because the building owner's deed to the land conveyed only a surface estate that does not give him the right to subjacent support.[5] As Keystone suggests, the act giving an operator the right in state law to cause subsidence damage without liability often took place more than half a century or more ago.
This Court has decided related questions twice before. When the Secretary first issued regulations on subsidence control and surface owner protection in 1979, they required an underground coal operator to correct material damage from subsidence both to surface land or to structures.[6] 30 *424 C.F.R. § 817.124 (1979). This Court upheld the rule against industry challenge. PSMRL I, Round I, 14 Env't Rep. Cas. 1083, 1106.
In 1982, the Secretary proposed to amend and combine rules on subsidence so that 30 C.F.R. § 817.121 "would provide all the requirements for subsidence control." 47 Fed.Reg. 16604 (Apr. 16, 1982).[7] When the Secretary issued the Final Rule he:
establishe[d] a distinction between damage to land and damage to structures or facilities.... [A]ll subsidence-caused material damage to the land is required to be repaired. [Underground coal mine] operator responsibility for material damage caused to structures or facilities is tied to liability under State law. If the operator has no liability under State law, the material damage need not be repaired and compensation need not be paid.
48 Fed.Reg. 24638 (June 1, 1983).
Both industry and environmentalists challenged the 1983 Final Rule. This Court upheld it against an industry challenge to the requirement to restore land materially damaged by subsidence. PSMRL II, Round II, Mem. Op. at 3-8, 21 Env't Rep. Cas. at 1727-29. The Court rejected the view that the rule "infringes on state laws that provide remedies in tort and contract for subsidence damage." Id., Mem. Op. at 6-7, 21 Env't Rep. Cas. at 1729.[8]
For their part, the environmentalists challenged the rule limiting the duty to correct subsidence damage to structures. This Court did not reach the merits, however. Instead, it remanded the matter back to the Secretary for proper notice and comment.[9]
In response to this ruling, the Secretary published a new Final Rule in 1987, 52 Fed.Reg. 4860 (1987). The 1987 version made almost no changes to the remanded text, and the Secretary readopted the view that underground operators need only pay owners for or correct subsidence damage to structures or facilities "to the extent required under applicable provisions of State law." 30 C.F.R. 817.121(c)(2) (1988).[10]
The Secretary first defended the limitation on the ground that the Act itself "does not require operators to repair subsidence-caused material damage to structures irrespective of State law." Id. at 4863. In the Secretary's view, "[l]iability for damage to surface and subsurface structures and facilities under section 507(f) of the Act is tied to liability under State law because the *425 Act was not intended to create additional property rights...." Id.[11] Further, § 516(b)(1) of the Act "requires underground mine operators to prevent subsidence-caused material damage to the `extent technologically and economically feasible' and to maintain the value and use of `surface lands.' This provision does not itself require the restoration of structures damaged by subsidence." Id.[12] Thus, "[a]lthough the 1979 rule did not limit the compensation requirement to situations where liability exists under State law, a more precise reading of section 507(f) supports the imposition of such a constraint in this final rule." Id.
The Secretary next justified the rule on the ground that "[i]n policy, as well as law, there is clear reason to distinguish protection provided for land and structures." Id.
Where an underground mine operator purchases from the surface owner the right to subside the surface, the individual's property rights are protected, but the long term public interest in the land is not protected. Thus, [the rule's requirement to restore land without regard to state law] functions to prevent this injury to the land by assuring that in all cases, irrespective of private contract, this valuable natural resource will be restored.... [N]o environmental or public interest exists in protecting a building or structure where its present or past owner has either conveyed or waived a right to subjacent support....
While private parties may not be motivated to protect the environment, they have a great incentive to protect structures that they own. State law has traditionally provided remedies in contract and tort for those parties who own subsidence-damaged structures. Accordingly, it is inappropriate for [the Secretary] to step in and protect owners of these structures thereby creating an additional private property right which clearly was not intended by Congress.
Id. at 4863-64.
Last, the Secretary argued that other regulations protect the structures in which the public has an interest. He cited 30 C.F.R. 817.121(d) which "prohibits underground mining activities beneath or adjacent to public buildings and facilities, churches, schools and hospitals, and large bodies of water unless an operator can demonstrate before a permit is issued that subsidence will not cause material damage." Id. at 4864. The Secretary added that if subsidence damages these facilities or features, "the regulatory authorities are empowered to suspend mining until the operator ensures that no further material damage will occur (see 30 C.F.R. 817.121(e))." *426 Id. Further, "if imminent danger from underground mining exists to inhabitants of urbanized areas, cities, towns or communities, such mining must be suspended." Id.
2.
After carefully reviewing the Act's language, previous court rulings on the issue of subsidence, the Act's legislative history, and the Secretary's justification for the limitation on the duty to correct subsidence damage to structures, this Court finds that the 1987 version of § 817.121(c)(2) cannot stand.
Both this Court and the Court of Appeals have read SMCRA's language and its legislative history as sustaining the Secretary's authority to require underground miners to restore land damaged by subsidence.[13] Now the court must decide whether the same language can sustain a rule that cuts down the duty to restore damage to structures by reference to state law. The Court finds that the statute's language shows that Congress did not differentiate based upon state law between the duties of underground operators with respect to subsidence damage to land and to structures. Instead, § 817.121(c)(2) is inconsistent with the provisions of the Act in § 102(b) and the first and third clauses of § 516(b)(1).
First, the Court must reject the Secretary's argument that the Act's sole purpose was to safeguard the "public" interest in the environment, and, thus, state tort and contract law is enough to protect any private interests. Congress stated in the Act that two of its purposes are to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations," SMCRA § 102(a), 30 U.S.C.A. § 1202(a), and to "assure that the rights of surface landowners and other persons with a legal interest in the land or appurtenances thereto are fully protected from such operations." SMCRA § 102(b), 30 U.S.C.A. § 1202(b).[14] In this regard, Congress was not concerned solely with the environment, but intended to ease hardship that coal mining sometimes causes society, its people, and their property.
Congress specifically required underground operators to "adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible ... and maintain the value and reasonably foreseeable use of such surface lands...." SMCRA § 516(b)(1), 30 U.S.C.A. § 1266(b)(1).[15] Not a word in any of these is said about state law.
In the Court's view, "fully protected" means just that, not fully protected to the extent that state law provides. No reasonable person would think full protection plainly means that (1) an operator may cause land underneath someone else's house to shift or drop, weakening foundations, cracking walls, bending floors, breaking windows, perhaps collapsing the home; and (2) the operator may walk away from this shambles with a duty to restore the homeowner's land but not the home except as state law provides. Still less would a reasonable person believe this comports with the plain meaning of maintaining "value and reasonably foreseeable use" of the surface land. Nor would a reasonable person think that preventing material damage *427 plainly means that the operator need do nothing about damage that actually occurred unless State law directs. Yet these are the consequences of just the sort of "plain meanings" that the Secretary and industry ask the Court to adopt.
In this regard, it is hard to see how the Congressional mandates of preventing subsidence causing material damage and maintaining the value and use of surface lands can be given effect under § 817.121(c)(2). In the Court's view, preventing subsidence causing material damage inevitably requires that damage that does occur must be corrected. If Congress had merely wanted operators to prevent subsidence, it would not have added the additional words "causing material damage." This shows that prevention of material damage is the object of the clause. This is made clearer by § 516(b)(1)'s later stricture that operators may engage in mining methods that use planned subsidence, and specifically, standard room-and-pillar mining. The court earlier rejected an interpretation of this clause that the duty to prevent subsidence causing material damage did not require that damage be restored. In PSMRL II, Round II, industry argued that "although Congress was concerned with [the problem of subsidence], and explicitly required underground miners to do everything feasible to prevent subsidence that materially damaged land, it allowed this land to be left in its damaged condition once subsidence occurred." PSMRL II, Round II, 21 Env't Rep. Cas. at 1728. In response, the court stated:
The effect of industry's interpretation of this area of the statute would be to allow the dictates of section 516(b)(1) to be rendered virtually meaningless. A coal operator would have to indicate that he is taking measures to prevent subsidence in order to obtain a permit. Once mining was underway, there would be nothing in the Act to stop the operator from abandoning these measures. The land could be materially damaged, and without a requirement of restoration, the environment would be no better off, with regard to subsidence, than it was before the Act was passed. This court cannot subscribe to such a result involving an area of obvious concern to Congress.
Id. at n. 4.
This reasoning applies here, too. This clause in § 516(b)(1) contains no limitation under state law, and it is not limited to land. The clause applies to both land and structures. If the court were to sustain the Secretary's rule, structures "could be materially damaged, and without a requirement of restoration" going beyond state law, those with interests in appurtenances to the land, "would be no better off, with regard to subsidence, than [they were] before the Act." Yet Congress in § 102(b) intended to give these persons "full protection" from mining operations. Obviously, to the extent that state law already provides redress in tort or contract for subsidence damage to structures, SMCRA simply adds an additional protection. But for those persons without recourse at state law, SMCRA was intended to provide protection they did not have. Under § 817.121(c)(2), the protection has all but vanished. Congress intended otherwise.
The Court further finds that § 817.121(c)(2) runs afoul of the third clause in § 516(b)(1). This requires the operator to maintain the value and reasonably foreseeable use of surface lands. The Secretary and industry argue that § 516(b)(1) speaks only of surface lands when it discusses maintenance of value and use. In their view, "surface lands" means land in its natural state as distinguished from land in an improved state with structures on it, or the structures themselves. Mem. of Federal Defts in Supp. of Cross-Motion for Summary Judgment at 5. This is a peculiarly strained reading. It ignores the obvious: the value of land is tied to the value of structures on it, and the use of land mostly depends upon the structures it can support. It is unclear how either surface land's value or its reasonably foreseeable use can be maintained when structures on the surface landwhich give the land much of its value and define its usemay be damaged by subsidence without such harm having to be corrected.
*428 The Secretary and industry also are on weak, if not subsided ground in arguing something akin to expressio unius est exclusio alterius. They suggest that when Congress wanted to protect structures elsewhere in the Act it mentioned them by name. That Congress here mentioned only surface lands, according to defendants, indicates Congress meant to exclude structures from the duties it imposed in this section. At the same time as the government and industry ask the Court to read any thought of structures out of maintaining value and use of surface lands (as well as preventing subsidence causing material damage), they ask the court to read into the same phrases "except as provided for by state law." If expressing something one place is excluding it elsewhere, then it is to be noted that Congress carefully stated when it wished the federal rights and duties it created to be preempted by state law.
For example, SMCRA § 510(b)(6), 30 U.S. C.A. § 1260(b)(6), contemplates a situation where the private mineral estate has been severed from the private surface estate. The section requires the operator seeking a permit to prove that it has the private surface estate owner's consent, or the operator has a valid conveyance granting the right to mine the mineral estate. When a conveyance is unclear, "the surface-subsurface legal relationship shall be determined in accordance with State law." Thus in a situation directly related to the issue before the Court, Congress specifically indicated a role for State law. The Court is not inclined to construe into another related section the same or similar role for State law, when it is not mentioned at all.[16]
Further, in an Act mostly dealing with surface mining, a section discussing underground mining most likely intends that the phrase "surface lands" is to be distinguished from land underground, rather than from structures on the land. Other than to argue the Secretary's position, why must "surface lands" mean only those lands that are unimproved and in their natural state, rather than improved land? The land in Manhattan underneath the Empire State Building is surface land as surely as is land in the wilderness untouched by human hands.
Congress recognized that the land that subsidence threatens most is land with improvements, not land in its natural state or even cleared, vacant land. Congress noted that "[g]enerally no appreciable impact is realized on agricultural and similar types of land and productivity is not affected." H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 126, reprinted in 1977 U.S.Code Cong. & Admin.News 593, 658. It went on to say:
[W]hen subsidence occurs under developed land such as that in urbanized areas, substantial damage results to surface improvements be they private homes, commercial buildings or public roads and schools.... The estimated cost for controlling subsidence under the 200 urbanized areas now affected is approximately $1 billion. It is the intent of [Section 516] to provide the Secretary with the authority to require the design and conduct of underground mining methods to control subsidence to the extent technologically and economically feasible in order to protect the value and use of surface lands."
Id.
It is irrational to think that Congress, when so worried about subsidence, crafted remedies for land where subsidence has no appreciable impacts but not for land where it does.
Last, the court disagrees that § 817.121(c)(2) and the other parts of the *429 rule protect structures. The Secretary contends that restrictions on mining near public buildings or in built-up areas make a full duty to restore damaged structures unnecessary. A close reading of the rest of the regulation and the Secretary's explanation of it shows that even in these cases mining may cause damage. As the Secretary concedes, § 817.121(e) contemplates that subsidence damage could happen to "public buildings and facilities, churches, schools and hospitals, and large bodies of water." This is so even though an operator is not supposed to get a permit to mine beneath or near them unless the operator shows that material damage will not occur. 52 Fed.Reg. at 4864. The Secretary states that "[i]f damage is caused to such facilities or features regulatory authorities are empowered to suspend mining until the operator ensures that no further damage will occur ..." Id. The Secretary also relates that mining must be suspended if it poses an imminent danger to "inhabitants of urbanized areas, cities, towns or communities." Id. The court finds that imminent danger usually is shown by actual damage from mining. Further, the things most likely to be damaged in "urbanized areas, cities, towns or communities" are the houses of their "inhabitants." Yet, under the Secretary's rules, the only remedy is to cease mining. The coal operator would not have to repair structural damage, even in these grave situations, unless state law dictated otherwise. The court cannot agree that these "rules will amply protect the public interests endangered by subsidence" if there is only a limited duty to correct subsidence damage to structures.
For these reasons, the Court must reject the Secretary's rule as contrary to the language of §§ 102(b) and 516(b)(1) of the Act. The court will remand this rule to the Secretary to be revised by striking the reference to state law.
B. 30 C.F.R. § 784.20(d), presubsidence surveys.
Next, NWF argues that the secretary has improperly deleted several requirements from the procedures for drawing up a subsidence control plan. The court rejects this argument and upholds the rule.
NWF challenges the current form of subsection (d) of 30 C.F.R. § 784.20. Section 784.20 requires certain underground coal operators to draw up a subsidence control plan and spells out what must be included in such a plan.[17] The Secretary amended the rule in 1983, reworking the 1979 subsection (d). Historically, subsection (d) generally has required the subsidence control plan to include a description of how the operator would determine how much subsidence occurs so that the operator can correct the material damage from it. The 1979 text of § 784.20(d) required the operator to describe the steps it would take to determine the degree of subsidence damage, including results of pre-subsidence surveys and any monitoring proposed. The current subsection (d) only requires the operator to describe any monitoring planned to determine the start and degree of subsidence. In particular, the current subsection (d) does not speak of presubsidence surveys at all. NWF argues that the Secretary improperly deleted from the current subsection (d) the requirements found in *430 the 1979 version and asks the court to reinstate them.
The Secretary justifies changing subsection (d) on the ground that it was redundant and created unneeded paperwork for operators. In reviewing § 784.20(d) through its successive forms, the court finds that the Act does not speak to this issue. Therefore, the matter is within the Secretary's sound discretion. The court also finds that Secretary's has put forward good reasons for his decision. Further, the resulting rule is in keeping with the language and intent of the Act. The Court thus sustains the current text of § 784.20 in so far as NWF has challenged it.[18]
1.
The 1979 version of 30 C.F.R. § 784.20(d) stated that the subsidence control plan should include:
(d) A detailed description of measures to be taken to determine the degree of material damage or diminution of value or foreseeable use of the surface, including such measures as
(1) The results of pre-subsidence surveys of all structures and surface features which might be materially damaged by subsidence.
(2) Monitoring, if any, proposed to measure deformations near specified structures or features or otherwise as appropriate for the operation.
30 C.F.R. 784.20 (1980) (44 Fed.Reg. 14902 (March 13, 1979)).
The current rule that NWF challenges reads:
(d) A description of monitoring, if any, needed to determine the commencement and degree of subsidence so that, when appropriate, other measures can be taken to prevent, reduce, or correct material damage in accordance with § 817.121(c) of this chapter.
30 C.F.R. 784.20(d) (1988) (52 Fed.Reg. 4860 (Feb. 17, 1987).
As discussed in the margin, Secretary Watt decided to amend § 784.20 in 1982. Between 1982 and 1987, the Secretary put forth several different proposals to amend § 784.20.[19] Each of these has cut out some or all of the 1979 subsection (d), particularly the reference to presubsidence surveys. The preamble to rules proposed in 1982 stated that other rules separately required the operator to correct material damage from subsidence. 47 Fed.Reg. 16604, 16605 (Apr. 16, 1982). "[A]n appropriate means of determining the degree of subsidence related damage ... is implicit" in the other rule on the duty to correct material damage. Id. "A separate submittal detailing methods for evaluating such damage is not deemed necessary. Therefore, the requirement [to describe how to measure damage] would be deleted to reduce the reporting burden on the operator." Id.
The preamble to the 1983 final rules rejected a suggestion to keep the old language of subsection (d), stating:
*431 It is not necessary to impose this additional requirement in the subsidence control plan. It may be to the operator's advantage to conduct presubsidence surveys or monitoring to avoid unnecessary liability or complications with the surface owners. However, the Act does not require the operator to conduct such surveys or monitoring. Further, to the extent that such measures are applicable to other aspects of the subsidence control plan, they can be included as an element of the plan.
48 Fed.Reg. 24638 (June 1, 1983)[20]
NWF and other environmental groups challenged the final 1983 version of § 784.20 rule, alleging that the Secretary had "deleted without explanation" the use of monitoring, if any, and presubsidence surveys to determine the degree of material damage. PSMRL II, Round II, Mem. Op. at 14, 21 Env't Rep. Cas. at 1731. This Court decided that this subsidence-related issue should be remanded to the Secretary because it bore so closely on the issue of correcting subsidence damage to structures, discussed above, which the Court also had remanded for further notice and comment. Id. at 1732. Thus, the Court did not reach the merits of NWF's challenge to § 784.20's 1983 version.
The Secretary sought additional comments on § 784.20, 50 Fed.Reg. 27910 (July 8, 1985), and 19 months later announced a new Final Rule for § 784.20. 52 Fed.Reg. 4860 (Feb. 17, 1987).[21] The 1987 Final Rule again dropped the presubsidence survey from § 784.20(d), but made other changes in the subsection "to make clear that monitoring may be appropriate regardless of the mining method to be employed by the operator." Id. at 4862. The preamble to the 1987 Final Rule stated that the Secretary:
continues to believe that the requirement is redundant. Former § 784.20(d)(1) is duplicative of the requirement in the introductory paragraph of § 784.20 requiring a premining survey.... Another commenter agreed with [the Secretary] that the 1979 pre-subsidence survey requirements are redundant stating "there is no distinction between the requirements for a survey showing structures and renewable resource lands and a pre-subsidence survey.... Moreover, [the rule] provides the opportunity ... to require whatever additional information is deemed necessary....
Id.
2.
NWF calls the Final Rule a "classic example of arbitrary agency action. There is simply no rational ground or basis to argue *432 ... that the mandatory requirement in the 1979 regulations is redundant with any provision in the new regulations." Pltfs' Mem. in Supp. at 20. According to NWF, the former subsection "served a vital purpose in requiring the operator to identify and then implement specific steps to determine the degree and extent of subsidence damage caused by his mining operations." Id. at 19. NWF argues further that:
Notably missing from the subsidence control plan required by the new regulations is any requirement to determine the degree of damage or diminution of value or foreseeable uses [of land] caused by subsidence.... It is impossible to develop an intelligent plan to repair the damage caused by subsidence or address the diminution of value ... until the extent of that damage or diminution of value is determined.
Id. at 20.
The Secretary responds that the opening paragraph of § 784.20 always has required an applicant for an underground coal mining permit to survey the area where mining is planned to see if subsidence would cause harm. In the Secretary's view, this survey makes redundant the presubsidence survey that the former subsection (d) required. The Secretary argues that the amount of harm caused by subsidence can be measured by comparing the conditions found in the first survey with those existing when mining is finished. "The difference between the premining and postmining condition of the land is the degree and extent of subsidence damage. This diminution represents the amount of damage for which an operator is responsible." Mem. of Federal Defts in Supp. of Cross Motion for Summary Judgment and in Opp. to Pltfs' Motion for Summary Judgment at 19. "The purpose of the Secretary's rule has always been to [e]nsure that adequate information will be available to `prove the damage' caused by subsidence when there is a duty to repair or compensate. The Secretary's new rule takes a rational approach to accomplish that purpose." Id. at 21.
The Court must agree. First, SMCRA does not specifically require a subsidence control plan. The Act only requires that underground coal miners "adopt measures ... to prevent subsidence causing material damage ... and maintain the value and reasonably foreseeable use of such surface lands...." 30 U.S.C.A. § 1266. A subsidence control plan is a wholly administrative invention, one that this Court has upheld as well-suited to the ends of the Act. As the plan is an idea that the Secretary devised to achieve the act's goals, but not something mentioned in the act, the plan's contents are peculiarly within the Secretary's discretion.
Second, it must be remembered that the parties are not disputing whether underground miners have duties to prevent, to measure, or to remedy subsidence or its harms. The parties are disputing what should be in a plan that describes how to accomplish certain duties. Furthermore, the parties are not even disputing how to plan to meet the substantive duties of preventing or to remedying harm. They are arguing about how to plan to measure, which is a procedural task to aid in doing a substantive duty, but not the substantive duty itself. Bureaucrats and their policy analyst counterparts in the quasi-private sector may disagree over plans for procedures. But in this instance, what should be included in the procedural part of the plan is a matter for the Secretary's sound discretion.
Third, the Secretary states that the operator must still, in fact, measure the harm and remedy it. This requirement is part of the performance standards that operators must meet. As the Secretary notes, measuring harm is implicit in the duty to remedy harm contained in the performance standard stated at 30 C.F.R. § 817.121(c). Nothing that NWF has brought to the Court's attention shows that the combination of the initial survey and any monitoring needed is not enough to measure damage from subsidence. Much less has NWF shown the court that the failure to require in the plan more than the initial survey and monitoring will prevent an operator from being able to measure harm.
*433 On this issue, the Court can find no fault in the Secretary's exercise of his discretion that warrants overturning the new rule. The Secretary has described how to accomplish the procedural task of measuring harm from subsidence under the revised rule. He also has said that the task must be performed. Further, the rule grants the power to require an underground miner to submit more information when needed. Last, the Secretary has justified the change, stating that the former requirement is redundant and puts an extra burden on operators. SMCRA recognizes that it is "essential to the national interest to insure the existence of an expanding and economically healthy underground coal mining industry[.]" 30 U.S.C.A. § 1201(b). Eliminating an unnecessary burden on underground coal miners meets this goal.
In essence, NWF contends that SMCRA requires an underground miner to perform one survey to see if a subsidence control plan is needed, and then to conduct a second survey to write the plan itself. To this end, NWF asks the Court to rule that unless § 784.20(d) mandates this second survey, the Secretary has acted irrationally or arbitrarily. The Court cannot agree and must uphold the Secretary's action on this issue.[22]
C. 30 C.F.R. § 817.121(a), planned subsidence.
The third issue before the court arises in an unusual posture. NWF challenges not so much a particular rule, but an explanation or interpretation of a rule. The explanation appeared in a footnote in one of the Secretary's briefs on the first issue above, the duty to restore subsidence damage to structures. This challenge must be dismissed as not properly before the court.
1.
The rule in question is 30 C.F.R. 817.121(a). It states:
The operator shall either adopt measures consistent with known technology which prevent subsidence from causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of surface lands; or adopt mining technology which provides for planned subsidence in a predictable and controlled manner. Nothing in this part shall be construed to prohibit the standard method of room-and-pillar mining.
A footnote in the government's brief filed August 8, 1988, states:
[I]n most cases an operator is required to prevent material damage to the extent technologically and economically feasible.... [T]his does not mean that an operator has an absolute duty to prevent material damage.... [§ 817.121(a)] requires an operator to either 1) adopt measures to prevent subsidence from causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of surface lands; or 2) adopt mining technology which provides for planned subsidence in a predictable and controlled manner. (Emphasis added.) Thus operators engaging in planned subsidence are not required to prevent subsidence and other operators are only required to prevent subsidence from causing *434 material damage to the extent technologically and economically feasible.
Mem. of Federal Defts in Supp. of Cross-Motion for Summary Judgment at 2, n. 1.
According to NWF, in this footnote the Secretary "radically altered his view of subsidence regulation in the United States generally, and his construction of 30 C.F.R. 817.121(a) specifically." Pltfs' Mem. in Opp. to Motion to Dismiss and in Supp. of Motion for Summary Judgment at 15. NWF further argues that the Secretary has adopted the view that the rule and its counterpart in the Act, § 516(b)(1) allows "coal operators who use planned subsidence methods to cause material damage to the natural land surface and to structures even where it is economically and technologically feasible to prevent such damage, and that no duty exists to maintain the value and use of the land when planned subsidence occurs." NWF contends that this position is contrary to the statute, the text of the regulation, and the Secretary's statements in the preamble to this version of the rule when promulgated in 1983.[23]
In response, the government has moved to dismiss the challenge as barred by SMCRA § 526(a)(1), 20 U.S.C.A. 1276(a)(1). That section states that a petition for review of "any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day." The government and industry also advance substantive arguments in opposition to NWF's challenge.
2.
In the court's view this matter is not properly before it. The Secretary has taken no official action since publishing 30 C.F.R. § 817.121(a). Instead, his counsel has offered a footnote stating an interpretation of the regulation. If the Secretary agrees with his counsel's interpretation of the regulation as expressed in the footnote, then the Secretary may act upon it in a specific instance. At that time, NWF or some other aggrieved entity may properly challenge the action in court as inconsistent with the statute or the regulation. If the Secretary wishes to adopt his counsel's interpretation, then the Secretary may publish it as a proposed rule or notice. That, too, would be an appropriate time for NWF or its allies to make any challenge they feel warranted in law.
However, this court has jurisdiction only over "[a]ny action by the Secretary promulgating national rules or regulations including standards pursuant to ... [§ 516 of the Act, 30 U.S.C.A. 1266]." A footnote is not a national rule or regulation, nor a standard under § 516. In this court's view, it has no jurisdiction to adjudicate a disagreement about an unofficial interpretation of a regulation. This is the more so when the regulation has been promulgated and in the public eye for five years before the footnote interpreting it was written. There is no case or controversy concerning an actual regulation before the court, and the court cannot act as if there were merely because the parties would like it to. As a result, the court will dismiss this portion of the case as unsuited for review. In this regard, the court makes clear that it is not dismissing the matter as barred by time, but as not within the class of actions subject to judicial review under the Act.[24]
III. Effective Date Issues
NWF's next two challenges, the fourth and fifth issues before the Court, raise questions about the Secretary's authority to prescribe by regulation when the Act's *435 requirements begin to apply to certain kinds of surface coal mining operations.
D. 30 C.F.R. § 827.13, Off-site processing operations.
NWF challenges the Secretary's decision to make a definition effective only from the date that this court struck down the definition's predecessor. The court agrees with plaintiffs that this is contrary to the Act and directs that the definition be made effective from the date SMCRA was enacted into law.
1.
This issue arises from this Court's July 6, 1984, decision invalidating the 1983 definitions of "coal preparation or coal processing" and "coal preparation plant" at 30 C.F.R. § 701.5 PSMRL II, Round I, Mem. Op. at 15-18, 21 Env't Rep. Cas. at 1199-1201. The Secretary's definitions attempted to interpret the Act's language at § 701(28), 30 U.S.C.A. 1291(28). This section is itself a definition of "surface coal mining operations" that are subject to the Act's program of permitting, performance standards, and reclamation. The Secretary's 1983 definitions of coal preparation or coal processing and coal preparation plant excluded from the Act's coverage those activities that processed coal without separating it from impurities and that did not take place at a mine site.[25] The court found that the definitions were "based upon a misreading of the statute. The resulting limitation of the Act's coverage and the Secretary's jurisdiction over ... physical processing ... when these operations do not involve the separation of coal from its impurities, to situations where these operations are conducted in situ is contrary to the statute and cannot stand." Id., Mem. Op. at 19-20, 21 Env't Rep. Cas. at 1201.
In response to the court's decision, the Secretary duly amended the definitions in question to include such activities as off-site coal crushing, screening, and sizing. 30 C.F.R. § 701.5 (1988), published at 50 Fed.Reg. 28180 (July 10, 1985). The Secretary also amended the rule at 30 § C.F.R. § 827.13 to require "persons operating coal preparation plants not subject to this chapter before July 6, 1984 [the date of this court's opinion rejecting the Secretary's 1983 definitions], shall comply with the interim or permanent program performance standards...." 30 C.F.R. § 817.13 (1986). These rules were made final at 52 Fed.Reg. 17724 (May 11, 1987).
NWF contends that this rule improperly "limited the applicability of this Court's decision to coal crushing, screening and other physical preparation activities which were in operation after the date of this Court's decision ..., rather than those which operated after the effective date of the Act itself." Pltfs' Mem. in Supp. at 36. According to NWF, the effect of this is to exempt "hundreds of sites from the jurisdictional scope of the statute in flat contradiction of the prior decision of this Court and the intent of Congress." Id. at 36-37. Therefore, NWF asks the Court to strike down the Secretary's rule applying the PSMRL II, Round I, decision only from its date of issue and to direct the Secretary to make the definitions apply from the effective date of the Act. The court finds that its decision dealt with the Secretary's jurisdiction as set by Congress, which the Secretary has no authority to limit. Therefore, the Secretary's rule improperly abridges the scope of the Act. Further, the court finds that the Secretary has failed to state permissible reasons for the rule's provisions implementing the statute. As a result, the court must remand the rule and direct the Secretary to revise it.
2.
In publishing the preamble to the Final Rule implementing the PSMRL II, Round I, decision on off-site preparation facilities, the Secretary stated that he had
considered applying the rule retroactively to facilities which ceased operating before July 6, 1984. [The Secretary] has concluded that doing so would not further *436 public policy in light of the nature both of the [Act] and its application prior to the District Court decision. See Linkletter v. Walker, 381 U.S. 618, 627 [85 S. Ct. 1731, 1736, 14 L. Ed. 2d 601] (1964[5]). From an environmental standpoint, the question of retroactivity relates solely to the reclamation of non-waste generating facilities which ceased operating prior to July 6, 1984. Generally, such reclamation would involve the removal of abandoned structures that are not currently causing large amounts of pollution.
52 Fed.Reg. 17724, 17728 (May 11, 1987).
The Secretary also justified the decision to limit the effect of this court's ruling to its release date on the ground that before the decision "jurisdiction over such facilities was unresolved and a matter in dispute." Id. According to the Secretary, from 1979 when the first definitions of coal processing were published, until 1983, when the Secretary clarified that off-site crushing, sizing, and screening were not subject to the Act, "A reader could have concluded that crushing or screening operations away from the mine site were not surface coal mining operations because they were not processing." Id. As result, the Secretary decided that:
[b]ased upon this regulatory history, ... although [the Secretary] has jurisdiction to cover facilities operating prior to July 6, 1984, it would be inequitable to do so. Prior to the district court opinion, operators of such facilities could have believed that the program did not apply to them during their period of operation and they could have made business decisions in reliance on those beliefs. In addition, retroactive application of the rule to facilities that ceased operations prior to July 6, 1984, would require regulatory authorities to locate all such facilities, find the persons responsible for the operations of such facilities, and attempt to compel reclamation at those sites. Requiring such efforts in the face of the settled expectation of persons who had concluded their operations is not warranted in this instance.
Id.
3.
At the outset, it must recalled that the Secretary concedes his jurisdiction over the facilities in question. The court is unaware of any provision in the statute that would permit the Secretary to decline to exercise it, nor has the Secretary brought any such provision to the court's attention. As Congress stated in passing SMCRA, it intended to "implement a national system of coal mining regulation, bycovering all coal surface mining ... and the surface impacts from underground mining and coal processing[.]" H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 57, reprinted in 1977 U.S. Code Cong. & Admin.News, 593, 595 (emphasis added). The Secretary is required to give effect to this intention as stated in the Act. He may not decline to exercise authority over activities that the statute defines as surface coal mining operations, particularly coal processing. In this case, the Secretary is not dealing with a matter within his sound discretion, where he might choose to fill in administrative gaps that Congress left in the law. Congress stated in § 701(28) that coal processing and preparation are surface mining operations subject to the Act. Congress has said that such operations must be reclaimed. This court has reversed the Secretary's failure to regulate as Congress intended when he improperly defined coal preparation and processing. Now the Secretary attempts to circumvent the clear thrust of these decisions and to avoid requiring that certain such coal processing activities be reclaimed. That action clearly is contrary to SMCRA and cannot stand.
Additionally, the Secretary's reasons for declining to exercise jurisdiction are wholly unpersuasive. These reasons are that exercising jurisdiction is retroactive regulation and is inequitable. As support, in the preamble to the 1987 regulations, the government cites Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). This citation defines dubious authority. Linkletter is a habeas corpus *437 case. It decided that the application of the Fourth Amendment exclusionary rule to the states, as announced in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), could not be used as a basis for collateral attack on criminal convictions that became final on direct appeal before the Supreme Court decided Mapp. Linkletter is of little use to this court. First, it is a criminal case. Second, it refused to apply Mapp only on collateral attack, something in no way similar to this case. Third, Linkletter refused to apply Mapp because the exclusionary rule is a judicially created device to remedy police illegality, and thus is not stated in the language of the Fourth Amendment. As such, Linkletter has no application to a civil case where the Secretary misread the language of the governing statute and wrongly decided not to regulate activities within the statute's scope. Fourth, to the extent that Linkletter provides the court with guidance, the Secretary cites it for the proposition that a decision about the retroactive effect of a change in law should be based upon "public policy in the light of the nature both of the statute and of its previous application." Linkletter, 381 U.S. at 627, 85 S.Ct. at 1736 (quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct. 317, 318, 84 L. Ed. 329 (1940)). In this instance, SMCRA's public policy is to ensure reclamation, while the effect of the Secretary's challenged rule is to exempt certain abandoned facilities from reclamation, thus hindering the policy. Further, as discussed below, before the Secretary's invalid 1983 definition, the statute's previous application was in the direction of making explicit what had been implied, that is, that off-site processing was covered by the Act, not exempted. Thus the Secretary's citation to Linkletter is unavailing. If anything, it supports NWF's position.
In their briefs, the government and industry also rely on Georgetown University Hospital v. Bowen, 821 F.2d 750 (D.C.Cir. 1987). In Georgetown, the court ruled that the Secretary of Health, Education, and Welfare could not effectively make retroactive a rule whose predecessor had earlier been struck down for failure to provide notice and comment. Id. at 753. That is not what NWF seeks here. Rather, NWF asks the court to give effect to the correct definition of surface coal mining operations from the time Congress intended these operations to be regulatedthe effective date of the Act. On the other hand, the real result of what the Secretary has done is to give his improper 1983 decision retroactive effect back to 1979.
Further, the Secretary's argument is not much better supported by the facts than it is by the law.[26] As NWF points out, and the Secretary tacitly admits, the Secretary's 1983 definition was only in effect from May 1983 through June 1984. Before that, it was at the very best unclear under the Secretary's earlier rules whether the Act covered off-site facilities that processed but did not purify coal. In 1984, the court made it clear that the Act does.
Given the statute's language and the Secretary's original permanent rules, reasonable operators should have been on notice that such off-site physical processing facilities might be regulated. Indeed, the reasonable operator should have been aware that such facilities likely would be regulated. Since 1979, the Secretary has made clear that "coal processing plants no matter where located" would be regulated. 44 Fed.Reg. 15095 (1979). True, the 1979 definition of coal processing did include separating impurities. But, as the Secretary admits, the 1979 preamble to the final definition of "surface coal mining operations" stated that it was unnecessary to add the phrase "crushing and screening" to the definition of surface coal mining operations. This was because both the proposed and final definition included terms readily interpreted to cover such activities. 52 Fed.Reg. 17724, quoting 44 Fed.Reg. 14914 (1979). Additionally, in June 1980, the Secretary *438 proposed to amend the definition of coal processing plants to make explicit that the Act covered activities such as crushing and screening that did not separate coal from its impurities. 45 Fed.Reg. 42335 (1980). Although these rules never became final, the very fact that they were designed to make explicit what the Secretary already believed to be the case militates against settled expectation or reliance. In any event, before 1983, at most the only expectations that could have become settled were those based upon the view that the definition of surface coal mining operations was readily interpreted to include crushing and screening. In the court's view, there is no equity in relying on a position not justified by the statute, particularly when the position can only be relied on by ignoring signs that this position is contradicted in rules interpreting the statute.
Last, the court cannot agree that requiring regulatory authorities to take difficult steps to compel operators to reclaim is unwarranted when the operators had settled expectations otherwise. The court already has rejected the view that operators could or should have had settled expectations. Thus the Secretary's argument boils down to: difficulty in enforcing the law is a good reason not to. Such a view ill becomes the Executive Branch, and it is not one that the Judicial Branch may adopt. To the extent that the argument has any validity at all as a practical contention, it is one that should be made to Congress. Moreover, the preamble to this rule is devoid of anything that shows how difficult it would be for "regulatory authorities to locate all such facilities, find the persons responsible for the operations of such facilities, and attempt to compel reclamation at those sites." The court is not persuaded by a weak argument with no more foundation than a conclusory statement.
In sum, the court finds that the Secretary must give effect to this court's PSMRL II, Round I, decision on off-site processing facilities from the effective date of the Act. The Secretary may not avoid the jurisdiction Congress gave him.
E. 30 C.F.R. § 701.5, Previously mined area.
NWF's final challenge is to the Secretary's rule defining "previously mined area" at 30 C.F.R. § 701.5. An operator remining a previously mined area need not reclaim it as fully as a site mined for the first time. The parties dispute whether "previously" means before the date Congress passed the Act or before the dates that the Act's substantive requirements began to apply to a specific mining operation or site. Finding that a definition using the date of SMCRA's enactment more closely conforms to the Act and this court's earlier ruling on this issue, the court must uphold NWF's challenge and remand the rule.
1.
As part of the Secretary's overhaul of SMCRA regulations in 1983, he revised the rules for remining operations. In particular, he relieved an operator remining a previously mined area from having to eliminate all preexisting highwalls completely.[27] 30 C.F.R. §§ 816.106, 817.106, 819.11(b), 819.13(c), and 819.19(b) (1983). If the operator is working a new site, it must reclaim it by backfilling all highwalls to eliminate them completely. The land then must usually be graded or restored to roughly its shape or contour before mining.[28] At *439 previously mined sites, however, when there is not enough reasonably available spoil to backfill and eliminate completely a preexisting highwall that has been enlarged or remined, the operator need only eliminate the highwall to the "maximum extent technically practical."[29] 30 C.F.R. §§ 816.106(b) and 817.106(b) (1988). Thus, the operator may leave part of a preexisting highwall standing, provided it is stable. The remined site also need only be graded to a slope that matches the land's approved use after mining, but the slope must have "adequate drainage and long-term stability."
The Secretary based his decision on the belief that if preexisting highwalls are to be reclaimed it will only be through remining. "If the operators must totally eliminate preexisting highwalls even where there is insufficient spoil then they might have no economic incentive to remine and do any reclamation. The old minesites would be abandoned without any of the safety standards of the Act being met." PSMRL II, Round I, Mem. Op. at 27-28, 21 Env't Rep. Cas. at 1204. NWF challenged the rule on the ground that the Act required that all highwalls be eliminated. In PSMRL II, Round I, Mem. Op. at 25-29, 21 Env't Rep. Cas. at 1203-04, the court upheld the Secretary's general authority to let operators leave standing the stable remnants of preexisting highwalls at previously mined sites.[30] The court ruled that SMCRA contains no clear expression of an intent that preexisting highwalls be eliminated. Id. at 1204. Although the Act's language directs that all highwalls must be eliminated, it is prospective. Id. at 1205. The court contrasted this with the Act's language on coal waste piles which states that all "existing and new" piles are subject to the Act's requirements. Id. at 1204.
This left open the question of how to define previously mined area. The 1983 definition stated that a previously mined area was "land disturbed or affected by earlier coal mining operations that was not reclaimed in accordance with the requirements of this chapter." 30 C.F.R. 701.5 (1984), published in 48 Fed.Reg. 41734 (1983). NWF challenged this, too, and the court rejected it as too broad. PSMRL II, Round III, 620 F.Supp. at 1572-74.
The court stated that the logic of the earlier Round I opinion, "and the fact that the court approved what it then called a limited exception to the highwall elimination requirement suggests that the [1983 definition] in permitting exceptions to highwall elimination in situations where land is left unreclaimed after the Act's effective date goes beyond what is permitted by the Act." Id. at 1572. The court added that its Round I opinion "had necessarily concluded that the word `existing' referred to ... existence prior to the Act's passage. Thus the court permitted a narrow exception to highwall elimination for highwalls existing prior to the passage of the Act." Id. The court made three other points about the statutory language requiring that all highwalls be eliminated: (1) the Act sets forth what it describes as "minimum" standards, which suggests a floor below which the Secretary may not go; (2) the Act plainly calls for elimination of all highwalls; and, (3) the section stating that all highwalls be eliminated refers to possible exceptions, which suggests that Congress had considered and provided for any exceptions, so no others should be permitted. Id. at 1573. As a result, the court remanded the 1983 definition to be revised.
In response, the Secretary published a new definition at 51 Fed.Reg. 27508 (July *440 31, 1986).[31] It defines previously mined area as "land previously mined on which there were no surface coal mining operations subject to the standards of the Act." 30 C.F.R. § 701.5 (1988).
2.
NWF contends that the court's PSMRL II, Round III opinion stands for the proposition that previously mined area means land that had been mined before Congress passed the Act.[32] Therefore, NWF argues that the Secretary's definition of previously mined area is invalid because it concededly includes land mined after the date of the Act's passage. NWF asks the court to define previously mined as mined before a specific point in time, and that point is the day the Act became the law of the land.
In response, the Secretary argues that he has cured the new definition of the defect that the court earlier considered fatal. In essence, he contends that the Act has several effective dates, depending upon the kind of coal mine considered. These effective dates are those on which the operator working a mine had to begin to comply with the substantive terms of SMCRA. The Secretary argues that his regulation complies with the court's previous decision by using these various effective dates to define previously mined area. "Congress provided for a transition period for surface coal mining operations with compliance dates well after the enactment date of SMCRA." Federal Defts' Mem. in Supp. of Cross-Motion for Summary Judgment and in Opp. to Pltfs' Motion for Summary Judgment at 54. According to the government:
mining operations in existence in August or September of 1977 [after SMCRA's enactment] were given until May 1978 within which to comply with the interim program performance standards.... Rather than comply, however, these operations could have ceased doing business. Since these operations ceased doing business before the statutory compliance date, they were never subject to the Act's standard....
[Additionally, SMCRA § 528, 30 U.S.C.A. § 1278] specifically exempts three classes of coal mining operations from all of the standards of the Act: 1) the extraction by a landowner for his own use, 2) the extraction of coal for commercial purposes from sites that affect two acres or less, and 3) the removal of coal from a government-financed highway or other construction projects.
Third, [SMCRA] contains an exemption for small operators [whose total annual tonnage did not exceed 100,000 tons] for all standards of the Act until January 1, 1979. Since Congress chose to exempt certain operations from SMCRA's requirements, the Secretary's decision to use the effective date of the Act's substantive requirements rather than the enactment date of SMCRA is reasonable and avoids the problems associated with the retroactive application of the Act.[33]
Id. at 54-55.
Additionally, the Secretary renews an argument offered to support the 1983 definition of previously mined areas: the rule will encourage more sites to be reclaimed. Thus, the rule promotes the primary policy behind SMCRA, which is to encourage reclamation. According to the Secretary, the sites in question are all places where the mining that occurred was exempt from the Act's requirements, even though it happened after the Act was passed. In other words, the Act does not require the exempted operator to do any reclamation. Only a remining operation will have to reclaim. *441 Thus the real choice, the Secretary argues, is between no reclamation and part reclamation, the latter obviously being better than nothing. When there is not enough spoil available to eliminate preexisting highwalls completely, full reclamation will be so burdensome that no operator will remine the site. Therefore, according to the Secretary, operators must be given a break or the exempt site will not be reclaimed at all.
3a.
Before analyzing the parties' arguments, the court must state that it will have to remand the Secretary's definition regardless of whether it decides in favor of the Secretary or NWF. When the Secretary proposed the current definition, the Commonwealth of Kentucky commented that the definition lets an operator remine an area that had been fully and satisfactorily reclaimed and then leave it only partly reclaimed. Administrative Record at 10. In the preamble to the Final Rule, the Secretary conceded this was "possible but unlikely." 52 Fed.Reg. 17526 (1987). The Secretary then gave various technical reasons why this probably would not happen.[34] Improbability is not enough. A definition cannot stand that lets full reclamation be undone for a later partial effort. The definition must be rewritten to make this impossible.
b.
As used here, "previously mined" is entirely a creature of the Secretary. The term "previously mined" is used only once in the Act, in a section altogether unrelated to the issue now before the court. SMCRA § 502(a), 30 U.S.C.A. § 1252(a) ("No person shall open or develop any new or previously mined or abandoned site for surface coal mining operations ... unless such person has obtained a permit...."). While the Secretary's definition cannot be compared to any statutory language, it may be analyzed for its consequences for Congress' goals as stated in the statute. When this is done, it is obvious that the definition is contrary to the Act. To a large extent, the court's opinions in PSMRL II, Round I, and PSMRL II, Round III, compel this conclusion.
In PSMRL II, Round I, this court approved a limited exception to the requirement that all highwalls be eliminated. In doing so, the court recognized that the Secretary's scheme had as its object encouraging reclamation that would not otherwise occur, as well as stimulating additional coal production. Both of these are explicit goals of the Act. But the Round I opinion specifically spoke only of preexisting highwalls. The context of the discussion of this limited exception in Round I strongly suggested that preexisting means existing before the effective date of the Act. The Round III opinion made plain that if the exception leaves unreclaimed a site mined after the Act's effective date, then the exception goes beyond the Act. The court later stated that the narrow exception is for highwalls existing before the passage of the Act.
As NWF points out, for the Secretary's argument to hold true, the court would had to have spoken of effective dates. Indeed, there is more than one date that the Act's substantive requirements first take effect. But the Act's effective date and the date one or more of its requirements take effect are two different things. The court spoke of the effective date of the Act, and this must be the date it was enacted into law. That date is when surface coal mining operations in the U.S. became subject to a new law.
When enacted, SMCRA applied to all and any such operations, including the operations partly or fully exempted. What the Secretary's argument fails to capture is that the exempt site is not exempt by its inherent nature. It is exempt because Congress made it so. Congress could have chosen any of a number of other, slightly different, or fewer exemptions. All mining operations, exempt and covered, gained such status as a result of the passage of the Act. The date of enactment must be *442 the time from which the temporal concepts of "preexisting" and "previous" are measured.
Moreover, the court's three Round III statements about why Congress intended no additional exceptions to the highwall elimination requirement remain true. The Secretary has offered nothing to suggest why § 515(b)(3) is not a "floor below which [he] is not empowered to go in setting less demanding standards." PSMRL II, Round III, 620 F.Supp. at 1573. Nor has he overcome the language referring to "all" highwalls or dealt with why the exceptions stated in § 515(b)(3) do not preclude others. Further, this court must still be guided by the statement in the legislative history that "the elimination of highwalls ... [is] among the standards critical to the elimination of the worst effects of coal surface mining." H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 85, reprinted in 1977 U.S. Code Cong. & Admin.News, 593, 621.
Against this, the Secretary can array only his practical argument that his definition encourages remining and through it reclamation that would not otherwise occur. In Round III, the court found no support for this view in the Administrative Record. Now, the Commonwealth of Virginia's comments do provide the Secretary some support. Administrative Record at 7.[35] But the court finds this is largely cancelled out by the other commenters, notably the Commonwealth of Kentucky, who dwelt at length at "the potential for widespread abuse" in the definition.[36] More important, given the statute's language, a practical argument on this issue is properly made to Congress rather than the court.
For these reasons, the court must sustain plaintiffs' challenge. It will remand the definition of previously mined area to the Secretary to correct both flaws identified above.
IV.
In conclusion, the court makes the following rulings: (1) the Secretary's limitation to the duty to correct subsidence damage to structures based upon applicable state law is contrary to the Act, and plaintiffs' motion for summary judgment on this issue will granted to plaintiffs in that 30 C.F.R. § 817.121(c)(2) (1988) will be remanded to the Secretary to eliminate this limitation; (2) the Secretary's requirements for a subsidence control plan at 30 C.F.R. § 784.20(d) (1988) are not contrary to the Act, and defendants' motion for summary judgment on this issue will be granted; (3) this court has no jurisdiction over plaintiffs' challenge to 30 C.F.R. § 817.121(a) (1988), and the challenge will be dismissed; (4) the application only from July 6, 1984, of the ruling that off-site coal preparation and processing are surface coal mining operations is contrary to the Act, and plaintiffs' motion for summary judgment on this issue will be granted in that 30 C.F.R. § 827.13 will be remanded to the Secretary to be revised; and, (5) the Secretary's definition of previously mined area at 30 C.F.R. § 701.5 is contrary to the Act, and plaintiffs' motion for summary judgment on this issue will be granted in that 30 C.F.R. § 701.5 will be remanded to the Secretary to be revised.
NOTES
[1] Plaintiffs include the National Wildlife Federation, the Kentucky Resources Council, and other organizations representing themselves to be interested in conservation, the environment, and the effects of coal mining (collectively "NWF"). Defendants are the U.S. Secretary of the Interior, the U.S. Department of the Interior, and the Director of the Office of Surface Mining Reclamation and Enforcement, an agency within the Interior Department charged with implementing SMCRA (collectively "the government" or the "Secretary"). Two organizations said to represent the coal mining industry, the National Coal Association and the American Mining Congress ("industry"), were granted leave to intervene on the side of the government.
[2] The Secretary published interim regulations under the Act in 1977, and this court ruled on challenges to them in two opinions, In re Surface Mining Regulation Litigation, 452 F. Supp. 327 (D.D.C.1978) and In re Surface Mining Regulation Litigation, 456 F. Supp. 1301 (D.D.C.1978). These opinions were affirmed in part and reversed in part by In re Surface Mining Regulation Litigation, 627 F.2d 1346 (D.C.Cir.1980).
In 1979, the Secretary published permanent program regulations. Industry and environmentalist groups challenged hundreds of aspects of these, which this court ruled on in three opinions, In re Permanent Surface Mining Regulation Litigation I, 13 Env't Rep. Cas. 1586 (D.D.C. 1979) (preliminary injunction); In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. Feb. 26, 1980), 14 Env't Rep. Cas. 1083 ("PSMRL I, Round I"); and, In re Permanent Surface Mining Regulation Litigation I, No. 79-1144, Mem. Op. (D.D.C. May 16, 1980), 19 Env't Rep. Cas. 1477 ("PSMRL I, Round II"). One aspect of these was rejected on appeal. In re Permanent Surface Mining Regulation Litigation, 653 F.2d 514 (D.C.Cir.), cert. denied, 454 U.S. 822, 102 S. Ct. 106, 70 L. Ed. 2d 93 (1981). By this time, a new Presidential Administration had taken office, and the Secretary of Interior, James Watt, decided to revamp the permanent regulations under SMCRA. As a result, the Court of Appeals remanded the entire matter back to the Secretary. Secretary Watt's program also saw extensive challenges, and the court ruled on these in In re Permanent Surface Mining Regulation Litigation II, Round I, No. 79-1144, Mem. Op. (D.D.C. July 6, 1984), 21 Env't Rep. Cas. 1193 ("PSMRL II, Round I"); In re Permanent Surface Mining Regulation Litigation II, Round II, No. 79-1144, Mem. Op. (D.D.C. Oct. 1, 1984), 21 Env't Rep. Cas. 1724 ("PSMRL II, Round II"); In re Permanent Surface Mining Regulation Litigation II, Round III-VER, No. 79-1144, Mem. Op. (D.D.C. Mar. 22, 1985), 22 Env't Rep. Cas. 1557 ("PSMRL II, Round III-VER"); and, In re Permanent Surface Mining Regulation Litigation II, Round III, 620 F. Supp. 1519 (D.D.C. 1985) ("PSMRL II, Round III"). While these were on appeal, the Court of Appeals remanded the case for this court to address questions of standing, which were decided in In re Permanent Surface Mining Regulation Litigation II, No. 79-1144, Mem. Op. (D.D.C. Aug. 10, 1987). The Court of Appeals ultimately affirmed in part and reversed in part these five rulings in Nat'l Wildlife Fed'n v. Hodel, 839 F.2d 694 (D.C. Cir.1988).
[3] In contrast, the operator must correct material damage to surface lands quite apart from what state law may recognize. 30 C.F.R. § 817.121(c)(1) (1988); see PSMRL II, Round II, Mem. Op. at 3-8, 21 Env't Rep. Cas. at 1728-29. Subsection (c) reads:
(c) The operator shall
(1) Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably foreseeable uses which it was capable of supporting before subsidence; and
(2) To the extent required under applicable provisions of State law, either correct material damage resulting from subsidence caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence.
[4] The parties concede that other states have laws giving rise to similar situations, notably in West Virginia and Kentucky. 52 Fed.Reg. 4860, 4865 (1987) (Feb. 17, 1987). In 1983, Illinois, Pennsylvania, West Virginia, Kentucky, Virginia, and Utah accounted for 87% of the nation's underground coal production. Id.
[5] Subjacent support is the "right of land to be supported by the land which lies under it." Black's Law Dictionary 1593 (Rev'd 4th ed. 1968).
[6] The original rule, 30 C.F.R. 817.124, published at 44 Fed.Reg. 14902 (March 13, 1979), read:
(a) ...
(b) Each person who conducts underground mining which results in subsidence that causes material damage or reduces the value or reasonably foreseeable use of the surface lands shall, with respect to each surface area affected by subsidence
(1) Restore, rehabilitate, or remove and replace each damaged structure, feature or value, promptly after the damage is suffered, to the condition it would be in if no subsidence had occurred and restore the land to a condition capable of supporting reasonably foreseeable uses it was capable of supporting before subsidence;
(2) Purchase the damaged structure or feature for its fair market, pre-subsidence value and shall promptly after subsidence occurs, to the extent technologically and economically feasible, restore the land surface to a condition capable and appropriate of supporting the purchased structure, and other foreseeable uses it was capable of supporting before mining.... or
(c) Each person who conducts underground mining activities will compensate the owner of any surface structure in the full amount of the diminution in value resulting from subsidence
[7] With only minor changes in wording, former § 817.124's requirement to correct damage from subsidence became subsection (c) of the new rule § 817.121. In the preamble, the Secretary stated this change "would streamline the rules and eliminate excess verbiage" and was "not intended as a substantive change." Id.
[8] The Court stated that:
These remedies redress injuries suffered by private parties, but not necessarily to the land itself. As the Secretary points out, private parties should not be able to circumvent Congress' will by forming contracts. Congress did not pass this Act solely to protect individuals' property rights. This Act was passed to protect this nation's land and shield "the environment from the adverse effect of surface coal mining operations," and surface effects of underground mining for generations yet unborn.
[9] The Court found that the Final Rule represented a "radical change," and the Secretary had given no notice proposed rule that he was thinking about such "a complete reversal of policy." PSMRL II, Round II, Mem. Op. at 10-11, 21 Env't Rep. Cas. at 1730-31.
[10] The preamble to the 1987 rule states that the language:
accommodates situations in which the operator is not liable for subsidence damage to surface structures under State law. Conditioning liability for restoration of materially damaged structures upon State law lessens the concern that the contract in which the operator may have obtained the right to subside the surface under a structure will be impaired. In States which have not enacted special subsidence legislation, State property rights, as established by contracts, deeds, and other agreements, and interpreted by judicial decisions will determine whether the operator is liable to the surface owner. Liability of the operator where the owner of the surface facility may have conveyed the right to support or may have waived it will also be left to determination under State law. 52 Fed.Reg. 4860, 4863 (Feb. 17, 1987).
[11] SMCRA § 507(f), 30 U.S.C.A. § 1257(f), states:
Each applicant for a permit shall be required to submit ... a certificate issued by an insurance company ... certifying that the applicant has a public liability insurance policy in force for the surface mining and reclamation operations.... Such policy shall provide for personal injury and property damage protection in an amount adequate to compensate any persons damaged as a result of surface coal mining and reclamation operations ... and entitled to compensation under ... State law.
[12] The Secretary also explained that § 515(b)(2), 30 U.S.C.A. 1265(b)(2), does not require damage to structures be corrected. Section 515 sets out performance standards for surface mining, while § 516 sets out standards for underground mining. Section 516(b)(10), 30 U.S.C.A. 1266(b)(10), provides that "with respect to other surface impacts" of underground operations not specified in the performance standards for underground mines, the underground miner must "operate in accordance with the standards established" for surface mining operations in § 515. Section 515(b)(2) dictates that a surface operator must "restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to any mining." This Court had earlier held that this requirement could be applied to underground mine operations through § 516(b)(10). See PSMRL I, Round I, 14 Env't Rep. Cas. at 1108; PSMRL II, Round II, Mem. Op. at 4-6, 21 Env't Rep. Cas. at 1728. In Nat'l Wildlife Fed'n v. Hodel, 839 F.2d at 740-41, the Court of Appeals stated that the confluence of §§ 515(b)(2) and 516(b)(10) does not reach subsidence damage because subsidence is mentioned in § 516(b)(1) and is not a surface impact not specified. Instead, the Court of Appeals upheld the duty to restore subsidence damage to land based upon § 516(b)(1) alone. The Secretary published the 1987 preamble to 30 C.F.R. § 817.121 before Nat'l Wildlife Fed'n v. Hodel was decided, in other words when the view that § 515(b)(2) governed subsidence was still good law.
[13] See PSMRL II, Round II, Mem. Op. at 6, n. 4, 21 Env't Rep. Cas. at 1728-29, n. 4 (Court cannot subscribe to view that Congress intended to require underground miners to prevent subsidence damage to land but did not intend that such land be restored if damaged when Congress showed such obvious concern about subsidence); Nat'l Wildlife Fed'n v. Hodel, 839 F.2d at 741 (maintaining value of land may well require restoring it when legislative history makes clear Congress regarded subsidence as serious problem and suggests that reclamation anticipated for broad range of mining impacts).
[14] Under the Act, the "surface impacts incident to an underground coal mine" are defined to be "surface coal mining operations." SMCRA § 701(28)(A), 30 U.S.C.A. § 1291(28)(A).
[15] To this section, Congress added two provisos: (1) the above cited language is excepted "in those instances where the mining technology used requires planned subsidence in a predictable and controlled manner[;]" and (2) "Provided, That nothing in this subsection shall be construed to prohibit the standard method of room and pillar mining." SMCRA § 516(b)(1), 30 U.S.C.A. 1266(b)(1).
[16] The expressio rule more commonly stands means that "if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded." Black's Law Dictionary 692 (Rev'd 4th ed. 1968). Section 516(b)(1) excepts many things from its duties: (1) measures not consistent with known technology; (2) measures that would prevent subsidence causing material damage but that are not technologically or economically feasible; (3) instances when the mining technology used requires planned subsidence in a predictable and controlled manner; (4) anything that could be construed to prohibit the standard method of room and pillar mining. But, the section does not list among its exceptions that the duties are limited to the extent required by state law.
[17] Section 516 of the act, 30 U.S.C.A. § 1266, governs the "surface effects of underground coal mining operations." In essence, the section requires underground operators to get a permit for their mining operation, much the same as their surface mining colleagues must. In putting out the permanent rules covering underground mine permits in 1979, the Secretary required underground mine operators to survey the area they wanted to mine. If the survey showed that subsidence could harm buildings or certain types of land around the mine, the operator had to submit a subsidence control plan with the application for a permit. 30 C.F.R. § 784.20 (1980) (44 Fed.Reg. 14902, 15366-69 (March 13, 1979)). In such plans, operators had to describe how they would:
(a) dig the mine and whether the method would cause subsidence;
(b) keep subsidence from causing harm;
(c) cut down on the harm caused by any subsidence that did take place; and,
(d) measure how much harm subsidence had caused.
This court upheld 30 C.F.R. § 784.20's requirement for a subsidence control plan. PSMRL I, Round I, 14 Env't Rep. Cas. at 1097-98.
[18] In its opening brief NWF also contended that the Secretary improperly added the words "if any" in the current version of § 784.20(d) when discussing monitoring. The 1979 version of the rule directed operators to discuss in their subsidence control plan "monitoring, if any, proposed. ..." The June 1, 1983, Final Rule did not contain the "if any" language. The rule before the Court states that the plan must contain a "description of monitoring, if any, needed. ..." The Secretary responded that dropping "if any" was a misprint that was corrected at 48 Fed.Reg. 44778 (Sept. 30, 1983), where he stated that "[i]t was intended that this final rule provision read the same as the previous rule. Therefore the addition of the two words `if any' is made to follow the intentions of the final rule as stated in the preamble." In its reply brief, NWF conceded this point. Pltfs' Reply at 37 n. 31.
[19] As part of his general overhaul of the SMCRA rules, Secretary Watt proposed to revamp § 784.20 and shorten it. 47 Fed.Reg. 16604 (Apr. 16, 1982). The proposed new rule created a two-tiered scheme dictating that every underground miner file a general subsidence control plan with the application for a permit and then follow up with a detailed plan when such was needed. In the course of proposing the new scheme, the Secretary dropped the old rule's language about including in the control plan the steps to be taken, such as pre-subsidence surveys and monitoring, to measure how much harm subsidence had caused.
Ultimately, the Secretary decided against the two-tiered scheme and announced a final rule that kept the basic structure of the old rule. 48 Fed.Reg. 24638 (June 1, 1983). The final rule did not restore language about describing ways to measure harm from subsidence, however.
[20] The final 1983 version of § 784.20 matched the 1979 rule in requiring the operator to survey the area to be mined to see if subsidence would harm buildings and certain types of land, and to prepare a subsidence control plan if harm would take place. In the plan, the operator had to:
(a) describe the method of removing coal;
(b) submit a map of the underground workings showing where subsidence could occur;
(c) describe physical conditions affecting the likelihood or extent of subsidence or harm from it;
(d) describe steps to prevent or minimize subsidence and damage, except when mining methods using planned subsidence were proposed;
(e) describe the effects of planned subsidence, if any;
(f) describe steps to cut down on or remedy harm from subsidence; and,
(g) submit other information needed by the regulatory authority to ensure the mine meets performance standards.
48 Fed.Reg. 24638 (June 1, 1983).
[21] As now written, § 784.20 requires an operator to include in a subsidence control plan:
(a) a description of the method of removing coal;
(b) a map of the underground workings;
(c) a description of conditions affecting the likelihood or extent of subsidence or harm from it;
(d) a description of monitoring, if any, of subsidence;
(e) a description of subsidence control measures to prevent or minimize subsidence or harm from it, unless a mining method using planned subsidence is intended;
(f) a description of the effects of planned subsidence;
(g) a description of measures to cut down on or remedy any damage from subsidence; and,
(h) other information the regulatory authority needs to ensure the mine will meet certain performance standards.
30 C.F.R. 784.20 (1988).
[22] This Court previously has stated that the issues of an underground operator's duty to correct subsidence damage to structures under § 817.121(c) and the contents of the subsidence control plan under § 784.20(d) were "inextricably linked." PSMRL II, Round II, Mem. Op. at 14, 21 Env't Rep. Cas. at 1731-32. The Court recognizes that it has ruled in favor of NWF on the duty to correct damage to structures and in favor of the Secretary on the content of the subsidence control plan. The latest round of pleadings and the record in this case have led the Court to unlink the two issues. The Court now finds that the duty to correct damage to structures does not mean an operator must always conduct a second presubsidence survey, however useful it might be in certain cases. Further, under § 784.20(h) an underground operator may be required to provide additional information to show that it will meet the performance standard at 817.121(c) for correcting damage from subsidence. This should enable the regulatory authority to ensure that the operator will be able to measure damage if this is in doubt.
[23] The Secretary proposed a revised version of § 817.121(a) at 47 Fed.Reg. 16604 (Apr. 16, 1982) as part of his effort to place all of the requirements for subsidence control in a single regulation, 30 C.F.R. § 817.121. This is discussed above in the section dealing with NWF's first challenge. The Final Rule appeared at 48 Fed.Reg. 24638 (June 1, 1983). In neither instance did the Secretary propose substantive changes from the previous version of the rule published in 1979.
[24] Although NWF's arguments concerning the merits of the dispute appear compelling, the court explicitly avoids making any finding or ruling on whether the footnote correctly interprets the act or the regulation it purports to explain.
[25] Among the activities that this definition excluded from the Act's coverage were off-site coal crushing, screening, and sizing operations.
[26] The court also considers the Secretary's other cases unpersuasive. Although they stand for the view that certain kinds of rules should not be applied retroactively, none deal with the failure to regulate an activity by improperly defining what that activity includes. See United States v. Shelton Coal Corp., 829 F.2d 1336 (4th Cir.1987).
[27] Although preexisting highwall is not defined, it may be regarded as a highwall that is at a site before remining begins. Usually this happens when an earlier highwall was not reclaimed because SMCRA did not apply to the first operation. Highwalls occur after coal has been scooped out of the ground. They represent the vertical edge of the area not mined, and tend to resemble a steep cliff or drop-off. Congress has defined a highwall to be "a more or less vertical bank marking the inner limit" of the flat area of a hillside from which coal has been removed. H.R.Rep. No. 95-218, 95th Cong., 1st Sess. 77, reprinted in 1977 U.S.Code Cong. & Admin.News 593, 615. Highwalls pose a threat of collapse and landslide. SMCRA § 515(b)(3) 30 U.S.C.A. § 1265(b)(3), generally requires an operator to remove all highwalls when reclaiming a site.
[28] This is referred to in the Act as "approximate original contour" ("AOC"). This AOC requirement is found in § 515(b)(3), 30 U.S.C.A. § 1265(b)(3), of the Act, which also contains certain exceptions, as does § 515(c), 30 U.S.C.A. § 1265(c).
[29] Spoil is the dirt, rock, and other material between the topsoil and the coal deposit. It is removed when the coal is mined.
[30] Specifically, the court rejected NWF's challenge to rules at 30 C.F.R. Part 819 letting an auger mining operator reauger a previously mined area without requiring that the operator completely backfill the highwall. Auger mining is a method of mining coal at a highwall by drilling holes into an exposed seam of coal from the highwall and then moving the coal along the auger bit back to the surface. PSMRL II, Round I, Mem. Op. at 25, 21 Env't Rep. Cas. at 1203 (quoting 30 C.F.R. § 701.5 (1983)). The parties then settled similar challenges to the rules at 30 C.F.R. §§ 816.106 and 817.106, whose provisions on preexisting highwalls at previously mined sites were discussed above.
[31] The final definition was published at 52 Fed. Reg. 17526 (May 8, 1987).
[32] For this issue, previously mined also must mean that mining had ceased. This is so whichever definition is accepted. NWF contends that any mining that took place after SMCRA became law would come under the Act's requirements and would have had to be reclaimed. The Secretary argues that exempted mining that had not stopped would still be exempted and thus not yet subject to SMCRA.
[33] This argument about retroactive effect of the Act is not really pursued further. The court assumes that the Secretary meant retroactive effect of the Act's substantive requirements rather than the Act, because on this issue nobody is discussing applying the Act before the date of enactment.
[34] The Secretary responded "[i]f a State regulatory authority is concerned that this situation may occur, then it may develop a stricter definition of previously mined area to prevent it."
[35] Nevertheless, the thrust of the Commonwealth's argument is that the definition should make clear that previously mined areas will only be given partial relief if they "would not otherwise be reclaimed." Administrative Record at 7 (emphasis in original). "This limitation would seem to appropriately limit the definition, thus curing the defects of the remanded definition, while recognizing the need to encourage the reclamation of all disturbed lands which would not otherwise be reclaimed." Id. The Secretary's current definition thus does not meet the claims made of it, that is, that it efficiently promotes reclamation through remining.
[36] In its brief, NWF suggests that 7,000 sites are subject to possible exemptions that would qualify under the current definition of previously mined. Pltfs' Mem. in Supp. at 56. It would have the court believe that many of these claimed exemptions are bogus and could be abused under the Secretary's definition.
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733 F. Supp. 283 (1990)
Jusein MUSTFOV, Ray Mohyde, Henry Sammarco, Dennis Becker, Miodrag Stojadinovich, Dragan Petrovic, Randall Schlicter, John A. Lindsey, Jim Guthrie, Lawrence Frowick, Frank Barberis, Neb Tarailo, Wilfred Brodeur, Donald Gardella, John Miller, Ivan Nikolov, Ronald Courtney, Ace Limousine, Inc., William Pascente, Jeanette Olivo, Santos Gonzales, Donald F. Piencak, Anthony Palermo, Dennis Cooper, Christopher Frowick, Adventure Limousine, Inc. and All Suburban Limousine Services, Inc., Plaintiffs,
v.
SUPERINTENDENT OF CHICAGO POLICE DEPARTMENT; Commander of Police for O'Hare International Airport; Vehicle Commissioner Consumer Service Department; Deputy Commissioners; Chicago Corporation Counsel; the City of Chicago; Paul Jankowski, individually; and Dan Welter, individually, Defendants.
No. 86 C 3905.
United States District Court, N.D. Illinois, E.D.
February 20, 1990.
*284 *285 Michael Smith, Schaumburg, Ill., for plaintiffs.
Diane Larsen, Asst. Corp. Counsel, Litigation Div., and Albert Maule, Christopher W. Zibart and E. Glenn Rippie, Hopkins and Sutter, Chicago, Ill., for defendants.
MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
This twelve-count action was brought under 42 U.S.C. § 1983 ("Section 1983") by a group of individual livery and taxicab operators and three corporate livery services against the City of Chicago, and against the Superintendent of the Chicago Police Department and the Commander of Police for the 16th Police District in their official capacities. (Defendants collectively referred to as "City"). The plaintiffs challenge various ordinances and alleged City practices regulating or affecting livery operations in Chicago and particularly at Chicago's airports. The parties have filed cross-motions for summary judgment as to all matters not previously dismissed or settled.[1]
I. Summary of the Plaintiffs Remaining Claims
The plaintiffs state five classes of claims in their complaint. First, they raise facial constitutional challenges to the City's Anti-Solicitation and Inter-Urban Operation Ordinances, found in Chapter 28 of the Chicago Municipal Code, "Public Passenger Vehicles." Various plaintiffs seek damages and declaratory relief on the claim that the ordinances violate the Due Process Clause because they are unconstitutionally vague (Counts II and III).[2] Various plaintiffs *286 seek damages and all of the plaintiffs seek declaratory relief on the claim that prohibiting solicitation of passengers for livery trips, and not for certain other modes of transportation, violates the Equal Protection Clause (Count IV).[3] Some plaintiffs seek damages and all of the plaintiffs seek declaratory relief on the claim that preventing unlicensed vehicles from travelling between O'Hare and the rest of Chicago violates the Interstate Commerce Clause (Count IX).[4]
Second, certain plaintiffs seek damages and all of the plaintiffs seek declaratory and injunctive relief on the claim that the City's restrictions on the number of livery vehicles it licenses, and its distribution of those licenses, violates the Equal Protection and Due Process Clauses (Count VI).[5]
Third, all of the plaintiffs seek damages and declaratory and injunctive relief on the claim that the City removed the name, address, and telephone number of one of the livery companies in violation of the Due Process Clause (Count XII).
Fourth, certain plaintiffs seek damages and all of the plaintiffs seek declaratory relief on a claim attacking the validity of the City's annexation of land encompassing O'Hare ("O'Hare Area").[6] They contend that if the O'Hare Area was not validly annexed, then the City regulation and policing of ground transportation there violates the Due Process Clause (Count VIII).
Fifth, various plaintiffs raise claims challenging the City's enforcement of the ordinances. They seek damages and declaratory and injunctive relief, claiming that
(1) their arrest for violating the ordinances and the incident processing violate the Fourth Amendment and Due Process Clause, both because the City cannot lawfully arrest violators of the ordinances and because their post-arrest processing, in several instances, was too slow (Count X);[7]
(2) they are arrested for violating the ordinances without probable cause or in an arbitrary and capricious manner in violation of the Due Process Clause (Count I);[8]
(3) the City enforces the ordinances differently at O'Hare and Midway Airport ("Midway") in violation of the Equal Protection Clause (Count V);[9]
(4) City officials conspired to detain various plaintiffs needlessly for long periods of time for processing in violation of the Due Process Clause (Count VII);[10]
In addition to challenging the substantive merits of each of these claims, the City raises several preliminary matters for our consideration. The City has moved to strike certain exhibits submitted by the plaintiffs in connection with their motion for summary judgment, and also points to the plaintiffs' failure to submit 12(l) and 12(m) statements. The City also contends that many of the plaintiffs' claims are barred by res judicata. We will first address these preliminary matters, and then separately address each of the plaintiff's claims and the additional facts and arguments relating to each claim.
II. Motion to Strike and Compliance with Local Rules
In responding to a motion for summary judgment, the plaintiffs must submit competent and proper evidence. Testimony must be based on personal knowledge and must set forth the facts in a manner that *287 would be admissible in evidence. Fed.R. Civ.P. 56(e); Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir.1988). Documentary evidence likewise must be admissible and authenticated. See, e.g., Wells v. Franzen, 777 F.2d 1258, 1262 (7th Cir.1985). The City contends that the majority of the plaintiff's documentary and testimonial submissions fail to meet these standards.
The City has moved to strike portions of Mustfov's deposition testimony, found in Exhibits 5 and 7 ("P.Exs.") to the plaintiffs' motion for summary judgment, on the ground that they are rife with hearsay, speculation, and conclusory matter. The plaintiffs completely miss the mark in responding to these grounds. They fail to address the specific question whether the contested testimony is admissible and instead raise arguments concerning the use, as a general matter, of deposition testimony on a motion for summary judgment. Having reviewed the testimony we agree that P.Ex. 5, at 137:1-6 and 11-19, concerning detention, and P.Ex. 5, at 55:16-21, concerning an arrest of John Miller, contain inadmissible hearsay and speculation and are hereby stricken. That portion of P.Ex. 7, at 113, regarding a supposed bombing and P.Ex. 7, at 59, regarding the post-arrest processing at Midway is based on hearsay and speculation and hereby stricken. We do not strike the testimony in P.Ex. 7 relating to the livery booths and road construction as that testimony appears to be based on personal knowledge and is material to the plaintiffs' claim that the City no longer has a rational basis for only allowing the solicitation of passengers by Continental Limousine at O'Hare.
The City has further moved to strike certain documentary exhibits, P.Exs. 9-17, on the grounds they each are unauthenticated or otherwise inadmissible. The plaintiffs raise no objection to striking P.Exs. 10 and 12, and accordingly those exhibits are stricken. As to the remaining contested exhibits, here too the plaintiffs miss the mark and fail to address the specific questions of authenticity and admissibility. Regarding P.Exs. 11 and 13-17, the plaintiffs assert that these exhibits "can be authenticated by occurrence witnesses at trial." Authentication at that time, however, comes too late. Exhibits that the plaintiffs wish to use now, at the summary judgment stage, must be authenticated now. Wells, 777 F.2d at 1262 (7th Cir. 1985). Because the plaintiffs have failed to authenticate these exhibits, we find that they should be excluded. Similarly, we also find that P.Ex. 9 should be excluded because a properly authenticated and unaltered copy of the exhibit has already been submitted as City Ex. CC.
We now turn to the plaintiffs' failure to comply with Local Rule 12. First, the plaintiffs did not file a Rule 12(m) statement in response to the City's Rule 12(l) statement of uncontested facts filed with its motion for summary judgment. Consistent with Rule 12(m), we accordingly will deem the facts set forth in the City's Rule 12(l) statement as admitted. Second, the plaintiffs did not file a Rule 12(l) statement with their motion for summary judgment. Rule 12(l) provides that failure to submit such a statement constitutes grounds for denial of the motion. The parties, however, have filed cross motions for summary judgment and, in conjunction with those motions, have allotted a joint statement of stipulated facts and joint exhibits. Therefore, there exists a record of material facts as to which there is no dispute and accordingly the spirit, if not the form, of Rule 12(l) has been satisfied to the extent that plaintiffs may rely on the stipulated facts in their motion for summary judgment. Further, as to those additional exhibits upon which the plaintiffs now intend to rely in their motion, the plaintiffs did make specific reference to them in the text of their memorandum. While that does not excuse the plaintiffs' technical lack of compliance, and obviously made the job of sorting out the plaintiffs' motion more difficult for both the City and this Court, we observe that it is the plaintiffs who ultimately will have been prejudiced by the confusion engendered by their lack of compliance with the local rule. In any event, the plaintiffs' motion for summary judgment simply reiterates some of the arguments they already raised in response *288 to the City's motion. Thus, we proceed to the merits of the combined motions.
III. Res Judicata
Each individual plaintiff has been convicted for violating the Anti-Solicitation and Inter-Urban Operation Ordinances in quasi-criminal proceedings brought by the City in the Circuit Court of Cook County. Most have been arrested scores, and a few, even hundreds of times. No plaintiff has ever appealed his conviction. The City contends that the doctrine of res judicata bars the plaintiffs from raising a Section 1983 challenge to the propriety of their past prosecutions based on both the facial attack on constitutionality of the ordinances (Counts II, III, IV and IX) and on allegations of arrest without probable cause or entrapment (Counts II and VII).[11] The City characterizes these claims as impermissible collateral attacks on the Illinois state court convictions.
A federal court in a Section 1983 action must give the same preclusive effect to a state court ruling as would the rendering state. Donald v. Polk County, 836 F.2d 376 (7th Cir.1988); 28 U.S.C. § 1738. In Mustfov v. Superintendent of Police, 663 F. Supp. 1255, 1260 (N.D.Ill.1987) ("Mustfov I"), we determined that, according to 28 U.S.C. § 1738, Illinois law controls the application of res judicata in this case. Under Illinois law, a final judgment on the merits in Illinois is conclusive on all subsequent suits upon the same cause of action and between the same parties, and extends not only to the questions actually litigated and decided, but to all grounds of recovery or defenses that might have been presented in the prior proceeding. Id. Because the earlier state actions in this case were either criminal or quasi-criminal, and not civil actions, we are not concerned with claims that the plaintiffs might have presented, but rather with defenses to their prosecutions that they might have presented. Id. Accordingly, res judicata will apply "when a party seeks to raise a constitutional challenge in a federal civil rights action which could have been, but was not, raised as a defense in prior state proceedings." Pliska v. Stevens Point, 823 F.2d 1168, 1172 (7th Cir.1987); Button v. Harden, 814 F.2d 382, 384 (7th Cir.1987).[12]
The City argues that the plaintiffs certainly could have raised their constitutional challenges to the ordinances and the propriety of the prosecutions as a means of defending the actions in the state court proceedings. State court jurisdiction to hear such arguments is well established. See Horn v. City of Chicago, 860 F.2d 700, 702 n. 5 (7th Cir.1988).
*289 The plaintiffs assert, however, that circumstances excuse their failure to raise their constitutional defenses. The plaintiffs contend that they were denied a full and fair opportunity to litigate the constitutionality of the ordinances in the state courts both because the court was ill-equipped to handle the "complex issues involved" and because the process put undue influence on the plaintiffs to plea bargain. P.Resp. at 1.
The first point, regarding the competence of the court to hear the plaintiffs' challenges, pertains to those instances in which the plaintiffs plead not guilty, were tried, and a conviction was obtained based upon a verdict. The plaintiffs dwell on the fact that their cases were tried in traffic court instead of municipal district misdemeanor and ordinance violation courtrooms. However, prosecutions apparently have not been decided by traffic courts since 1984. The parties have stipulated that in March 1984, the City changed its arrest procedures and arranged to have all livery cases tried in municipal misdemeanor and ordinance courts. J. Fact Nos. 3.9, 3.12. Thus, we must consider this challenge in the two different contexts of traffic and misdemeanor courts.
Regarding the trials that occurred in traffic court, Illinois has a general rule regarding the effect of traffic court convictions upon later civil actions which we must take into account. In Hengels v. Gilski, 127 Ill.App.3d 894, 83 Ill. Dec. 101, 469 N.E.2d 708 (1st Dist.1984), the Illinois Appellate Court held that a traffic court conviction following a plea of not guilty does not possess adequate assurances of reliability necessary to justify its admission into evidence at a later civil trial based upon the same facts.[13] Noting that this is a special exception to the general rule otherwise allowing evidence of a prior criminal conviction as prima facie evidence of the facts upon which the conviction was based, the court reasoned:
A traffic court conviction will often result from expediency, convenience, and compromise; the constitutional safeguards are often perfunctory and the defendant's opportunity and motive to defend vigorously are often lacking. [To find such evidence of a conviction admissible] could conceivably turn a mechanical and summary traffic court hearing into the cornerstone of a significant civil action filed after the conclusion of the criminal proceedings.
Id. 127 Ill.App.3d at 910, 83 Ill.Dec. at 114, 469 N.E.2d at 721. See also, Wine v. Bauerfreund, 155 Ill.App.3d 19, 107 Ill. Dec. 491, 507 N.E.2d 155 (1st Dist.1987). Thus, not only do the Illinois courts refuse to give preclusive effect to traffic court convictions following pleas of not guilty, they also generally exclude the convictions even as evidence tending to establish the facts upon which the convictions were based. Cf. Wine, 155 Ill.App.3d at 27-28, 107 Ill.Dec. at 495-96, 507 N.E.2d at 159-60 (the admission of such evidence is not on its face grounds for reversal in all cases). Accordingly, we will not apply res judicata to bar the plaintiffs' claims, if any, based upon the convictions obtained after trial in traffic court.
Regarding any convictions that were obtained after trial in the misdemeanor court, we observe that a refusal to apply preclusion doctrine is appropriate only if we have serious doubts as to the fairness, quality, or extensiveness of the earlier proceedings. Kunzelman v. Thomas, 799 F.2d 1172, 1176 (7th Cir.1986). There is nothing in the record before us that suggests that the procedures or practice of the court system were even remotely inadequate for consideration of the constitutional challenges to the ordinances which that system enforces, or for consideration of matters relating to probable cause and entrapment. Moreover, it is undisputed that not a single plaintiff has ever appealed his or her conviction. As the City points out, the plaintiffs surely do not suggest that the Illinois Appellate Court and the Illinois *290 Supreme Court are incapable of deciding complex or constitutional arguments.[14] Nor do we believe that the state misdemeanor trial courts are incapable of adequately adjudicating such motions. Section 1983 "cannot be used as a vehicle for collaterally attacking a criminal conviction and thereby circumventing the requirement of exhausting state remedies before turning to federal court for post-conviction relief." See Mann v. Hendrian, 871 F.2d 51 (7th Cir.1989). The plaintiffs are therefore barred from now seeking damages on the ground that the past convictions based upon verdicts of guilt after trial in the misdemeanor court were unconstitutionally obtained.
Plaintiffs' second point, that the process placed undue influence on them to plea bargain, pertains to those situations in which the plaintiffs were convicted upon guilty pleas. Even assuming, without deciding, that the allegations that the pleas were coerced would excuse the failure to raise constitutional challenges, the plaintiffs have failed to present any evidence of such coercion. The only evidence to which the plaintiffs refer in their response is alleged testimony by Mustfov that purports to show that officers engaged in a pattern of pressure and threats to make the plaintiffs plead guilty or face a high fine and that such conduct made the pleas involuntary and the product of coercion. That testimony, however, is nowhere to be found in any of the exhibits to the motions. Thus, the plaintiffs have failed to meet their burden on this point as well. Cf. Rodriguez v. Schweiger, 796 F.2d 930, 933-34 (7th Cir.1986), cert. denied 481 U.S. 1018, 107 S. Ct. 1899, 95 L. Ed. 2d 506 (1987) (plaintiff failed to substantiate any facts that were unavailable or unknown to him showing that the police reports that influenced his decision to plead guilty contained false information and misstatements of fact).
Nevertheless, the guilty pleas, regardless of whether they were coerced, are significant to the issue of claim preclusion for another reason. In Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983), the Supreme Court ruled that principles of collateral estoppel may not bar one who has pleaded guilty in a criminal proceeding from suing for damages under Section 1983 for an alleged Fourth Amendment violation. In Haring, Franklin Prosise had plead guilty before a Virginia trial court to one count of manufacturing a controlled substance. Prosise subsequently brought a Section 1983 damages action in federal court against several police officers alleging that the officers had unlawfully searched his apartment prior to obtaining a search warrant, and that after obtaining the warrant the officers conducted a search that exceeded the scope of the warrant.
Haring first addressed the question whether the Virginia courts would invoke the doctrine of collateral estoppel to preclude litigation concerning the legality of the search of Prosise's apartment. The court determined that "unless an issue was actually litigated and determined in the former judicial proceeding, Virginia will not treat it as final." Id. 462 U.S. at 315, 103 S.Ct. at 2374. The court determined that the only issue actually litigated and decided as a result of the guilty plea was the question whether Prosise had unlawfully engaged in the manufacture of a controlled substance. Because the Virginia law of collateral estoppel is the same as Illinois' then, had collateral estoppel been the doctrine with which we were concerned here, then this aspect of the Haring decision would control.
*291 The debate here, however, centers on res judicata and the preclusive effect of matters that could have been raised in the prior proceedings. Haring speaks to that issue as well. The court next considered an argument by the police officers that, even if Prosise's claim was not precluded under Section 1738, the court should create a special rule of preclusion which nevertheless would bar litigation of Prosise's Section 1983 claim. The officers presented what essentially was an argument that Prosise's claim should be barred by a rule of res judicataclaiming Prosise had an opportunity to raise the Fourth Amendment issue in the previous proceeding. Thus, the officers asked the court to create a federal rule of preclusion based on the fact that the issue could have been litigated and that, by pleading guilty, Prosise should be "deemed to have either admitted the legality of the search or waived any Fourth Amendment claim...." Id. at 318, 103 S.Ct. at 2375. The officers contended that such an omission or waiver should be inferred because Prosise had a substantial incentive to elect to go to trial if he considered his Fourth Amendment claim meritorious, since the State would most likely have been unable to obtain a conviction in the absence of the evidence seized from Prosise's apartment. Id. at 319, 103 S.Ct. at 2375-76.
The Court explicitly rejected those contentions on the ground that "it would be impermissible for a court to assume that a plea of guilty is based on the defendant's determination that he would be unable to prevail on a motion to suppress evidence." Id. at 318, 103 S.Ct. at 2375-76. The court then cited to the number of motivations that a defendant's decision to plead guilty may have. See Brady v. United States, 397 U.S. 742, 750, 90 S. Ct. 1463, 1470, 25 L. Ed. 2d 747 (1970); Tollett v. Henderson, 411 U.S. 258, 263, 268, 93 S. Ct. 1602, 1606, 1608, 36 L. Ed. 2d 235 (1973). Since a plea "represents a break in the chain of events [that] preceded it in the criminal process," Tollett, 411 U.S. at 267, 93 S.Ct. at 1608, such a conviction is based only on the plea itself, and not what has gone on before. Haring, 462 U.S. at 321, 103 S.Ct. at 2377. Thus, while a plea may operate as a waiver of constitutional trial rights, it does not bar review of any "antecedent Fourth Amendment claims that may be given effect outside the confines of the criminal proceeding." Id. Finally, the court concluded that
adoption of petitioners' rule of preclusion would threaten important interests in preserving federal courts as an available forum for the vindication of constitutional rights.... The rule would require "an otherwise unwilling party to try [Fourth Amendment] questions to the hilt" and prevail in state court "in order to [preserve] the mere possibility" of later bringing a § 1983 claim in federal court.
Id. at 322, 103 S.Ct. at 2378 (quoting Brown v. Felson, 442 U.S. 127, 135, 99 S. Ct. 2205, 2211, 60 L. Ed. 2d 767 (1979)).
Although the court found "no justification for creating such an anomalous rule," id. 462 U.S. at 318, 103 S.Ct. at 2375, the court did not consider whether it would be bound to permit such an anomaly with respect to Fourth Amendment claims in the context of giving full faith and credit to a state rule of res judicata under Section 1738.[15]
Specifically with respect to evidentiary effect of guilty pleas, the Illinois Supreme Court has held that "a constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional." DelVecchio v. Illinois, 105 Ill. 2d 414, 432-33, 86 Ill. Dec. 461, 470, 475 N.E.2d 840, 849, cert. denied, 474 U.S. 883, 106 S. Ct. 204, 88 L. Ed. 2d 173 (1985) (quoting People v. Brown, 41 Ill. 2d 503, 505, 244 N.E.2d 159, 160 (1969)). Thus, it would appear that issues deemed to be waived in accordance with this rule, including any antecedent Fourth Amendment claims, would likewise be barred from being *292 relitigated in later proceedings under the Illinois rule of res judicata.[16]
Nevertheless, we believe that the considerations espoused by the Supreme Court regarding guilty pleas weigh against giving full effect to the Illinois rule concerning waiver, at least insofar as that rule would operate to bar later litigation of Fourth Amendment violations as opposed to constitutional infirmities arising in the context of the actual plea proceedings. We find that these considerations amount to a legal determination that the process surrounding a guilty plea does not afford a defendant a "full and fair opportunity to litigate" the Fourth Amendment issues, and accordingly they constitutionally override the applicability of Section 1738, see Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-82, 102 S. Ct. 1883, 1897-98, 72 L. Ed. 2d 262 (1982). Although the plaintiffs, by pleading guilty, may have waived any claim for damages or declaratory relief based on their convictions under allegedly unconstitutional ordinances, the claims for damages resulting from the activity of officers alleged to have been violative of the Fourth Amendment and occurring prior to the plea proceedings will not be barred.[17]Cf. O'Leary v. Luongo, 692 F. Supp. 893, 903 (N.D.Ill.1988) (defendant's conviction for resisting arrest does not bar an excessive force claim arising out of the arrest).
Finally, we reiterate our holding in Mustfov I, that res judicata has no bearing on the plaintiffs' action insofar as it seeks prospective declaratory and injunctive relief regarding the constitutionality of future enforcement and prosecution of the ordinances. The plaintiffs have demonstrated, and the City apparently concedes, that there exists a genuine threat of further prosecutions against the plaintiffs under the allegedly unconstitutional ordinances and that they possess a legitimate expectation that the allegedly unconstitutional procedures of enforcement will continue to be employed as well. Accordingly the plaintiffs have standing to bring their claims for declaratory and injunctive relief. See Mustfov I, 663 F.Supp. at 1259-60. See also Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977). We now turn to the merits of the plaintiffs' surviving claims.
IV. Facial Challenges to the Ordinances
A. Void-for-Vagueness (Counts II and III)
The plaintiffs seek relief on the grounds that the Anti-Solicitation and the Inter-Urban Operation Ordinances are unconstitutionally vague. The plaintiffs first claim that the word "solicit," as used in the Anti-Solicitation Ordinance, was so vague as to render Section 28-19.2 unconstitutional. That claims fails on the grounds of mootness, since on January 27, 1988, the City amended the ordinance by adding a separate definition of the word "solicit," to which the plaintiffs have raised no further contest. Summary judgment in favor of the City is therefore appropriate on this issue.
Plaintiffs next assert that the phrase "within the City," used in the Inter-Urban *293 Operation Ordinances, is unconstitutionally vague when applied to transportation originating at O'Hare. The plaintiffs, however, have not pursued this claim in their motion for summary judgment. Nor have they responded to the City's contention in its own motion that the phrase "within the City" is hardly subject to differing interpretations. Both because of the plaintiffs' failure to offer any argument or evidence on this point, and because we agree with the City that there is no question of fact on this point, we grant summary judgment in favor of the City on this challenge.
B. Equal Protection (Count IV)
The plaintiffs raise an equal protection challenge based on allegedly preferential treatment given by the City to Continental Bus Company. Under an exclusive arrangement, pursuant to authority granted by the Illinois Commerce Commission and a Chicago Ordinance approving the contract, the City allows Continental to operate a bus and van service and to solicit customers for transportation from the Midway and O'Hare airports to downtown Chicago locations.[18] The plaintiffs, by contrast, are not permitted to solicit customers and may not park outside the terminals "for a time longer than is reasonably necessary to accept passengers in answer to a call for service." City Ordinance § 28-19.2. The plaintiffs contend that this distinction between liveries and the bus system bears no rational relation to a legitimate governmental interest. We find, however, that based on the undisputed facts in this case the plaintiffs and Continental are not similarly situated and that the City has satisfactorily established a rational purpose for distinguishing between them and providing Continental with privileges unavailable to livery drivers at the airports. See Mustfov I, 663 F.Supp. at 1262-64; Evans v. City of Chicago, 873 F.2d 1007, 1015-16 (7th Cir.1989) ("governmental classification that does not affect a suspect class or fundamental right must be upheld unless no reasonably conceivable set of facts could establish a rational relationship between the classification and an arguably legitimate end of government").
Continental's bus service is sufficiently distinct from the livery services provided by the plaintiffs so as to justify different treatment regarding access to and operation at the airports. One of the reasons the City originally enacted the Anti-Solicitation Ordinance was that traffic congestion had become a major problem at O'Hare, and that a growing number of livery vehicles parking outside the terminals while their owners solicited passengers within the terminals was a substantial factor in this problem. See Pontarelli Limousine, Inc. v. City of Chicago, 704 F. Supp. 1503, 1506 (N.D.Ill.1989). The arrangement with Continental is consistent with those objectives. The buses that Continental operates run on specified routes to specified destinations, typically on a specified time schedule. While liveries are restricted to a maximum of eight passengers, the buses hold many more. A single bus takes up much less roadway space at a terminal than the passenger-equivalent number of liveries.[19] There are hundreds of licensed liveries. The plaintiffs have provided no evidence that current congestion levels at O'Hare do not warrant the continued existence of the arrangement between the City and Continental. In fact, the only evidence offered by the plaintiffs on the issue of congestion at O'Hare describes traffic conditions by 1986 as being particularly bad. See P.Ex. 7 at 111.
*294 In enacting the Anti-Solicitation Ordinance, the City also wanted to prevent livery operators from harassing travelers arriving at O'Hare. Id. Because of the exclusive grant to Continental and the close regulation of the bus service, the service does not present the harassment problem that hundreds of individual liveries present.
Thus, not only have the plaintiffs failed to provide any evidence showing that it is irrational to treat the buses and liveries differently, but the undisputed facts before us support the contrary proposition. Because of the characteristics of Continental's bus service described above, it is rational to conclude that Continental's operation presents much less of a regulatory concern than the livery services. Therefore, the City has sufficient reason to regulate Continental without the restrictions placed on liveries by the Anti-Solicitation Ordinance. Therefore, summary judgment in favor of the City is warranted on this claim.
C. Commerce Clause (Count IX)
Plaintiffs next claim that the Ordinances interfere with their pre-arranged fares in violation of the Inter-state Commerce Clause.[20] In Mustfov I, 663 F.Supp. at 1278-79, we determined that nonpre-arranged fares do not come within the purview of interstate commerce, Evanston Cab Co. v. City of Chicago, 325 F.2d 907 (7th Cir.1963), cert. denied, 377 U.S. 943, 84 S. Ct. 1349, 12 L. Ed. 2d 306 (1964). Therefore, the plaintiffs' claim is barred insofar as it seeks to invalidate the ordinances because the ordinances prohibit the plaintiffs from soliciting customers at the airports and prevent the plaintiffs from conveying passengers between destinations within the City. We further determined, however, that regulations affecting pre-arranged livery fares present the potential for interference with interstate commerce and that municipal conduct in enforcing those regulations may rise to the level of an impermissible infringement on interstate commerce. Mustfov I, 663 F.Supp. at 1279.
There is some debate between the parties as to whether the plaintiffs have satisfactorily established that they were in fact involved in interstate commerce. We need not resolve that issue, however, since the plaintiffs' Commerce Clause claim falls on other grounds. Even assuming that the plaintiffs' pre-arranged fares were part of interstate commerce, the plaintiffs have failed to show how either the ordinances or their enforcement unconstitutionally interfere with interstate commerce.[21]
First, the plaintiffs challenge the facial validity of the ordinances. Yet no provision in either of the ordinances prohibits pre-arranged trips to or from points outside of Illinois. Thus, there is nothing inherently wrong with the regulations.
Second, in response to the City's motion for summary judgment, the plaintiffs assert that there have been occasions when pre-arranged fares picked up at O'Hare to be dropped off in another state were interrupted by the arrest of a plaintiff driver. Based on that allegation, the plaintiffs claim that interstate commerce has been impermissibly impeded. Yet, the plaintiffs have provided absolutely no evidence that arrests under such circumstances ever occurred. The exhibits to which the plaintiffs cite, P.Exs. 3, 7 and 18, indicate (1) that the plaintiffs were arrested when they were transporting pre-arranged passengers within the City limits and (2) that, on occasion, certain of the plaintiffs transported pre-arranged passengers out of state. There is nothing in the sworn depositions that even suggests that a correlation exists between the two facts.
Alternatively, in their own motion for summary judgment, the plaintiffs further *295 claim that the ordinances deprive pre-arranged fares from completing their interstate travel from other states into Illinois by preventing them from being picked up at O'Hare Field and being dropped of at destinations within the City of Chicago. Here too, however, the plaintiffs have failed to offer any evidence that such a deprivation has ever occurred. Moreover, there is no evidence that suggests that these passengers have had, or would have, any difficulty prearranging fares for destinations within the City with the hundreds of liveries duly licensed by the City for interurban transportation.
Finally, the plaintiffs seem to suggest that the enforcement of these ordinances violates the Interstate Commerce Clause because, while arrested and detained, they are unable to transport out-of-state passengers. Even assuming there have been occasions when a passenger's nonpre-arranged trip out of state has been interrupted because of his driver's arrest under the Anti-Solicitation Ordinance, or even when an out-of-town passenger's pre-arranged trip within the City has been interrupted because of his suburban driver's arrest under the Interurban Operations Ordinance, such interruptions would have been occasioned by the unlawful conduct of the livery operators in accepting these fares against the clear prohibitions of the ordinances. Simply because a driver may be transporting passengers within the stream of interstate commerce does not immunize him from a neutral state law which effectuates a legitimate local public interest and the effects of which on interstate commerce are matched by its benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). Accordingly, we grant summary judgment in favor of the City on this claim.
V. License Claim (Count VI)
The plaintiffs' next claim is a constitutional challenge to the City's right to issue only 520 livery licenses. The plaintiffs have neither moved for summary judgment, nor have they responded in any way to the City's motion for summary judgment on this issue. Thus, whether styled as a substantive due process or equal protection claim, the plaintiffs have failed even minimally to adduce any facts that might suggest that the City has no rational basis for this act of livery regulation. See Mustfov I, 663 F.Supp. at 1255. Moreover, by virtue of their failure to respond to the City's Rule 12(m) statement, the plaintiffs have admitted the contrarynamely, that the City has a legitimate interest in regulating liveries, and that it would be impractical for the City to effectively regulate a significantly larger number of liveries than the presently authorized 520. The plaintiffs have further admitted that the City does not distribute the licenses arbitrarily or discriminatorily. Therefore, the City has established a rational basis for the regulation and is entitled to summary judgment in their favor on this claim.
VI. Sign Claim (Count XII)
The City has also moved for summary judgment on the plaintiff's "Sign Claim." The City maintains, as a service to the public, four boards at O'Hare ("signs") which list various livery companies and their phone numbers. The City places on the signs any bona fide livery company that requests to be listed. The plaintiffs claim that Neb Tarailo's name (or that of his livery company) has been removed from the signs without due process. Although this claim is brought by all of the plaintiffs, we observe that since the alleged removal of only Tarailo's name is at issue, only he has standing to maintain a claim that he has been intentionally deprived of a protectible property interest in the alleged listing. Nevertheless, Tarailo has failed to establish a due process violation.
We first point out that there is no evidence in the record before us showing that Tarailo ever requested having his name placed on the list, that his name actually appeared on the list, or that his name is no longer on the list having been removed. Thus there is no factual basis that the deprivation about which Tarailo complains ever occurred.
Assuming that his name was in fact removed, Tarailo has nevertheless failed to provide any evidence that he possessed a *296 valid protectible property interest in having his name kept on the list. The signs are offered as a service to the public, not the livery companies. No ordinance or enactment confers the right to be listed on the signs. Compare Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667 (7th Cir. 1987), cert. denied, 485 U.S. 993, 108 S. Ct. 1301, 99 L. Ed. 2d 511 (1988) (contractor showed reasonable likelihood of establishing a property interest in minority business certification because the City had already conferred that benefit upon it in accordance with federal law and Executive Order of the Mayor). Thus, at best, all that Tarailo possessed was unilateral expectation that his name would be placed on the list and not removed. Such an expectation does not give rise to a property interest. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972).
Furthermore, even assuming he did have a property interest in having his name kept on the list, the evidence is unrefuted that the City has never intentionally removed the name of any bona fide livery company.[22] A negligent or erroneous removal of Tarailo's name, even if shown, would not amount to a due process violation. Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986). In addition, Tarailo has failed both to avail himself of post-deprivation remedies or to show that his post-deprivation remedies are inadequate. The evidence establishes that a simple phone call from Tarailo to the Department of Aviation ("DOA") would have sufficed to make a complaint about the removal of his name and to ensure reinstatement of the name if it had been improperly removed. There is no evidence that Tarailo has ever contacted the DOA. And there is no evidence supporting the assertion that a more formal process is necessary here. Accordingly, we grant summary judgment in favor of the City on this claim.
VII. Annexation Claim VIII
The plaintiffs next bring a broad based due process assault contending that the City lacks any authority to enact or enforce any of its ordinances in the O'Hare Area on the grounds that the area was not validly annexed by the City. The plaintiffs contend that the original annexation in 1956 of the land on which O'Hare is now located was technically invalid and that the subsequent 1960 annexation of land abutting Foster Avenue did not cure the defects. In response the City advances several reasons either why we should refrain from considering the issue as a matter of comity, or why the plaintiffs should be deemed procedurally barred as a matter of state law from challenging the annexation. Though these arguments are by no means frivolous, we need not address them because we find that summary judgment in favor of the City is appropriate on other grounds.
Even assuming that the City's annexation of the land encompassing O'Hare is invalid as a matter of state law, it is undisputed that the City owns the land on which O'Hare is built. State law provides that:
All property which (1) is owned by a municipality, and (2) lies outside the corporate limits of the municipality, and (3) does not lie within the corporate limits of any municipality, shall be subject to the ordinances, control, and jurisdiction of the municipality in all respects as the property owned by the municipality which lies within the corporate limits thereof.
Ill.Rev.Stat. ch. 24, § 7-4-2. Thus, the City is authorized to regulate and police O'Hare independent of the issue of annexation. And the state statute granting that authority presents no constitutional problem since the state's authority to regulate its political subdivisions is generally within its absolute discretion. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151 (1907). See also Jefferson Twp. *297 v. City of West Carrollton, 517 F. Supp. 417 (S.D.Ohio 1981), aff'd, 718 F.2d 1099 (6th Cir.1983). So long as there is a grant of authority from the state, a municipality's exercise of extraterritorial police powers will be sustained. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978).
VIII. Enforcement Challenges
A. Lack of Authority to Make Arrest and Jail (Count X)
We now turn to the various enforcement challenges which the plaintiffs have raised based on alleged violations of the plaintiffs' Fourth and Fourteenth Amendment due process rights. The plaintiffs first reiterate a claim we rejected on the motion to dismiss in Mustfov I that the police cannot lawfully arrest them for violations of the ordinances and detain them in jail until they post bail. 663 F.Supp. at 1268-69. The plaintiffs have asserted no new allegations concerning this claim. Accordingly, our prior opinion governs this issue.
B. Procedural Due Process
The plaintiffs next raise a procedural due process claim that they are being prohibited in their legitimate business of picking up pre-arranged passengers at the airport due to arbitrary enforcement of the ordinance by city officials. In Mustfov I, we determined that the plaintiffs have a property interest at stake when they are effectively prohibited from picking up pre-arranged fares. 663 F.Supp. at 1266. The question we left for resolution on summary judgment is whether the plaintiffs have properly established, or at least have presented a genuine issue of material fact, they are being deprived of that interest by more than negligent conduct by the police. Id.
1) Lack of Probable Cause (Count I)
The plaintiffs' first procedural due process claim is that they were intentionally stopped both before they picked up prearranged fares and after the fares were loaded, and that they were subsequently arrested and detained without probable cause. The City denies and the plaintiffs have failed to offer evidence specifically that any arrest for violating the Anti-Solicitation Ordinance ever occurred when the trip was pre-arranged. Nor have the plaintiffs offered any evidence that a pre-arranged trip was ever interrupted by an arrest without probable cause on account of an alleged violation of the Inter-Urban Operations Ordinance.
The only evidence at all offered by the plaintiffs on the issue of arrests is an excerpt from the deposition testimony of the plaintiff Mustfov, in which he states that, on at least one occasion after the police had implemented "Operation Hustle" to crack down on suburban livery operations at O'Hare, the police picked him up and arrested him simply on sight, and that he was subsequently detained for twelve hours. Mustfov further stated that the police warned him that the next time they saw him at the airport, they would again arrest him and detain him for another twelve hours.
That evidence, however, fails to establish any facts from which the inference may be drawn that he was arrested incident to a City custom or policy that arrests without probable cause be undertaken as part of "Operation Hustle." Mustfov has offered no evidence of any other incidents of alleged arrests without probable cause. Further, there is no evidence of any other episodes of alleged intentional arrest without probable cause as to any of the remaining plaintiffs. Thus, all that has been presented is an isolated incident, for which the individual officers involved may be liable, but which fails to create an issue of fact upon which the City might be held liable on the ground that Mustfov was intentionally arrested in accordance with a new policy providing for arrests without probable cause. Absent evidence of a policy, there is no basis for damages, and no reason to consider injunctive relief. Therefore, we grant the City's motion for summary judgment on this claim.
2) Excessive Post-Arrest Detention (Counts VII and X)
Two of the individual plaintiffs, Mustfov and Nikolov, next assert that they *298 have been detained for excessive periods of time in post-arrest processing without just cause and in accordance with a City policy of intentional delay. These plaintiffs do not contest that "a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, for a brief period of detention to take administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S. Ct. 854, 862-63, 43 L. Ed. 2d 54 (1975). The plaintiffs contend, however, that the reasons and the time for their post-arrest detention went beyond those necessary for administering the arrest.
As we observed in Mustfov I, 663 F.Supp. at 1271, the Seventh Circuit has not identified exactly how long the "brief period" for administrative processing may be. Nevertheless, based upon Seventh Circuit precedent discussing the issue, we concluded that "[i]n determining what is a justifiable `brief period,' we are to decide whether the detention is justified as incident to a legitimate governmental purpose or is imposed for the purpose of punishment." Id. Accordingly, we directed the City, on summary judgment, to "present evidence to explain what must be done after these drivers are arrested and why reasonably diligent officers needed [up to] twelve or more hours to do it." Id. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S. Ct. 1952, 95 L. Ed. 2d 525 (1987); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 (7th Cir.1985).
We first mention the evidence presented by the plaintiffs on the issue of unreasonable detention. Regarding the time periods of detention, there is evidence that the plaintiff Mustfov had been held in post-arrest detention for periods of time ranging from as much as four to twelve hours, and that his average period of detention was three to four hours. It has been stipulated that the plaintiff Nikolov has spent an average of four hours in detention. On the issue of reasonableness, there is testimony from city police officers that, as part of "Operation Hustle" and a new "get tough" policy against the livery drivers, the City wanted to detain livery drivers as long as possible after arrest to prevent them from going back out on the street. There is further evidence that another livery driver, Mendoza, was warned that if he elected to exercise privilege of phone call, he would be detained an additional three hours and would be subject to additional processing, thus suggestive of City practices regarding detention. Moreover, one of the police officers, Joseph DeFranco, testified that there was a directive from his superiors to take fingerprints on each and every arrest of livery violators. Another officer, George Andikokus, indicated that it would then take anywhere from four to twelve hours or more for fingerprint clearance. There is also evidence that the police knew that the plaintiffs had been complaining concerning the length of detention.[23]
In response to all of this evidence, the City has failed to follow our direction in Mustfov I to provide an explanation why detention periods of up to twelve hours may have been necessary in Mustfov's case and why average detention periods of up to four hours for both plaintiffs were necessary. Instead, the City mistakenly contends that it cannot be liable as a municipality for these detentions. The City ignores the fact that the plaintiffs have asserted that a City custom and policy of unreasonable and excessive detention was involved, and that the plaintiffs have raised *299 at least an issue of fact regarding the existence of such a custom or policy.[24]
The City also asserts that summary judgment in its favor is appropriate on this claim because on average, the lengths of detention for Mustfov and Nikolov were only three to four hours. However, nowhere has it been stipulated that an average detention period of four hours is per se reasonable and four hours is a period of time that the Seventh Circuit has plainly indicated deserves an explanation. See Gramenos, 797 F.2d at 437 (reversing summary judgment in favor of police, finding that a four hour detention in the dead of night required an explanation from the police justifying such a detention); Moore, 754 F.2d 1336 (also requiring an explanation for a four hour detention). Indeed, the evidence that the plaintiffs were detained on average up to four hours suggests that on occasions the detention periods must have lasted greater than four hours. We further observe that, in light of evidence that post-arrest processing prior to "Operation Hustle" took only 15-20 minutes, the fact that later processing took an average of four hours does not weigh in the City's favor. Moreover, a question arises as to the necessity of fingerprinting the plaintiffs after every arrest, since it is undisputed that these plaintiffs were arrested on hundreds of occasions and that the officers enforcing the ordinances were quite familiar with the plaintiffs.
Though we see no inherent problem with a crackdown of enforcement of the ordinances, there exists a genuine issue of fact whether the City legitimately employed its battery of post-arrest procedures or whether it engaged in an abuse of process based on a policy that encouraged the arbitrary exercise of the discretionary authority of its police officers in order to punish the plaintiffs with process. Accordingly, both the City's and the plaintiffs' motions for summary judgment as to this claim are denied.
The corporate plaintiffs, Ace and Adventure, have also asserted Fourth Amendment claims based on the detention of their "employees." However, not only do Ace and Adventure fail to have any Fourth Amendment standing to sue for the unreasonable detention of others, they have severed any relationship to the individual plaintiffs by asserting that their drivers are independent contractors, not employees. Accordingly, we enter summary judgment against them and in favor of the City on this claim.
C. Differing Arrest Policies (Count V)
Finally, we turn to the plaintiffs' equal protection challenge regarding the City's alleged practice of disparate enforcement of the ordinance at Midway and O'Hare airports. This claim fails on summary judgment for three reasons. First, the record is bereft of any competent evidence that such a policy of disparate enforcement of the ordinances at the two airports even exists. Indeed, based upon the admissions and stipulations, the facts are uncontested that the City's arrest policy is the same at both airports: arrest and transportation to the nearest district station.
Second, it appears on the facts before us that this claim does not properly come within the ambit of the Equal Protection Clause because there is no evidence that a particular group has been singled out for disparate treatment. From what we can discern from the scant record on this issue, all livery drivers are affected by the alleged disparate treatment the same way; there is no distinct group of Midway livery operators versus O'Hare livery operators. Thus, this claim does not present a case of similarly situated individuals being treated differently, and therefore more appropriately falls with the ambit of the Due Process Clause as yet another assertion of arbitrary enforcement.
Third, whether covered by the Equal Protection or the Due Process Clause, if there is a rational basis in this case for the *300 alleged disparity in the enforcement of the ordinances at the two airports then the measures will be sustained. Mustfov I, 663 F.Supp. at 1263. The only disparity in treatment of violators at Midway and O'Hare is that an arrest and subsequent processing may take longer at O'Hare than at Midway. The City has adequately shown, without contest by the plaintiffs, that rational reasons exist for this difference in processing timethe size of the airports, the numbers of violators at each, the amount of traffic, the geographic location, and the location of police facilities. Accordingly, we grant the City's motion for summary judgment on this issue.
CONCLUSION
We grant summary judgment in favor of the City and against the plaintiffs on all of the remaining claims except one. We find that an issue of fact exists, sufficient to preclude summary judgment for either side on the claim for damages, based on evidence that the plaintiffs Mustfov and Nikolov may have been intentionally subjected to excessive post-arrest detention periods on numerous occasions, in accordance with a City custom or policy. It is so ordered.
NOTES
[1] On Nov. 11, 1988, the plaintiffs voluntarily dismissed Count XI of their amended complaint, and dismissed all claims against Asst. Dep. Supt. Jankowski and former Asst. Corp. Counsel Welter in their individual capacities. We recently dismissed plaintiff Miller with prejudice. See Order of July 5, 1989. Various of the plaintiffs were dismissed or settled in accordance with our Orders of July 6, 1989 and October 4, 1989.
[2] Mustfov, Nikolov, Ace Limousine ("Ace") and Adventure Limousine ("Adventure") seek both damages and declaratory relief. Although the damage claims of Lindsey, Courtney, Olivo, and Gonzales were dismissed, they continue to seek declaratory relief.
[3] Mustfov, Lindsey, Nikolov, Courtney, Olivo, Gonzales, Ace and Adventure maintain the damage claims.
[4] Mustfov, Nikolov, Ace and Adventure maintain the damage claims.
[5] Mustfov, Lindsey, Nikolov, Courtney, Olivo, Gonzales, Ace and Adventure maintain the damage claims.
[6] Mustfov, Lindsey, Nikolov, Courtney, Olivo, Gonzales, Ace and Adventure.
[7] Mustfov, Nikolov, Ace and Adventure.
[8] Mustfov, Nikolov, Ace and Adventure.
[9] Mustfov, Nikolov, Ace and Adventure seek both damages and declaratory relief. Lindsey, Olivo and Gonzales have claims only for declaratory relief.
[10] Mustfov, Nikolov, Ace and Adventure.
[11] The City employs the term res judicata in the narrow sense of claim preclusion, which is to be distinguished from the related concept of collateral estoppel, or issue preclusion. Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that has never been litigated, because of a determination that it should have been advanced in an earlier suit. Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S. Ct. 892, 894 n. 1, 79 L. Ed. 2d 56 (1984). Although at times the doctrine of res judicata has been analyzed to consist of both the claim preclusion and issue preclusion concepts, id., we will refer to res judicata and claim preclusion as synonymous and distinct from collateral estoppel and issue preclusion.
We note that the City has not argued res judicata as a defense to the plaintiffs' allegations that they have been detained for unconstitutionally excessive periods of time for post-arrest processing (Counts VII and X).
[12] Compare, Davis v. Charleston, 827 F.2d 317 (8th Cir.1987). In Davis, the Eighth Circuit determined that the issue of guilt or innocence at trial is not "identical" to a Section 1983 claim for unlawful arrest by reason of absence of probable cause. Thus, the court held that the plaintiff's Section 1983 claim was not barred by the doctrine of collateral estoppel where the plaintiff was previously convicted in state court on charges of disturbing the peace. Id. at 321 n. 3. The court, however, did not consider the significance of the doctrine of res judicata to the plaintiff's claim. Cf. also, Smith v. Springer, 859 F.2d 31, 34 (7th Cir.1988) (plaintiff's § 1983 action against police officers, alleging that officers had fabricated evidence leading to his false arrest and subsequent unreasonable seizure, was not a collateral attack on his prior conviction for rape, but rather a separate claim for damages). In Smith, as in Davis, the applicability and significance of the doctrine of res judicata was not addressed, even though a challenge to the activity giving rise to the Section 1983 claim could have been raised during the prior criminal proceedings.
[13] Hengels involved a personal injury action arising from an automobile accident for which the defendant had earlier been convicted following a plea of not guilty under the "hit and run" provisions of the Illinois vehicle code.
[14] There appears to be some confusion regarding which party bears the burden proof on the issue of preclusion. In Jones v. City of Alton, 757 F.2d 878 (7th Cir.1985), the court determined that under Illinois law, the party asserting the preclusion bears the burden of showing with clarity and certainty what was or could have been determined in the prior proceeding. In a subsequent case, however, the Seventh Circuit noted that the party against whom preclusion was asserted bears the burden of showing that they were unable to present their constitutional claims in the earlier proceeding. See Horn, 860 F.2d at 702 n. 5. Nevertheless, even assuming that the City bears the burden in this case, we believe the City has prevailed on this particular issue.
[15] The Virginia state law doctrine of res judicata was never raised in Haring because the police officers technically were not parties to the prior criminal proceeding. Hence there was not strict mutuality among the parties sufficient to invoke res judicata. See Haring, 462 U.S. at 316 n. 10, 103 S.Ct. at 2375 n. 10.
[16] We note, however, that while the holding in DelVecchio is stated in general terms, it only directly pertained to the question as to whether a trial court had erred in admitting evidence at a sentencing hearing of a defendant's allegedly involuntary confession. The court found that by pleading guilty without raising a challenge to the voluntariness, the defendant had waived the right to contest the voluntariness of the confession in the later proceeding. Thus the ruling was made in the context of proceedings in the same case.
[17] This appears to be the result suggested, but left unresolved, by the Supreme Court in Migra, 465 U.S. at 85 n. 7, 104 S.Ct. at 899 n. 7. There the court ruled that a state rule of claim preclusion is applicable to bar a Section 1983 action based on federal questions that could have been raised by a party in an earlier civil proceeding instituted by that party. The court, however, intimated that claim preclusion based on prior criminal proceedings may present a different issue on the ground that the plaintiffs to the Section 1983 action were compelled to be in state court by virtue of criminal proceedings and thus were robbed of the opportunity to have their constitutional claims heard in a federal forum. The question whether claim preclusive effect should be given to prior criminal proceedings was also left unresolved in Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980).
[18] Without explaining the significance of the fact, the plaintiffs point out that neither the Anti-Solicitation nor the Inter-Urban Operation ordinances contain any exception that allows "public passenger vehicles" to solicit passengers and to transport them to downtown locations. Yet those two ordinances apparently do not apply to Continental by virtue of its exclusive arrangement with the City in accordance with a separate ordinance. We therefore regard the plaintiffs' argument as a facial attack on all three ordinances, as opposed to an equal protection challenge based on a claim of selective enforcement of only the Anti-Solicitation and Inter-Urban Operation ordinances.
[19] Further, it would appear that the set time schedules of operation also result in a greatly reduced amount of time in which a bus will be parked in front of the terminals.
[20] "The Congress shall have power ... to regulate Commerce ... among the several states...." U.S. Const. Art. I, § 8, cl. 3. As we noted in Mustfov I, although the Commerce Clause may limit the power of states to interfere in areas of national concern, it does not secure rights cognizable under § 1983. Therefore, the plaintiffs may only seek injunctive relief on this claim. 663 F.Supp. at 1278, n. 17.
[21] Because the facial claim based on the Commerce Clause is intertwined with the enforcement challenge, we will consider both in this section.
[22] The plaintiffs' response to the City's motion for summary judgment states: "This listing was removed from the boards intentionally without notice in violation of Neb Jarillo's [sic] due process rights." However, not only does the only evidence on that issue negate that assertion, see McCarthy Aff., City Ex. J, ¶ 10, but the statement also directly contradicts the plaintiff's stipulation that the removal was unintentional. J. Fact. No. 6.6.
[23] The plaintiffs also claim that intentional and arbitrary conduct of the City is indicated by the existence of a policy whereby the City police treated the plaintiffs differently than other misdemeanor offenders at O'Hare with respect to the issuance of I-Bonds for their release from custody. The plaintiffs claim that total discretion was given to watch commanders to issue I-Bonds for the plaintiffs or not to issue them, as opposed to a policy where those committing more serious offenses such as purse snatching, theft, and the like, were routinely released on I-Bonds. Two of the exhibits (P.Ex. 3 & 20) cited by the plaintiffs, however, do not present any evidence regarding the practice of issuing I-Bonds to other misdemeanor offenders at O'Hare. The remaining exhibit upon which they rely (P.Ex. 19) was not included with their submissions.
[24] Since the plaintiffs have sued only the City and two of its officers in their official capacities, their Section 1983 action survives only to the extent they can establish such a custom or policy.
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441 A.2d 1012 (1982)
UNION MUTUAL FIRE INSURANCE CO.
v.
INHABITANTS OF the TOWN OF TOPSHAM et al.[*]
Supreme Judicial Court of Maine.
Argued March 3, 1981.
Reargued November 10, 1981.
Decided February 25, 1982.
*1013 Berman, Simmons, Laskoff & Goldberg, John E. Sedgewick (orally), Lewiston, for plaintiff.
Richardson, Tyler & Troubh, David O'Brien (orally), Portland, for Town of Topsham.
Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Charles S. Einsiedler, Jr. (orally), Portland, for Me. Central Railroad.
Before GODFREY, NICHOLS, ROBERTS, CARTER and VIOLETTE, JJ.
GODFREY, Justice.
Union Mutual Fire Insurance Co. appeals from an order of the Superior Court denying its motions for summary judgment and granting the Town of Topsham's motion for summary judgment on the issue of the insurance company's duty to defend the town in a tort action. The insurance company also appeals from a related order of the Superior Court awarding the town the attorneys' fees it expended in defending both the tort action and the insurance company's declaratory judgment action. We affirm the judgment for the Town of Topsham declaring that the plaintiff company had the duty to defend it. We modify the judgment awarding attorneys' fees to the Town to exclude attorneys' fees expended in defending the declaratory judgment action.
I. The Insurer's Duty to Defend
On February 28, 1977, Union Mutual Fire Insurance Company filed in Superior Court a complaint for declaratory judgment. The complaint alleged that the Town of Topsham had been sued by one Cynthia Berry for the wrongful death of her husband. According to the insurer, Mrs. Berry had claimed that the town had "permitted to exist a dangerous and defective public road and failed to keep the said public road in a safe condition." The company admitted that at the time of the alleged wrongful death it insured the town under a comprehensive general liability policy. However, the company alleged that, by agreement with the town, the policy "specifically excluded streets and roads coverage, so-called," as well as "coverage for any of the bases for liability alleged" in Mrs. Berry's complaint. Accordingly, the company prayed for a judgment declaring that it was under no obligation to defend the town in Mrs. Berry's wrongful death action.
In its answer, the Town of Topsham admitted that under an earlier (1970) liability policy it had purchased from the insurer, "streets and roads coverage" had been excluded, but it denied that streets and roads coverage had been excluded from the 1973 policy in force at the time of Mr. Berry's *1014 death. Hence, the town alleged, the company had a duty to defend the town in this action.
Later, the company was granted leave to amend its complaint to include a count seeking reformation of its policy insuring the Town of Topsham. The company alleged that it was the intent of both parties that the policy in force at the time of the death exclude streets and roads coverage, which had been included only because of a mutual mistake. The insurer prayed that the 1973 insurance contract be reformed to provide for the agreed-on exclusion and, on the basis of the contract as reformed, the company be declared to have no duty to defend the town.
Seven months later the company filed a motion for summary judgment, alleging that there was no material issue of fact concerning the reformation of the policy and that, once the contract was reformed, there was no material issue of fact relating to its duty to defend. Supporting the motion were two affidavits and the town's answers to certain interrogatories propounded by the insurer. The first affidavit, by underwriter Robert Tilley, recited his understanding that the town, not wanting to include "streets and roads coverage" in the 1973 policy because of the cost, had agreed to exclude such coverage, and that an exclusionary endorsement relating to streets and roads had been "overlooked and unintentionally excluded." Tilley further stated that he had forwarded an exclusion endorsement to the town's insurance agent in June of 1975, over two years after the policy went into effect. The second affidavit, by the town's insurance agent, confirmed that he had received the exclusion endorsement and had forwarded it to the town. The town's answers to the insurer's interrogatories tended to show that there was a mutual mistake about the exclusion of coverage for the existence of streets and roads in the renewed policy and that Tilley's subsequent exclusion endorsement correctly expressed the parties' original intention to exclude such coverage.
In opposition to the insurer's motion for summary judgment, the Town of Topsham submitted an affidavit that tended to show that only the insurance company intended to exclude coverage for liability arising out of the existence of streets and roads. The town also submitted copies of both the original (1970) policy and the replacement (1973) policy it had received from Union Mutual Fire Insurance Company. Finally, the town filed its own motion for a partial summary judgment declaring the company obligated to defend it in Mrs. Berry's wrongful death action.
On July 11, 1979, the Superior Court issued an order denying the company's motions for summary judgment and granting the town's motion for partial summary judgment. The presiding justice first ruled that the insurer had a duty to defend its insured if the facts alleged in the underlying complaint against the insured appeared to bring the liability claim within the policy coverage. Mrs. Berry's underlying complaint against the Town of Topsham alleged, among other things, that the town had failed to maintain an intersection between one of its roads and a railroad track "in a safe condition so that upon perceiving the approach of a train, a motorist could apply his brakes and stop within a reasonable time before reaching said tracks." Noting this allegation, the Superior Court then examined the insurance policy for provisions affecting coverage of the town's possible liability for Mrs. Berry's claim.
The policy purported to provide the town with "comprehensive general liability insurance." However, the policy contained a "mandatory governmental exclusion endorsement" which stated in pertinent part:
1. The insurance does not apply to bodily injury or property damage arising out of:
(a) The ownership, maintenance, supervision, use or control of streets ... but this exclusion does not apply to bodily injury or property damage which arises out of and occurs during the performance of construction, street cleaning and repair operations ....
*1015 The presiding justice also had before him the additional exclusion endorsement that the company asserted was omitted by mistake. That endorsement indicated that
1. The insurance does not apply to bodily injury or property damage which arises out of:
(a) The existence of streets ... but this exclusion does not apply to bodily injury or property damage which arises out of and occurs during the performance of construction, street cleaning and repair operations ....
Because, even with the additional exclusion endorsement, the policy provided coverage for bodily injury which arises out of and occurs during the performance of street cleaning and repair operations, the Superior Court found that the policy could possibly cover Mrs. Berry's wrongful death claim against the town. Accordingly, the presiding justice ruled that the insurer had a duty to defend the town in Mrs. Berry's action. Since incorporation of the additional exclusion endorsement into the insurance policy would not have affected his decision concerning the insurance company's duty to defend, the justice expressly declined to decide whether the policy should be reformed so as to include the additional exclusion endorsement.
A. The Superior Court's Decision on the Merits
The company argues that the Superior Court erred in concluding that the company had a duty to defend the town in Mrs. Berry's wrongful death action. In the insurer's view, the allegations in the complaint for wrongful death must be read as relating to liability stemming from the existence of streets rather than from street cleaning or repair. On that hypothesis, according to the company, the additional exclusion endorsement shows a lack of coverage for the liability claim and the company has no duty to defend the town. The argument expresses too narrow a conception of the duty to defend.
In order for the duty of defense to arise, the underlying complaint need only show, through general allegations, a possibility that the liability claim falls within the insurance coverage. There is no requirement that the facts alleged in the complaint specifically and unequivocally make out a claim within the coverage. Moreover, where there is an ambiguity in the language of the policy, the doubt should be resolved in favor of finding that the insurer has a duty to defend the insured. Travelers Indemnity Co. v. Dingwell, Me., 414 A.2d 220 (1980).
The underlying complaint for wrongful death alleged, among other things, that the town failed to maintain a road leading to a railroad crossing so that a motorist could apply his brakes and stop before reaching the railroad tracks. Mrs. Berry claimed that her husband was killed when the vehicle he was driving collided with a train at the railroad crossing. Although her allegation could be viewed as charging a defect in the design of the road itself, thereby possibly bringing her claim within the exclusion of liability for injury arising out of the existence of the roadway, it is equally reasonable to read her complaint as alleging that the town was negligent in the performance of street cleaning or repair.[1] Because Mrs. Berry's wrongful death complaint raised the possibility that her claim fell within the coverage provisions of the policy, the company was under a duty to defend the town in the wrongful death action. We find no error either in the Superior Court's result or in its reasoning.
B. The Need for Reformation
The insurance company contends that the Superior Court erred in deciding that the company had a duty to defend the town *1016 without first ruling on whether the insurance policy should be reformed. In the insurer's view, a court may not construe an insurance contract without considering all the applicable provisions of the policy. Although the company recites a correct rule of law, it appears to misinterpret the Superior Court's action.
Although it is true that an insurance policy must be construed in its entirety, see Benedix v. Boston Old Colony Ins. Co., Me., 417 A.2d 453 (1980), in the present case the Superior Court was scrutinizing the coverage provisions of the policy only for the purpose of determining whether the company had a duty to defend the town in Mrs. Berry's wrongful death action. Whether the insurer had such a duty depended merely on whether Mrs. Berry's complaint alleged facts that might possibly bring her claim within the policy coverage. American Policyholders' Ins. Co. v. Cumberland Cold Storage, Me., 373 A.2d 247 (1977). The presiding justice's only task was to interpret and apply the language excepting from the streets-and-roads exclusion injury "arising out of and occurring during the performance of street cleaning and repair operations." This language of exception was in both the basic policy and the endorsement.
Every relevant portion of the insurance policy was before the Superior Court when it determined that the insurance company was obliged to defend the Town of Topsham. The presiding justice scrutinized not only the basic insurance contract but also the additional exclusion endorsement that the insurer alleges was omitted by mistake. Having found that the company would have a duty of defense whether or not the policy were reformed to include the additional exclusion endorsement, the justice properly declined to decide whether reformation should be granted.[2]
C. The Superior Court's Consideration of the Wrongful Death Complaint
The insurer further objects that the presiding justice improperly considered the complaint in Mrs. Berry's wrongful death action when ruling on the motions for summary judgment. No party had formally introduced that complaint into the record before the Superior Court. Because the only evidence of the contents of Mrs. Berry's underlying wrongful death complaint presented by the parties in the instant case was the insurer's summary of that complaint in its petition for declaratory judgment, the company contends that its summary was the only matter that could be used by the court in determining whether the company had a duty of defense. We disagree.
Although none of the parties had introduced Mrs. Berry's complaint into the record, the presiding justice was not precluded from taking judicial notice of that complaint. Under M.R.Evid. 201 a court may take judicial notice, whether requested or not, of a fact that can be accurately and readily determined by resort to sources whose accuracy cannot reasonably be questioned. Such matters include, among others, the prior pleadings filed in the same court in an action related to the cause pending before the court. See Warren v. Waterville Urban Renewal Authority, Me., 290 A.2d 362, 367 (1972). The Superior Court committed no error in considering Mrs. Berry's complaint for wrongful death when deciding whether the insurance company *1017 had a duty to defend the Town of Topsham.[3]
II. The Award of Attorneys' Fees
After the Superior Court ruled that the insurance company had a duty of defense, the town moved for a summary judgment awarding it the attorneys' fees it had expended in defending both the wrongful death action and the insurance company's declaratory judgment action. Since the parties had stipulated to the amount of the attorneys' fees, the only issue was whether the town was legally entitled to recover those fees.
The Superior Court awarded the town the attorneys' fees it had expended in defending both actions. First, the presiding justice ruled that since the insurance company had not fulfilled its duty to defend its insured in the wrongful death action, it was liable for damages in the amount of the town's costs of defending Mrs. Berry's suit. The company does not challenge that award. Because, in the trial court's view, the company was obligated to restore the insured town to the position it would have been in if the insurer had defended it, the company was also ordered to reimburse the town for the attorneys' fees it had expended in defending the declaratory judgment action. Alternatively, the judge regarded the costs of defending the declaratory judgment action as an expense incurred by the insured at the insurer's request. That construction invoked a provision of the insurance policy that required the insurer to reimburse its insured for all "reasonable expenses incurred by the insured at the Company's request ...."
On appeal the insurance company asserts that the Superior Court's award of attorneys' fees in the declaratory judgment action violated the so-called "American rule" that the victorious party in a lawsuit may not recover his attorneys' fees. The company argues, also, that the court's conclusion that the insurance policy itself authorized the award amounted to a distortion of the policy language.
The Town of Topsham notes that although this Court normally adheres to the general principle that a victorious litigant is not entitled to recover his attorneys' fees, it has indicated that there may be exceptions to that principle. See Dodge v. United Services Automobile Ass'n, Me., 417 A.2d 969, 975-76 (1980). In the present case, the insurer has breached its duty to spare the insured from the expenses of defending the wrongful death action. The town contends that if the insured is required to absorb the attorneys' fees it incurred in defending the insurer's declaratory judgment action, it may be in no better financial position than if it had never had a contractual right to be defended by the insurance company. See 7C J. Appleman, Insurance Law and Practice § 4691, at 281-83 (1979). The company's failure to defend has damaged the insured not only in the amounts the insured has expended in defending the underlying claim but also in the amount of reasonable costs the insured has incurred in protecting its contractual right to defense. In order to be restored to its position before the breach, the town argues, the insured must be reimbursed for all reasonable litigation expenses that stem from the breach, citing Motorists Mutual Ins. Co. v. Trainor, 33 Ohio St. 2d 41, 294 N.E.2d 874 (1973).
No provision of the Maine statutes or rules of court appears to control the resolution of the issue presented in this case. The Maine version of the Uniform Declaratory Judgments Act (14 M.R.S.A. ch. 707 (1980)) contains no language that is pertinent to the question. See Rocky Mountain Fire & Cas. Co. v. Rose, 62 Wash.2d 896, 385 P.2d 45 (1963), holding that the costs provision of the Uniform Declaratory Judgment Act (see 14 M.R.S.A. § 5962) does not apply to attorneys' fees. This Court must therefore decide, in the absence of relevant statute or contractual provision, whether the insured town is entitled to recover attorneys' fees it *1018 has expended in defending successfully the declaratory judgment action brought by its liability insurer in order to determine whether the insurer had a duty to defend the town under the coverage of the policy.
There has been a remarkable amount of litigation on this issue throughout the United States during the last twenty years. The cases are analyzed helpfully in an annotation entitled "Insured's Right to Recover Attorneys' Fees Incurred in Declaratory Judgment Action to Determine Existence of Coverage Under Liability Policy," 87 A.L.R. 3d 429 (1978 & Supp.1981). The highest courts of a number of states, including, among others, Idaho, Maryland, Minnesota, Ohio and Utah, have held that the insured who has incurred attorneys' fees in successful declaratory judgment litigation with his insurer may recover them from the insurer.[4] The highest courts of a somewhat larger group of states, including, among others, Alabama, California, Iowa, New Jersey, Tennessee, and Washington, have denied such recovery.[5] Intermediate appellate courts in Georgia, Illinois and Michigan have also denied recovery.[6]
The New York rule appears to be that the insured is entitled to recover his expenses in defending such a declaratory judgment action, but is not entitled to recover such expenses if he has himself, as plaintiff, brought the declaratory judgment action in order to determine the extent of coverage.[7] In Pennsylvania, the insured will be denied recovery in the absence of a showing that the insurance company acted in bad faith or obdurately refused, without reasonable cause, to defend the insured. Montgomery Ward & Co. v. Pacific Indem. Co., 557 F.2d 51 (3d Cir. 1977) (applying Pennsylvania law in a diversity case and finding bad faith and obdurate behavior).
The cases permitting recovery have usually done so on the ground that the insured is entitled to be in as good financial position as if the insurer had fulfilled its contractual duty to defend him. See Motorists Mutual Ins. Co. v. Trainor, supra. Some courts have said that when the insurer brings its declaratory judgment action against the insured, it is in effect "requesting" him to "incur" reasonable expenses within the meaning of the provision of the policy requiring the company to reimburse him for all "reasonable expenses incurred by the insured at the Company's request." Occidental Fire & Cas. Co. v. Cook, 92 Idaho 7, 435 P.2d 364 (1967). That theory of recovery has been rejected as a "play upon words" by the Fifth Circuit in Milwaukee Mechanics Ins. Co. v. Davis, 198 F.2d 441, 445 (5th Cir. 1952) (recovery denied).
In the present case, the insurer argues that the effect of awarding attorneys' fees for unsuccessful prosecution of a declaratory judgment action on coverage results in chilling the normal right of liability carriers to litigate what may be a genuine dispute about coverage. More pointedly, appellant notes that the Maine law has not yet been settled as to (1) whether a liability insurer *1019 waives all its coverage defenses by proceeding with the defense of the insured, or (2) whether it may validly elect to defend under a reservation of the right to refuse later to indemnify on the ground of noncoverage. This Court has held that the duties of defense and payment are quite distinct, American Policyholders' Ins. Co. v. Cumberland Cold Storage Co., Me., 373 A.2d 247 (1977), but has not yet had occasion to pass on questions relating to waiver. It would be unfair, the appellant argues, to put liability insurers in a position where they had to choose between defending, with no assurance that they would not be held to have waived all coverage defenses, or suing for a declaratory judgment, with liability for the insured's attorneys' fees if the suit is unsuccessful.
Because the liability insurer's duty of defense is so extensive and the burden on the insured of a breach of that duty is likely to be so heavy, we conclude that the insurer should not enjoy the usual freedom to litigate without concern about the possibility of having to pay the other party's attorneys' fees. When the duty to defend is clear from the policy and the pleadings, so that the insurer's commencement of the declaratory judgment action must be attributed to a refusal in bad faith to honor its obligation under the policy, the insured should be entitled to his reasonable attorneys' fees in defending the declaratory judgment action as an element of damages for the insurer's breach of its contract obligation. See Montgomery Ward & Co. v. Pacific Indem. Co., supra.[8]
The question in the present case thus narrows to whether the duty to defend the town against Cynthia Berry's wrongful death action was entirely clear on February 28, 1977, when the insurer brought its suit for declaratory judgment. For two reasons, we believe that the insurer's duty to defend was not so clear in this case that its suit must be deemed brought in bad faith: First, American Policyholders' Ins. Co. v. Cumberland Cold Storage Co., supra, had not yet been decided, so that, at the time the insurer brought the action, it had little guidance from Maine law about the nature and scope of its responsibility to defend the town. Second, and more important, the allegations of Cynthia Berry's complaint against the town left it somewhat unclear whether the theory of her suit brought her claim within the coverage of the policy. As the presiding justice correctly found, it was the possibility that her complaint embraced a claim of negligence in the performance of street cleaning and repair operations that brought the town's liability within the scope of the policy, whether reformed or not, as an exception to an exclusion. That possibility was not something that was obvious on the face of the complaint. It cannot be said, on the basis of the facts in this case, that the insurer's bringing of the declaratory judgment action must be attributed to a bad-faith refusal to honor its contract obligation to defend.
The entry is:
Judgment declaring plaintiff obligated to defend, affirmed.
Judgment awarding attorneys' fees to the town, modified to exclude fees expended in defending the declaratory judgment action.
All concurring.
NOTES
[*] Recaptioned. See Inhabitants of the Town of Boothbay Harbor v. Russell, Me., 410 A.2d 554, 557 n. 3 (1980).
[1] We need not decide the scope of the phrase, "bodily injury which arises out of and occurs during the performance of construction, street cleaning, and repair operations," as used in the insurance policy. It is sufficient, for the purpose of determining the insurer's duty to defend, that the wrongful death complaint raised the possibility that the liability claim would fit within that language. Travelers Indemnity Co. v. Dingwell, Me., 414 A.2d 220 (1980).
[2] We have previously noted that the duty to indemnify is more narrow than the duty to defend. Whereas the duty to defend depends only upon the facts alleged in the complaint, the duty to indemnify depends upon the facts proved at trial. Because in this case the insurer's obligation to indemnify the insured turns on the resolution of disputed material facts, summary judgment was an inappropriate vehicle for deciding that issue. See American Policyholders' Ins. Co. v. Cumberland Cold Storage, Me., 373 A.2d 247, 250-51 (1977). Hence, the presiding justice properly reserved the question whether the coverage provisions of the policy should be reformed until the insurer's duty to indemnify was properly before the Superior Court.
[3] M.R.Evid. 201(e) entitles the parties to object to the court's taking judicial notice, upon timely request for a hearing. In this case there was no such request, and there has been no challenge to the authenticity of the wrongful death complaint.
[4] Occidental Fire & Cas. Co. v. Cook, 92 Idaho 7, 435 P.2d 364 (1967); Cohen v. American Home Assurance Co., 255 Md. 334, 258 A.2d 225 (1969); Lanoue v. Firemen's Fund Am. Ins. Cos., 278 N.W.2d 49 (Minn.1979), following and reaffirming, Morrison v. Swenson, 274 Minn. 127, 142 N.W.2d 640 (1966); Motorists Mutual Ins. Co. v. Trainor, 33 Ohio St. 2d 41, 62 Ohio Op. 2d 402, 294 N.E.2d 874 (1973); American States Ins. Co. v. Walker, 26 Utah 2d 161, 486 P.2d 1042 (1971).
[5] Inland Mut. Ins. Co. v. Hightower, 274 Ala. 52, 145 So. 2d 422 (1962); O'Morrow v. Borad, 27 Cal. 2d 794, 167 P.2d 483 (1946); New Hampshire Ins. Co. v. Christy, 200 N.W.2d 834 (Iowa 1972); Gerhardt v. Continental Ins. Cos., 48 N.J. 291, 225 A.2d 328 (1966); Carter v. Virginia Surety Co., 187 Tenn. 595, 216 S.W.2d 324 (1948); Rocky Mountain Fire & Cas. Co. v. Rose, 62 Wash.2d 896, 385 P.2d 45 (1963).
[6] Maryland Cas. Co. v. Sammons, 63 Ga.App. 323, 11 S.E.2d 89 (1940); Preferred Risk Mut. Ins. Co. v. United States Fidelity & Guaranty Co., 77 Ill.App.3d 266, 32 Ill. Dec. 799, 395 N.E.2d 1180 (1979); GRP, Ltd. v. United States Aviation Underwriters, Inc., 70 Mich.App. 671, 247 N.W.2d 583 (1976), aff'd, 402 Mich. 107, 261 N.W.2d 707 (1978).
[7] Glens Falls Ins. Co. v. United States Fire Ins. Co., 41 App.Div.2d 869, 342 N.Y.S.2d 624 (1973), aff'd, 34 N.Y.2d 778, 358 N.Y.S.2d 773, 315 N.E.2d 813 (1974); Sucrest Corp. v. Fisher Governor Co., 83 Misc. 2d 394, 371 N.Y.S.2d 927 (Sup.Ct.1975).
[8] We intimate no opinion on whether such fees are recoverable where the insured brings the action to compel the insurer to defend. See the New York cases cited supra n. 7.
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933 S.W.2d 407 (1996)
STATE ex rel. Judy J. WILFONG, individually and as parent and natural guardian of Charles William Stahlman, a minor, et al., Relators,
v.
The Honorable Jeff W. SCHAEPER-KOETTER, Judge, Circuit Court, Franklin County, Respondent.
No. 78635.
Supreme Court of Missouri, En Banc.
November 19, 1996.
*408 Camala C. Francis, St. Louis, for Relators.
Gary Paul, James C. Thaele, Michael R. Cardenas, Aaron I. Mandel, Clayton, for Respondent.
BENTON, Judge.
Individually and as a parent and natural guardian, Judy J. Wilfong sued St. John's Mercy Medical Center and Dr. Garry R. Scarato, alleging injuries from their refusal to provide timely medical care. During discovery, the respondent judge issued the following order:
Judy Wilfong Stahlman ordered to sign authorizations for defendant's attorneys as to all of her other childrensiblings of π Charles Stahlman. Court will stay order for 15 days if plaintiff wishes to apply for writ.
Although the court of appeals denied her writ application, Wilfong still maintains that the authorizations permit discovery of privileged, irrelevant medical records. This Court issued a preliminary writ of prohibition, now made absolute. Mo.Const. art. V, § 4.
I.
Prohibition will issue if "there is an important question of law decided erroneously that would otherwise escape review by this Court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision." State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994), citing State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861, 862-63 (Mo. banc 1986). This basis for prohibition particularly applies where privileges are at issue. "Once the privilege is discarded and the privileged material produced, the damage to the party against whom discovery is sought is both severe and irreparable. The damage cannot be repaired on appeal." State ex rel. Peabody Coal Co. v. Clark, 863 S.W.2d 604, 608 (Mo. banc 1993). Prohibition is the proper means to contest the enforcement of discovery of allegedly privileged information. State ex rel. Cain v. Barker, 540 S.W.2d 50, 51 (Mo. banc 1976).
*409 II.
The circuit court's order must be quashed for two reasons. First, the respondent judge used an improper procedure to compel inspection of the siblings' medical records. The circuit court may order parties to produce only those documents in their possession, custody, or control. Rule 58.01(d), Rule 61.01(d)[1]. A subpoena duces tecum is the proper process to produce records in the possession, custody, or control of non-parties. Rule 57.09(b), Rule 57.03(b)(1). "Circuit courts have long been held to possess inherent authority to issue subpoena duces tecum in order to obtain documents necessary to the resolution of the action before them." State ex rel. Rowland Group, Inc. v. Koehr, 831 S.W.2d 930, 932 (Mo. banc 1992), citing State ex rel. Tune v. Falkenhainer, 288 Mo. 20, 231 S.W. 257, 260 (1921), and State ex rel. St. Louis Union Trust Co. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569, 575 (1943).
III.
Second, the parties dispute whether the physician-patient privilege bars discovery, by any procedure, of the other children's medical records.
A.
The respondent asserts that Wilfong waived the siblings' physician-patient privilege by mentioning their medical conditions in her interrogatory answers, her deposition, and an exhibit. Wilfong answers that she cannot waive the privilege on behalf of her other children.
The physician-patient privilege prevents a physician from disclosing information received in connection with treating a patient. Section 491.060(5) RSMo 1994; Brandt v. Medical Defense Associates, 856 S.W.2d 667, 670 (Mo. banc 1993). Patients may waive the privilege either voluntarily or by placing their physical conditions in issue by court pleadings. Id. at 671. If the privilege is waived, the opposing party may discover the medical records that reasonably relate to the physical conditions at issue. State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995). Here, the non-party siblings did not personally place their medical conditions at issue.
More importantly, Wilfong cannot waive the other children's privilege. "[A] parent, as natural guardian, would have the right to claim the privilege on behalf of his child when it would be to the best interests of the minor to do so." In Re M.P.S., 342 S.W.2d 277, 283 (Mo.App.1961) (emphasis added). However, "[w]here the privilege is claimed on behalf of the parent rather than that of the child, or where the welfare and interest of the minor will not be protected, a parent should not be permitted to either claim the privilege ... or, for that matter, to waive it." Id. See State v. Evans, 802 S.W.2d 507, 511 (Mo. banc 1991). Here, Wilfonga party to the suit individually and as Charles' parent and natural guardianmay not waive the privilege for her other children.[2]
B.
Although not waived by Wilfong, the siblings' physician-patient privilege is not absolute. Klinge v. Lutheran Med. Ctr. of St. Louis, 518 S.W.2d 157, 164, 165 (Mo.App.1974). "The circumstances, facts and interests of justice determine the applicability of the physician-patient privilege to a particular situation." State ex rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813, 815 (Mo. banc 1984). See also Vincent v. Connaught Laboratories, Inc., 131 F.R.D. 156, 158 (E.D.Mo.1990).
Wilfong contends that the siblings' medical records are irrelevant because none of the other children suffer from the same ailments *410 as Charles. Respondent's attorney asserts, without supporting evidence, that all the children suffer from similar genetic disorders.
During discovery, a party may obtain information regarding any relevant non-privileged matter, including material reasonably calculated to lead to the discovery of admissible evidence. Rule 56.01(b)(1). In this case, the respondent judge could order discovery of the siblings' medical conditions only if they were relevant to the medical malpractice claim and adequate safeguards were provided to protect the non-parties as much as possible. State ex rel. Benoit v. Randall, 431 S.W.2d 107, 110 (Mo. banc 1968); Lester E. Cox Med. Ctr., 678 S.W.2d at 815; St. Louis Little Rock Hosp., Inc. v. Gaertner, 682 S.W.2d 146, 151-52 (Mo.App.1984). Thus far, the threshold of relevancy has not been demonstrated.
VI.
The preliminary writ of prohibition is made absolute.
All concur.
NOTES
[1] All references are to Missouri Rules of Court 1996.
[2] Minors may sue or defend only by a duly appointed guardian, next friend, or guardian ad litem. Rule 52.02(a), (e). While a "next friend and guardian ad litem are alike officers of the court with like powers, duties, and obligations," a next friend typically represents minor plaintiffs and a guardian ad litem typically represents minor defendants. Crawford v. Amusement Syndicate Co. 37 S.W.2d 581, 584 (Mo.1931). See Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 983 (1932); Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, 323 (1952).
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733 F. Supp. 1132 (1990)
MICHIGAN BELL TELEPHONE COMPANY, a Michigan corporation, Plaintiff,
v.
PACIFIC IDEAS, INC., a foreign corporation, Defendant.
No. 88-CZ-74956.
United States District Court, E.D. Michigan, S.D.
February 7, 1990.
*1133 Craig Anderson, Michigan Bell Telephone Co., Detroit, Mich., for plaintiff.
Edwin M. Bladen, Moran & Bladen, Lansing, Mich., for defendant.
MEMORANDUM, OPINION AND ORDER
GADOLA, District Judge.
On September 23, 1987, Michigan Bell Telephone Company ("Michigan Bell" or "MBT") and Pacific Ideas, Inc., ("Pacific") entered into a Billing Service Agreement ("BSA"), in connection with Pacific's recorded telephone message service. This message service is also known as a Sponsored Program Service ("SPS") or SPS program. This Sponsored Program Service allows Pacific, using Michigan Bell's transport, billing and collection facilities, and services, to offer a recorded message to those who call certain telephone numbers associated with the program. By dialing the telephone number assigned to the sponsor, consumers gain access to that sponsor's program. The sponsor establishes a price that the caller pays for listening to the recorded program. The design of the SPS allows sponsors to provide recorded messages to hundreds of callers per hour, from a single telephone number. The SPS is also commonly known as a "976" service.
Section IV of the September 23, 1987 Billing Service Agreement addresses monthly fees and provides in pertinent part as follows:
MBT shall purchase from customer its accounts receivable on a monthly basis. In consideration, MBT will remit to Customer the amount billed in one billing month, minus tariff charges, minus two cents (2¢) per call billed, minus actual uncollectibles.
In addition, if one month of billing exceeds three hundred thousand dollars ($300,000.00), an additional twenty percent (20%) of the total amount billed will be held for anticipated uncollectible. *1134 This anticipated uncollectible will be compared with realized uncollectible and the difference will be remitted or withheld from the following month's settlement. If, in any given month, the amount actually collected is insufficient to cover the amount of the tariff charges, plus the two cents (2¢) per call billed, the Customer will be billed by MBT for the deficit. If the customer does not reimburse MBT for the deficit within twenty-one (21) days of the date of the bill, the service will be terminated.
* * * * * *
Michigan Bell reserves a right to cancel the Billing Service Agreement or change the above percentages and per call amounts at any time after 30 days written notice to the customer. (Emphasis added).
On April 28, 1988, Michigan Bell submitted a bill to Pacific for the amount of $18,515.33.
Pacific failed to pay this alleged amount due, so Michigan Bell terminated Pacific's services on June 22, 1988. On August 4, 1988, Michigan Bell instituted a collection action against Pacific. On September 14, 1988, Pacific answered Michigan Bell's complaint and filed a counterclaim. On September 16, 1988, Pacific amended its answer and counterclaim. On October 5, 1988, Michigan Bell answered Pacific's counterclaim. Several supplemental briefs were filed by both parties subsequent to these dates.
At issue before the court is Michigan Bell's May 4, 1989, motion for summary judgment. Michigan Bell brings this motion pursuant to Fed.R.Civ.P. 56. On May 23, 1989, Pacific filed its response to Michigan Bell's summary judgment motion.
This court will address Michigan Bell's complaint and summary judgment motion, and then Pacific's counterclaim.
STANDARD OF REVIEW
Summary judgment shall be granted after adequate time for discovery, when there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). Material facts are those which under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, 477 U.S. 242, 258, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Furthermore, the disputed issue must be genuine, i.e., the evidence must also be sufficiently probative to permit a reasonable jury to return a verdict for the opposing party. 477 U.S. at 248, 106 S.Ct. at 2510. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 477 U.S. at 249, 106 S.Ct. at 2510; Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the opposing party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970).
Rule 56(c) places the initial burden on the movant to show that there is an absence of evidence to support the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Summary judgment must be granted when the opposing party fails to make a showing sufficient to establish the existence of an element essential to the case, and on which it bears the burden of proof at trial. Id., 106 S.Ct. at 2552-2553. When there is a complete failure of proof concerning an essential element of the opposing party's case, there can be no genuine issue of material fact since all other facts are rendered immaterial. Id.
I.
MBT'S COMPLAINT
The gravamen of Michigan Bell's three-count complaint asserted that MBT had performed, in all material respects, its obligations under the terms of the September 23, 1987 Billing Service Agreement. According to Michigan Bell, on April 28, 1988, MBT submitted a bill to Pacific for the amount of $18,515.33. Michigan Bell contends that contrary to Pacific's obligations under the BSA, Pacific failed to pay any portion of the amount due or owing. Michigan *1135 Bell now asserts that $116,000.83 has become due since MBT filed its original complaint. (Affidavit of Theresa J. Buchanan).
Pacific filed its amended answer and affirmative defenses on September 16, 1988. In addition to denying the substance of Michigan Bell's complaint, Pacific asserted six affirmative defenses. These affirmative defenses are discussed, seriatim, infra.
In Michigan Bell's summary judgment motion, it asserted that through its interrogatories and request for admissions to Pacific, MBT specifically requested Pacific to produce evidence that the amounts billed by Michigan Bell were not owed. Michigan Bell argued that Pacific did not provide any evidence that indicated MBT's bills for services were incorrect or false. Moreover, Pacific allegedly admitted in its response to MBT's request for admissions that Pacific, in fact, received a copy of each of the bills as they fell due.
In Pacific's May 23, 1989 opposition brief to MBT's summary judgment motion, Pacific contends that it raised several defenses to MBT's complaint. Pacific's alleged defenses are the same as those asserted in its September 16, 1988, amended affirmative defenses. This court will now examine Pacific's affirmative defenses to Michigan Bell's claim, and determine whether they are, in effect, a bar to Michigan Bell's collection action.
A.
For its first affirmative defense, Pacific asserts that MBT "failed to state a claim upon which relief can be granted." This affirmative defense challenges the sufficiency of the complaint as pled. After construing the complaint in a light most favorable to plaintiff, and taking all wellpled material facts as true, this court finds that MBT has filed a complaint that can withstand the scrutiny of this defense. Therefore, this court finds Pacific's first affirmative defense to be meritless.
B.
For its second affirmative defense, Pacific asserts:
Plaintiff is barred from collecting any amount under the agreement for the reason that the agreement is unlawful and, therefore, void and unenforceable. The billing and collection services provided for therein are offered as part of plaintiff's Michigan Public Service Commission Tariff No. 2, which Tariff is unlawful as it violates the Equal Access and Equal Information Access obligations of plaintiff under United States v. Western Electric Co., 673 F. Supp. 525(d)(c) 1987.
In Carlin Communication v. Southern Bell, 802 F.2d 1352, 1354 (1986) the Eleventh Circuit adjudicated an action involving a party providing a similar service to that of Pacific. The appeals court described the service as follows:
Dial-It is an announcement service provided by local telephone companies that allows telephone customers to call a specific number and receive a pre-recorded message supplied by a subscriber to the service. The telephone company bills the customer for the call at a rate set by a subscriber. The telephone company deducts flat rate and usage charges and then forwards the rest of the collection billings to the subscriber.
The Eleventh Circuit summarily discussed potential equal access problems in the following manner:
The FCC has classified Dial-It as an enhanced service that is not required to be made available on an equal access basis. Computer & Communications Industry Ass'n. v. FCC, 693 F.2d 198, 205 (D.C.Cir.1982), cert. denied sub nom, Louisiana Public Services Comm'n. v. FCC, 461 U.S. 938, 103 S. Ct. 2109, 77 L. Ed. 2d 313 (1983). (Emphasis added).
In Computer & Communications Industry Ass'n., supra the District of Columbia Circuit found:
In Computer II the Commission abandoned the attempt to classify activities as either communications or data processing based on the nature of the processing performed. The respective technologies had become so intertwined, according to the Commission, that it had become impossible *1136 to draw an "enduring line of demarcation" between them. In the course of its Second Computer Inquiry, the Commission concluded that the only clear and lasting distinction would be one between basic transmission service on the one hand and enhanced services and customer premises equipment (CPE) on the other. According to the Commission, drawing the regulatory line in this way would minimize the type of ad hoc adjudication that has taken place under the 1971 rules. In addition, such a distinction would make it possible to eliminate unneeded regulation and thereby promote efficient use of the telecommunications network.
Under the Computer II scheme, the Commission continued to require common carriers to provide basic transmission services under tariff on an equal basis to all customers. The Commission found that enhanced services and CPE were not within the scope of its Title II jurisdiction but were within its ancillary jurisdiction. Accordingly, the Commission discontinued Title II regulation of enhanced services and with the exception of AT & T, relieved common carriers of the "maximum separation" requirement upon which their offerings of enhanced services were conditioned under Computer I.
In the present action, the Sponsored Program Service used by Pacific is clearly an enhanced service. Since enhanced services are not required to be made available on an equal access basis, Pacific's "equal access" and "equal information access obligation" affirmative defenses are without merit. See Carlin Communication v. Southern Bell, 802 F.2d 1352 (1986) and Computer & Communications, supra. Furthermore, this court finds that United States v. Western Electric Co., 673 F. Supp. 525 (D.C.Cir. 1987), is not controlling on this affirmative defense. Accordingly, Pacific's second affirmative defense does not bar MBT's claim.
C.
For its third affirmative defense, Pacific asserts:
Plaintiff is barred from collecting any amounts under the agreement for the reason that the agreement and plaintiff's MPSC Tariff No. 2, pursuant to which the Agreement is written, are void and unenforceable as an unlawful revenue sharing agreement in violation of the order and opinion of United States v. Western Electric Co., 673 F. Supp. 525 (D.C. Cir.1987), and United States v. Western Electric Co., 690 F. Supp. 22 (D.C.1988).
Michigan Bell, in addressing Pacific's third affirmative defense, states "Pacific Ideas affirmative defense number III must fail for the same reasons as affirmative defense number II." (MBT's motion for summary judgment, at 5). Pacific, in its opposition brief makes a blanket statement that the collection agreement is void and unenforceable as an unlawful revenue sharing agreement.
Neither party in the present action addresses with sufficient thoroughness the merits of this alleged defense.
In United States v. Western Electric Co., 673 F. Supp. 525, (D.D.C.1987), the court discussed consolidated billing arrangements and revenue sharing. The court stated:
There is no objection per se on anti-competitive grounds to consolidated billing, that is, the mailing by a Regional Company of a single bill covering both its own fees and those of the particular providers. However, if the Regional Companies were permitted to operate a billing arrangement in conjunction with the information service providers that amounted, in effect, to the sharing of revenue, a strong opportunity would be created for anti-competitive conduct, for that type of arrangement would give the Regional Companies an incentive to discriminate in favor of those companies whose revenue it shared. That incentive, coupled with the regional companies undoubted ability to disadvantage competitors, would be enough to raise precisely the concerns that led to the adoption of the decree. Accordingly, while these companies may be permitted to provide consolidated billing *1137 arrangements, they will not be permitted to enter such arrangements that provide for the sharing of revenue. Id. at 594.
Section IV of the Billing Service Agreement indicates that not only is MBT providing billing services, but also that MBT is purchasing Pacific's account receivables. Since the parties have submitted insufficient evidence or authority concerning this alleged "revenue sharing", this court will reserve judgment on this defense pending oral argument. As the court indicated in United States v. Western Electric Co., 673 F. Supp. 525 (1987), consolidated billing agreements are not objectionable per se, on anti-competitive grounds, however, a billing arrangement in conjunction with the information service providers, may in effect amount to revenue sharing.
Therefore, until this Court has had oral arguments on the issue of revenue sharing, its judgment is reserved.
D.
For its fourth affirmative defense, Pacific states:
Plaintiff is barred from collecting any amounts under the agreement for the reason that plaintiff has failed to undertake any reasonable efforts to collect said amounts from the appropriate customer.
Pacific, in its opposition brief, argues that Michigan Bell "has been unable, or unwilling, to provide any documentation whatsoever as to its efforts to collect these so-called uncollectibles ...". (Pacific opposition brief at 6).
Section XV of the BSA provides "MBT will render bills for customer-provided announcement services on MBT's bills to MBT subscribers in keeping with the standard MBT billing process."
Attached to and in support of Michigan Bell's summary judgment motion, is the affidavit of "staff supervisor", Theresa J. Buchanan. Paragraph 8 of the Buchanan affidavit states "as to all amounts included in the billing summarized on Exhibit A as uncollectibles, the business records of Michigan Bell indicate that reasonable efforts were made to collect such amounts".
This Court's examination of the BSA finds that it does not contain any specific procedure that must be followed by MBT concerning its attempted collection of "uncollectible" accounts. The document is plain on its face and its unambiguous language only provides that uncollectible accounts will be billed back to Pacific. (BSA Section IV).
It is this court's opinion that the BSA does not require Michigan Bell to provide Pacific with the alleged documentation of its collection attempts, nor place an affirmative duty to do more than bill the customer for Pacific's services. Moreover, the Buchanan affidavit indicates MBT made "reasonable efforts to collect" the uncollectible accounts before charging them back to Pacific.
Therefore, based upon the Buchanan affidavit, the parties' briefs, and a plain reading of the BSA, this Court finds Pacific's fourth affirmative defense to be meritless.
E.
For its fifth affirmative defense, Pacific asserts:
Plaintiff is barred from collecting any amounts under the agreement for the reason that plaintiff terminated the agreement and plaintiff's services to the defendant at the behest of the Michigan Public Service Commission due to the content of the services provided by defendant, a violation of defendant's constitutional rights of free speech and association and a violation of the governing statute granting plaintiff their franchise. If such unlawful termination of plaintiff's services had not occurred, said amounts may have been paid to Michigan Bell by the appropriate customer.
In its summary judgment motion, Michigan Bell contends that it terminated its agreement with Pacific "because Pacific Ideas failed to pay for the [SPS] service". (MBT's brief at 7). Michigan Bell also submits that even if Pacific's SPS program had been terminated based on content, such termination does not violate Pacific's constitutional *1138 rights because "state action" was not involved.
Pacific, in its opposition brief, asserts that Michigan Bell was acting as the "alter ego or surrogate for state officers in carrying out an impermissible intrusion upon the infringement of Pacific Ideas, Inc.'s right to free speech and association." (Pacific's opposition brief at 17). Pacific submits that it has sufficiently pled the requisite "state action", arguing that "state action" is present for First Amendment purposes when "a sufficiently close nexus exists between government and the specific private activity in question." (Pacific's opposition brief at 17). Pacific relies on Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974).
The issue of state action and its relationship to alleged First Amendment infringements by telecommunication carriers was recently addressed in Network Communications v. Michigan Bell, 703 F. Supp. 1267 (E.D.Mich.1988). In that opinion, Judge Taylor adroitly set forth the relevant standards to be utilized, as well as a synopsis of court decisions on this issue. This court excerpts and employs the applicable segments of Network, in the following analysis.
In any action brought under 42 U.S.C. § 1983, plaintiff's initial burden is to demonstrate that the alleged infringement of federal rights is either state action or action that may be "fairly attributable to the state". Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 2753, 73 L. Ed. 2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2769, 73 L. Ed. 2d 418 (1982).
In Jackson v. Metropolitan Edison Co., supra, the Supreme Court held that the fact that a privately-owned utility company operates as a monopoly under state law does not, in and of itself, transform all of the private utilities acts into "state action". In Jackson the Supreme Court concluded that, despite its extensive regulation by the State Public Utility Commission, the defendant's acts of discontinuing service for nonpayment of bills was not state action. Id. 419 U.S. at 358, 95 S.Ct. at 457.
In Rendell-Baker v. Kohn, supra, the plaintiff, employees of a private school, alleged that they had been discharged in retaliation for exercising First Amendment rights. The Supreme Court concluded that, despite the fact that the school received more than 90% of its funds from public sources and was heavily regulated by state and local authorities, its decision to terminate plaintiff's employment did not constitute state action absent some proof that the termination decision was either compelled or influenced by state regulation or other acts. Id., 457 U.S. at 841-42, 102 S.Ct. at 2771-72.
In Adams v. Vandemark 855 F.2d 312 (1988), the Sixth Circuit held that despite strong evidence of a "symbiotic relationship" between a non-profit corporation funded almost entirely from public sources and a Michigan city from which the corporation had leased office space for thirty years at a nominal rent, the non-profit corporation's decision to terminate the plaintiff was not "state action" absent evidence that state regulation compelled or influenced the termination decision.
In Pacific's opposition brief, it alleges that Michigan Bell had acted as "the alter ego or surrogate for state officers in carrying out an impermissible intrusion upon the infringement of Pacific Ideas, Inc.'s right to free speech and association." (Pacific opposition brief at 17). The "state officers" Pacific refers to are undoubtedly the Michigan Public Service Commission. Pacific submits that the Michigan Public Service Commission compelled Michigan Bell to stop providing the service because of its content. Michigan Bell argues that it terminated Pacific's service for the simple reason that Pacific failed to pay its bills.
This court finds that Michigan Bell had a legitimate basis for terminating Pacific's SPS program. Section IV of the Billing Service Agreement specifically provided for termination of the service within 21 days after the bill became due and the customer had not reimbursed MBT. This court finds that Pacific's termination was a legitimate business decision on the part of Michigan *1139 Bell and did not involve state action on the part of the M.P.S.C.
Furthermore, two recent decisions by Federal Appellate Courts specifically address the distinction between prohibited state action and private business decision-making in the context of telephone company services and privately sponsored programs such as Pacific's recorded message service.
In Carlin Communications, Inc. v. Southern Bell, 802 F.2d 1352 (11th Cir. 1986), a "Dial-It" or sponsored program subscriber (such as Pacific) was denied access to the local telephone company's exchange facilities to transmit recorded messages deemed to be sexually-explicit. In affirming the District Court's grant of summary judgment to the defendant based on a finding of no state action, the Court of Appeals emphasized the distinction between state action and private business decisions:
[T]he mere fact that Southern Bell's conduct in excluding Carlin from access to Dial-It service might in the context of state action constitute impermissible prior restraint does not of itself make the conduct unconstitutional. Carlin must show that Southern Bell's actions are "fairly attributable to the State". Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 2753, 73 L. Ed. 482 (1982).
* * * * * *
[Mere] approval of or acquiescence in, the initiatives of a private party is not sufficient to establish state action: "A state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 2786, 73 L. Ed. 2d 534 (1982).
In Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Company, 827 F.2d 1291 (9th Cir.1987), cert. denied, 485 U.S. 1029, 108 S. Ct. 1586, 99 L. Ed. 2d 901 (1988), the Ninth Circuit held that the initial termination of plaintiff's sexually suggestive dial-a-message program did constitute state action solely because the determination was made at the request of a deputy county attorney threatening defendant with prosecution under Arizona criminal law. The court found that such action amounted to an impermissible exercise of "coercive power" by the state. 827 F.2d at 1295. However, the Court of Appeals went on to hold, consistent with the Eleventh Circuit's decision in Southern Bell, that the subsequent termination of plaintiff's service under the new company policy excluding all "adult entertainment" from the 976 network did not constitute state action, but was a matter of private contract between the parties. Id. at 1297.
Thus, both the Ninth and Eleventh circuits have held that telephone companies may adopt policies under which they decline to provide sponsored program services to information providers offering sexually-explicit messages, as a matter of business discretion and judgment.
In Southern Bell the court concluded:
While `public' censorship may be a function traditionally performed by the state, it is clear that restriction of message content by a private company based on a determination that it does not wish to do business with another company is not a traditional state function, much less one exclusively reserved to the state. A private business is free to choose the content of messages with which its name and reputation will be associated and such a choice is not the exercise of a public function. 802 F.2d at 1361. (Emphasis added).
Here, in light of the above decisions, this court finds that Michigan Bell's termination of Pacific's SPS program was a permissible business decision made in accordance with the Agreement entered into by the parties. Pacific failed to pay its bill and Michigan Bell terminated its program. The court finds no coercion, either overt or covert, on the part of the Michigan Public Service Commission. Therefore, Pacific's fifth affirmative defense is without merit.
*1140 F.
For its sixth affirmative defense, Pacific asserts:
Plaintiff is barred from collecting any sums under the agreement for the reason that it is unconscionable and was signed by defendant under duress imposed by plaintiff and upon threat by plaintiff of unlawful action, to-wit: threatened unlawful termination of defendant's Sponsored Program Service.
Michigan Bell, in its summary judgment motion, argues that the contract between the parties is not unconscionable and is expressly authorized by MPSC tariff 2. Further, Michigan Bell contends that the contract was terminated for an entirely legitimate reason: nonpayment.
Pacific contends that the Billing Service Agreement was rendered unconscionable by a provision absolving MBT of "any duty or responsibility for both the collection of the accounts receivable it purchases from Pacific Ideas, Inc., and providing any information to Pacific Ideas, Inc. concerning those accounts it claims as `uncollectible'". (Pacific's opposition brief, at 13).
Pacific asserts that the commercial setting in which this dispute arises, "leaves no practical alternative available to Pacific Ideas, Inc., for its billing and collection services". (Pacific's opposition brief, at 14). Thus, Pacific alleges that the charge-back for uncollectibles is "unreasonable in light of the refusal by Michigan Bell to assume good faith duties to collect the accounts and provide commercially necessary information to Pacific Ideas, Inc., in order to collect the account". (Pacific opposition brief at 15).
Pacific asserts that the charge back for "actual uncollectible" is the "functional equivalent of an exculpatory clause". Pacific sets forth three decisions in which allegedly similar exculpatory provisions were unenforceable because they were found unreasonable and unconscionable. The decisions are Allen v. Michigan Bell, 18 Mich.App. 632, 171 N.W.2d 689 (1969), Reed v. Kaydon Engr. Corp., 38 Mich.App. 353, 196 N.W.2d 487 (1972) and Commercial Movie Rental, Inc. v. Larry Eagle, Inc., File No. K-88167 CA7 (W.D.Mich. 1989).
In Allen, the plaintiff brought an action against Michigan Bell Telephone Company for damages arising from Michigan Bell's failure to list plaintiff in the yellow pages of Michigan Bell's telephone directory. A clause in the parties' contract limited Michigan Bell's liability to its damages for breach of contract, i.e. the cost tendered by plaintiff for the advertisement. The Michigan Court of Appeals, after discussing the principles of freedom of contract and public policy, reversed the trial court's summary judgment in favor of defendant, and stated:
We believe the law in Michigan to be that, where goods or services used by a significant segment of the public can be obtained from only one source, or from limited sources on no more favorable terms, an unreasonable term in a contract for such goods or services will not be enforced as a matter of public policy.
In Reed, supra the plaintiff, a manufacturers representative, commenced an action for unpaid commissions after the defendant, manufacturer, terminated the contract between them. The Michigan Appeals Court found merit in plaintiff's contention that the contractual language relieving defendant of its obligation to pay commissions on orders not shipped before defendant's unilateral termination of the contract was unconscionable and should be denied enforcement. The Michigan Appeals Court reviewed the trial court's finding for summary judgment for defendant. The court stated:
Whether a contractual provision is substantively unreasonable or unconscionable depends on the circumstanceson the facts; as it has been said, on the `commercial setting purpose and effect' of the provision. Id., 38 Mich.App. at 356, 196 N.W.2d 487.
In Commercial Movie Rental, supra, the parties entered into an agreement which absolved plaintiff of liability for breach of any of the contract provisions. The defendant argued that the contract was void for lack of mutuality because it completed exempted plaintiff from all liability *1141 for breach. The court reviewed the parties' contract and applicable Michigan law, and found that plaintiff's promise to perform was "entirely illusory because under the unambiguous terms of the contract it drafted, [plaintiff] could never be held liable for the failure to perform those promises". Id. at 5. The court further stated that plaintiff's "illusory promise provided no consideration for the promises made by [defendant]. Under the doctrine of mutuality, then, the entire contract [was] void for lack of consideration." Id.
In the present action, this court finds Pacific's sixth affirmative defense has raised a significant issue that has not been thoroughly addressed by the parties. This court has found, supra, that the BSA authorizes Michigan Bell to charge back its actual uncollectibles, however, the agreement does not contain a provision enabling Pacific to obtain information concerning the parties responsible for the delinquent accounts. In this situation, how can Pacific legitimately attempt to recoup from its customers the amounts due and uncollectible by MBT.
Therefore, the court is reserving its opinion, pending oral argument, concerning this narrow issue.
II.
PACIFIC'S COUNTERCLAIM
On September 16, 1988, Pacific filed a two-count counterclaim against Michigan Bell. On October 3, 1988, Michigan Bell filed its answer and affirmative defenses to this counterclaim.
The gist of Pacific's first count alleges that the M.P.S.C. and Michigan Bell have violated Pacific's constitutional rights because of MBT's termination of Pacific's SPS program. Pacific alleges that its Sponsored Program Service was singled out and terminated based on format and content control.
This court has previously discussed the merits of this affirmation at I(E) of this Memorandum, Opinion and Order. As previously discussed, this court does not find a violation of Pacific's constitutional rights. See, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1974), Carlin Communications, Inc. v. Southern Bell, 802 F.2d 1352 (11th Cir. 1986), Carlin Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291 (9th Cir.1987), and Network Communications v. Michigan Bell, 703 F. Supp. 1267 (E.D.Mich.1988).
Therefore, Count I of Pacific's counterclaim is dismissed.
In Count II of its counterclaim, Pacific alleges that the Billing Service Agreement constitutes an impermissible revenue sharing agreement in violation of United States v. Western Electric Co., 673 F. Supp. 525 (1987) and United States v. Western Electric Co., 690 F. Supp. 22 (D.C.1988). As this court stated in I(C) of the above Memorandum Opinion and Order, it is reserving judgment on the merits of this issue pending oral argument. Therefore, the court reserves its opinion concerning Michigan Bell's summary judgment motion as it pertains to Count II of Pacific's counterclaim.
CONCLUSION
In summation, this court finds that Pacific's first, second, fourth, and sixth affirmative defenses are meritless. Pacific's third and sixth affirmative defenses will be the subject of oral arguments, at a date to be set by the court. Furthermore, the Court will grant MBT's summary judgment motion as to Count I of Pacific's counterclaim, and reserve its opinion on MBT's summary judgment motion concerning Count II of Pacific's counterclaim, pending oral argument.
ACCORDINGLY, IT IS HEREBY ORDERED that Pacific's first, second, fourth and fifth affirmative defenses are without merit and are hereby dismissed,
IT IS FURTHER ORDERED that Pacific's third and sixth affirmative defenses are to be scheduled for oral argument, at a date and time to be set by the court,
IT IS FURTHER ORDERED that Michigan Bell's motion for summary judgment is GRANTED as to Count I of Pacific's counterclaim, and
*1142 The court reserves its opinion on Michigan Bell's motion for summary judgment concerning Count II of Pacific's counterclaim, pending oral argument, at a date and time to be set by the court.
SO ORDERED.
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441 A.2d 209 (1981)
George W. GRAY, James W. Waller, Defendants Below, Appellants,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Submitted April 21, 1981.
Decided September 16, 1981.
As Corrected February 26, 1982.
Lawrence B. Steele, III (argued), Georgetown, for defendant below, appellant George W. Gray.
Larry W. Fifer (argued) and Douglas W. Lundblad, of Schmittinger & Rodriguez, P.A., Dover, for defendant below, appellant James W. Waller.
Merritt Burke, III (argued), Deputy Atty. Gen., Georgetown, for plaintiff below, appellee.
Before HERRMANN, C. J., and DUFFY and QUILLEN, JJ.
*212 HERRMANN, Chief Justice:
The defendants George W. Gray and James W. Waller were both convicted of Murder in the First Degree, 11 Del.C. § 636(a)(6),[1] and Kidnapping in the First Degree, 11 Del.C. § 783A(3).[2] Waller was also convicted of Robbery in the First Degree, 11 Del.C. § 832, and Gray was also convicted of Robbery in the Second Degree, 11 Del.C. § 831.[3] The charges arose from the disappearance and death of John W. Horstman.
I.
According to the State's evidence the basic facts are as follows: At about 10:00 a. m. on August 6, 1977, Horstman, age 67, left his home in Laurel in his pickup truck. He did not return. The following morning, Horstman's wife reported her husband's absence to the State Police. The matter was filed as a missing persons complaint and an investigation was begun. During the following week, Horstman's abandoned truck was found in Salisbury, Maryland, a few miles south of Laurel.
Six weeks after Horstman's disappearance, a skeletonized body was found approximately 7 miles southwest of Laurel in *213 a heavily wooded area. The remains were in two parts: the lower torso in a pair of pants and the upper torso in a shirt. The remains were approximately 13 feet from a maple tree 6 inches in diameter, around which were tied certain pieces of clothing. Lying in the area immediately adjacent to the tree were a man's belt and several other pieces of clothing. At the base of the tree was a dental plate upon which was found the inscription: "J. Horstman."
The remains were identified as being those of John W. Horstman.
* * *
Five persons were arrested in connection with the disappearance and death of Horstman: the defendant James Waller, age 33; the defendant George Gray, age 35; Shirley Pryor, age 33, the girlfriend of James Waller; Eleanor Waller, the sister of James Waller; and Bobby Anderson, age 15. All were charged with Robbery, Kidnapping, and Murder, all in the First Degree. Pryor, Eleanor Waller and Anderson eventually entered guilty pleas to lesser offenses.[4] Defendants Gray and Waller were tried together in Superior Court before a jury.
The trial of Gray and Waller lasted two weeks. Signed statements concerning the involvement of all five persons with Horstman had been obtained by the State Police from Waller, Pryor, and Anderson; these statements were admitted into evidence at trial. Defendant Gray had given an oral statement to the State Police; this was testified to by the interviewing police officer at trial. Furthermore, Anderson, Pryor, and Gray each testified extensively at trial. From this evidence there emerged the following account of the events which transpired on August 6:
Not long after leaving his home that morning, Horstman arrived in his truck at a place called "Lookout Mountain" a cornerlot in a section of Laurel where people often gathered to drink. Gray, James Waller, Pryor, Eleanor Waller, and Anderson were present; each, with the exception of Anderson, had been drinking. A person familiar with Horstman introduced him to Gray and Waller; Gray, in turn, introduced Horstman to the other three. At some point thereafter, James Waller solicited Horstman for sex with his sister Eleanor; Horstman was receptive to the idea. The six then left "Lookout Mountain" in Horstman's truck. Horstman drove; Eleanor Waller sat in the middle of the front seat; James Waller sat on the passenger side; and Gray, Pryor, and Anderson sat in the back of the truck under an enclosed "camper" section.
They were driving southwest from Laurel (two brief stops were made, including one at a liquor store) when Eleanor Waller told Horstman that she had to leave the truck momentarily this being an agreed-upon signal between her and defendant Waller that Horstman had money and they should attempt to rob him. Horstman stopped the truck, Waller exited the passenger-side, went around the truck, opened the driver's-side, door, and instructed Horstman to move over. When the elderly man refused, Waller struck him twice on the head, causing some bleeding. Waller then climbed into the driver's seat and drove the truck over a nearby field road into a wooded area where he stopped and ordered Horstman to get out of the truck. The others exited as well. Horstman pleaded, "Don't hurt me. I will give you anything you want, but please don't hurt me." While Gray held Horstman, Waller went through his pockets, found his wallet, and removed the money. Waller instructed Gray and Anderson to wipe-down the truck to remove any finger-prints. Waller then proceeded into the woods with Horstman, accompanied by Eleanor Waller and Pryor.
*214 After entering some distance into the woods, Waller directed Horstman to kneel against a tree with his back to it. Horstman's feet were tied on the other side of the tree by the ankles with a belt. His hands were tied in the front of him at the wrists with another belt and his elbows pulled back at his sides and a shirt looped through them and around the tree. A gag was placed in his mouth and tied behind his head; and a shirt covering his head and face was tied around the tree. Gray and Anderson, summoned from the truck by Waller, provided some of the clothing used to restrain Horstman. At the tree, Gray reportedly struck Horstman twice. The five then walked away from the tree; as they did so, Horstman could be heard, through the gag, either moaning or trying to say something to them.
The five returned to the truck and, with Waller driving, left the wooded area. Waller drove to an area near Portsville, Delaware, stopped the truck, and instructed Anderson and Gray to remove certain items from the truck and hide them in the woods. As they did so, the truck sped off without them. Waller drove the truck, along with Eleanor Waller and Pryor, to Salisbury, Maryland; the truck was left there and the three boarded a bus to Philadelphia. Meanwhile, Gray and Anderson walked back the several miles to Laurel and returned to "Lookout Mountain," where Gray continued the drinking he started many hours before.
* * *
A Superior Court jury found the defendants Gray and Waller guilty of the charges indicated. The defendants challenge their convictions on numerous grounds which will be considered seriatim, with additional facts being supplied as necessary.
II.
The defendants first contend that the Trial Court committed prejudicial error in its ruling upon certain discovery matters. According to the defendants, the prosecutor in this case originally agreed with defense counsel to an "open door" discovery policy with respect to evidence in the control of the State. Despite this agreement, say the defendants, the State failed to provide certain items deemed material to the defense, viz.: (1) a dirt sample taken from the base of the tree where the remains of Horstman were found; (2) a bark sample from that tree; and (3) a set of color photographs taken at the scene the day the remains were discovered. The defendants did not become aware of the existence of the dirt and bark samples (and, significantly, the lack of any scientific tests performed upon them) until after the trial had started; and the photographs, despite a specific request therefor, were not made available to the defendants until four days prior to the start of trial. The defendants argue that the Trial Court's failure to order discovery as originally agreed to by the State, along with the introduction into evidence of the above items, severely prejudiced the defendants' right to a fair trial and to adequate trial preparation.
As indicated by the defendants, the State had agreed to a liberal discovery policy in this case. It also appears, however, that a misunderstanding arose between the prosecutor and defense counsel as to the extent of that agreement. The Trial Court ordered that the usual discovery rules would apply, notwithstanding any previous agreement. Thus the Court denied defendant Gray's request that the State be made to abide by its alleged prior representations and ruled that the defendants would be granted only such discovery as is specifically allowed by Superior Court Criminal Rule 16.[5]
*215 We agree with the Trial Court's ruling. Rule 16, pertaining to evidentiary discovery in criminal cases, makes no provision for obtaining evidence "as promised" by the State. And, although the resultant nullification of the alleged prior arrangement undoubtedly caused the defendants some inconvenience, we are not able to say that the defendants were prejudiced thereby. The Court made its ruling over 5 months before trial, leaving ample time for the defendants to conform to the requisite discovery processes under Rule 16.
As to the dirt and bark samples specifically objected to, we conclude that the defendants were not entitled to them under Rule 16. The Rule provides for the discovery of tangible items if material and "designated." Because the defendants did not specifically designate the dirt and bark samples in their Motion for Discovery, they were not entitled to the pretrial production of the samples. See State v. Traekner, Del.Super., 314 A.2d 202 (1973).
Defendant, Gray, argues that if items of evidence are unknown, a defendant cannot "designate" them in his Motion for Discovery and Inspection. While as a general proposition that argument may be true, defendant was not without relief. Specifically, no post-trial application had been made to examine the soil and bark samples in order to determine their significance. Furthermore, defendant failed to request a continuance of the trial, on the basis of surprise or other reason, for the purpose of obtaining an analysis of the samples. Since no analysis was performed either by the State or by the defendants, we can only speculate as to the significance of the samples. A jury verdict will not be reversed on the basis of mere speculation where, as here, the verdict has sufficient evidentiary basis to support it.
* * *
The color photographs objected to present a more troublesome issue. Pursuant to defendant Gray's Motion for Discovery, the Trial Court on February 21, 1978 ordered production of any photographs of "the alleged crime scene," which would include the photographs in question. Despite a formal request by defense counsel for the photographs on May 2, 1978, they were not produced until Friday, July 21, 1978 three days before the scheduled trial date.
We find that the delay in producing the color photographs did not unduly prejudice the defendants. When the defense objection to the photographs was presented, the Trial Court instantly concerned with the possibility of prejudice conducted an in camera hearing as to why the photos were important to the defendants, and then granted defense counsel's request for a one-day recess of the trial so that defense counsel would have time to utilize the photographs. The Court also proposed an additional day's continuance if necessary. Defense counsel expressed satisfaction with the one-day recess. Accordingly, defendant's argument that there was insufficient time to consider the significance of the photos is without merit. Furthermore, because the requested recess was granted to the defendants, and no further objection or application was made at the time, we find no prejudicial error in the Trial Court's admission of the photographs into evidence.
In sum, we find no reversible error in the Trial Court's rulings with regard to the discovery and introduction into evidence of the bark sample, the dirt sample, or the color photographs.
III.
The defendants allege that the Trial Court abused its discretion in denying each defendant's Motion to Sever.
*216 The parties agree that the controlling law upon this issue is found in Jenkins v. State, Del.Supr., 230 A.2d 262 (1967), aff'd, 395 U.S. 213, 89 S. Ct. 1677, 23 L. Ed. 2d 253 (1969), rehearing denied, 396 U.S. 995, 90 S. Ct. 469, 24 L. Ed. 2d 460 (1969), where it was held:
"Ordinarily, an abuse of discretion will not arise from the mere fact that the confession or admission of a co-defendant, implicating the moving defendant and not admissible against him, will be introduced at the joint trial. Some other factor must be present, such as: (1) absence of other substantial, competent evidence of the movant's guilt, e. g., Burton v. State, supra; [Del.Supr., 1 Storey 546, 149 A.2d 337 (1959)] (2) antagonistic defenses as between the co-defendant and the movant, e. g., People v. Barbaro, 395 Ill. 264, 69 N.E.2d 692 (1946); and (3) difficulty of segregating the evidence as between the co-defendant and the movant, e. g., Day v. State, 196 Md. 384, 76 A.2d 729 (1950)."
230 A.2d at 273. Both defendants cite Jenkins in support of their position. Defendant Gray contends that, other than the statements by Waller, Pryor and Anderson, and physical evidence relative to them, there was no independent evidence against him. Defendant Waller contends that (1) there were antagonistic defenses between Waller and Gray and (2) a jury could not segregate the evidence against Waller from that against Gray and the others. We disagree; Jenkins is inapposite on the facts.
At the request of defense counsel, the Trial Court held an in camera proceeding to determine whether there was independent evidence against the defendants. A police officer testified at the hearing that, after being brought to Troop 5 for questioning, defendant Gray agreed to take the police to the area in the woods where Horstman was killed and where the items from Horstman's truck were hidden. The police officer further testified that, when questioned, Gray admitted that he went to the woods on August 6th with Horstman, Waller, Pryor, Eleanor Waller, and Anderson; that Horstman was robbed; that he (Gray) lent his shirt to Waller to tie Horstman; and that he (Gray) helped Waller to tie Horstman to the tree. Clearly, the Trial Court was justified in concluding that there was independent evidence implicating Gray.
Contrary to defendant Waller's assertion, there were no antagonistic defenses in this case. Indeed, neither Gray nor Waller offered testimony which amounted to a defense at all. Furthermore, the Trial Court was correct in concluding that a jury would have little difficulty segregating the evidence as between defendants. The statements before the Court at the in camera hearing were remarkably consistent in their depiction of the events of August 6th, including the roles played by Gray and Waller.
We conclude that the Trial Court did not abuse its discretion in its denial of each defendant's Motion to Sever.
IV.
Defendants contend that their own statements were improperly admitted into evidence in that the State failed to show that defendants had been given all of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We disagree.
In Miranda, the Supreme Court held that a criminal defendant is entitled to be informed of four specific rights prior to custodial interrogation:
"He must be warned prior to any questioning that he has the right to remain silent, that anything he says can and will be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."
384 U.S. at 479, 86 S.Ct. at 1630.
Both defendants concede that, prior to interrogation, they were given these four enumerated warnings. They assert, however, that there is a fifth Miranda right of which a defendant must be advised: namely that, if at any time during the interview *217 the defendant wishes to discontinue his statement, he has a right to do so.
Unquestionably, there is language in the Miranda decision to the effect that if "the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." 384 U.S. at 445, 86 S.Ct. at 1612. But neither the U.S. Supreme Court nor this Court has ever held that the admissibility of a defendant's statement is dependent upon a showing that the defendant was expressly advised of this so-called fifth Miranda right.[6] The Courts of other states have considered whether Miranda required the giving of a fifth warning. Specifically, the Supreme Court of Connecticut has stated:
"The Miranda opinion does not conclude that explanation to an accused of this requirement for a police cutoff of questioning is an integral part of the required initial warning requisite to a valid waiver.... This requirement is directive only and is not a required warning under Miranda but is instead a caveat to the police that if an accused wishes to stop answering questions the police have a duty to close the interrogation.... Other jurisdictions which have considered whether Miranda required a special fifth warning of the accused's right to terminate the interrogation at any time have held that this warning is not required and that confessions taken in the absence of such a warning are not constitutionally tainted."
State v. Cobbs, Conn.Supr., 164 Conn. 402, 324 A.2d 234 at 244 (1973) citing Green v. State, Ala.App., 45 Ala.App. 549, 233 So. 2d 243 (1970); People v. Smith, Mich.App., 30 Mich.App. 34, 186 N.W.2d 61 (1971); State v. Carlton, N.M.App., 83 N.M. 644, 495 P.2d 1091 (1972). See also State v. Sherwood, N.J.Super., 139 N.J.Super. 201, 353 A.2d 137 (1976).
We hold that the required Miranda warnings do not include express advice to the accused that he has the right to discontinue his statement if he chooses to do so. Accordingly, the defendants in the instant case were not deprived of their constitutional rights under Miranda.[7]
V.
The defendants argue that they cannot be found guilty of Felony Murder under 11 Del.C. § 636(a)(6) because the underlying felony, Kidnapping, has undergone a statutory change. To elaborate:
Felony Murder is dealt with in 11 Del.C. § 636(a)(6) as follows:
"(a) A person is guilty of Murder in the First Degree when:
* * * * * *
"(6) He, with criminal negligence, causes the death of another person in the course of and in furtherance of the commission or attempted commission of rape, kidnapping, arson in the first degree, robbery in the first degree, or immediate flight therefrom." (Emphasis supplied)
That Statute was signed by the Governor and became law on March 29, 1974. 59 Del.Laws c. 284. At that time, a single crime of "Kidnapping" was provided by the Criminal Code as follows:
"§ 783. Kidnapping.
*218 "A person is guilty of kidnapping when he unlawfully restrains another person with any of the following purposes:
* * * * * *
"(3) To facilitate the commission of any felony or flight thereafter:
* * * * * *
Kidnapping is a class A felony unless the actor voluntarily releases the victim alive, unharmed and in a safe place prior to trial, in which case it is a class B felony."
On July 26, 1974, the above Kidnapping Statute was repealed and replaced by two separate statutory offenses: "Kidnapping in the First Degree," a class A felony, 11 Del.C. § 783A; and "Kidnapping in the Second Degree," a class B felony, 11 Del.C. § 783.[8] No change was made to the Murder Statute when the Kidnapping Statute was changed. The effect of the new Kidnapping Statute was to create two crimes out of the elements of what was originally one crime. Otherwise stated, the substance of §§ 783 and 783A taken together is identical to the old section 783. The distinction between First and Second Degree Kidnapping is whether the actor "voluntarily release[s] the victim alive, unharmed and in a safe place prior to trial."
The defendants make two related arguments: First, they contend that the State's indictment in the instant case is defective because it specified as the "included felony" under the Murder Statute the crime of "Kidnapping" which is no longer a statutory offense in this State. Otherwise stated, the argument goes, the indictment is defective because the State failed to delineate the degree of Kidnapping under the current statutory provision. Second, the defendants contend that they cannot be convicted of Murder in the First Degree because that Statute is itself defective, in that the Felony Murder subsection refers to "kidnapping" no longer a statutory offense in this State. As a result, the defendants assert, they have been deprived of the "notice" of prohibited conduct which is required by the Due Process Clause. Cf. United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954).
We find the defendant's arguments wholly untenable. Regardless of whether the defendant had intended to commit First or Second Degree Kidnapping at the outset, if the kidnapping victim's death is caused by the kidnapper "in the course of and in furtherance of the commission of the kidnapping," Felony-Murder has been committed under § 636(a)(6). That Statute, as it refers to "kidnapping," could not possibly fail "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. at 617, 74 S.Ct. at 812.
Thus, we conclude that 11 Del.C. § 636(a)(6) is not constitutionally defective; that the indictments in the instant case were not defective; and that the Trial Court's denial of defendants' motion to strike the kidnapping count was correct.
VI.
The defendants contend that the Trial Court's refusal to ask the prospective jurors certain requested questions during voir dire amounted to an abuse of discretion. Defendants suggest that the Trial Court should have conducted a more indepth exploration of the jurors' potential biases, because this case involved several inflammatory aspects, i. e., the intense media coverage of the case; the difference in race between the victim Horstman (who was white) and the defendants (who are black); Waller's alleged solicitation of Horstman for sex with Eleanor Waller; *219 and the excessive consumption of alcoholic beverages by all parties involved.
This Court has defined the purpose of a voir dire examination of prospective jurors.
"As we have said, the purpose of such examination is solely to determine whether the prospective juror can render an impartial verdict upon the evidence and the law. Any questions which go beyond the ascertainment of this ultimate fact are entirely irrelevant to the voir dire examination and are properly struck by the trial judge." Parson v. State, Del. Supr., 275 A.2d 777, 783 (1971).
Further, the standard of review which this Court will employ in examining a trial court's voir dire was likewise set forth in Parson, supra.
"Any limitation imposed by the trial judge upon defendant's right to have prospective jurors questioned will not constitute reversible error unless the broad discretion reposed in the trial judge has been clearly abused to the prejudice of the defendant." 275 A.2d at 781.
In the instant case, 92 prospective jurors were asked 18 questions as a group; this was done twice, to insure that the members of the panel remembered the questions asked and their individual responses. Those giving an affirmative answer to any question were removed, and the remaining 29 were then questioned individually. Eleven jurors were selected from the group of 29; the remaining juror was picked from the group of 63.
The questions asked of the entire panel of 92 pertained to radio and newspaper publicity, personal knowledge of the case, familiarity with the defendants or victim, racial prejudice and other biases. Included were the following questions:
"Do you know anything about this case, either through your personal knowledge, discussion with anyone else, or the news media?"
"Do you know of any reason why you cannot give this case your undivided attention and render a fair and impartial verdict?"
"The defendants in this case are black. The alleged victim is white. Do you have any racial prejudice that would prevent you from rendering a fair and impartial verdict in this case?"
"Would you give the testimony of a police officer more credence than others merely because he is a police officer?"
In addition, the 12 members of the jury (all but one of whom did not answer affirmatively to the original 18 questions) were each interviewed individually in the presence of defense counsel, defendants and prosecutor. At that time they were again asked questions pertaining to bias, prejudice, media publicity, and the related issues.
In formulating the questions to be asked the prospective jurors, the Trial Court relied in part upon the lists of questions submitted by the defendants. Argument upon the proposed voir dire questions was presented in open court. We cannot say that the Trial Court abused its discretion in denying certain of the requested voir dire questions. Defendants submitted 83 questions to the Trial Court for use in voir dire. The Trial Judge ultimately used 23 questions. In reviewing the questions rejected by the Trial Court, we find that he could reasonably have found them to be redundant and "beyond the ascertainment of [the] ultimate fact" of impartiality of the prospective jurors and therefore irrelevant.
We note that the Trial Court appropriately and effectively adhered to this Court's caution in Parson, 275 A.2d at 783. There it was recommended that "examination of jurors at inordinate length and on questionable and irrelevant matters" be avoided. That recommendation was made by this Court in 1971 in recognition of "[t]he recent tendency to indulge in voir dire examination of a prolixity heretofore unknown in this State, with its trial delays and its adverse effect upon already heavily-burdened trial courts...." Despite his paring-down of the questions submitted, the Trial Court did not merely go through the motions; rather he conducted "an examination designed to elicit answers which provide an objective basis for his evaluation." Young v. State, Del.Supr., 407 A.2d 517, 521 (1979), cert. denied 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 794 (1980).
*220 Considering the procedures employed and the content of the questions actually put to the prospective jurors, we hold that no abuse of discretion appears.
"Unless a trial judge clearly has erred in his estimation of the action needed to uncover and prevent prejudice from pretrial publicity, an appellate court should not intervene and impose its estimate. The court closest to the situation can best evaluate the proper way to walk the difficult line between a vigorous voir dire (sic) to determine any possible bias and avoidance of creating bias by specific questions which add `fuel to the flames' in suggesting the presence of controversial issues."
Young v. State, supra, at 522, quoting United States v. Polizzi, 9th Cir., 500 F.2d 856, 880 (1974), cert. denied 419 U.S. 1120, 95 S. Ct. 802, 42 L. Ed. 2d 820 (1975).
VII.
The defendants argue that the Trial Court improperly limited their cross-examination of State's witnesses Pryor and Anderson each a former co-defendant who had entered pleas to lesser charges. According to the defendants, the Trial Court erroneously restricted and refused cross-examination of Pryor and Anderson concerning the basis for their pleas, any benefits received from the State in exchange for the pleas, and other unspecified matters affecting credibility.
Upon examination of the record, we fail to discern any abuse of discretion on the part of the Trial Court. Indeed, it appears from the record that the defendants were given ample leeway to question Anderson and Pryor concerning their guilty pleas to reduced charges and related matters, with the hope of impeaching their credibility.[9]*221 Accordingly, we find no merit in this argument.
VIII.
The defendants object to the admission into evidence of a Timex watch belonging to the victim Horstman.
On September 21 (five days after the remains of Horstman were discovered), defendant James Waller was interviewed by the Delaware State Police at the Philadelphia Detention Center, where Waller was being held on unrelated charges. At that time, Waller signed an incriminating statement concerning the Horstman incident, and also signed a "Voluntary Consent to Search Without Warrant," consenting to a search of his belongings held by the Philadelphia authorities. The express purpose of the search was for the Timex watch which had been owned by Horstman and which Waller admitted to having taken. The Delaware police conducted the search and obtained the watch the following morning, September 22.
At a voir dire hearing before the Trial Court, Waller testified that, upon returning to his cell at the Philadelphia Detention Center after the interview on September 21, he rethought the consent which he had given and decided that he wished to withdraw the consent to a search for the watch. This, he testified, he was unable to do because he could not contact the Delaware Police. Both defendants now argue that the Delaware Police, upon returning to the Philadelphia Detention Center the following day, should have contacted Waller to determine if he still consented to the search; that because they did not do so, and because Waller by that time wished to withdraw his consent, the defendants assert that the search for the watch was unlawful.
The issue for decision is whether the authority to search manifested by Waller's signing of the consent form "lapsed" before the State Police conducted the search[10] the following day, so that a reaffirmation of consent was necessary.
A brief "lapse of time between the consent and the search does not require a reaffirmation of the consent as a condition precedent to a lawful search." State v. Koucoules, Me.Supr., 343 A.2d 860, 872 (1974). On the other hand, a consent to search does not mean the constitutional protection against unreasonable searches and seizures has been waived for all time and for all things. See People v. Chism, Mich. App., 32 Mich.App. 610, 189 N.W.2d 435, 445 (1971), aff'd., Mich.Supr., 390 Mich. 104, 211 N.W.2d 193 (1973).
We note that there is authority holding that a validly obtained consent to search, once obtained, may not be revoked. People v. Kennard, Colo.Supr., 175 Colo. 479, 488 P.2d 563 (1971); Smith v. Commonwealth, Ky.App., 197 Ky. 192, 246 S.W. 449 (1923); Consent Searches: A Reappraisal After Miranda v. Arizona, 67 Col.L.Rev. 130, 157 n. 121 (1967).
In our view, however, the best answer to the question "how long does a consent to search last" depends upon the facts and circumstances of each case. See 68 Am.Jur.2d 699. The length of time a consent lasts depends upon the reasonableness of the lapse of time between the consent and the search in relation to the scope and breadth of the consent given. If the consent to search is voluntarily and knowingly given, compare Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 854 (1973), and if the search takes place within a reasonable time of the consent and is limited to the scope and breadth thereof, a mere change of mind will not render the search violative of a defendant's Fourth Amendment rights. Compare State v. Koucoules, 343 A.2d at 872; People v. Chism, 211 N.W.2d at 204.
*222 In the instant case, the consent given by Waller to the Delaware State Police was written and signed, and it authorized a search specifically for the Timex watch in question. The record is clear that Waller knew he was signing a consent to search and that he voluntarily agreed to do it. It is also clear that the police did not go beyond the limited scope of the consent in conducting the search: only one search was conducted and only the watch was sought and obtained.
Waller signed the consent form at approximately 4:00 p. m. on September 21. The Delaware police officers reported to the Philadelphia Detention Center at 10:00 a. m., the following day and had to wait almost two hours before the Center personnel presented the watch. Thus, there was an interim of about 20 hours. The reason that the watch was not sought immediately upon obtaining consent the previous afternoon, according to police testimony, was that the Delaware police knew that the watch was safe in the hands of the Philadelphia authorities and there remained further investigation to accomplish on the previous afternoon.
We also note that, according to the record, Waller was able to observe the watch being turned over to the Delaware State Police. At that time he made no attempt to speak or in any way to indicate that he wished the search to cease. While he claims he had no way to contact the Delaware police, the record fails to reveal any attempt by Waller to advise the authorities at the Philadelphia Detention Center of his desire to withdraw his consent in the hope that his message would be transmitted to the Delaware police.
In view of the apparent good faith on the part of the State police, the limited nature of the search made strictly in accordance with the scope of the consent given, and the reasonableness of the 20-hour delay between consent and search, we conclude that the consent of defendant Waller was in effect when the Timex watch was obtained by the police. Compare Steigler v. State, Del.Supr., 277 A.2d 662 (1971).[11]
Accordingly, under the facts and circumstances in this case, the Trial Court did not err in admitting Horstman's watch into evidence.
IX.
The defendants contend that, since both Pryor and Anderson testified under oath in court as to the same events, the Trial Court abused its discretion by admitting into evidence the prior out-of-court statements of Pryor and Anderson concerning the events of August 6.
The out-of-court statements of Anderson and Pryor were admitted pursuant to 11 Del.C. § 3507, which provides in pertinent part:
"§ 3507. Use of prior statements as affirmative evidence.
"(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.
"(b) The rule in subsection (a) of this section shall apply regardless of whether the witness's in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party. * * *."
Under § 3507, prior out-of-court statements may be admitted provided that the declarant testifies upon direct examination at trial, Keys v. State, Del.Supr., 337 A.2d 18 (1975), and the offering party demonstrates that the statement was voluntarily made, Hatcher v. State, Del.Supr., 337 A.2d 30 (1975).
In the instant case, the statements of Pryor and Anderson were introduced by the State subsequent to their taking the stand for direct examination. Furthermore, the voluntariness of the statements *223 was proven. The defendants suggest that the Trial Court erred in allowing police officers to testify to the voluntariness of the out-of-court statements, because, by so doing, the police officers were impermissibly "vouching" for the credibility of Pryor and Anderson. The record reveals no sound basis for this contention. On the contrary, it appears that the testimony of the police officers was elicited for the purpose of showing that the statements of Anderson and Pryor were voluntary, without duress or coercion, State v. Rooks, Del.Supr., 401 A.2d 943, 947 (1979). No testimony was offered in rebuttal by the defendants on the issue of voluntariness.
We conclude, therefore, that the Trial Court committed no error in admitting the out-of-court statements of Pryor and Anderson.
X.
Count 3 (amended) of the indictment under which defendants were convicted charges that Gray and Waller
"... on the 6th day of August, 1977, in the County of Sussex, State of Delaware, did commit Murder in the First Degree, to wit, did, with criminal negligence, cause the death of John Melvin Horstman in the course of, and in the furtherance of, committing the crime of Kidnapping and Robbery in the First Degree as described in the first two counts of the original Indictment."
The defendants assert that the Trial Court erred as a matter of law in entering a judgment upon the jury verdict of guilty of Murder in the First Degree because the State failed to prove, as set forth in Count 3 (amended) of the indictment: (1) that Horstman died on August 6, 1977; and (2) the cause of death.
As to the time of death: We think that the indictment was not defective. Read fairly, the indictment charges that the defendants caused the death of Horstman through their actions on August 6, 1977; it does not state that Horstman necessarily died on that date. Consequently, the State did not have to prove that Horstman died on August 6, 1977.
Moreover, a defective date in the indictment would not constitute ground for reversal of the convictions. In Pepe v. State, Del.Supr., 3 Storey 417, 171 A.2d 216, 218 (1961), this Court stated:
"Indictments and informations in Delaware now are sufficient in law if drawn with such particularity that the accused will be fully informed of the charge he will be required to meet, and, upon the basis of such information, will be given a reasonable opportunity to prepare his defense, and to permit the pleading in future prosecutions of the proceeding as a bar to further prosecution upon the same facts."
The indictment before us met the Pepe tests of sufficiency and particularity as to the time of death.
As to the cause of death: The defendants point out, correctly, that the State Medical Examiner who attended the scene and pronounced the victim dead, was unable to state with medical certainty the exact cause of Horstman's death. However, this fact in itself is hardly determinative of the issue before us.
The Criminal Code provides: "Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred." 11 Del.C. § 261. It has been written that "every one is held bound to contemplate and to be responsible for the natural consequences of his own voluntary act; * * * it does not alter the nature of the felonious act, nor diminish its criminality to prove that other causes contributed to the fatal result * * *." State v. Johnson, Del.O. & T., 6 W.W.Harr. 341, 175 A. 669, 670 (1934). Compare Quillen v. State, Del.Supr., 10 Terry 114, 110 A.2d 445 (1955). In the instant case, the State contends that it has fully met this burden of proving "but for" causation. We agree.
The record is replete with testimony concerning the defendants' roles in the incident. Pryor, Anderson and Gray testified at trial; in addition, their prior statements were admitted into evidence, as was that of *224 Waller. All those statements tended to incriminate these defendants. The evidence clearly demonstrates that the defendants abducted and robbed Horstman, struck him, tied him to a tree binding his head, hands, arms and feet, and placing a gag in his mouth and then left him, alone, in a desolate wooded spot. Just as clearly, the evidence demonstrates that Horstman died in that wooded area.
The Medical Examiner testified: that the human body, when it decays, goes through a process of "putrefaction," in which the body literally melts into the ground; that the dirt at the base of the tree where Horstman was tied was dark and greasy, a condition characteristic of the process of putrefaction; that, in her opinion, Horstman died while tied to that tree.
Considering this evidence as a whole, we conclude that the State met its burden of proving causation, and that the jury was warranted in finding that the actions of the defendants caused the death of Horstman.
XI.
Defendant Gray contends that the Trial Court erred in refusing to allow him to introduce testimony concerning his alleged affliction with chronic alcoholism. Gray contends that this evidence was relevant for two purposes: (1) to negate the state-of-mind element of the underlying offenses of Kidnapping and Robbery; and (2) to prove that his alcoholism, in conjunction with his limited mental capacity, established a "mental illness" defense.
A.
Gray wished to introduce testimony of his alcoholism to negate the intent element of the underlying offenses of Kidnapping and Robbery.[12] In his offer of proof, counsel for Gray stated that he intended to produce several witnesses who would testify as to Gray's excessive drinking. The State objected to the admission of the testimony on the grounds of irrelevancy. The Trial Court sustained the objection. We agree with that ruling.
Specifically, none of the witnesses proffered in Gray's offer of proof were present when Horstman was abducted, robbed, tied to the tree and left to die. Consequently, the proffered testimony could have no bearing on what Gray said, did, thought, "appreciated" or intended at that particular time. The proffered testimony was irrelevant, and therefore properly excluded. Cf. Young v. Soroukos, Del.Supr., 6 Storey 44, 189 A.2d 437 (1963).
B.
Gray also sought to establish that his alleged alcoholism, in conjunction with his low intellect, combined to form a "mental illness" defense.[13] During the offer of proof, counsel for Gray proffered the testimony of the State Psychologist who had examined Gray and who, it was said, would testify "concerning alcoholism, that consumption of alcohol by an alcoholic is an involuntary matter, that this is something he cannot control once he starts, and that, *225 combined with Mr. Gray's low intellectual ability, could have placed him in a position mentally of being unable to appreciate the wrongfulness of his conduct or to substantially control his conduct on the date in question, August 6th."
We find the defendant's contention in this regard to be untenable. Compare Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968). The contention amounts to a defense of diminished responsibility. In Bates v. State, Del.Supr., 386 A.2d 1139 (1978), we declined to recognize the defense of diminished responsibility. We there held that "until established by the General Assembly as a provision collateral to the Statutes governing insanity and extreme emotional distress, the doctrine of diminished responsibility may not be invoked in this State." 386 A.2d at 1143-44. Stripped to the essentials, the attempted combination of alcohol and low intellect to constitute an effective defense is more closely akin to diminished responsibility than it is to mental illness. Accordingly, the Trial Court correctly barred the proffered evidence of chronic alcoholism as a defense.
XII.
Pursuant to an objection made by the State during defense counsel's opening statement, the Trial Court gave the following limiting instruction to Gray's defense counsel as to his opening remarks:
"The Court's instruction is for you to discuss the law only as it applies to the facts. The Court will discuss the law at the conclusion of the case as you well know, and the Court is instructing you not to discuss the law at length without applying it to specific facts. * * * I only want you to state the law as it applies to the facts which you intend to set forth or the facts which the state intends to set forth."
Gray asserts that the Trial Court improperly limited defense counsel's opening statement, prejudicing his right to a fair trial and impeding his ability to point out the weaknesses in the State's case.
This issue is controlled by this Court's decision in Holmes v. State, Del.Supr., 422 A.2d 338 (1980). There we upheld a Trial Court instruction limiting defense counsel's opening statement "to what you intend to prove in the case," stating:
"As to abuse of discretion, it appears that the Trial Judge was acting to prevent defense counsel from making comments as to the law. We believe this limitation was not an abuse of discretion.
"`The proper function of the opening for accused is to enable him to inform the court and jury what he expects to prove. It is not and should not be permitted to become an argument on the case, or an instruction as to the law of the case....'"
422 A.2d at 340, quoting 23A C.J.S. Criminal Law § 1086 at 109 (1961).
The record indicates that, after a lengthy discussion in the absence of the jury, counsel for defendant Gray was permitted to state portions of the law "succinctly." In view thereof, the limitation on counsel, here complained of, was minimal.
Accordingly, we hold that the Trial Court did not abuse its discretion in limiting defense counsel's opening statement.
XIII.
Defendant Waller contends that the Trial Court abused its discretion by assigning the two defendants 20 peremptory challenges collectively, rather than specifically giving each defendant 10 each.
Superior Court Criminal Rule 24(b)[14] grants to the Trial Court, in multiple-defendant cases, the discretion whether *226 to allow additional peremptory challenges and whether to allot them separately or collectively. Given the fact that Waller can point to no prejudice caused by the Trial Court's ruling in the instant case, we find no abuse of discretion in the Trial Court's granting 20 challenges jointly. See generally Foraker v. State, Del.Supr., 394 A.2d 208 (1978); Shields v. State, Del.Supr., 374 A.2d 816, cert. den. 434 U.S. 893, 98 S. Ct. 271, 54 L. Ed. 2d 180 (1977).
XIV.
Finally, the defendant Waller contends that he was denied a fair trial by the prejudicial conduct of the State in bringing into the courtroom the clothes of the victim, which emitted an obnoxious odor, and commenting upon them in front of the jury. The clothes were not in evidence at the time.
In response, the State contends that there is no evidence in the record to reflect any such event, and the prosecutor denies any recollection of it. However, an examination of the record shows that while the State prosecutor was questioning a police officer about the victim's trousers (which were not offered into evidence at the time), the prosecutor stated "You may remove those from the courtroom," obviously referring to some item present in the courtroom.
The following morning, immediately upon the resumption of trial, Waller's defense counsel moved for a mistrial, claiming that the event was highly inflammatory and prejudicial to his client. The Trial Judge seemed to know nothing of the incident, but questioned the attorneys as to what occurred. Finally, the Court denied the motion.
Such conduct on the part of the prosecutor, if it occurred, would be subject to severe criticism. However, we are unable to hold, upon the record before us, that the Trial Court abused its discretion in denying the motion for mistrial. Accordingly, the ruling is upheld.
"* * *
The convictions of James W. Waller and George W. Gray stand
AFFIRMED.
NOTES
[1] 11 Del.C. § 636(a)(6) provides in pertinent part:
"§ 636. Murder in the first degree; class A felony.
"(a) A person is guilty of murder in the first degree when:
* * * * * *
"(6) He, with criminal negligence, causes the death of another person in the course of and in furtherance of the commission or attempted commission of rape, kidnapping, arson in the first degree, robbery in the first degree, or immediate flight therefrom; * *."
[2] 11 Del.C. § 783A(3) provides:
"§ 783A. Kidnapping in the first degree; class A felony.
"A person is guilty of kidnapping in the first degree when he unlawfully restrains another person with any of the following purposes:
* * * * * *
"(3) To facilitate the commission of any felony or flight thereafter; * * *
"and the actor does not voluntarily release the victim alive, unharmed and in a safe place prior to trial."
[3] "§ 831. Robbery in the second degree; class D felony.
"A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of force upon another person with intent to:
"(1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or
"(2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft."
* * * * * *
"§ 832. Robbery in the first degree.
"(a) A person is guilty of robbery in the first degree when he commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
"(1) Causes physical injury to any person who is not a participant in the crime; * * *."
[4] Pryor and Eleanor Waller entered pleas to Murder in the Second Degree. The remaining charges against them were nolle prosequied by the State.
Anderson's case was transferred to the Family Court where he entered a plea of "guilty" to an Act of Delinquency, Murder in the Second Degree. The remaining charges against him were nolle prosequied and he was committed to the Bureau of Juvenile Corrections.
[5] Superior Court Criminal Rule 16 provides in pertinent part:
"Rule 16. Discovery and Inspection.
* * * * * *
"(b) Other Books, Papers, Documents or Tangible Objects. The defendant may serve upon the Attorney General a request to permit the defendant or someone acting on his behalf to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, copies or portions thereof which are within the possession, custody or control of the State, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal State documents made by agents in connection with the investigation or prosecution of the case, except as provided in subdivision (a) of this rule, or of statements made by State witnesses or prospective State witnesses (other than the defendant or a co-defendant) to agents of the State."
[6] We note that Delaware police have occasionally given the fifth warning. See Dorbolo v. State, Del.Supr., 405 A.2d 106, 108 n. 1 (1979); State v. Oakes, Del.Supr., 373 A.2d 210, 213 n. 6 (1977). Neither Dorbolo nor Oakes requires the fifth Miranda warning. As a matter of policy, this added precaution may be preferable; but it is not constitutionally required. Uniformity in police policy in this regard is desirable. We recommend it.
[7] As to defendant, Waller, the record clearly shows that he was, in fact, given the so-called "fifth" Miranda warning. The statement he signed recites the four required Miranda warnings. Immediately below those warnings is the statement, "If you do decide to answer any questions, with or without an attorney present, you may stop anytime during the questioning." In his signed statement, Waller indicated that all five "rights" had been explained to him, that he understood them and, with those rights in mind, he wished to make the statement. Accordingly, Waller's position on this point is without basis in fact.
[8] See text of § 783A, supra. The present § 783 provides in pertinent part as follows:
"A person is guilty of kidnapping in the second degree when he unlawfully restrains another person with any of the following purposes:
* * * * * *
"(3) To facilitate the commission of any felony or flight thereafter;
* * * * * *
"and the actor voluntarily releases the victim alive, unharmed and in a safe place prior to trial."
[9] On cross-examination, Bobby Anderson was questioned by the attorney for Gray as follows:
"Question: Bobby, did you enter a plea in this particular incident in the Family Court?
"Answer: Yes, sir.
"Question: What did you plead guilty to?
"Answer: The second-degree murder charge."
* * * * * *
"Question: Bobby, did you agree with George Gray or James Waller to do anything to Mr. Horstman?
* * * * * *
"Answer: No sir."
The attorney for Waller questioned Anderson as follows:
"Question: When you gave this written statement to the authorities in Florida, isn't it true that at the time you were facing charges of murder in the first degree, kidnapping in the first degree and robbery in the first degree?
"Answer: Yes sir.
"Question: Did the fact that you were facing those charges have anything to do with the story you gave at that time?
"Answer: No, sir.
"Question: You have testified that after all this, you voluntarily entered a plea of guilty to murder in the second degree; is that correct?
"Answer: Yes sir."
On cross-examination, Shirley Pryor was questioned by the attorney for Gray as follows:
"Question: Shirley, you previously entered a plea of guilty to the charge of murder in the second degree in this case, didn't you?
"Answer: Yes, sir.
"Question: You were originally charged with murder in the first degree, robbery in the first degree, and kidnapping in the first degree, the same as George Gray?
"Answer: Yes.
"Question: Shirley, do you have any hopes of leniency * * * at your sentencing, or anything else, based upon your entry of that plea in this case?
"Answer: I still don't understand what you are talking about.
"Question: Do you have any hopes that it will go easy with you, because you entered a plea in this case, when you are sentenced?
"Answer: No.
"Question: Did Mr. Burke make any promises to you, either directly or through your attorney, in order to get you to plead in this case?
"Answer: No.
"Question: You did it of your own free will?
"Answer: Yes."
* * * * * *
"Question: Do you expect to receive any leniency or other benefit from the prosecution because of your testimony today?
"Answer: No.
"Question: Have you been sentenced yet for what you pled guilty to?
"Answer: No, I haven't."
* * * * * *
[10] In this context, the term "search" is somewhat misleading. The Delaware State Police did not conduct a wholesale search of Waller's belongings. Rather, they walked up to a "window" at the Philadelphia Detention Center, presented the consent form, and someone behind the window brought down Waller's belongings and handed them the watch. The narrow scope of this "search" is especially significant.
[11] In Steigler, this Court upheld a continuing police search during a period of 15 hours after defendant had offered his apparent consent. 277 A.2d at 666-67.
[12] Gray apparently relied upon 11 Del.C. § 423 which provides:
"§ 423. Involuntary intoxication as a defense.
"In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of his conduct lacked substantial capacity to appreciate the wrongfulness of his conduct or to perform a material element of the offense, or lacked sufficient willpower to choose whether he would do the act or refrain from doing it."
[13] This combination alcoholism-low intellect argument is a novel approach, probably pursued because 11 Del.C. § 422 provides that "Intoxication does not, in itself, constitute mental illness or mental defect within the meaning of § 401 of this title." (Emphasis added)
Delaware's Mental Illness Statute, 11 Del.C. § 401, provides:
"(a) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or mental defect, the accused lacked substantial capacity to appreciate the wrongfulness of his conduct or lacked sufficient willpower to choose whether he would do the act or refrain from doing it.
"(b) If the defendant prevails in establishing the affirmative defense provided in subsection (a) of this section, the trier of facts shall return a verdict of `not guilty by reason of insanity.'"
[14] Rule 24(b) provides, in pertinent part:
"(b) Peremptory Challenges. In capital cases the State shall be entitled to 12 peremptory challenges and the defendant or defendants shall be entitled to a total of 20 peremptory challenges.
"* * *
"If there is more than one defendant, the Court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly."
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295 Pa. Super. 419 (1982)
441 A.2d 1302
Carl A. VENO and Carl T. Davies, Appellants,
v.
Charles M. MEREDITH, III, Ella C. Meredith and the Free Press.
Superior Court of Pennsylvania.
Argued January 21, 1981.
Filed February 19, 1982.
*420 John M. Yarema, Allentown, for appellants.
William Thatcher, Quakertown, for appellees.
Before HESTER, POPOVICH and DiSALLE, JJ.
POPOVICH, Judge:
Appellants appeal from an order sustaining appellees' preliminary objections in the nature of a demurrer to the third causes of action in a two count Complaint in Assumpsit and Trespass. The first two causes of action were in assumpsit and alleged that the appellees illegally terminated the contract of employment entered into with the appellants. The third causes of action were in trespass and claimed that appellees, in printing a retraction in their newspaper regarding an article about a public figure the writing of which was attributed to the appellants, intentionally ran false, malicious and defamatory libels concerning the appellants. We quash.
Although neither party has specifically questioned the jurisdiction of this Court to resolve the present controversy, it is axiomatic that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 *421 (1977). The mere assertion of the appellants in their brief that jurisdiction is conferred on the Superior Court over this matter by reason of the Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa.C.S.A. § 701 et seq. (Pamphlet, 1980) is not dispositive of the question. Accordingly, we reach the appealability of the trial court's order sua sponte. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981); MacKanick v. Rubin, 244 Pa.Super. 467, 368 A.2d 815 (1976).
The appellate court's jurisdiction is defined by statute, i.e., 42 Pa.C.S.A. § 742 (Purdon's 1981), which grants this Court "exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas . . . ." (Emphasis added) In deciding what constitutes a "final order," the courts of this Commonwealth have adhered to the approach of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949), in that we look to "a practical rather than technical construction" of an order. In Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our own Supreme Court set forth those factors which need to be considered, in light of Cohen's pronouncement, in deciding the finality question; viz.:
"In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.
We applied Cohen in Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), where we said: `Whether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion *422 which can be reached only after an examination of its ramifications.' We have also said that if the practical consequence of the order by the trial court is effectively to put an appellant `out of court' the order will be treated as final. Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). Similarly, an order is `final' if it precludes a party from presenting the merits of his claim to the lower court. Marino Estate, 440 Pa. 492, 494, 269 A.2d 645, 646 (1970)."
Id., 483 Pa. at 73, 394 A.2d at 545.
Application of the criteria of Cohen to the instant case evidences its interlocutory nature. The order of the lower court regarding the issue of defamation is, indeed, collateral to the basic question of breach of contract, and it does not involve a right too important to be denied review. More importantly, the order does not adversely affect a claimed right which will be irreparably lost if review is postponed. Although appellants must in the first instance proceed to litigate the contract question below, they are not foreclosed from attacking the validity of the order as it pertains to their libel claim in post-trial motions, see, e.g., Pa.R.Civ.P. 227.1, 1038 and 1048, and, if the ruling issued is adverse to appellants, the matter will then be ripe for appeal. Further, the issue is neither waived nor mooted by the inability of appellants to appeal at this stage.
Consequently, consistent with our holdings that an order dismissing some but not all of the counts of a multi-count complaint is interlocutory and is not appealable since appellant is not out of court, see Johnson v. National Life and Accident Insurance Co., 293 Pa.Super. 300, 438 A.2d 1004 (1981); Esh v. Awglis, 291 Pa.Super. 528, 436 A.2d 242 (1981), and our "`policy of precluding "piecemeal determinations and the consequent protraction of litigation",'" Esh v. Awglis, supra, 291 Pa.Super. at 528, 436 A.2d at 242, we find that the order appealed from is interlocutory. Pugar v. Greco, supra.
*423 Accordingly, the appeal from the order of the court of common pleas is quashed.
DiSALLE, J., did not participate in the consideration or review of this case.
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186 Conn. 295 (1982)
BALDWIN PIANO AND ORGAN COMPANY
v.
VINCENT BLAKE ET AL.
Supreme Court of Connecticut.
Argued November 2, 1981.
Decision released February 23, 1982.
SPEZIALE, C. J., PETERS, HEALEY, ARMENTANO and BRENNAN, JS.
Angel M. Bello-Billini, with whom was Francis X. Dineen, for the appellants (defendants).
William F. Gallagher, with whom, on the brief, were Frederick S. Moss and Frank L. Cirillo, for the appellee (plaintiff).
*296 SPEZIALE, C. J.
The defendants appeal from a decision of the trial court finding them in contempt for violation of a prejudgment remedy order issued by the court.
The defendants entered into a retail installment contract and security agreement with the plaintiff for the purchase of a Baldwin piano. On the defendants' default in their payments, the plaintiff declared the balance of the price immediately due in accordance with the default clause in the contract. When the defendants failed to pay, the plaintiff applied for a prejudgment remedy to replevy the piano. The court granted the application. The sheriff attempted to replevy the piano, but, as he attested, "the defendant Gladys Blake, who has possession of said piano, would not let me in the house to replevy such piano. Therefore, I return this Order of Replevin unserved and unsatisfied." The record does not show whether the sheriff also attempted to serve the writ, summons and complaint. It is clear, however, that the writ, summons, and complaint have never been served.
The plaintiff filed a motion for contempt, alleging that the defendants "violated and disobeyed the Order for Prejudgment Remedy in that they refused to allow a duly authorized sheriff to enter the premises wherein said piano has been wrongfully detained by the defendants, for the purpose of retaking same on behalf of the plaintiff." The plaintiff filed a rule to show cause why the defendants should not be adjudged in contempt of court for having "violated and disobeyed the Order for Prejudgment Remedy."
*297 The defendants moved to dismiss the prejudgment remedy under General Statutes § 52-278j,[1] in that more than ninety days from the issuance of the replevy order had passed without service of the writ, summons, and complaint. They then filed claims of law raising again the jurisdictional issue of their motion to dismiss the replevy order for lack of service within the ninety-day period required by General Statutes § 52-278j. In response to the rule to show cause the defendants again "specifically [brought] the court's attention to defendants' claim of lack of jurisdiction...." At the hearing on the plaintiff's motion for contempt and rule to show cause the defendants raised the issue yet again.
The trial court did not address the defendants' repeated jurisdictional challenges, but concluded: "the defendants may be held in contempt for violation of the prejudgment remedy order of this court." From that finding of contempt the defendants have appealed to this court.
At the outset this court is confronted with a challenge to the jurisdiction of the Superior Court to hear the plaintiff's motion for contempt. "Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it `can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.' Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 717 [1838]; Denton v. Danbury, 48 Conn. 368, *298 372 [1880]." Woodmont Assn. v. Milford, 85 Conn. 517, 524, 84 A. 307 (1912). The point has been frequently made. See, e.g., Kohn Display & Woodworking Co. v. Paragon Paint & Varnish Corporation, 166 Conn. 446, 448, 352 A.2d 301 (1974); East Side Civic Assn. v. Planning & Zoning Commission, 161 Conn. 558, 559, 290 A.2d 348 (1971); Carten v. Carten, 153 Conn. 603, 610, 219 A.2d 711 (1966); Felletter v. Thompson, 133 Conn. 277, 280, 50 A.2d 81 (1946) (Maltbie, C. J.). We conclude that the trial court should have addressed the defendants' jurisdictional challenge before ruling on the plaintiff's motion for contempt. Accordingly, we hold that the court erred in failing to decide the jurisdictional claim raised by the defendants' motion to dismiss.
There is error, the judgment of the trial court is set aside and the case is remanded to the trial court for further proceedings consistent with this opinion.
In this opinion HEALEY, ARMENTANO and BRENNAN, Js., concurred.
PETERS, J. (concurring). I am troubled by the apparent readiness of the majority opinion to grant procedural priority to any challenge to judicial action as long as that challenge is couched in terms of jurisdiction. I recognize that the position taken by the majority has strong roots in history and in our case law. I doubt, however, that the interests of efficient administration of justice are best served by attaching talismanic effect to the label "jurisdictional," especially when the issue is at most one of jurisdiction over the person.
Jurisdictional issues may of course, in some cases, impinge on constitutional rights to procedural due *299 process. See Hodge v. Hodge, 178 Conn. 308, 318-19, 422 A.2d 280 (1979); Shaffer v. Heitner, 433 U.S. 186, 207-12, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977). For that reason, they may require extraordinary judicial responsiveness. Cf. Dobbs, "Beyond Bootstrap: Foreclosing the Issue of Subject-Matter Jurisdiction Before Final Judgment," 51 Minn. L. Rev. 491, 520-21 (1967). Ordinarily, however, adjudication of constitutional infirmity requires a specific showing of personal injury; Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966); that is conspicuously lacking here.
There is certainly nothing inherently unconstitutional or jurisdictional in time constraints. We ourselves have refused to hold jurisdictional the provision in Practice Book § 3007 that imposes a twenty day limitation on appeals to this court. LaReau v. Reincke, 158 Conn. 486, 492-93, 264 A.2d 576 (1969). See also Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 926-27 (5th Cir. 1975); Philbrick v. Huff, 60 Cal. App. 3d 633, 640-41, 131 Cal. Rptr. 733 (1976).
On the record before us, it seems to me that the plaintiff has made out a plausible case that the statute at issue, General Statutes § 52-278j, is not jurisdictional. The statute appears to empower the trial court to exercise discretion, since it states that, in proper circumstances, "the court ... may dismiss the prejudgment remedy." (Emphasis added.) Authority to exercise discretion is not notably a hallmark of jurisdictional statutes. The plaintiff's version of the facts, moreover, supports its argument that the statute is nonjurisdictional. Although *300 the plaintiff does not deny that it failed to serve the defendant after the granting of the prejudgment remedy, it maintains that the defendant was properly served prior to the granting of the prejudgment remedy. As the plaintiff interprets § 52-278j, dismissal of the prejudgment remedy would be warranted only if the defendant had not been served at any time before the expiration of the statutory ninety day period. The statute would, in effect, establish an outer limit for the timeliness of the service of process without negating the effect of earlier service.
I concur in the result reached by the majority because it appears to me not clear whether the plaintiff's allegations about the prior service of process are sustained by the record. The briefs of the parties are conflicting on this point and this court cannot resolve that conflict.
NOTES
[1] General Statutes § 52-278j (a) provides: "If an application for a prejudgment remedy is granted but the plaintiff, within ninety days thereof, does not serve and return to court the writ, summons and complaint for which the prejudgment remedy was allowed, the court on its own motion or on the motion of any interested party may dismiss the prejudgment remedy."
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122 N.H. 146 (1982)
MELVIN ROWE
v.
CITY OF PORTSMOUTH.
No. 81-155.
Supreme Court of New Hampshire.
February 19, 1982.
Flynn, McGuirk & Blanchard, of Portsmouth (John P. McGee, Jr., on the brief and orally), for the plaintiff.
Devine, Millimet, Stahl & Branch, of Manchester (Lee C. Nyquist on the brief and orally), for the defendant.
DOUGLAS, J.
This workmen's compensation appeal raises the issue of whether the plaintiff, Melvin Rowe, presently is suffering from any cardiac disability that is causally related to an incident *147 that occurred on March 28, 1979, while he was in the employ of the defendant, the City of Portsmouth.
Rowe suffered a work-related "myocardial episode" on March 28, 1979, during the course of his employment as a mechanic for the City of Portsmouth. Prior to the onset of this episode, Mr. Rowe suffered an "underlying arteriosclerosis of coronary arteries." Rowe admitted himself to the Portsmouth Hospital while suffering the episode, and he was hospitalized from March 28, 1979, until April 11, 1979, a period of two weeks.
The defendant paid for the plaintiff's hospitalization and paid him workmen's compensation pursuant to RSA 281:23. In the fall of 1979, the defendant petitioned the commissioner of labor to terminate workmen's compensation benefits. After a hearing at which the plaintiff appeared pro se, the commissioner terminated the plaintiff's compensation benefits. Following this determination, the plaintiff sought counsel and appealed the ruling of the commissioner to the superior court.
At the commencement of the hearing before the Master (Charles T. Gallagher, Esq.), the defendant conceded that the plaintiff's work on March 27 and 28, 1979, did precipitate a myocardial episode of chest discomfort which required hospitalization. The defendant further conceded that the plaintiff was disabled for an indeterminate length of time coincident with at least his hospitalization. The defendant, however, contended that the plaintiff, at some point subsequent to his hospitalization, had ceased to be disabled on account of his myocardial episode of March 27 and 28, 1979. The master's recommendation that the appeal be denied was approved by Mullavey, J., and this appeal ensued.
Rowe was discharged from the Portsmouth Hospital with a diagnosis of "acute anteroseptal subendocardial infarction." The plaintiff's expert, Dr. Lawrence A. Baker, concurred in the discharge diagnosis but Dr. Jeremy Handelman, a physician with a sub-specialty in the practice of cardiology who treated Rowe subsequent to his myocardial episode, strongly disagreed with the discharge diagnosis and testified, "I will say [Mr. Rowe] absolutely did not have a myocardial infarction."
The City of Portsmouth's medical expert, Dr. Elliot L. Sagall, a certified specialist in internal medicine and cardiology, testified that Rowe suffered from "transient myocardial ischemia," that Rowe had not sufferd a myocardial infarction and suffered no permanent damage to his heart, but rather was suffering from progressive coronary artery heart disease that was not causally related to his employment with the City of Portsmouth or to the myocardial episode of March 28, 1979. Dr. Sagall testified about *148 numerous widely recognized medical tests that had been performed on Mr. Rowe and concluded that these tests demonstrated a medical probability that Mr. Rowe had not suffered a heart attack.
At the close of the evidence, the master was confronted with the classic dilemma that usually faces all triers of fact: simply stated, he had to decide which experts to rely upon. The master summarized his problem:
"The expert medical testimony presented in this case is in sharp conflict. Dr. Baker holds the opinion that the plaintiff suffered a myocardial infarction on March 28, 1979. The opinion is based largely upon the plaintiff's medical history. Dr. Sagall, whose credentials are equal to those of Dr. Baker, is of the opinion that there was no injury because all of the tests made at the hospital and after discharge are essentially negative."
The master chose to lend the most credence to the expert medical opinions of Dr. Handelman and Dr. Sagall, and ruled in favor of the City of Portsmouth, holding that the plaintiff had not carried his burden of proof to establish either that he had suffered a myocardial infarction on March 28, 1979, or that he continued to suffer from any disability that was causally related to the March 28, 1979, incident. The master was not convinced that Rowe's disability was related to the incident and not to his pre-existing arteriosclerotic condition, a condition that was verified by all three medical expert witnesses.
[1-3] The plaintiff asserts that the evidence did not warrant the master's ruling. It is clear that heart-related conditions can result in compensable injuries under RSA ch. 281. See New Hampshire Supply Co. v. Steinberg, 119 N.H. 223, 227, 400 A.2d 1163, 1166 (1979); Couture v. Mammoth Groceries Inc., 116 N.H. 181, 183, 355 A.2d 421, 422 (1976); Jackson v. Emile J. Legere, Inc., 110 N.H. 252, 254, 265 A.2d 18, 20 (1970). However, when competent expert medical evidence exists in the record to support the trier of fact's determination, it is not ordinarily reversible on appeal to this Court, Rogers v. Town of Newton, 121 N.H. 702, 706, 433 A.2d 1303, 1305 (1981); New Hampshire Supply Co. v. Steinberg, 121 N.H. 506, 509, 433 A.2d 1247, 1249 (1981), "even though contrary testimony received would have supported a different result." New Hampshire Supply Co. v. Steinberg, 121 N.H. at 509, 433 A.2d at 1249.
*149 Having reviewed the record, we conclude that the master's finding must stand.
Affirmed.
All concurred.
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185 Conn. 502 (1981)
BONNIE MANTER
v.
JOHN MANTER
Supreme Court of Connecticut.
Argued October 15, 1981.
Decision released December 1, 1981.
SPEZIALE, C. J., PETERS, HEALEY, PARSKEY and ARMENTANO, JS.
*503 Donald J. Cantor, with whom were Edward J. Hyman and, on the brief, Joel M. Ellis, for the appellant (intervenor Allan D. Coombs).
Robert J. Cathcart, with whom was Mary M. Ackerly, for the appellee (plaintiff).
PETERS, J.
The issue in this case is whether a divorced adoptive father who has permitted his former wife's second husband to adopt his children may, more than a year following the latter's divorce, intervene to regain custody of the children. The appellant's motion to intervene was denied by the trial court, and he appeals from that denial.
Prospective third party intervenor Allan Dexter Coombs married Brenda Mae Coombs in March, *504 1961. The couple then adopted two minor children, Donald Allan and Heather Eleanor. After the Coombs' divorce in July, 1974, Brenda Coombs married John P. Manter in February, 1975, using thereafter the name of Bonnie Manter. Because of the Manter marriage, Allan Coombs consented to the termination of his parental rights and the adoption of Donald and Heather by John Manter; the termination and adoption agreements were ordered by Probate Court decree on September 9, 1975.[1] After two years of marriage Bonnie and John Manter were divorced on January 18, 1978, with Bonnie Manter retaining custody of both children. The divorce decree was modified on April 6, 1978, to deny John Manter visitation rights. To date he has not challenged that denial or the custody decision.
Seeking custody or visitation rights,[2] Allan Coombs moved on February 13, 1979, to intervene in the divorce action of Manter v. Manter under General Statutes § 46b-57, which permits interested third parties to intervene in custody controversies before the Superior Court.[3] At a preliminary hearing *505 the trial court on April 2 granted Coombs standing for the expressly limited purpose of a visitation study by the family relations office. By supplemental order dated October 1, 1979, the court denied the motion to intervene on the dual grounds that no present dispute was then before the court and no facts were presented to qualify Coombs as an interested party under § 46b-57. Coombs now appeals from that denial of his motion to intervene.
General Statutes § 46b-57 assigns the court discretionary power to permit intervention upon motion by "any interested third party or parties." A prerequisite to that intervention, however, is the existence of a controversy. Although the prospective intervenor argues that Bonnie Manter's opposition to his motion itself generates the necessary controversy, the statute does not support that reading. Section 46b-57 permits intervention "[i]n any controversy before the superior court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 54-27."[4] Read in *506 accordance with customary usage, this language clearly requires the controversy to precede the motion and to exist independently of it. Intervention is "a device which enables one who was not originally a party to an action to become such a party on his own initiative." James & Hazard, Civil Procedure (2d Ed.) §10.19, p. 511. The intervenor's posture is derivative; he assumes his role only by virtue of an action already shaped by the original parties. He must, therefore, take his controversy as he finds it and may not use his own claims to restyle or resuscitate their action. See National Bank of Commerce of New London v. Rowland, 128 Conn. 307, 312-13, 22 A.2d 773 (1941).
*507 The controversy in which Coombs seeks to intervene is the divorce of Bonnie and John Manter. Their divorce decree was issued on January 18, 1978 and modified on April 6, 1978, when John Manter was denied visitation rights. Coombs' motion to intervene was filed on February 13, 1979, thirteen months after the divorce decree and ten months after the modification. We need not now determine the precise moment at which the controversy surrounding a divorce decree expires. In the circumstances of this case, the trial court could reasonably have concluded that no controversy existed when Coombs attempted to intervene. Where a statute provides that a court "may allow" intervention under specified conditions, that court exercises discretion in determining the timeliness of the intervention. See Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980); Jones v. Ricker, 172 Conn. 572, 575 n.3, 375 A.2d 1034 (1977); 37 A.L.R. 2d 1306 (1954); cf. James & Hazard, supra, 516. There was no abuse of that discretion here.
Since we agree that Coombs' motion was barred by the absence of a controversy, we should not in this case attempt to define the varieties of interest that would authorize intervention under § 46b-57. We do, however, observe that under its mandate to give "paramount consideration in custody matters" to the child's welfare; Simons v. Simons, 172 Conn. 341, 347, 374 A.2d 1040 (1977); the court may employ a flexible test of interest in harmony with the broad language of the statute. See Presutti v. Presutti, 181 Conn. 622, 626-27, 436 A.2d 299 (1980).[5]
*508 The traditional family model, never itself strictly limited to the nuclear unit, is today one among numerous variations on the extended family. See Moore v. East Cleveland, 431 U.S. 494, 504-506, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977); Zaharoff, "Access to Children: Towards a Model Statute for Third Parties," 15 Fam. L.Q. 165, 185-89 (1981). Courts in other jurisdictions have responded by granting visitation rights to such nontraditional parties as stepparents where the child's welfare dictated that result. See, e.g., Looper v. McManus, 581 P.2d 487, 489 (Okla. Ct. App. 1978); Spells v. Spells, 250 Pa. Super. 168, 172, 378 A.2d 879 (1977); 1 A.L.R. 4th 1270 (1980). Our decision today is in no way intended to prejudge future interpretations of the phrase "interested third party" under § 46b-57 where the controversy requirement is met and the trial court finds a prospective intervenor to have a significant concern for the welfare of the child. See Zaharoff, supra, 194-96.
*509 There is no error.
In this opinion SPEZIALE, C.J., HEALEY and ARMENTANO, Js., concurred.
PARSKEY, J. (concurring). Although I am prepared in a proper case to consider whether the language of General Statutes § 46b-57 is broad enough to encompass other than legal interests for the purpose of intervention in custody proceedings, I do not regard this case as appropriate for such consideration. While it is true that the third party "intervenor" had been an adoptive parent, the record discloses that he consented to the termination of his parental rights. His present claim that such consent was given under duress is not properly raised in a motion to intervene. The proper way to raise such claims is by filing, in a timely fashion, a motion to reopen and vacate the termination judgment. Failing that, the third party "intervenor" must be treated in the present case as a legal stranger.
Because the "intervenor," nevertheless, presses a claim for intervention based on a broad view of "interest," additional observations are suggested. What appears on the surface as simply a problem of statutory construction on closer analysis involves more complex issues. To start with, assuming the existence of a present controversy, the immediate litigants are parents, each of whom possesses a constitutional right. The right of a parent to the companionship, care, custody and management of his or her children is not a mere lagniappe that comes with the relationship. Rather it is an essential constitutional right which warrants deference and, in the absence of a powerful countervailing interest, protection. *510 Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). The corollary to this proposition is that in any controversy between a possessor of a constitutionally protected custodial right and a possessor of a lesser interest, ordinarily the latter must give way.[1] See Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 847, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977); Hao Thi Popp v. Lucas, 182 Conn. 545, 551, 438 A.2d 755 (1980). Because I do not read the court's opinion as standing for the proposition that the flexible interest test for intervention would give the trial court discretion, under the rubric of "the best interests of the child," to override a person's constitutional parental rights in favor of such intervening party I concur both in the opinion and the result. See In re Juvenile Appeal (Anonymous), 181 Conn. 638, 648, 436 A.2d 290 (1980) (Parskey, J., dissenting).
NOTES
[1] In his motion to intervene, Coombs claimed that he acted under duress when he agreed to terminate his parental rights. Since he had, however, never attempted to set that termination aside, he conceded at oral argument that the duress issue was presently irrelevant.
[2] Coombs based his motion on claims that he had maintained a continuous relationship with the children both before and after their adoption and had contributed substantially to their support at all times.
[3] "[General Statutes] Sec. 46b-57. (Formerly Sec. 46-47). THIRD PARTY INTERVENTION RE CUSTODY OF MINOR CHILDREN. PREFERENCE OF CHILD. In any controversy before the superior court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 54-27, if there is any minor child of either or both parties, the court if it has jurisdiction under the provisions of chapter 815o, may allow any interested third party or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable. Before allowing any intervention, the court may appoint counsel for the child or children pursuant to the provisions of section 46b-54. In making any order under this section the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference."
[4] "[General Statutes] Sec. 46b-1. (Formerly Sec. 51-330). FAMILY RELATIONS MATTERS DEFINED. Matters within the jurisdiction of the superior court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage, contested and uncontested, except dissolution upon conviction of crime as provided in section 46b-47; (2) legal separation; (3) annulment of marriage; (4) alimony, support, custody and change of name incident to dissolution of marriage, legal separation and annulment; (5) actions brought under section 46b-38; (6) complaints for change of name; (7) civil support obligations; (8) habeas corpus and other proceedings to determine the custody and visitation of children; (9) habeas corpus brought by or in behalf of any mentally ill person except a person charged with a criminal offense; (10) appointment of a commission to inquire whether a person is wrongfully confined as provided by section 17-200; (11) juvenile matters as provided in section 46b-121; (12) all rights and remedies provided for in chapter 815j; (13) the establishing of paternity; (14) appeals from probate concerning: (a) Adoption or termination of parental rights; (b) appointment and removal of guardians; (e) custody of a minor child; (d) appointment and removal of conservators; (c) orders for custody of any child; (f) orders of commitment of persons to public and private institutions and to other appropriate facilities as provided by statute; (15) actions related to prenuptial and separation agreements and to matrimonial decrees of a foreign jurisdiction; (16) custody proceeding brought under the provisions of chapter 815o; and (17) all such other matters within the jurisdiction of the superior court concerning children or family relations as may be determined by the judges of said court."
"[General Statutes] Sec. 51-348a. (Formerly Sec 54-27). PROSECUTION FOR NONSUPPORT IN GEOGRAPHICAL AREA. Notwithstanding the issuance of an order for support of a minor child or children by the superior court under the provisions of section 46b-84, any prosecution for nonsupport of a minor child or children as specified in section 53-304 may be brought to the geographical area of the superior court and shall proceed on proper complaint from the payee of such order, a family relations officer or an authorized representative of the commissioner of administrative services; provided, in any case where such order has been issued, such order shall be the measure of failure to support."
[5] General Statutes § 46b-57 was introduced as a minor part of the controversial 1973 reformation of Connecticut divorce law and received little scrutiny at the time. See H.B. 8235, § 17. In hearings before the Judiciary Committee, Samuel Schoonmaker, Chairman of the Family Law Committee of the Connecticut Bar Association and one of the drafters of the statute, testified that "[w]e also provide that in the case that neither party is in a position or fit to take charge of children parties who might be in a better position be permitted to come to court to have their case heard and if appropriate the judge could award custody and visitation rights to others such as grandparents, uncles and aunts and other people of that kind." Joint Standing Committee Hearings, Judiciary, Pt. 1, 1973 Sess., p. 209. There is no testimony further explaining the standards for intervention or defining "other people of that kind." See also McAnerney & Schoonmaker, "Connecticut's New Approach to Marriage Dissolution," 47 Conn. B.J. 375, 405-406 (1973): "The power of the court to award custody or visitation rights to third parties may, as a practical matter, be rarely used, but its existence underscores the philosophy that the court should go to whatever length it deems necessary to promote a child's welfare...."
[1] To what extent, if any, parental rights might be attenuated in a case in which a grandparent seeks visitation rights pursuant to General Statutes § 46b-59 need not be addressed at this time.
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441 A.2d 992 (1982)
Paul J. DAVIS, Appellant,
v.
Clyde BRUNER, Appellee.
No. 11924.
District of Columbia Court of Appeals.
Argued April 6, 1979.
Decided February 11, 1982.
Rehearing En Banc Granted and Opinion Vacated March 29, 1982.
*993 Lynn E. Cunningham, Washington, D. C., for appellant. Laura A. Gisolfi submitted a brief in behalf of appellant.
Michael E. Brand, Washington, D. C., for appellee and as amicus curiae.
Before NEBEKER and FERREN, Associate Judges, and YEAGLEY, Associate Judge, Retired.[*]
YEAGLEY, Associate Judge, Retired:
This action for possession was instituted when appellee's managing agent[1] filed suit against the tenant (appellant), alleging nonpayment of rent for the period September 1, 1976 to October 1, 1976. Five previous actions for possession for nonpayment of rent resulted in judgments for appellee during the period 1971-1975. In the verified complaint, it was alleged that there was a written lease with waiver of written notice to vacate, and that appellant was a monthly tenant. Defendant (appellant) appeared and alleged in his answer, inter alia, (a) that he had not received, nor had he knowingly waived his right to receive, a notice to quit; (b) that he did not owe plaintiff the amount alleged in the complaint; (c) that the rental agreement was null and void based upon housing code violations causing the premises to be unsafe and/or unsanitary; (d) that plaintiff had breached the warranty of habitability implied in every rental agreement because of the substantial housing code violations existing on the premises; and (e) that despite the earlier judgments, he was entitled to a money judgment for back rent paid since January 1, 1974, based upon these violations.
In support of his motion for partial summary judgment, appellee urged that the prior default judgments entered against appellant for possession[2] constituted an adjudication of the existence of the lease and the condition of the premises prior to September 29, 1975, the date of the last judgment, rendering those issues res judicata and precluding as defenses the validity of the lease, whether there had been a written notice to quit, and a counterclaim for housing code violations for the periods encompassed by the judgments.[3] The motion was granted pre-trial over appellant's opposition.
After both parties rested at trial, appellee moved for a directed verdict on appellant's counterclaim for the period from September *994 30, 1975 through August 31, 1976, on the ground that there was insufficient evidence to go to the jury. The court granted the motion and instructed the jury that they could only consider evidence of housing code violations for the periods for which rent was claimed owing, to wit, September 1, 1976 to date of trial, February 1977.[4] The jury found housing code violations existed during this period and abated the amount of rent found due ($600) by fifty percent. Judgment for possession was entered for appellee,[5] and this appeal followed.[6] We affirm.
Appellant's twofold argument on appeal is basically that it was error for the court to grant the motion for partial summary judgment, which precluded his counterclaim for housing code violations existing prior to September 29, 1975, the date of the last default judgment.[7]
Appellant-tenant contends preliminarily that even if the prior default judgments were valid, D.C.Code 1973, § 16-1505 bars the application of the doctrine of res judicata to judgments for possession of real estate. That section of the code provides that:
A judgment of the Superior Court of the District of Columbia in a proceeding pursuant to this chapter is not a bar to any afteraction brought by either party, and does not conclude any question of title between them, where title is not pleaded by the defendant.[8]
Appellant, focusing on the language "A judgment of the Superior Court of the District of Columbia in a proceeding pursuant to this chapter is not a bar to any afteraction brought by either party," would have us hold that a judgment for possession obtained by default is not res judicata in a subsequent action, even if the second suit is on the same cause of action and between the same parties. This result would be contrary to the general rule that default judgments are as conclusive as judgments rendered after trial. Woods v. Cannaday, 81 U.S.App.D.C. 281, 158 F.2d 184 (1946); Somportex Limited v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 442 (3d Cir. 1971), cert. denied, 405 U.S. 1017, 92 S. Ct. 1294, 31 L. Ed. 2d 479 (1972). See also ALI Restatement of the Law of Judgments, § 75 (1942).
We must reject appellant's effort to bring D.C.Code 1973, § 16-1505 to bear here. The statute must be read as a whole and when so read only eliminates the bar of res judicata in summary actions for possession of real estate as to the issue of title, unless title is pleaded by the defendant.
In a decision in this jurisdiction involving a statutory summary action for possession, such as we have here under D.C.Code 1973, § 16-1501-03, we said that
an action under § 16-1501 normally does not try title. When the issue of title intrudes into the action, it is discontinued and, pursuant to a rule of the Superior Court, transferred from the Landlord and Tenant Branch to the Civil Division "for *995 trial on an expedited basis." Appellant argues that the change of forum incident to a plea of the title does not change the nature of the proceedings, and we would agree. Nevertheless, actions in which title is in issue constitute a special category under the statute.9
9 No question of title is concluded between the parties in an action under § 16-1501, where title is not pleaded by the defendant. D.C.Code 1967, § 16-1505 (Supp. V, (1972). [Pernell v. Southall Realty, 294 A.2d 490, 492 (1972), rev'd on other grounds, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974) (n.8 omitted).]
When this summary remedy for possession of real estate was adopted by Congress, we already had a statutory remedy for possession which authorized an action in ejectment wherein, historically, the question of title was in issue. Bursey v. Lyon, 30 App. D.C. 597, 604-05 (1908); Pernell v. Southall Realty, D.C.App., 294 A.2d 490, 492 (1972); D.C.Code 1973, § 45-910. Accordingly, our Code also specifically provides:
A final judgment rendered in an action of ejectment is conclusive as to the title thereby established as between the parties to the action and all persons claiming under them since the commencement of the action. [D.C.Code 1973, § 16-1115.]
When the new summary remedy for possession was adopted, the Congress apparently wanted to make it clear that if the action brought did not sound in ejectment, the final judgment would not determine title or be conclusive between the parties as to title unless pleaded by the defendant.
The action before us is for summary possession under D.C.Code 1973, § 16-1501, and defendant-appellant did not put title in issue. Consequently, D.C.Code 1973, § 16-1505 has no application here, other than that the judgment, unlike one in ejectment, will not be conclusive as to any question of title. It means nothing more.
Appellant argues secondly that because the defenses and/or counterclaims regarding the validity of the lease, waiver of notice, and housing code violations, were not raised in the prior actions, and the judgments were entered by default, those issues were not litigated and determined in the prior actions, even though he could have raised the violations as an affirmative defense. See McNeal v. Habib, D.C.App., 346 A.2d 508 (1975); Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S. Ct. 186, 27 L. Ed. 2d 185 (1970). Consequently, reasons appellant, the bar of res judicata was misapplied by the trial court to this counterclaim for housing violations existing prior to the earlier judgments for possession.
We disagree and reaffirm our holding in Gordan v. William J. Davis, Inc., D.C.App., 270 A.2d 138 (1970), which controls appellant's claim here.
In that action for possession, appellant (defendant) contended that the lease agreement was null and void due to housing code violations existing on the premises from the inception of the lease. He sought a setoff at least equal to the rent alleged to be due. In the landlord's motion for a summary judgment, he argued that two prior default judgments involving the same premises and the same parties rendered the issue of the invalidity of the lease due to housing code violations res judicata. The motion was granted. In reviewing appellant's assignments of error, we said:
We have recently held that a prior default judgment in a suit for possession "is res judicata as to those issues litigated and determined therein * * *. Included litigated issues are the validity of the lease, the existence of the tenancy and the fact that rent is due." Tutt v. Doby, D.C.App., 265 A.2d 304, 305 (1970). Appellant would have us now hold to the contrary and disregard the prior default judgments notwithstanding that after the default judgments were entered appellant in both instances paid the back rent due and, so far as it appears, did not seek to have the default judgments vacated under G.S.Civ.R. 60(b).
What appellant seeks is to be free to attack the validity of the lease under our decision in Brown v. Southall Realty Co., *996 D.C.App., 237 A.2d 834 (1968), due to alleged violations of the Housing Regulations of this city existing on the premises at the inception of the lease. But we could hardly entertain seriously appellant's proposition that we should carve out an area in Landlord and Tenant law and decline to apply there the doctrine of res judicata where there has been a default judgment in the Landlord and Tenant Branch of the trial court. To state the proposal is to answer it. Appellant is bound by the prior judgments and is not free to attack the lease at its incipiency due to alleged violations of Housing Regulations then existing. Tutt v. Doby, supra. ...
* * * * * *
It is apparent, therefore, that though appellant is foreclosed from litigating alleged violations existing prior to the last default judgment entered against him in the possessory action this is not the case in respect to violations alleged to have existed in the subsequent prior for which rent is claimed. [Id. at 139-40; footnotes omitted.]
Appellant contends that Gordan, supra, is inapplicable because unlike the tenant there, who paid the judgments after they were entered, he had paid the rent due prior to, or on, the same day the default judgments were entered.[9] Whether or not this argument of appellant is correct seems to be of little consequence. By paying the rent due, whether before or after judgment, he thereby gave recognition to the validity of appellee's claim. Further, in the earlier actions for possession, appellee was required to prove existence of the lease and either a written notice to quit or a waiver. D.C. Code 1973, § 45-901-05.
Appellant argues that appellee did not establish the grounds upon which possession was sought in the two prior cases encompassed within the period of defendant's counterclaim, and that appellee relied upon three 1971 judgments, which preceded the periods encompassed by defendant's counterclaim, to establish the existence and terms of a written lease agreement. We find these claims are without merit. The record shows that appellee relied at least upon judgments for possession entered in 1974 and 1975.[10] We said in David v. Nemerofsky, D.C.Mun.App., 41 A.2d 838, 841 (1945):
[I]t is manifest that in the prior suit the defendant here was afforded the opportunity of controverting the allegation that he was a tenant of the property and he either did controvert it unsuccessfully or permit it to remain unchallenged. Due regard for the policy of the law to end litigation after an issue has been finally determined and to maintain stability and consistency in its decisions should prevent any attempt to litigate anew an issue once decided.
In relying on our decision in Gordan, supra, we are not unmindful that the opinion in that case was based largely on our decision in Tutt v. Doby, D.C.App., 265 A.2d 304 (1970), which later was reversed by the United States Court of Appeals for the District of Columbia Circuit. 148 U.S.App. D.C. 171, 459 F.2d 1195 (1972).
In Tutt, a default judgment for possession of leased premises had been entered against the tenant for nonpayment of rent. The complainant had been served by posting a notice on the front door of the premises. In a later suit by the landlord to recover rent arrearages, but not possession, which differs somewhat from our situation here, we held that the tenant is barred by res judicata from raising the defense that the lease had been breached earlier by the landlord and was null and void.
The basic proposition in Tutt was first expressed by this court in David v. Nemerofsky, supra, and later followed in Bess v. David, D.C.Mun.App., 140 A.2d 316 (1958).
*997 Although we do not have the question here of the amount of rent due as in Tutt, we must examine the precedential status of the decision there in light of the later reversal by the United States Circuit Court.
Gordan v. William J. Davis, Inc., supra, was decided by this court on October 21, 1970, and as we have indicated, it relied to a considerable extent on Tutt v. Doby, supra, decided by this court on May 5, 1970. A timely appeal was taken in the latter case to the Circuit Court prior to the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, D.C.Code 1973, § 11-101 et seq. However, the Circuit's decision was not forthcoming until March 1972, nearly a year after the effective date of that Act.
At the time the appeal in Tutt was taken, the United States Court of Appeals for the District of Columbia Circuit was the highest court in the District of Columbia. However, before its decision was handed down in March 1972, this court had become the highest court in the District by virtue of the Congress enacting the District of Columbia Court Reform and Criminal Procedure Act of 1970, supra, which became effective February 1, 1971. That law provided:
The highest court of the District of Columbia is the District of Columbia Court of Appeals. Final judgments and decrees of the District of Columbia Court of Appeals are reviewable by the Supreme Court of the United States in accordance with section 1257 of title 28, United States Code. [D.C.Code 1973, § 11-102.]
As to the role of the United States Circuit Court in local matters, that law provided:
In addition to its jurisdiction as a United States court of appeals and any other jurisdiction conferred on it by law, the United States Court of Appeals for the District of Columbia Circuit has jurisdiction of appeals from judgments of the District of Columbia Court of Appeals
* * * * * *
(2) entered before the effective date of the District of Columbia Court Reorganization Act of 1970 in any other case if a petition for the allowance of an appeal from the judgment is filed within ten days after its entry. [D.C. Code 1973, § 11-301.]
That act thereby eliminated the power of the United States Circuit Court to review judgments of this court after February 1, 1971. However, since the appeal in Tutt v. Doby, supra, was taken prior to February 1, 1971, we conclude that the Circuit Court had jurisdiction to decide that case. The question remains as to its precedential effect.
In M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971), we addressed the impact of the Court Reform Act on decisions of the federal Court of Appeals for the District of Columbia rendered after February 1, 1971. We there held that
[W]e are not bound by the decisions of the United States Court of Appeals rendered after [February 1, 1971]. With respect to decisions of the United States Court of Appeals rendered prior to February 1, 1971, we recognize that they, like the decisions of this court, constitute the case law of the District of Columbia. [Id. at 312.]
Although the decision of the Circuit in Tutt v. Doby, supra, is binding on the parties to that litigation, we conclude that under the principles enunciated in M.A.P. v. Ryan, supra, the Circuit's decision in Tutt has no binding effect on subsequent decisions of this court. To ascribe a binding negativating authority to the Tutt decision beyond the parties to that litigation would be inconsistent with the spirit and letter of the Court Reorganization Act and the principles enunciated in M.A.P. v. Ryan and its progeny. Cf. Bethea v. United States, D.C. App., 365 A.2d 64, 70 (1976). Consequently, Gordan v. William J. Davis, Inc., supra, remains the controlling case in this jurisdiction for the proposition that default judgments entered against a tenant for possession are res judicata in a subsequent proceeding *998 for possession between the same parties, and we so hold here.[11]
One year after our decisions in Tutt and Gordan, but before Tutt was reversed by the Circuit Court, we reiterated that "... an action for possession decided in favor of the landlord determines finally as between the parties that (1) there is a tenancy between the parties, (2) the lease between the parties is valid and (3) rent is due and owing by the tenant." Atkins v. United States, 283 A.2d 204, 205 n.2 (1971), citing with approval Tutt v. Doby, supra; Brown v. Southall Realty, supra.
The appellant here had every opportunity in the prior suits for possession of controverting the claim that he was a tenant of the particular premises, that the lease was valid, and to offset the amount of rent then due to the extent there were existing housing code violations. Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 380, 428 F.2d 1071, 1082 (1970). However, he chose to pay the rent due, permit the tenancy to remain unchallenged, and not to present evidence of housing code violations. If the full amount of the monthly rent was not owing, he should have raised the issue in the prior cases.
We have held often enough not to require repetition that "[R]es judicata applies not only to points on which the court was actually required to pronounce judgment, but, as well, to every point which properly belonged to the subject of the controversy and which the parties, in the exercise of reasonable diligence, might have brought forward at the time." Woods v. Cannaday, supra, quoted with approval in V.E.M. Hotel Service, Inc. v. Uline, Inc. D.C.App., 190 A.2d 812, 813 (1963).
If the claim raised by Davis now as to the prior years had been fully established in the earlier actions, it would have abated the rent alleged to be due and defeated the landlord's right to possession. However, the tenant failed to raise the issue then, as he could have, for housing code violations are directly related to whatever rent is due for the particular period in issue. Javins v. First National Realty Corp., supra.
We see no reason in logic or in the law to permit a tenant, who has suffered one or more defaults for nonpayment of rent, to belatedly raise in a subsequent action for possession, issues of old housing code violations that he failed to raise in earlier actions when the evidence, if any, was fresh.
In Bess v. David, supra, and in David v. Nemerofsky, supra, we quoted with approval the following language from McCotter v. Flinn, 30 Misc.Rep. 119; 61 N.Y.S. 786, 787 (1899):
A judgment taken by default in summary proceedings by a landlord for nonpayment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant, and that rent is due, and also as to any other facts alleged in the petition or affidavit which are required to be alleged as a basis of the proceedings. [Emphasis supplied.]
In this day of voluminous litigation and delays in proceedings in court, particularly in areas such as the Landlord and Tenant Branch of the Superior Court, where the annual caseload is well over 100,000, it is essential that we abide by the long-standing policy of the law to avoid repetitive litigation and to reject attempts to litigate anew, issues once decided. Accordingly, the judgment is
Affirmed.
FERREN, Associate Judge, concurring in the judgment:
I concur in the judgment only because this division of the court is bound by our *999 decision in Gordan v. William J. Davis, Inc., D.C.App., 270 A.2d 138 (1970),[1] which is premised on Tutt v. Doby, D.C.App., 265 A.2d 304 (1970) a decision reversed in a persuasive opinion by Judge Leventhal in Tutt v. Doby, 148 U.S.App.D.C. 171, 459 F.2d 1195 (1972).
Judge Leventhal explained why a default judgment in a summary possession action in the Landlord and Tenant Branch should not have a collateral estoppel[2] effect on the amount of rent due in a later suit for nonpayment of rent. See id. at 173-76, 459 F.2d at 1197-1200. Similarly, a default judgment in a summary possession action should not bar a tenant from alleging a setoff or counterclaim, based on housing code violations, in a later suit for possession based on alleged nonpayment. As my colleagues concede, see ante at 998 n.11, the first action did not determine the amount of rent due[3] (an amount subject to setoff for code violations); thus, any subsequent action for possession, based on alleged nonpayment of rent, is vulnerable to any previously unasserted code violation claims not barred by the statute of limitations. To hold otherwise improperly makes compulsory, in the first action, what is clearly a permissive counterclaim. See Super.Ct. L & T R. 5(b); Pernall v. Southall Realty, D.C.App., 294 A.2d 490, 498 (1972), rev'd on other grounds, 416 U.S. 363, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974).
Recently, moreover, a division of this court in effect rejected Gordan, supra, by reaffirming the view that a possessory action only determines the right to possession, not the amount of rent due, and thus should not bar a subsequent action concerning conditions. In Mahdi v. Poretsky Management, Inc., D.C.App., 433 A.2d 1085, 1089-90 (1981) (per curiam), the court held that the striking of pleadings and entry of judgment for possession in favor of the landlord would not bar a subsequent action brought by a tenant to recover damages for breach of the warranty of habitability. See Hsu v. Thomas, D.C.App., 387 A.2d 588 (1978) (per curiam) (tenant entitled to sue landlord for amount paid in excess of the reasonable rental value of the leased premises).
My colleagues argue that appellant's payment of arrearages was, in effect, an admission that he had no setoff against the rent thus paid. I disagree. The fact of default does not mean that the tenant "either intends to acquiesce in the allegation of rent due, or has reason to foresee" the conclusive effect of issues not specifically litigated. Tutt, supra, 148 U.S.App.D.C. at 176, 459 F.2d at 1200. I would argue, similarly, that a court should not read into payment of arrearages after default, as the only way to retain one's housing, a conscious waiver of a setoff or counterclaim not previously litigated.[4] Implying such a waiver is particularly inappropriate because this jurisdiction *1000 has established conflicting precedent concerning the res judicata effect of judgments for possession. Compare Gordan, supra with Mahdi, supra.
Before NEWMAN, Chief Judge, KELLY, KERN, NEBEKER, MACK, FERREN, PRYOR, and BELSON, Associate Judges, and YEAGLEY, Associate Judge, Retired.
PER CURIAM.
ORDER
On consideration of appellant's petition for rehearing en banc pursuant to D.C.C.A. Rule 40, and it appearing that the majority of the judges of this Court has voted to grant the aforesaid petition, it is
ORDERED that appellant's petition for rehearing en banc is granted and that this Court's February 11, 1982, opinions and judgment are hereby vacated. The Clerk of the Superior Court is directed to return to this Court the mandate issued on March 5, 1982. It is
FURTHER ORDERED that the Clerk cause this case to be scheduled for argument before the en banc court as promptly as the business of the Court permits. The parties are hereby directed to file ten additional copies of the briefs heretofore filed with the Clerk on or before Thursday, April 15, 1982.
NOTES
[*] Judge Yeagley was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on April 20, 1979.
[1] The owner of the premises, Clyde Bruner, was substituted as appellee in place of the managing agent, Roger Washburn.
[2] The court denied appellant's oral motion to vacate the prior default judgments under Super.Ct.Civ.R. 60(b), pursuant to Super.Ct.Civ.R. 55(c). The motion was not in writing. See Super.Ct. L & T R. 13(a).
[3] In appellant's affidavit filed in response to the motion for partial summary judgment he stated, among other things, that he recalled receiving several summonses but decided to pay the rent rather than go to court. He also averred that he never had a written lease.
[4] Appellant had remained in possession up to and during trial.
[5] We do not have before us the question of whether a judgment for possession is appropriate if the deficiency consists only of court costs and not of rent, which situation was not established here. Any such attack on the prior judgments would, of course, be of a collateral nature.
[6] On May 26, 1978, this court ordered that: "[i]nsofar as appellant has accepted benefits under the judgment entered February 9, 1977, for the period September 1, 1976 through February 28, 1977, appellant is estopped from prosecuting an appeal from any ruling of the trial court that would affect the validity of the February 9, 1977 judgment."
[7] Appellant also contends that the prior default judgments were invalid; that the court erred in refusing to vacate the prior default judgments; that the court erred in ruling that the plaintiff did not have to introduce evidence of a written lease agreement, including a waiver of defendant's right to receive a notice to quit in order to make out a prima facie case for possession; and that the court erred in directing a verdict against defendant on his counterclaim. We find these claims to be without merit.
[8] Complaints for possession are within the coverage of this chapter. D.C.Code 1973, § 16-1501-03.
[9] Although it is possible that this assertion is true, we do not find it to be established in the record.
[10] At the pretrial hearing, counsel for appellant argued that the default judgments were for costs and not for rent.
[11] In reference to the discussion of estoppel in Judge Ferren's concurring opinion based on the Circuit opinion in Tutt v. Doby, supra, we note the distinction there that while the first action was for possession, the court correctly pointed out that the second suit was for the amount of rent due which, being a different cause of action, would not invoke res judicata, but collateral estoppel, and therefore only as to the issues actually litigated. The court noted that in the action for possession the amount of rent due remained undetermined, for it was not genuinely before the court, which needed to determine only that some rent was due in order to render a judgment for possession. The Circuit was confronted with an entirely different situation than we have here.
[1] In Gordan, supra at 140, this court held: "appellant is foreclosed from litigating alleged violations [of housing regulations] existing prior to the last default judgment entered against him in the possessory action...."
[2] In Tutt, supra, 148 U.S.App.D.C. at 173, 459 F.2d at 1197, Judge Leventhal corrected this court's invocation of res judicata. See Tutt, supra, 265 A.2d at 305. The distinction between res judicata and collateral estoppel should be vital to this case. Under the doctrine of collateral estoppel, the decision in a prior case acts as a bar only as to issues "actually litigated and determined in the first action." Tutt v. Doby, 148 U.S.App.D.C. 171, 175, 459 F.2d 7, 11 (1972) (quoting Restatement of Judgments § 68(2)). According to Professor Moore, "probably the preponderant view" and the better view is that "a default judgment has no collateral estoppel effect. To invoke the doctrine of collateral estoppel in default cases is not only an oppressive application of the doctrine, but it misconceives the nature of a default judgment." 1B J. Moore, Federal Practice, ¶ 0.444 at 4006 (2d ed. 1980) (footnotes omitted). See id. (1981 Supp. at 217) (noting the "excellent discussion of this aspect of the question by Judge Leventhal in Tutt v. Doby"); Restatement of Judgments § 68, Comment f, at 302-03 (1942) (default judgment should have no collateral estoppel effect); In re Garland, 401 F. Supp. 608, 610 n.3 (E.D.Pa.1975) (citing Tutt and Moore's for better practice of giving no collateral estoppel effect to default judgment). But see Annot., 77 A.L.R. 2d 1410, 1423-25 (1961) (most courts have rejected the Restatement approach and given collateral estoppel effect to default judgments).
[3] See Winchester Management Co. v. Staten, D.C.App., 361 A.2d 187, 192 n.13 (1976); George Worthington & Son Management Corp. v. Levy, D.C.App., 204 A.2d 334, 336 (1964); Trans-Lux Radio City Corporation v. Service Parking Corporation, D.C.Mun.App., 54 A.2d 144, 148 (1947); Shipley v. Major, D.C.Mun. App., 44 A.2d 540, 541 (1945).
[4] In this connection, it is important to note that in the Landlord and Tenant Branch of Superior Court, 99% of the actions have at least one party who is not represented by counsel almost always the tenant. See Ferren, Courts, Lawyers, and the Organized Bar: A Joint Pro Bono Responsibility, State Ct.J., Summer 1981, at 4, 37.
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295 Pa. Super. 380 (1982)
441 A.2d 1283
COMMONWEALTH of Pennsylvania
v.
Billy Dean COLLINS, Appellant.
Superior Court of Pennsylvania.
Submitted February 25, 1981.
Filed February 19, 1982.
*381 William H. Mitman, Jr., West Chester, for appellant.
William H. Lamb, District Attorney, West Chester, for Commonwealth, appellee.
Before SPAETH, WIEAND and JOHNSON, JJ.
WIEAND, Judge:
Is counsel ineffective for complying with his client's instructions to withdraw an appeal without first advising the client that the appeal cannot thereafter be revived? The trial court concluded that counsel had not been ineffective when he followed his client's instructions and discontinued the appeal. We affirm.
Billy Dean Collins was tried and convicted of arson. After guilty verdicts had been returned, trial counsel left the Public Defender's staff, but Richard E. Moose, Esquire, undertook representation of Collins. He filed post-trial motions which were dismissed following argument. On November 23, 1977, Collins was sentenced to serve a term of imprisonment of not less than four nor more than ten years. After sentence had been imposed, the sentencing judge *382 advised Collins that he had a right to appeal and to be represented by counsel for that purpose.[1] An appeal to the Superior Court was filed by Moose on December 23, 1977. On or about January 3, 1978, however, Collins wrote to Moose instructing him to "drop the appeal." Thereafter, on January 6, 1978, Moose wrote to Collins advising him that he would comply with the latter's instructions and withdraw the appeal. This was done on May 4, 1978. Two years later, on April 15, 1980, Collins filed a PCHA[2] petition alleging that post-trial counsel had been ineffective because he had terminated the appeal. New counsel was appointed, and an evidentiary hearing was held. The hearing court concluded that counsel had not been constitutionally ineffective and denied relief. Collins appealed.
Appellant concedes that he was aware of his right to appeal and to be represented by counsel free of charge. He also concedes that he specifically instructed his attorney to "drop" the appeal which had been filed on his behalf. Ironically, he now alleges that counsel was ineffective for complying with his instructions. Counsel should have remonstrated with him, he argues, and should specifically have advised him that the right of appeal would be lost once the pending appeal was withdrawn.
Appellant's argument is specious. A person convicted of a crime has a right to appeal, and if he is indigent he has the right to file his appeal without expense to himself. He also has a right to have his appeal perfected and prosecuted by counsel appointed by the court and paid for by the state. Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Commonwealth ex rel. Light v. Cavell, 422 Pa. 215, 217, 220 A.2d 883, 884 (1966); Commonwealth *383 v. Fareri, 271 Pa.Superior Ct. 174, 177, 412 A.2d 632, 633 (1979). A person convicted of a crime is not required to appeal, however, and may waive his rights in connection therewith. Commonwealth v. Maloy, 438 Pa. 261, 263, 264 A.2d 697, 698 (1970); Commonwealth v. Freeman, 438 Pa. 1, 9, 263 A.2d 403, 407 (1970) (Eagen, J., concurring). To constitute an effective waiver, it must appear that there was an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); United States ex rel. Boyd v. Rundle, 308 F. Supp. 184, 186, aff'd 437 F.2d 405 (3rd Cir. 1970); Commonwealth v. Mack, 451 Pa. 319, 323-324, 304 A.2d 93, 96 (1973); Commonwealth v. Maloy, supra, 438 Pa. at 263, 264 A.2d at 698; Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762-763 (1968); Commonwealth v. Ross, 289 Pa.Superior Ct. 104, 111, 432 A.2d 1073, 1076 (1981); Commonwealth v. Henderson, 231 Pa.Superior Ct. 190, 192, 331 A.2d 824, 825 (1974). When a defendant "deliberately and knowingly chooses to bypass the orderly state procedures afforded . . . for challenging his conviction, [he] is bound by the consequences of that decision." Commonwealth v. Coleman, 458 Pa. 324, 326, 327 A.2d 77, 78 (1974) quoting Commonwealth v. Wallace, 427 Pa. 110, 113, 233 A.2d 218, 220 (1967); Commonwealth v. Mika, 277 Pa.Superior Ct. 339, 342, 419 A.2d 1172, 1173 (1980).
In the instant case, appellant was aware of his Douglas rights, having been informed of them by the trial court at sentencing. At the PCHA hearing appellant conceded that he understood that he had only thirty days following sentencing in which to file an appeal. Appellant also testified that he had been aware that court appointed counsel had filed an appeal on his behalf. Appellant thus had been in possession of sufficient information to knowingly and voluntarily abandon his right to appeal. It was not essential to a knowing decision to discontinue the appeal that appellant be specifically instructed concerning his inability to revive the discontinued appeal two years thereafter.
Neither can it be said that counsel was ineffective for complying with appellant's instructions to discontinue the *384 appeal. In Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980), it was argued that trial counsel had been ineffective for failing to file an appeal where the defendant, although fully advised of his right to appeal, had made no request that counsel file an appeal. The Court held that "once a client has knowingly and voluntarily waived an appeal, counsel's failure to file an appeal does not constitute ineffective assistance to the client." Id., 487 Pa. at 545, 410 A.2d at 745. See also: United States ex rel. Mandrier v. Hewitt, 409 F. Supp. 38, 47 (W.D.Pa. 1976); Commonwealth v. Shore, 487 Pa. 534, 539-541, 410 A.2d 740, 743-744 (1980); Commonwealth v. Ross, supra, 289 Pa.Super. at 111, 432 A.2d at 1076 (1981); Commonwealth v. Ramsey, 259 Pa.Superior Ct. 240, 252-253, 393 A.2d 806, 812-813 (1978); Commonwealth v. Cotten, 266 Pa.Superior Ct. 141, 144, 403 A.2d 582, 584 (1979). Similarly, where a client has knowingly and voluntarily determined to abandon a perfected appeal and directs his attorney to discontinue the same, counsel is not ineffective for complying with the client's instructions.
Order affirmed.
SPAETH, J., concurs in result.
NOTES
[1] The trial judge said: "You have a right to appeal to the Superior Court within thirty days of today's date. You have the right to counsel for that appeal. In the event Mr. Moose is unable or unwilling to represent you, on application to us, we would appoint counsel to represent you."
[2] Post Conviction Hearing Act, Act 1966, Jan. 25, P.L. 1580 (1965), 19 P.S.Sec. 1180-1 et seq. Repealed 1978, April 28, P.L. 202, No. 53, Sec. 2(a) [1397], effective June 27, 1982, now implemented by Pa.R. Crim.P. 1501 through 1506.
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733 F. Supp. 344 (1989)
Issiah ROSS Jr., et al., Plaintiffs,
v.
BUCKEYE CELLULOSE CORP., Defendant.
Civ. No. 86-48-ALB/AMER(DF).
United States District Court, M.D. Georgia, Albany/Americus Division.
August 11, 1989.
*345 *346 James Finkelstein, Albany, Ga., for plaintiffs.
John G. Skinner, Smith, Currie & Hancock, Atlanta, Ga., for defendant.
FITZPATRICK, District Judge.
These actions were tried before a jury for four months, from September 6, 1988 to January 6, 1989, on discrimination actions brought pursuant to 42 U.S.C. § 1981. On December 21, 1988, the jury returned verdicts on the liability aspect of the cases, finding liability in only two instances: Plaintiffs Ross and Plant. After additional evidence on January 6, 1989, the jury returned damage verdicts as to the two prevailing Plaintiffs. The court entered final judgment on the Plaintiffs' section 1981 claims on March 21, 1989. Now before the court are the Title VII claims brought by eleven of the thirteen Plaintiffs. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
The Title VII claims of these Plaintiffs are premised on both the disparate treatment and the disparate impact theories of recovery. The court entered judgment on the individual disparate treatment claims of the Plaintiffs on March 21, 1989, pursuant to the Eleventh Circuit's holding in Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.1983).[1] Regarding Plaintiffs' disparate impact theory of recovery, the court heard additional statistical testimony on May 1 and 2, 1989, and oral argument on June 27, 1989. Having carefully considered the entire record, the court sits prepared to rule on the remaining Title VII claims as set forth below in the court's Findings of Fact and Conclusions of Law.
Before the court embarks on this complicated history of the employment relations between Plaintiffs and Defendant, however, it must first address Defendant's Motion to Strike Portions of Plaintiffs' Proposed Findings of Fact and Conclusions of Law and Appendices. Defendant seeks to have this court strike certain portions of Plaintiffs' proposals on the grounds that: (1) Plaintiffs have identified a number of Defendant's employment practices never before questioned and not addressed by Defendant in its proposals; (2) certain of the Plaintiffs' arguments and appendices would require a reopening of the evidence which should not occur absent grounds which are not present here; and (3) Plaintiffs have attached certain documents as appendices which are not admissible as evidence, represent summaries of various exhibits, and have not been cross-examined by Defendant. The court briefly addressed these contentions at oral argument and trial, and will now rule appropriately.
As to the employment practices being attacked by Plaintiffs, the court finds that Plaintiffs are questioning Defendant's entire Pay and Progression System (the System), including all of its various elements. In order to attack any particular element of the System, Plaintiffs must assail the entire process. Thus the court will not strike any arguments regarding the several components of Defendant's Pay and Progression System preliminarily. On May 26, 1988, the court issued its Order granting summary judgment to Defendant on Plaintiff Ross' discharge claim of disparate impact. In that Order the court ruled that Plaintiff Ross' termination for "inability to perform job" was not a specific employment practice subject to disparate impact attack. The court will not vacate that ruling. Thus Plaintiff Ross' termination claim will not be analyzed in the context of this Order. Plaintiff Porter also claims that Defendant's subjective system of termination had a disparate impact on blacks. Specifically, Porter questions Defendant's `practice' of terminating employees for "absence and tardiness." The court finds that this "practice" is, like "inability to perform job," a general categorization *347 by an employer used to discharge various employees from different types of jobs, and is not a discreet employment practice or procedure such as contemplated by the disparate impact theory of recovery. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S. Ct. 2777, 2785, 101 L. Ed. 2d 827 (1988). The termination policies of Defendant will not be examined here.
Defendant contends that Plaintiffs are attempting to reopen the record through their proposed Findings of Fact and Conclusions of Law by presenting new evidence and theories of recovery. This contention must be viewed in conjunction with Defendant's third ground for striking portions of Plaintiffs' proposals regarding the admissibility of certain of the documents appended thereto by Plaintiffs. As stated earlier, this Order will address Plaintiffs' disparate impact theory of recovery as it relates to Defendant's Pay and Progression System; no other theory of recovery will be discussed. The court and Defendant have both long been aware of the essential subject matter of Plaintiffs' claims. Only through the presentation of evidence was Plaintiffs' theory able to take positive shape and definition. As the evidence developed, the court itself was able to grasp the particular policies and practices which contributed to the entirety of the Pay and Progression System. Because of the necessary place which each element of the System holds in relation to the overall outcome, the court is compelled to allow Plaintiffs to attack the whole System and, necessarily, each of its elements. In arguing this theory to the court, Plaintiffs are allowed to present charts, graphs, summaries, and appendices to further their arguments as well as attempt to aid the court with these documents. While the documents appended to Plaintiffs' proposed Findings of Fact and Conclusions of Law may not be admissible as evidence, the court will not strike them for that reason alone. This portion of the case is being heard by the court sitting without a jury, and this court is more that capable of separating fact from argument. Lest Defendant forgets, this court sat through the entirety of the four month jury trial, ruling on each evidentiary question. The court is well aware of what was ruled admissible evidence. The court considers those documents attached as appendices to Plaintiffs' proposed findings of Fact and Conclusions of Law to be argument aids, designed to aid Plaintiffs' attorney in presenting the case, and the court in understanding. Accordingly, the court will proceed based upon the above rulings, by first setting out its Findings of Fact. These initial findings are simply a skeletal recitation of the facts in the case and the court will supplement them as necessary in its Conclusions of Law.
I. FINDINGS OF FACT
A. BUCKEYE'S FLINT RIVER PLANT
Plaintiffs in this action are all black, present or former, employees of Defendant Buckeye Cellulose Corporation.[2] Buckeye is an Ohio corporation and a wholly owned subsidiary of Procter & Gamble Paper Products Company (Procter & Gamble). Buckeye owns several plants in various states around the country including one in Macon County, Georgia, near Oglethorpe, known as the "Flint River Plant" (the Plant). The Plant processes raw wood into heavy sheets of paper which are eventually sold to other Procter & Gamble subsidiaries to eventually be processed into the absorbent material used in disposable diapers.
The Plant is divided into essentially five (5) main working areas: Unit 1, the Woodyard area; Unit 2, the Pulping Unit; Unit 3, the Product Unit; Unit 4, the Powerhouse Unit; and Unit 5, Plant Maintenance Services. Each of these areas serves an integral function in the processing of the raw wood products. In addition to the five general areas, the Plant also contains a technical unit (the Central Laboratory); an administrative division; and a lands and timber section. In order to better understand the operations of the Plant a brief *348 overview of the function of each of the relevant operating Units is necessary.
Unit 1, the Woodyard, is where the wood products first enter the Plant, either on rail cars or in trucks. The wood is processed into one inch chips which are conveyed to the Pulping Unit. The Waste and Water Treatment area is also a part of Unit 1. Waste and Water Treatment include the processes by which the incoming and outgoing water for the entire Plant is chemically treated for use.
The Pulping Unit, Unit 2, is where the chips prepared in Unit 1 are put through a series of processes which separate the cellulose, the fibrous material, from the lignin and bleaches it into a white fiber.
The white fiber, or pulp, goes through a screening series in the Product Unit, Unit 3, to remove any remaining water. The pulp is then dried and rolled into large rolls, which are either stored in the warehouse, or placed directly onto trucks or rail cars for shipping.
Unit 5, Plant Maintenance Services, provides maintenance and support services to the entire Plant. Unit 5 consists of a welding and machine shop, vibration analysis, building maintenance, electrical and instrumentation (E & I), and a storeroom. Each of the other Units, however, employs maintenance personnel and, with the exception of the Woodyard, a group of E & I employees.
In 1979, Buckeye began preparations for opening the Plant with Manager Al Eppinger. Buckeye hired a preliminary group of employees, approximately 40 persons, in December, 1979. This first hire group, known as "tech trainers," were responsible for learning the different jobs at the Plant in the various Units and developing the training program for those employees to be subsequently hired.
Buckeye began hiring the majority of its work force in the Summer of 1980. The new employees, called "technicians,"[3] were hired in stages, with particular starting dates, either June 9, July 8, August 11, or September 9, 1980. In addition, there were two subsequent, smaller hire groups. The technicians were hired for positions as they became necessary for the operation of the Plant. Buckeye originally hired 450 employees and had a stated overall goal of hiring an employee pool consisting of 60% whites and 40% blacks, of which 20% would be female. Broken down by hire groups, only 20% of the tech trainers were black, the June hire group was approximately 30% black, 35% of the July hire group was black, and in August approximately 50% of the new hires were black. Eventually Buckeye reached its 60-40-20 goal. Upon hire, each new employee went through an orientation process whereby he or she became familiar with the various operations of the Plant, the technician system, the Pay and Progression System, and Buckeye's multicultural organization concept. After the orientation period, each employee was allowed to state three preferences for a job assignment within those positions available to the particular hire group.[4] In making initial job assignments, Buckeye primarily considered three factors: individual preference, multicultural balance, and the company's needs. Within each Unit, the new hires went through a 3 to 6 month training period in which they learned their assigned jobs. Each Unit consisted of several teams which worked together as shift teams. Early in the Plant's operations, each Unit had 5 teams.
Initially, all of the technicians within a hire group were paid the same amount, $288.00 per week. At the 3 and 6 month periods of employment, each employee received uniform pay increases. At the end of nine months, each employee entered the career planning process, what was eventually to become the Pay and Progression System now under attack by Plaintiffs. A "career plan" set out the particular skill *349 areas in which the employee was to be trained and the degree of proficiency to which he or she was to learn the skill. By skills, Buckeye was referring to the various jobs within each Unit necessary for its operation; for example, Unit 1 consisted of mechanical maintenance, chip unloading, long wood short wood, waste/fuel, and waste and water treatment skill positions. Technicians were assigned "primary," "cross," and/or "secondary" skills. Buckeye claims that the intent behind the system was to allow the technicians to add to their skill base as they were able and as the Plant needs allowed. Buckeye established the Plant needs through the concept of an "ideal team skill mix." This ideal team skill mix designated the foreseeable Plant needs for 1 to 2 year periods by stating the number of particular skills needed to operate the Plant and the level of proficiency for each of those skills. Performance was supposedly a significant factor in determining the original career plans.
The career plan was a product of several elements. First, Buckeye conducted Plantwide shift team meetings to explain the system. The managers then gathered information about each technician's performance on the job. Each technician then met with his manager to discuss his performance level, and his or her interests, goals and expectations. Each technician completed an "Interest Form" to identify preferences for career plans. The Unit Management Team then met to evaluate the gathered information in conjunction with the employees' preferences and the "ideal skill mix." The Unit Management Team then assigned proposed career plans and submitted them for approval to the Pay and Progression Review Board. The Review Board either accepted or modified the proposed career plan for each employee and then assigned him or her to a pay curve level. A pay curve was, at that time, one of two pay levels on which a course of pay increases was charted in relation to the career plan and the timing intervals established by the plan. Once the career plans were approved by the Board, managers reviewed them with each technician.
Sometime in 1982, Buckeye modified the System by measuring the value of the various skill areas in relation to one another by assigning a point value to each skill. A numerical value was placed on each of the primary, secondary, and cross skills by Plant Manager Burt Richards; for example, in Unit 1, the Woodyard, a technician received 10 points for a basic assignment in mechanical maintenance and 35 for a proficient, chip unloading technicians received 4 points for basic and 5 points for proficient assignments, technicians received 4 points when assigned a basic in long wood and 8 points for proficient, short wood skills were given 6 and 11 points for basic and proficient respectively, and waste treatment was assigned 6 points for basic and 12 points for proficient. These values were not divulged to any of the technicians or managers, though testimony at trial indicated that certain employees became aware of the point values, their significance, and the skills necessary to obtain a desired goal/pay level.
In addition, Buckeye instituted a ranking system whereby, initially, the Unit Management Team force-ranked each technician's performance and contribution on a scale of 1 to 5, with 1 being the lowest possible rating and 5 being the highest. Eventually, the technicians played a more active role in the ranking system. The ranking system operated such that technicians were force-ranked, and the number of technicians which could be given any particular rank was limited, i.e., only 15% of the technicians could achieve the top rank of 5, no matter whether all technicians on a given team operated at the same level or were exceptional performers. The ranking system was almost totally a subjective program, with few, if any, standards to guide the managers.
When establishing a technician's pay curve, Buckeye primarily considered the career plans, the skills contained therein, and the points assigned to those skills. Buckeye's System considered all of the skills contained in the career plan, before they were acquired and whether or not they were ever acquired. The ranking system *350 affected the pay of a technician only if the ranking was either above or below average, a 3 ranking, and then only, at most, by one pay curve. A variance in the pay curve was not automatic, even where the ranking varied from the average. Since the forced ranking system was based on a majority of the technicians being ranked at average, then, in practice, rankings had very little effect on the majority of the Plant's technicians. The pay curve system was further complicated by the fact that Buckeye assigned each Unit an average pay curve rate which should be maintained within the Unit. These systems of averages and curves should have resulted in a bell curve-type result, Plant-wide, as well as within each Unit and team. In reaching a particular result regarding the ideal skill mix, the ranking average, the pay curve average, the skill needs of the Plant, the Unit and the team, and the ultimate assignment of skills, the Unit Management Team had almost complete autonomy.
In 1982, Buckeye began administering examinations to gauge the progress of each technician under his career plan. These examinations were called "Qualification Review Boards." The examination was oral and was conducted by a qualification board generally consisting of between three and five members. The early qualification boards were comprised solely of management personnel until sufficient technicians attained a proficient rating, thereby qualifying to serve on a qualification board. Subsequently, the boards were made up of the technician's immediate manager, one or two individuals selected by the technician (another knowledgeable manager and a proficient technician), and up to two other management personnel. Buckeye prepared and distributed guideline questions to the qualification board members to consider asking during the examination, however, the board members were not bound by these questions and were free to ask the technician any relevant questions. The actual examination was not recorded, but the board members often made their own notes regarding the responses given by the technician. At the completion of the examination, the board members conferred with each other to reach a consensus as to the appropriate rating for the technician based upon both objective and subjective standards, i.e., the technician's performance during the examination, his observed on-the-job performance (including teamwork and leadership abilities), and the "gut feelings" of the board members. At the time in question here, the results of the Qualification Review Boards did not directly impact on the pay of a technician, however, they did impact on possible future career plan advancements. Buckeye established an appeals process available to technicians who were unhappy with their Qualification Review Board results.
In 1982, after the first series of Qualification Review Boards had been administered to all technicians, a second career planning process took place similar to the first. Once again, Buckeye established an ideal skill mix for the Plant, each Unit, and each team. By this time the Plant operated with four instead of five shift teams, necessitating a reevaluation. Buckeye used this ideal skill mix to control the average pay curve within each Unit. The Pay and Progression Review Board, as before, had the final approval over the ideal skill mix for each Unit.
The career plans were then revised in a fashion similar to the earlier career plan system, keeping in mind the new ideal skill mix, the previous career plan, the results of each technician's Qualification Review Board, the technician's on-the-job performance, the desires of the technician, and the needs of the Plant, the Unit, and the team. As before, though, the Unit Management Team had practical autonomy in establishing the career plans, subject to final approval by the Pay and Progression Review Board and the technician's right of appeal. However, in practicality, a manager's decision was seldom reversed. If a technician had not attained a certain level of proficiency in his Qualification Review Board, he was often not allowed to receive additional skills, and was at times not allowed to retain those on his first career plan. These second career plans also contained primary, secondary, and cross skills which were to *351 be learned by the technician, and they were the essential ingredient in establishing a technician's pay curve. Thus the pay course of each technician, once established, was the basis for his entire pay history at Buckeye, and was a chief result of the fundamental elements of the Pay and Progression System which left a great deal of responsibility with the subjective decisions of the managers. This second round of career plans was the last Plant-wide reevaluation, though modifications to certain career plans did occur on individual bases.
Buckeye froze its entire Pay and Progression System in October of 1984 because of alleged low production, waning production quality, and high costs. Apparently the secondary and cross skill system had not worked as well as expected, and valuable technicians were lost in continual training for these additional skills. Once the freeze became effective, technicians were reassigned to their primary skills and many of the problems which prompted the freeze improved. Though the pay freeze recognized the problems with the Pay and Progression System, especially the need for secondary and cross skills to move ahead, it did not attempt to erase all of these problems, especially in terms of pay and pay curves which were a result of this mad dash for additional skills to improve one's pay. As noted earlier, technicians continued to be paid for whatever additional skills were contained in their career plans, even after the freeze to remedy the additional skills problem and whether or not the skills were ever learned.
Since the 1984 freeze, Buckeye has attempted to modify and improve its Pay and Progression System with the input of technicians. This upgrade included the abandonment of the oral qualification examinations in favor of written examinations. The ranking system is now conducted by both the managers and the technicians based on a specific set of criteria, and a technician must maintain a ranking equal to his pay curve in order to remain on that curve. Thus the new, more objective ranking system had a much more profound effect on the Pay and Progression System. Career plans have been renamed "skill blocks," and while they retain the numerical valuation system for skills and contain cross skills, they do not have the same aura of secrecy nor the impact of the previous career plans. The new Pay and Progression System has implemented a more objective and measurable method of evaluating a technician's performance, which eventually effects his pay.
B. STATISTICS
Since the aspect of these cases which this court must evaluate is the theory of recovery known as disparate impact, statistical evidence is extremely important. International Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S. Ct. 1843, 1856, 52 L. Ed. 2d 396 (1977). Statistical evidence was presented at trial by both parties through the testimony of two statisticians, Professor Jimmy Ramsey and Professor Charles Haweworth, as well as through the use of raw numbers regarding Plant employees. Since the statistical aspect of the disparate impact analysis is relevant for the establishment of Plaintiffs' prima facie case, Wards Cove Packing Co., Inc. v. Atonio, ___ U.S. ___, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989), the court will analyze the statistical evidence from Plaintiffs' point of view, recognizing the differences between Plaintiffs' and Defendant's evidence when relevant. However, the court will first review the raw numbers and possible disparities visible and apparent to the statistically uneducated eye of the court, mindful of the approximate 60%/40% split in the Plant's work force between whites and blacks. In making these observations, the court will look primarily to the two extremes, the lowest and the highest, because Buckeye's goal at the Plant was essential based on reaching an average, thus presumably the middle ground is where the bulk of the employees would be found. Only by analyzing the extremes can the court get a true feel for what the numbers really mean and the success of Buckeye's "average" approach, as the court is aware of the deceptive nature of that word.
The mean/average weekly salary of all blacks, Plant-wide, as of December 31, *352 1985, was $534.00. The mean white weekly wage was $558.00. In Unit 1, the mean white salary was $544.00, while the mean/average black salary was $514.00.
Looking at the Unit 1 technicians in relation to the Pay and Progression System in effect from 1982 to 1984,[5] the average pay curve of white technicians was 3.1 and the average black pay curve was 2.5. The 48 white technicians averaged 36.1 points in their final career plans while the 36 black technicians averaged 29 points. Ranking affected only 29 of the 81 total technicians, raising 15 up a pay curve, and lowering 14. Of those 15 raised pay curves, 12 were white and only 3 were black, while 8 of the pay curve reductions affected blacks with only 6 whites being affected. The top 8 career plan point total positions were held by whites, as were 12 of the top 15 positions. On the lower end of the scale, 16 of the lowest 17 point total positions were occupied by blacks. As explained earlier, these point total positions were established by the skills contained in a technician's career plan, whether or not a technician ever actually learned all or any of the secondary or cross skills. These point totals were a direct result of the subjective decision-making of the managers. By being placed in the above-related positions, certain technicians at the top of the scale could reasonably be assured that at no time in their Buckeye career would they ever be paid below a pay curve of 3, while certain of the lower point-totaled technicians could reasonably anticipate being paid no higher than on a pay curve 3 basis, both of these statements were true no matter how good or bad a job the technician did in the future. In looking at these numbers, the court is mindful that a technician's later growth at the Buckeye Plant was controlled in large part by the early career plans given them by their managers and the results of their initial Qualification Review Boards, because pay was primarily based on career plan point totals and managers were reluctant to upgrade or improve a technician's career plan before a certain level of proficiency was obtained, as judged by the qualification boards. Broken down by skills, of the 23 mechanical maintenance technicians in Unit 1, all 7 of the highest paid technicians were white, while all of the blacks were paid on the lower two pay curve scales. The top 9 career plan point totals belonged to whites, though 6 of the lowest 8 point totals were given to blacks. In the waste and water treatment skills 7 of the 8 highest paid technicians were white and 4 of the 5 lowest paid were black, out of a total of 13 technicians. White waste and water treatment technicians received the 6 highest career point totals and managers gave blacks 5 of the remaining lower point totals, including the three lowest.
Of a total 81 technicians in Unit 4, 22 of the 28 highest paid technicians were white while 10 of the 15 lowest paid were black. The average pay curve for whites was 3.5 and for blacks was 2.9. Technician rankings affected 15 whites positively and only 3 whites negatively, 4 blacks were affected positively and 6 negatively. The average career plan point total for whites was 44.0 and 36.6 was the black average. Of the 62 process technicians, the average pay curve was 3.47 for whites and 3.0 for blacks; the rankings affected eight black technicians, four positively and four negatively, and whites were affected positively +7; the average career plan point totals were 43.1 for whites and 36.6 for blacks. In regard to the 1982 Qualification Review Boards, the top 8 mechanical maintenance results belonged to whites, and 8 of the 10 lowest results belonged to blacks. Seven of the 8 highest paid mechanical maintenance technicians were white and 4 of the 6 lowest paid were black.
As far as Unit 2 is concerned, the data before the court is less extensive, but does *353 reveal some information. Of the 22 mechanical maintenance technicians, 8 of the top 9 1982 Qualification Review Board results went to whites, and 6 of the 10 lowest results went to blacks. Whites were paid 7 of the top 9 salaries on curves 5 and 4[6], while blacks were paid 8 of the 13 lowest salaries. Insofar as the career plan points were concerned, 8 of the highest point totals belonged to whites and blacks were given 6 of the 7 lowest totaled career plans by their managers. Within the oxygenation skill, of 9 technicians, the top 4 1982 Qualification Review Board scores went to whites and 3 of the bottom 5 scores went to blacks. The 4 highest totaling career plans belonged to whites and, of the remaining career plans, blacks received the two lowest.
The court wants to reiterate that these numbers are based on bare numerical observations made by the court. However, they do aid the court immensely in now deciphering what can only be described as technically confusing statistical evidence provided by the parties' expert witnesses. The court heard extensive testimony from these witnesses during the actual jury trial of the section 1981 claims and again on May 1, 1989, and will now attempt to capsulize their conclusions. Plaintiffs rely upon the expertise of Professor Jimmy Ramsey of Albany State University. Professor Charles Haweworth testified in rebuttal for Defendant.
Professor Ramsey used a standard deviation test to discern the degree to which chance might have contributed to the numerical differences between the salaries of whites and blacks at the Plant. The standard deviation is a measuring device for calculating "the likelihood that a given disparity occurred solely as a result of chance." Maddox v. Claytor, 764 F.2d 1539, 1551 n. 13 (11th Cir.1985). A statistician measures the deviation or disparity by comparing the actual salaries of the black employees to their "expected" salaries. For example, if ten technicians within a given skill of a given Unit are on pay curve 5 (the highest pay curve) then the statistician will assume that 4 of those technicians would be black because the Plant's population was approximately 40% black. Correlatively, if 10 technicians were being paid on the lowest pay curve, the statistician would assume that 6 of those technicians would be white. If nine of the 10 top paid technicians were white and only 1 black, then the difference between the expected number of blacks and the actual number of blacks on pay curve 5 would be -3, with the negative symbol signifying an underrepresentation of blacks. This numerical disparity is then divided by the calculated standard deviation to arrive at the "Z-value" for the numerical disparity. "This Z-value is an index of random probability." Id. A Z-value of greater than 1.96 or less than -1.96 denotes that something other than chance probably caused the differential. The Z Standard Deviation Test (Z Test) is based on a bell curve shaped theory of probability. The shape of the curve is established by the intervals of frequency distribution, in our case the pay scales. The bell curve analysis is based on a normal or symmetrical distribution, i.e., the variable distribution consisted of 50% above and 50% below the mean. Professor Ramsey used the Z Test to analyze the differences between the salaries of white and black technicians at the Buckeye Plant who were on the payroll as of December 31, 1985.[7] In his analysis, the Professor only sought to discover whether or not a significant difference existed between the given salaries of whites and blacks at the Plant, and did not attempt to discover or consider any possible specific reasons for discerned disparities. Professor Ramsey first analyzed the salaries of technicians in Unit 1, the Woodyard. In 1980 and 1981 the Z-value of any disparity did not indicate any real significance between the salaries of whites and blacks, *354 -1.48 in 1980 and -1.549 in 1981. In 1982, the year of the first Qualification Review Boards and the second career planning stage, the deviation became significant, reaching -3.019 in 1982 and remaining below -3.0 until 1986. Using a 1985 Plant-wide comparison of black and white technician salaries, Professor Ramsey calculated the Z-value to be -5.74, indicating a significant disparity between the salaries of all white and all black technicians.[8]
Professor Ramsey also calculated the Z-value of the technicians subdivided by hire groups.[9] Addressing the December 3, 1979, hire group, Professor Ramsey discovered a Z-value disparity of -2.307 as of the salary date December 31, 1985. The Z-value differential for the July 7, 1980, hire group was calculated to be -3.019. The July 7 hire group consisted of 85 technicians, 40 black and 45 white. The September 8, 1980, hire group, consisting of 55 total hires (30 blacks, 25 whites), had a Z-value differential of -2.199. All 3 of these Z-values, being below -1.96, allegedly represent a significant inequality in salary between blacks and whites.
Attempting to rebut Plaintiffs' statistical evidence as presented by Professor Ramsey, Defendant relies upon the testimony of Dr. Charles Haweworth. Dr. Haweworth first explained that 3 methods for determining statistical probability exist: (1) binomial approximation; (2) Fisher's Exact; (3) conventional probability theory. He then explained the probability equation for a standard deviation. Standard deviation is equal to the square root of n times p times q, where n equals the pool of events, q equals the probability of a particular event occurring and p is equal to 1-q, the probability of the event not occurring. Standard deviation represents an amount over or under probability. In addressing Professor Ramsey's analyses, Professor Haweworth indicated 4 problems with the calculations, 2 of which were technical and 2 of which were omissions. The technical problems were: (1) the data was not "normal" data; and (2) the statistical test administered by Dr. Ramsey was not valid. The 2 necessities omitted from Dr. Ramsey's calculations were: (1) hire date (length of service); and (2) prior training/experience.
Normal distribution is what many phenomena are, i.e. approximately the same distance above and below the average (a bell curve). Professor Haweworth then explained that the salary distribution at the Buckeye Plant was not symmetrical, in other words, the data was skewed. Specifically, while the white average at the Plant was $558.00, the 1985 salary figures showed that 118 whites were being paid below the average and only 78 above the average. As to blacks in 1985, only 46 were being paid below the black average while 95 black technicians had salaries above the black average.[10] The 1984 salary figures exhibited a similar pattern. Dr. Haweworth testified that these numbers represented a skewed or abnormal distribution of variables and that accordingly a Z-value Standard Deviation Test was inappropriate under such circumstances.
*355 Because of the allegedly skewed data, Professor Haweworth concluded that the appropriate means for calculating any disparity between white and black salaries at the Plant would be 1 of 3 methods: (1) mean or average; (2) median, the middle; or (3) mode, the most frequent value. Because of the skewedness of the relevant salary data, Professor Haweworth felt that the median was the most appropriate method, and showed the following:[11]
MEDIAN
BLACK WHITE
1980 $288.00 $288.00
1981 $394.00 $394.00
1982 $452.00 $456.00
1983 $504.00 $512.00
1984 $542.00 $542.00
1985 $542.00 $542.00
This testimony shows that the medians of black and white salaries at the Buckeye Plant were approximately equal, though in certain years the white median exceeded the black median of hundreds of technicians in a system based on average and which placed the bulk of its technicians in the middle salary ranges. Professor Haweworth's above-related explanation of abnormal or skewed data simultaneously explains his stated technical problem number 2, that the statistical tests used by Professor Ramsey were not valid.
In explaining the alleged omissions, Professor Haweworth stated that his analysis showed length of service to have a definite effect on technician salaries. In other words, he found a statistical relationship between salary and length of service at the Plant. As of 1985, the average length of service for whites was 65.9 months, and for blacks, 64.7 months.[12] In concluding that prior training was a necessary element in comparing the black and white technicians' salaries, Professor Haweworth analyzed the initial employment applications of all particular curve members in relation to the particular job being performed (skill area). For example, of the 34 technicians on pay curve 5 (29 whites, 5 blacks), 12 were performing mechanically related jobs.[13] Of these 12 mechanical technicians, 6 had extensive mechanical experience prior to beginning work at Buckeye, 3 had related experience, and 2 had nothing to tie them to mechanics.[14]
The thrust of Professor Haweworth's testimony was an attempted rebuttal or invalidation of the statistical evidence of Professor Ramsey. At this point the court will not discuss its conclusions as to the conflict between these expert opinions. Having set forth the relevant facts, the court now sits prepared to discuss and reach its conclusions of law. Since these facts, as stated earlier, are simply skeletal, the court will supplement them as necessary below.
*356 II. CONCLUSIONS OF LAW
A. JURISDICTION
Plaintiffs brought their claims of disparate impact under the provisions of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. Defendant contends that these claims are time barred pursuant to the Supreme Court's recent holding in Lorance v. AT & T Technologies, Inc., ___ U.S. ___, 109 S. Ct. 2261, 104 L. Ed. 2d 961 (1989). Defendant argues that Plaintiffs are only complaining of the 1982 development of the Pay and Progressions System and not its implementation, and that accordingly Plaintiffs' charges were not timely filed with the Equal Employment Opportunity Commission (EEOC). Plaintiffs, for some reason, have not seen fit to respond to this contention; however, for several reasons the court cannot agree with Defendant.
Section 706(e) of Title VII requires that a "charge ... shall be filed [with the EEOC] within [the prescribed time period] after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e). The prescribed time period for Plaintiffs' claims was 180 days. Defendant claims that since most of the Plaintiffs did not file any charges with the EEOC until 1985, two or three years after the development of the Pay and Progression System, they were not filed within the prescribed time period, are not cognizable by this court, and must be dismissed. Defendant points to the Lorance decision for the proposition that a plaintiff cannot maintain a continuing violation theory of disparate impact resulting from the nondiscriminatory implementation of a system which supposedly had a discriminatory origin. The problem with this argument is that Lorance concerns an attack on a seniority system which is afforded special treatment by Title VII and the Supreme Court. See 42 U.S.C. § 2000e-2(h); and Trans World Airlines v. Hardison, 432 U.S. 63, 81, 97 S. Ct. 2264, 2275, 53 L. Ed. 2d 113 (1977). In order to maintain an action contesting a seniority system, a plaintiff must show intentional discrimination, which would naturally require reference to specific acts and events in time. The entire Lorance opinion is premised on the significance of the seniority system and cannot be applied in the situation before this court. The Lorance Court recognized the distinction between the seniority system there at issue and a normal claim of disparate impact in dismissing the contention that by not allowing a continuing violation challenge to seniority systems, the court must still allow plaintiffs to attack the system under a disparate impact theory. The Court apparently recognized that the very nature of a claim of disparate impact contemplates continuing violations. Justice Scalia stated that for the purposes of disparate impact "the statute of limitations ... [will] run from the time that impact is felt." Lorance, ___ U.S. at ___, 109 S.Ct. at 2267. The impact of the Pay and Progression System, if the court accepts Plaintiffs' contentions, is being felt even today at the Buckeye Plant. The Lorance Court's rejection of a continuing violation theory for seniority systems does not affect disparate impact claims against other types of practices and policies.
Even disregarding the seniority system distinction, the Lorance case holding does not require a dismissal of the claims now before this court. Justice Scalia cites the case of United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977), for holding that "[a] challenge to a neutral system may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer." Id. at 560, 97 S.Ct. at 1890 (emphasis added). This court cannot say that the Pay and Progression System "has no present legal significance." As a result of the System-wide freeze in 1984, the effects of the system were locked into place and any possibility of remedying the situation was stalled. The 1984 freeze gave the System "a present legal significance." Thus, even under the Lorance seniority system rational, the court must hear Plaintiffs' claims, as they were timely filed within the prescribed time limitations.
*357 Assuming arguendo that Lorance could bar these claims, Plaintiffs would still have one final argument. Certain extraordinary circumstances can justify a court's equitable tolling of Title VII timing requirements: (1) when a state court action is pending; (2) when the defendant conceals an act supporting the Title VII cause of action; or (3) when the defendant misled the complainant regarding the nature of his rights under Title VII. Manning v. Carlin, 786 F.2d 1108, 1109 (11th Cir.1986). The court finds that the second extraordinary circumstance is applicable under the present facts and requires the court to equitably toll any timing deficiencies. Defendant admits that certain necessary information was not disseminated to technicians, which information, if known, would have supported this Title VII cause of action, e.g., the various assigned skill points, the significance of the Qualification Review Boards and the rankings, the interrelationship of the different parts of the Pay and Progression System, etc. Accordingly, the court will equitably toll any timing inadequacies as to Plaintiffs' disparate impact claims. For the foregoing alternative grounds, the court finds that it has jurisdiction to address Plaintiffs' remaining Title VII claims based on a disparate impact theory of liability.
B. DISPARATE IMPACT
1. BURDENS OF PROOF AND PERSUASION
In the case of Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), the United States Supreme Court recognized the Title VII theory of recovery known as disparate impact, whereby an employee can challenge employment "practices that are fair in form but discriminatory in practice." Id. at 431, 91 S.Ct. at 853. Under the disparate impact theory, a facially neutral employment practice can be found violative of Title VII without a showing of an employer's subjective intent to discriminate which is a necessary element of an individual "disparate treatment" case. The Supreme Court revisited the proof structure which had developed through case law regarding the disparate impact theory and redefined its parameters in the recent case of Wards Cove Packing Co. v. Atonio, ___ U.S. ___, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989).
Wards Cove involved Alaskan salmon canneries which hired unskilled cannery workers, most of whom were nonwhites, and noncannery workers, most of whom were higher paid whites. The cannery employees brought suit challenging the canneries' hiring/promotion practices under a disparate impact theory as causing a racial stratification of the canneries' work force because they denied nonwhites employment opportunities in noncannery positions. The Court of Appeals held that the plaintiff class had made out a prima facie case of discrimination and remanded the action for further findings regarding whether or not the employers could satisfy their burden of proving the challenged practices' business necessity. The Supreme Court first evaluated the Court of Appeals' definition of a prima facie case and analyzed whether such had been established by the plaintiffs at the district court level. Specifically the Supreme Court addressed the statistical evidence and its significance to a prima facie case. The Court, after deciding that the statistical evidence was not sufficient, then announced the subsequent proof and evidentiary scheme to be used upon a finding of a prima facie case.
To establish a disparate impact prima facie case, a plaintiff has the initial "burden of showing a causal link between challenged employment practices and racial imbalance in the work force ..." Id. at ___, 109 S.Ct. at 2125. Consequently, a plaintiff's disparate impact prima facie case must contain three elements: (1) articulation of a specific employment practice under attack, Watson, 487 U.S. at 994, 108 S.Ct. at 2788 ("[e]specially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests," as is this case in the present action); (2) a racial disparity, usually shown through statistical evidence, International Bhd. of Teamsters, supra; (3) a specific causal link between the challenged *358 employment practice and the statistical disparity. In discussing the statistical evidence necessary for the prima facie case, the Wards Cove Court made it clear that the comparisons must be relevant to similarly situated employees and the articulated practice, they must clearly indicate a racial stratification which is then shown to have been caused by a specific employment practice.
Once a prima facie case of discrimination is shown, the case then moves into what the Court called the "Business Justification" Stage, which
contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternate practices to achieve the same business ends, with less racial impact.
Wards Cove, ___ U.S. at ___, 109 S.Ct. at 2125. The ultimate issue in the "Business Justification" Stage is "whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Id. at ___, 109 S.Ct. 2125-26. In this Stage, the employer only bears a burden of production. The plaintiff has the ultimate burden of persuasion on either of the alternative theories of recovery: (1) the employer's business justification; or (2) less racially significant available alternative practices. When analyzing the evidence in the Business Justification Stage, district courts are cautioned to remember that "[c]ourts are generally less competent than employers to restructure business," Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578, 98 S. Ct. 2943, 2950, 57 L. Ed. 2d 957 (1978). With this recently enunciated evidentiary scheme in mind, the court will now proceed to analyze Plaintiffs' disparate impact claims.
2. PRIMA FACIE CASE
Under Wards Cove, Plaintiffs must first establish a prima facie case by: (1) articulating a specific employment practice; (2) showing a racial disparity; and (3) demonstrating a causal connection between the specified employment practice and the racial disparity. In the present action, Plaintiffs point to Defendant's Pay and Progression System as the challenged employment practice. In attacking the System, Plaintiffs necessarily dispute its several components, i.e., the career plans, skill points, the ranking system, Qualification Review Boards, the pay curves, and the 1984 freeze. The court finds that Plaintiffs have satisfied step 1 of their prima facie case. Wards Cove, ___ U.S. at ___, 109 S.Ct. at 2124. The Pay and Progression System in operation at the Buckeye Plant until the 1984 freeze was an integral part of the Plant's function and was a definitive policy/practice of the company. The practically autonomous subjective authority given lower level management in carrying out the System makes it even more suspect. See Watson, supra. Having found that step 1 of the prima facie case has been satisfied, the court must now consider the statistical evidence presented by both parties.
Previously, the court meticulously described the relevant statistical evidence presented by the Parties' expert witnesses, Professors Ramsey and Haweworth. See infra., Part I.B. Plaintiffs rely not only upon the testimony of Dr. Ramsey, but on the raw number comparisons of the results of the Pay and Progression System, i.e., the high percentage of blacks in the lower realms of the career plan point totals, Qualification Review Board results, rankings, and pay curves/salaries. Plaintiffs, while recognizing the impact of small variable pools on Z and T Test scores, also show that Defendant's expert recognized that if the Z or T Tests are appropriate, then the test results signify meaningful disparities between white and black salaries at the Plant. Plaintiffs argue that the test scores, though questionable, support the numerical disparities shown through percentages and raw numbers.
Defendant counters by first arguing that Plaintiffs' statistical evidence is not probative of a disparity because the comparison must be between similarly situated individuals, which Defendant contends Professor Ramsey did not consider. Under Defendant's theory, a Plant-wide analysis is not valid because the comparisons must be *359 done on a Unit and skill area basis, i.e., statistical comparisons must be very narrowly drawn. Defendant relies upon the testimony of Professor Haweworth to show: (1) that Professor Ramsey's analysis was wrong; (2) the variable distribution was skewed; (3) another test should have been used; (4) that the standard deviation tests were inappropriate under circumstances of this case; and (5) the proper test is to look at the medians, and upon comparing the medians one readily finds no discrimination. Finally, Defendant argues that Plaintiffs' statistics are useless because they do not consider any variables such as length of service, prior experience, training, etc. For the reasons set forth below, the court is convinced that a statistical disparity exists at the Buckeye Plant between black and white technicians in terms of pay.
The court will not regurgitate the statistical evidence as set forth previously, but will address Defendant's attacks on Plaintiffs expert witness and other statistical evidence. Regarding Defendant's first contention as to the scope of the comparisons, the court is not convinced that under the present situation narrowly drawn comparisons are absolutely necessary. All technicians, Plant-wide, were hired on an equal basis, were allegedly given equal opportunities and were given equal pay. The Buckeye Plant operated under a technician system, whereby employees learned primary, secondary and cross skills in order to facilitate a more efficiently run operation. Because of the technician system, its function and operation, the court is convinced that Plant-wide analyses are relevant in a limited sense. Under Buckeye's system, all technicians are similarly situated individuals. Moreover, the statistical evidence is not limited to Plant-wide comparisons. As shown above, Plaintiffs and their expert presented some Unit comparisons as well as skill area comparisons. The statistical comparisons utilized by Plaintiffs were not only narrowly drawn for specific comparisons, but also provided a broader perspective of the entire Plant.
Professor Ramsey used the Z-value standard deviation statistical analysis. Though the variable pools which he used were at times small, the test results convince the court that they are at least partially reliable. Professor Haweworth contends that the Z test is inappropriate because of the skewedness of the data. The court cannot agree. As stated earlier, the court finds that only through an analysis of extremes can we truly discern a meaning from numerical comparisons because of Buckeye's "average" approach and its deceptive nature.[15] Thus, the skewedness of the data, rather than being a detriment to Plaintiffs evidence, further supports a statistical difference. Professor Ramsey's analysis is supportive of step 2 in Plaintiffs' prima facie case.
As to Professor Haweworth's testimony that other tests would have been more appropriate, the court, not being an expert in statistical analysis, will not second guess Professor Ramsey's choice of testing methods. The court recognizes that experts within any given field may differ in their opinions. While not choosing Professor Ramsey over Professor Haweworth, the court will give some deference to Plaintiffs' expert since Plaintiff does bear the burden of proof. Additionally, the median test suggested by Professor Haweworth contravenes the court's earlier finding that the more relevant information is to be found at the outer regions or extremes of a system based on averages.
Defendant's final argument concerns the consideration of variables. While the consideration of variables is important, the court is not convinced that Professor Ramsey's failure to specifically consider those factors delineated by Defendant defeats his statistical data. In many ways, the noted variables are considered because they are an integral part of Buckeye's formula. Moreover, the purpose of step 2 of the disparate impact prima facie case is to simply show a statistical disparity, not to prove a causal connection. Some of the variables suggested by Defendant should not have made any significant difference. *360 For example, all of the technicians were hired within an approximate 9 month time period, were paid the same salary, and were subsequently placed on career plan courses not particularly based on length of service as much as supposed ability. Training and prior experience may have contributed to salary and progression, but according to Defendant's own evidence, technicians were not always given their first choices of skill areas, the preferable jobs were filled early, and not all hires with prior experience in a particular area were placed in their areas of prior expertise. While other variables may be somewhat important, they do not defeat Plaintiffs' evidence, as oftentimes they were factored into the System, were not extremely important, or were not factors at all.
In analyzing Plaintiffs' statistical evidence, the court is mindful that "statistics are not irrefutable; they come in infinite variety and, like other evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." International Bhd. of Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57. Though Defendant did attempt to rebut Plaintiffs' evidence, it succeeded only partially. As stated earlier, the court is only relying on Professor Ramsey's testimony as supportive of the raw numbers, averages, and other relevant comparisons set forth infra at Part I.B. Viewing Plaintiffs' expert's testimony together with the court's observations above and the anecdotal evidence at trial regarding the individual claims, see Kilgo v. Bowman Transportation, Inc., 789 F.2d 859 (11th Cir. 1986), the court finds that Plaintiffs have shown that a statistical disparity exists at the Buckeye Plant in regard to black and white salaries.
Step 3 of the prima facie case requires Plaintiffs to establish a causal connection between the contested employment practice and the apparent statistical disparity. Defendant can hardly dispute that the Pay and Progression System was the primary if not sole method of determining a technician's salary. The career plans and point totals determined a technician's pay curve, in conjunction with the ranking system. For the purposes of Plaintiffs' prima facie case, the court finds that a causal connection existed between the exhibited racial disparity and the Pay and Progression System. Consequently, the court must now examine the evidence regarding the second stage of the Wards Cove disparate impact analysis, the Justification Stage.
3. BUSINESS JUSTIFICATION STAGE
Upon a prima facie showing of discrimination based on a disparate impact theory of recovery, the case moves into the second evidentiary stage known as the Business Justification Stage. Wards Cove, ___ U.S. ___, 109 S.Ct. at 2125. The eventual question in this examination concerns the extent that the challenged practice furthers the employers legitimate employment goals. Id. This Stage contains two alternative aspects: (1) the proffered business justification; and (2) available alternative practices. Id. If a plaintiff can persuade the court on either of these aspects of this Stage of the case, then he can recover.
a. Employer's Justification
In the first part of the Business Justification Stage,
[t]he touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice.
Wards Cove, ___ U.S. ___, 109 S.Ct. at 2126. The practice need not be "essential" or "indispensable." Id. Thus the court must look at Defendant's propounded business justification, and Plaintiffs' counterarguments and evidence regarding the pretext of such justification.
Defendant contends that the Pay and Progression System and its various elements serve the legitimate goals of the Buckeye Plant and its technician system. Defendant's intent and design in utilizing the technician system was to develop a multi-skilled, practically autonomous work-force which would ultimately benefit the company through increased productivity and reduced production costs. The system *361 was also designed to benefit the technicians through increased flexibility and higher pay. Buckeye's use of the technician system nation-wide had been shown to be successful. In setting up the Plant, Buckeye sought to incorporate the successful features of previous technician systems and avoid the less productive features. The ideal skill mix constituted that mix of skills ideally required to operate the Plant and support the technician principles. The ranking system ensured that contribution was a factor which impacted on a technician's pay and progression. The Qualification Review Boards measured a technician's progress in his assigned skill areas. The skill point values were assigned to value particular skills and control costs. The career plan process broke job classification barriers and offered technicians broad job responsibilities in numerous skill areas and allowed them to contribute Plantwide in a variety of ways. The career plans, in particular, contributed to the autonomous goals of the Buckeye Plant.
Plaintiffs' sole argument with regard to the particular business justifications specified by Defendant is that Plaintiffs somehow feel that Defendant has completely failed to advance any probative business interest such that would justify its use of the Pay and Progression System as it operated prior to the 1984 freeze. In addition Plaintiffs contend that Defendant has not articulated a business justification for the 1984 freeze. Plaintiffs rely upon the Eleventh Circuit decision in Craig v. Alabama State University, 804 F.2d 682 (11th Cir. 1986). Craig stands for the proposition that in the absence of evidence advancing an employer's legitimate business justification, a court should not engage in a "common sense" drawing of inferences from the evidence in order to satisfy the defendant's burden. Id. at 690. Plaintiffs contend that for this court to find that Defendant has shown a legitimate business justification, it would necessarily have to engage in speculation to create the justification in the stead of hard evidence and articulated argument. The court cannot agree. Defendant presented ample evidence at trial regarding the technician system, its use at the Plant, its purposes and the reasons behind its use. Defendant's goal in using the Pay and Progression System was an ultimately autonomous Plant where any number of technicians were interchangeable without any variation in ability to run the Plant. Plaintiffs have the eventual burden of persuasion that they were denied employment opportunities because of their race. Plaintiffs must persuade this court that Defendant had no legitimate business justification for the System. Wards Cove, ___ U.S. at ___, 109 S.Ct. at 2126. Plaintiffs have failed in this burden. Their only argument, apparently, is that Defendant has failed to articulate and show a business interest. The court finds that Defendant has satisfied its burden of producing evidence, and that Plaintiffs have failed to persuade the court that Defendant's articulated reasons do not justify its use of the System. The court reaches this conclusion based upon the evidence and without speculation. Consequently, Defendant has prevailed on Part One of the Business Justification Stage of this case and the court must now move on to Part Two.
b. Available Alternative Practices
Though Plaintiffs have failed to persuade the court on Part One, they may still prevail by showing that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest[s] ..." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975). By showing available alternative practices, the plaintiff would satisfy the core issue of the Business Justification Stage: whether the challenged practice was merely a "pretext" for discrimination. Id. In evaluating the evidence at this Stage of the action, the court, as noted above, is reminded that it, in many instances, must bow to the business acumen of the employer. Furnco, supra. The present circumstances offer a very unique situation which the court must evaluate in terms of disparate impact, Wards Cove, and the effect of any possible remedy.
*362 To satisfy their burden of proof as to available alternatives, the Plaintiffs primarily rely upon the fact that Defendant froze the old Pay and Progression System in 1984 and has subsequently instituted a new, less racially impacting, system. Defendant concedes that a freeze took place in 1984 and recognizes that the system now being utilized is not the old System, but Defendant contends the new system is simply a modification of that old System, which was never intended to be permanent. In addition Defendant argues that the modifications made to the old System were minor alterations and that the System and its components, to a large extent, remain intact. Plaintiffs counter that the new system, though similar to the old, advances more objective policies with less racially disparaging effects. The court agrees with Plaintiffs.
In 1984, as a result of unstable Plantwide operating costs and reliability, Buckeye froze the Pay and Progression System in order to maintain the status quo and restabilize. Once operations improved and at the urging of the technicians, a task force began investigating alternatives to the old System. As the task force worked, it conducted surveys to discern ideas and approval from management and technicians. Rather than implement an entirely new system, the task force decided that a modification of the old System would better serve the needs of the company. The new system contained many of the general elements of the old System, but provided for more technician input, and more objective standards and criteria. While technicians are still required to go through qualification procedures, the tests are now objective and written, technicians also have access to the tests. Both managers and technicians rank employees against a specific set of criteria. Career plans are now known as "skill blocks." As before, skill areas are assigned a numerical value and the point total of a skill block determines the technician's pay curve. Upon implementation, however, no adjustments were made as to individual technicians regarding any discrepancies or disparities which resulted from the old System.
As to Defendant's contention that the new system is not an alternative system but simply the old System slightly modified, the court finds that the significance of the modifications in relation to this case make the present system a less racially impacting alternative practice. The modifications implemented by Defendant go to the very heart of Plaintiffs' complaints with the old System. Managers no longer have practical subjective autonomy, technicians have more input to the system, the standards and criteria are now more objective, and technicians now know and understand the system and how it works. The new system removes the secrecy of the old System and the almost sovereign managerial power of the old System, both of which allowed much room for personal biases and prejudices.
The court is convinced that the new system contains the very type alternative practices contemplated by the Wards Cove Court. The problem now facing the court is that Wards Cove appears to contemplate a situation where suggested alternatives are rejected by the employer. ___ U.S. at ___, 109 S.Ct. at 2126. Here, the proposed alternative has been implemented by Defendant. To now impose a remedy against Defendant would, in effect, punish Defendant for taking remedial measures. However, in instituting the new policies, Defendant did not adjust the pay and progression of the affected blacks to answer the racial disparities evidenced in Plaintiffs' prima facie case. Because the disparate effects of the old Pay and Progression System still linger at the Plant, the court finds that some type of remedy must be had. Plaintiffs have carried their burden of showing available alternative practices which have a less racially-disparate impact on blacks and the court must address the question of remedy.
c. Remedy
Since the new policy is now operating at the Plant, the court need not address the implementation of any alternative practices. The sole remedy now available is some method of erasing or equalizing the racial *363 disparities caused by the old System. Because of the expertise within the industry required to address a remedy and because of the lack of sufficient evidence, the court will not, nor can it, decide an appropriate remedy at this time. A subsequent hearing will be held to discuss the remedy stage of this case.
III. CONCLUSION
As set forth above the court finds that Plaintiffs have established their claims of disparate impact against Defendant Buckeye. The issue of a remedy is reserved, pending further proceedings. Because of the implications of this Order and the extensiveness of any subsequent remedial stage of the case, the court also finds that "there is no just reason for delay," Fed.R. Civ.P. 54(b) and directs the Clerk of court to enter judgment as to the liability aspects of these actions.
NOTES
[1] The Lincoln case stands for the proposition that a district court is bound by a jury's conclusions in individual claims of discrimination.
[2] Defendant's corporate name changed in the midst of trial to Proctor & Gamble Cellulose Corporation, but for the purposes of this Order, Defendant will be referred to as "Buckeye."
[3] The term "technician" has no practical significance, nor does it relate to either the difficulty of the job to be performed or the education of the employee.
[4] As Buckeye began to hire in groups, certain jobs were either necessary for the start-up of the Plant or were preferred position. Thus these position were filled by the early hire groups and not available to the later hires.
[5] The court notes that during the period of time under scrutiny here the work force at Buckeye was fluid, i.e., the technicians often moved from one Unit to another because of transfer or cross-training. As a result of this fluidity, the number of technicians within the Units varied. The court, however, will attempt to use total numbers when possible. Moreover, the court finds that any slight variation in numbers, about which Defendant might argue, is not relevant to the overall thrust of the numerical findings.
[6] At this juncture of the Plant's history, technicians were paid on one of 5 pay curves, with pay curve 1 containing the lowest salaries and pay curve 5 paying the highest.
[7] Professor Ramsey analyzed the salaries of all hourly wage earners at the Plant, excluding administrative and clerical personnel. He did not subdivide the technicians in job classifications on either a Plant-wide or Unit-by-Unit basis.
[8] The court finds this disparity of particular interest because, as both experts testified, the larger the sample size, the more accurate the calculation/analysis, and concomitantly, the lower the number of variables, the less accurate the results. Professor Ramsey considers 10 to be a minimal number of sample variables for a reliable Z-value, but recognized that some statisticians might consider 30 to be the minimal number. A Plant-wide sample of all technicians is the largest sample under these circumstances. Defendant argues, however, that in order for any of these statistics to have meaning here, they must compare technicians within the same Units and the same skill area. Defendant further argues that because the Unit and skill area sample sizes would be small, then the Z Test is inappropriate for the purposes of this case. The court is troubled by these arguments for several reasons, and will consider all of the statistical evidence before reaching a final decision and discussing Defendant's contentions, infra, Part II, B, 2.
[9] Length of service is one factor which Defendant contends contributed to any pay disparity between blacks and whites, because, as stated earlier, the first hire groups were heavily white-populated and Buckeye only achieved its desired 60%/40% white-to-black ratio by having its last hire group composed of 50% blacks.
[10] Professor Haweworth further testified that the average salary of Plaintiffs was $27.00 below the black average.
[11] As noted earlier, an analysis of the average or mean in regard to technician salaries at the Plant concerns the court because of Buckeye's quest for attaining averages both Plant-wide and by Units in regard to pay curves, career plan point totals, and rankings.
[12] Professor Haweworth prepared a series of documents to apparently show that length of service partially explains any disparities between black and white salaries. While the court understands this argument, it also notes that these documents consistently bear out the Plaintiffs' contentions regarding the top-heaviness of white salaries and the bottom-heaviness of black salaries, though, as pointed out by Professor Haweworth, the bulk of all salaries were in the middle of the salary range. Upon cross-examination, however, Professor Haweworth recognized Plaintiffs' contention. Moreover, Professor Ramsey's hire group Z-values exhibit a significant disparity between blacks and whites within the same hire group.
[13] Though Professor Haweworth analyzed the job applications in relation to related prior experience, he did not look to see whether any technicians had prior experience/expertise in a particular area but had not been placed in a related skill position.
[14] Professor Haweworth also conducted T-value Standard Deviation Tests on the differences between black and white salaries. The T Test is similar to the Z Test, but is allegedly more accurate on smaller pools of variables. The Professor analyzed particular skill areas within each Unit; however, he also continued to contend that both the T and Z Tests were inappropriate because of the skewedness of the data. These Tests assume a normal distribution. Because Professor Haweworth relied so heavily on his contention that these Tests were unreliable, the court will not discuss his findings.
[15] See infra p. 351 and n. 9.
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441 A.2d 255 (1982)
John L. WILLIAMS, a/k/a Johnny L. Williams, Appellant,
v.
UNITED STATES, Appellee.
Nos. 12690, 12691 and 13996.
District of Columbia Court of Appeals.
Submitted October 30, 1979.
Decided January 12, 1982.
*256 Donna L. Crossland, appointed by this court, for appellant.
Carl S. Rauh, U. S. Atty. at the time the briefs were filed, Washington, D. C., and John A. Terry, Peter E. George, Timothy J. Reardon, III, and Martha P. Rogers, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.
Before MACK and PRYOR, Associate Judges, and GALLAGHER,[*] Associate Judge, Retired.
GALLAGHER, Associate Judge, Retired:
After a jury trial before then Chief Judge Harold H. Greene, appellant was convicted of rape while armed, burglary, assault with a dangerous weapon, mayhem or malicious disfigurement, and a violation of the Bail Reform Act. He received concurrent sentences on each of those convictions, except for the violation of the Bail Reform Act, for which he received a 90-day consecutive sentence. After sentencing, appellant filed a Motion to Set Aside Illegally Imposed Sentence under D.C.Code 1973, § 23-110 on the ground the sentences imposed resulted from defendant's conviction after a trial where he had been denied effective assistance of counsel. The trial judge ordered a hearing on the motion and referred it to another judge to conduct the hearing and dispose of the motion. After an evidentiary hearing, the judge entered a 10-page memorandum opinion in which he concluded the motion should be denied.
There was an exhaustive hearing on the motion in this case, at the end of which the trial court entered voluminous findings which reveal a painstaking and thorough analysis of the evidence and the issues. We see no reason to disturb those findings and certainly find no basis to conclude they are plainly wrong, which is our controlling test on review in this case. D.C.Code 1973, § 17-305(a). See Timus v. United States, D.C.App., 406 A.2d 1269 (1979); McFadden v. United States, D.C.App., 395 A.2d 14 (1978).
We are accompanying this opinion by the trial court's Memorandum Opinion, which we incorporate into our decision.[1]
Affirmed.
APPENDIX
SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA
Criminal No. 102024-76
UNITED STATES OF AMERICA
v.
JOHNNY L. WILLIAMS
MEMORANDUM OPINION
This matter is before the court for consideration of defendant's motion to vacate a sentence allegedly imposed in violation of *257 defendant's constitutional right to effective assistance of counsel.[1]
I.
According to evidence presented by the government during the trial on the merits, the complaining witness, while at home alone, was brutally assaulted and raped in the morning hours of November 5, 1976. After having been beaten by a stick, resulting in a fracture to her right humerus and slashed with a knife, the complainant was pummelled about her left eye causing a detachment of the retina and ultimate blindness as she had already lost sight in her right eye approximately four years before this incident. Thereafter, by her testimony, she was forcibly raped. After a period of unconsciousness, her husband returned home from work to find his wife gagged and bound to a chair. Metropolitan Police were notified and an ambulance was summoned. While waiting for the ambulance to arrive, complainant identified John L. Williams, a man she had known for more than ten years, as the assailant-rapist. Defendant presented essentially an alibi defense. He alleged that he was at home with his wife on the morning of the crime, ailing from a painful back injury. Defendant presented testimony and demonstrative evidence to support his contention of disability, including a container of analgesic tablets.
After five days of jury trial before the Honorable Harold H. Greene,[2] defendant was convicted on charges of rape, mayhem, assault with a deadly weapon, burglary and a Bail Reform Act violation. Defendant received concurrent terms of five to twenty years for rape, five to twenty years for mayhem, three to ten years for burglary, three to ten years for assault with a deadly weapon and a consecutive term of ninety days for the Bail Reform Act violation.
Defendant now alleges,[3] through newly appointed counsel, that he was denied his constitutional right to effective assistance of counsel. Defendant levies numerous allegations against counsel's trial conduct, including 1) a failure to "vigorously" develop, at trial, the extent of defendant's back injury which allegedly would have prevented defendant from exerting the physical force necessary to commit the assault, 2) a failure to introduce the medical records of the complainant's admission to D. C. General Hospital that would have shown that the complainant was a chronic alcoholic, 3) a failure to produce testimony from Dr. Morris, a treating physician, that the complainant was intoxicated at the time she arrived at the hospital, 4) a failure to call an investigator to impeach complainant's testimony that the assault occurred in her apartment, 5) a failure to call an available witness to impeach complainant's testimony that she had not been drinking on the morning of the incident, 6) a failure to call two witnesses to contradict the government's evidence regarding the manner in which complainant was bound and gagged, 7) a failure to call a witness that would have impeached the testimony of complainant's husband that the door was ajar when he arrived, 8) a failure to call a witness to impeach complainant's testimony about the time of the incident, 9) a failure to cross-examine complainant regarding her failure to adequately describe the assailant, 10) a failure to cross-examine a neighbor-witness about alleged beatings inflicted upon complainant by her husband and the defendant's reputation in the community for peacefulness, 11) a failure to explore the possibility of a robbery in the apartment, 12) a failure to make a motion for judgment of acquittal on the rape charge at the end of the government's case or at the close of all the evidence, 13) a failure to request Jencks material and finally, 14) a failure to attempt to sever the Bail Reform Act charge from the other charges. *258 Defendant also makes an allegation in reference to pretrial conduct of counsel involving a failure to adequately prepare defendant and defendant's witnesses for trial testimony.
II.
This court is not unmindful of the recent decisions of the D.C. Court of Appeals in Monroe v. United States, No. 12451 (July 18, 1978) and Farrell v. United States, D.C. App. No. 12051 (August 21, 1978), involving pretrial claims of ineffective assistance of counsel, however, since this motion arises post-trial, the applicable test is that announced in Angarano v. United States, D.C. App., 312 A.2d 295, 298, n. 5 (1973).[4] Defendant must show, by a preponderance of evidence,[5] that the performance of trial counsel was grossly incompetent and that this had in effect blotted out the essence of a substantial defense. The court, in Monroe, supra, at 12-13, identified three reasons for which courts have adopted the relatively strict standard for consideration of allegations against trial counsel asserted only after the government has obtained guilty verdicts. The second rationale discussed, that of avoidance of evaluation by hindsight, is particularly relevant to the disposition of this motion.
III.
After taking testimony and considering documents and affidavits in support of the defendant's motion, the court concludes that the allegation that trial counsel failed to adequately prepare for trial is unfounded. The court is particularly sensitive to such allegations, having had the opportunity to review them in United States v. Sweet, Criminal No. 9994-75 (Memorandum Opinion on July 28, 1978) (new trial granted because of trial counsel's failure to prepare) and completely agrees with the American Bar Association statement that,
"It is axiomatic among trial lawyers that cases are not won in the courtroom but by long hours of laborious investigation and careful preparation ... It is impossible to overemphasize the importance of appropriate investigation to the effective and fair administration of criminal justice." [ABA Standards Relating to the Defense Function § 41, Introductory Note at 224-25 (Approved Draft 1971)]
However, the testimony of defendant and his wife that it was difficult to contact trial counsel and that he failed to prepare defense testimony for the rigors of cross-examination is effectively rebutted by defendant's own testimony that he met with trial counsel at least three times for thirty-minute periods before trial and spoke with trial counsel's investigator on numerous occasions. In fact, after the investigator interviewed potential witnesses, she prepared over 200 pages of reports, all of which were transferred to trial counsel. The alibi defense raised in this case was not complicated factually, thus even limited attorney-client conferences would have been more than adequate to prepare the defense for trial.
Even though a large portion of the defendant's testimony related to the failure of trial counsel to communicate and prepare, newly appointed counsel so much as admits that the allegation is insubstantial. In her amended points and authorities in support of her motion, she concludes that,
"This is not a situation in which trial counsel failed to prepare at all. His files, which were provided to this counsel, contained every record, report and interview referred to, except the conversation with Dr. Hartsock.
The situation presented to this court is one in which trial counsel, for whatever reason, failed to use most of the evidence he had at his disposal."
*259 The court, thus, concludes that trial counsel's preparation for this case was not merely adequate but commendable in light of the circumstances involved in this case.
What remains for the court to consider are the numerous allegations involving conduct during the trial. Newly appointed counsel admits in her amended points and authorities that all of these allegations involve tactical decisions that when considered separately are clearly not an adequate basis for relief. Woody v. United States, D.C.App., 369 A.2d 592, 594 (1977) (mere errors of judgment as disclosed by subsequent events or hindsight are not sufficient to establish ineffective assistance).
Defendant argues, however, that when all of these allegations are considered together, the combined effect is a sufficient basis to award defendant the relief he requests. The court concludes that the record in this case reflects that the alleged omissions do not rise to the level of blotting out a substantial defense.
The foremost allegation, for which the court received the majority of testimony, involves the alleged failure to present medical testimony to the effect that it would have been highly improbable for defendant to have been able to commit the assault due to a painful degenerative back condition. On the basis of what trial counsel had before him at the time of trial, however, his decision to refrain from calling medical experts for testimony was rational and well-founded in light of Dr. Fulcher's report, which stated that defendant's back condition was not so severe as to require surgery and that defendant was to return to work. Although it is true that Percodan, a narcotic, was prescribed by Dr. Cawood on October 26, 1976, defendant was not taking the Percodan at the time of the crime. Defendant was referred to Dr. Fulcher by Dr. Cawood for a neurological consultation on November 3, 1976. After his examination, Dr. Fulcher prescribed Equagesic, a mild non-narcotic sedative, to replace the Percodan. Thus, any allegation that defendant was incapacitated by the narcotic effect of Percodan is unfounded. The court has been presented with an affidavit from Dr. Fulcher which concludes that it appeared "unrealistic that this rather gentle man could have become a maniac capable of performing these acts described..." (Affidavit of Dr. Fulcher, p. 3). Notwithstanding the fact that a portion of the doctor's conclusion is based on neurological findings, it appears that Dr. Fulcher has drawn psychoanalytical conclusions as well. The court concludes, with all due respect, that Dr. Fulcher's strong feelings of sympathy for defendant, as documented in his affidavit and his letter to defendant, has somewhat lessened his objectivity. In any event, the original consultation report prepared by Dr. Fulcher for submission to his colleague and for use in the management and care of the defendant clearly defined the nature and extent of the physical condition of the patient. This condition was not such as to keep defendant from working and was a known transient type of condition. Furthermore, the fact that defendant had a painful back condition was put before the jury for their consideration by the testimony of the defendant and the admission of the prescription pain killers into evidence. Thus, even though the defense was not as "vigorously" presented as newly appointed counsel would have preferred, it can hardly be said that trial counsel's omission of medical testimony on this point rises to the level of blotting out a substantial defense. Newly appointed counsel has also alleged that trial counsel should have more vigorously developed the fact that there was no physical evidence of the rape in the medical records. This allegation is likewise insubstantial as the matter was dealt with in such a forceful fashion in trial counsel's closing argument that the prosecutor felt obligated to refer to the matter again in the final remarks of his rebuttal argument.
The court reaches the same conclusion on the third of these allegations involving the failure to call Dr. Morris or admit the hospital records in reference to the complainant's alcoholic intemperance. What trial counsel had before him to support the allegation that complainant was intoxicated when she arrived at the hospital was an unsupported *260 claim by Dr. Morris to counsel's investigator, in which Dr. Morris admits that he was having difficulty remembering details of the incident because he did not have his records before him at the time of the interview. The allegation of intoxication was refuted not only by the absence of any such notation in the hospital records, but by the numerous references to complainant's coherent and cooperative mental state at the time she arrived in the emergency room. In fact, the only notation of alcoholism was contained in the medical history taken from the complainant, not from any physical findings by any of the hospital staff or treating physicians. The fact that complainant was an admitted chronic alcoholic does not require a conclusion that she was intoxicated at any particular point in time. Not to be overlooked also, was trial counsel's reasoning with respect to the hospital records which included his concern for their prejudicial effect. These records portrayed graphically a very severely battered and beaten woman. In light of the evidence before trial counsel at the time of trial, his decision to refrain from calling Dr. Morris or to admit the hospital records was well reasoned and logical.
The other allegations of failures to impeach government witnesses by cross-examination or the presentation of defense testimony, even if accepted as wholly true, do not rise to the required test as these involved peripheral matters that may have had even an adverse effect on defendant's case, especially with reference to the available testimony of Mr. Moore, who was prepared to testify on cross-examination that defendant was interested in obtaining a gun and had been drinking on the morning of the crime.
The remaining allegations involve the failure to make a motion for judgment of acquittal on the rape charge and a failure to attempt to sever the Bail Reform Act charge from the other charges. As to the former allegation, it is clear that had such a motion been made, it would have properly been denied.[6] As to the latter allegation, trial counsel adequately explained that since he felt that defendant had a high likelihood of being acquitted on the Bail Reform Act charge, that to have it tried simultaneously with the other charges would have had a beneficial effect on the outcome of all the charges involved.
These allegations, therefore, whether considered separately or together, do not rise to ineffective assistance as trial counsel's decisions were rational and in many instances even wise. At the very least, the matters and their alternatives were considered and a judgment-strategical and tactical made.
IV.
The court has drawn a distinct line between consideration of allegations of failure to prepare and communicate and allegations of tactical errors made during the trial. The court has concluded that trial counsel was well prepared for trial and newly appointed counsel has essentially admitted this fact. Except in very strained and peculiar instances, this is where the court's inquiry into ineffective assistance allegations should properly terminate. The retrospective analysis by newly appointed counsel into the manner in which trial counsel conducted the defense presentation and cross-examined government witnesses invades an area properly reserved for the trial counsel as only he can be aware of the multi-faceted intangibles in the courtroom atmosphere which are so important to the outcome of the litigation. Reasoned decisions and tactical determinations reflecting strategic considerations are and should remain the province of the trial lawyer. The Sixth Amendment, by whatever test applied, does not require the perfection of rear-view vision.
The ever increasing popularity of seeking post-trial relief following conviction by assertion of a claim of ineffective assistance of counsel is a procedural maneuver which can greatly overburden the trial court, if abused. Though, undoubtedly, counsel appointed *261 to represent the defendant in appellate proceedings are placed under considerable pressure by a defendant convicted in the trial court, that pressure is really no greater than that experienced by the trial attorney who knew he was representing a defendant who would embrace him upon acquittal but had an alternative in mind should he be convicted. Obviously that alternative included a target his trial attorney. And this, of course, would be separate and apart from errors raised on the record in the appellate court.
As indicated, supra herein, this court is by no means reluctant to award a new trial on the basis of ineffective assistance of counsel, when and if the record warrants such relief under the law. The trial court has an understandable stake in this general subject. Appellate court direction is that a hearing is to be held and testimony received and thereafter Findings of Fact and Conclusions of Law prepared. Obviously, such a post-trial mini-hearing has its effect upon the calendar of each trial judge. Where warranted, it is of course justified. On the other hand, the subject is not one to be exploited with frivolous motions. The law of this jurisdiction is reasonably clear as to the guidelines for establishing ineffective assistance of counsel. The case which does not fall within those guidelines should not be the subject of a motion simply for the sake of a motion being filed.
WHEREFORE, it is this 11th day of September, 1978
ORDERED, that the motion herein, to vacate the sentence imposed in violation of defendant's constitutional right to effective assistance of counsel, be and hereby is denied.
/s/ William E. Stewart, Jr.
WILLIAM E. STEWART, Jr.
Judge
cc: Donna L. Crossland, Esq.
Paul Knight, Esq.
Assistant United States Attorney
Charles O'Banion, Esq.
MACK, Associate Judge, dissenting:
As I read the transcript of trial proceedings, and that of the post-conviction hearing which the trial judge ordered, I am troubled. With all due deference to the observations of the able hearing judge who rejected the claim of ineffective assistance of counsel, I am obliged to point out that his memorandum opinion, which the majority today adopts without significant comment, was issued prior to recent decisions of this court which have identified the kind of gross incompetence by defense counsel which may blot out a substantial defense under Angarano v. United States, D.C.App., 312 A.2d 295 (1973), pet. for rehearing denied, D.C.App., 329 A.2d 453 (1974) (en banc). See Tillery v. United States, D.C. App., 419 A.2d 970 (1980); Johnson v. United States, D.C.App., 413 A.2d 499 (1980); Oesby v. United States, D.C.App., 398 A.2d 1 (1979). I am unable to distinguish this case from that of Johnson, supra, where we held that the failure to present highly credible evidence bearing on the credibility of a key government witness rose to the standard of prejudice enunciated in Angarano. In Tillery, supra, we echoed the importance of defense counsel not only preparing but presenting highly credible impeachment material where the critical issue was that of credibility.
I.
I do not think it can be seriously disputed that, in the instant case, credibility was a crucial issue. The unfortunate complainant was a key witness; it was only on her word that appellant was identified as the man who struck her repeatedly in the left eye, kicked her, beat her with a stick, broke her arm, tied and gagged her, cut her, ripped off her clothes and raped her. Defense counsel, prior to and during trial, possessed information that would have raised questions as to the competency of this witness to have perceived, at the time of the crime, not only precisely what had been done to her but who had done it. He did not use this evidence for impeachment purposes.
*262 Thus, at trial the complainant testified that she did not drink any alcoholic beverages on November 5, 1976, the day of the assault, that she was not an alcoholic and did not have a drinking problem. On cross-examination, defense counsel sought to elicit testimony that complainant was a chronic alcoholic and had been drinking on the day of the assault. Receiving a denial from the witness, counsel pursued the matter no further. Yet counsel was possessed of the complainant's hospital records which revealed that from November 8-15, she lapsed into delirium tremens due to alcoholic intake sometime before coming into the hospital and that during that period, she experienced visual and auditory hallucinations. At various times she believed that there were dogs and puppies in her bed, and cats and dogs in her room. The medical records also disclosed that prior to admission, she had been taking medication to control a seizure disorder that she experienced since childhood. Furthermore, counsel was aware that one Dr. Morris, the physician who admitted complainant into the hospital, was of the opinion that she was intoxicated upon admission. Although counsel subpoenaed Dr. Morris, he did not call him to testify and he failed to employ any of this evidence to impeach complainant. Indeed, when the government sought to admit into evidence complainant's hospital records, counsel objected and stated that he did not comprehend their relevancy. The objection was sustained.
During the post-trial hearing, counsel explained that his decision not to pursue a line of cross-examination to develop complainant's drinking problem was based largely on an interview he had with her five months after the rape in which she appeared lucid and competent. "Moreover" as he testified, "the trial judge did not raise any questions as to [complainant's] competence." Counsel later added that he did not want to evoke sympathy for complainant by questioning her about her drinking problem. He did not want the hospital records introduced for the same reason and because they were not relevant to appellant's alibi defense. With regard to the testimony of Dr. Morris, counsel decided not to call him because he "might" have testified that complainant reported to him that she had been raped, thus providing corroborative evidence.
I cannot view counsel's explanations as supporting the existence of a rational "tactical" decision. As I have noted, complainant was the only witness to place appellant within her apartment on the morning of the assault. Her testimony was, at times, confused and contradictory; her credibility was crucial; impeachment was essential to the defense. The medical evidence and testimony available to counsel and of which he was aware was highly credible and would have substantially bolstered appellant's defense. Counsel's decision not to present this evidence based on his interview of complainant and his desire to avoid the evocation of sympathy for her had no basis in reason: complainant's display of lucidity five months subsequent to the assault had no relevancy to the issue of her mental state on the date of her assault; that mental state was relevant to appellant's defense of alibi. The detriment of Dr. Morris' possibly adding to the fact that complainant reported rape pales in comparison to the benefit of his testimony concerning complainant's inebriated condition upon admission; the likelihood that introduction of that portion of complainant's medical record describing her injuries would have evoked sympathy for her was minimal compared to the previous introduction by the government of the more inflammatory evidence of photographs depicting her battered condition. In my view, counsel was grossly incompetent for failing to employ the impeachment evidence available to him concerning complainant's inebriated condition.
In like vein, I think that counsel was incompetent in failing to use favorable medical evidence which indicated that complainant's genital area was in a normal condition upon admission. Counsel did not subpoena or interview the gynecologist who examined the complainant, nor did he present any evidence regarding the examination. Instead, he chose to argue a negative *263 inference concerning the government's lack of medical evidence of rape during closing arguments to the jury. When questioned at the post-trial hearing about his strategy at trial, counsel testified as follows:
Q. [Post Trial Counsel for appellant]: Why didn't you consider it relevant to call the gynecologist who examined her?
A. [Trial Counsel for appellant]: Well, it was obvious that no semen was found in the vagina
Q. How was it obvious?
A. From the pretrial investigation.
Q. Well, what about the jury's information; how were they going to know that?
A. I pointed that out in closing argument that the Government had not produced any evidence of semen in the vagina.
Q. My question is: Did you not consider it a relevant point to bring up on defense?
A. Well, the point was brought up on defense, in the defense of Mr. Williams.
Q. But only in closing argument.
In this regard the instant case is factually similar to Johnson v. United States, supra. In Johnson, the defendant was charged with taking indecent liberties with and enticing a minor child. Ten days before trial, his counsel became aware of a medical report that concluded that there was no evidence of trauma in the complainant's vagina or genital area, thereby directly contradicting the complainant's account of the incident. The examining gynecologist was not subpoenaed or called to trial, although counsel attempted to present the medical report's negative findings indirectly in his closing argument by arguing that the government's failure to produce the results of the medical examination allowed an inference that the evidence would have been favorable to the defendant. In reversing the conviction and granting a new trial, we held that trial counsel was grossly incompetent in his trial preparation by failing to investigate the favorable medical report, obtain a copy of the report, and secure and present the testimony of the gynecologist. We concluded:
From the facts developed at the post-trial hearing it is undisputed that trial counsel was informed at least ten days prior to trial that Dr. Gaither's medical report would be favorable to the defense, yet trial counsel made no attempt to secure either a copy of the medical report nor to interview Dr. Gaither as a potential defense witness. This failure became salient when the government rested without calling Dr. Gaither to testify and trial counsel realized the favorable medical testimony would be lost. At that late juncture, the perfunctory issuance of a forthwith subpoena directed only to the doctor's place of previous employment proved unsurprisingly fruitless. Trial counsel was left with the sole option of arguing the negative inference from the failure of the government to present medical testimony. The fact that counsel was forced to exploit a negative inference is indicative of his inadequate preparation. [413 A.2d at 503.]
In my view Johnson is controlling here both as to the finding of incompetence and its significance to the defense. As we said in that case:
A `substantial defense', however, is not limited to an affirmative defense or the presentation of an alibi defense. A defense may be predicated upon disproving an element of the crime charged, ... or simply discrediting the testimony of the prosecution witness.... The loss of highly credible impeachment material, which may have been sufficient to cast a reasonable doubt on the government's evidence, blots out a substantial defense. [413 A.2d at 504-05 (citations omitted).]
II.
While I think, therefore, that Johnson would mandate reversal in this case, there is more. For additional reasons I cannot embrace the trial court's findings that defense counsel's omissions taken separately or together, did not rise to the level of ineffective assistance of counsel. Indeed as a matter of law, I would find the trial *264 court's assessment erroneous in that, after finding that counsel was well prepared for trial,[1] the court added "Except in very strained and peculiar instances, this is where the court's inquiry into ineffective assistance allegations should properly terminate." This is not the law at least not at this point in time. See Oesby v. United States, supra.
In Tillery, supra, we applied the "totality of circumstances" test announced in Oesby in assessing the performance of counsel. We found the preparation and presentation of an insanity defense to be grossly incompetent. We noted that when it clearly appeared that counsel's performance resulted in prejudice to appellant, reversal for a new trial was compelled.
In my view the rationale of these cases compels a finding that the investigation, preparation and presentation of appellant's additional defense of physical impossibility was grossly incompetent. During the post-trial hearing, trial counsel testified that he did not pursue the defense of physical impossibility because "rather than get into a complex medical defense I concentrated primarily on the alibi defense." Counsel made this decision without fully comprehending the nature of appellant's ailment[2] or seeking medical advice either from the doctor who examined appellant or from outside medical experts. The evidence as developed in the post-trial hearing revealed that Dr. James C. Cawood examined appellant on October 26, 1976. Appellant complained of severe lower back pain and Dr. Cawood diagnosed it as "like a ruptured disc." Percodan, a very strong narcotic, was prescribed, x-rays were ordered and appellant was advised to seek the advice of a neurologist, Dr. O. Hugh Fulcher, and to refrain from work for three months. Dr. Cawood was interviewed by defense counsel's investigator to whom he made a full disclosure of appellant's condition.
Dr. Fulcher examined appellant on November 3, 1976, two days prior to the assault on complainant, and deduced that he was suffering from a sciatica resulting from a pinching of the nerve root in the lower lumbar region. Dr. Fulcher postulated that this "pinching" had resulted from a "degenerated intervertebral disc between the fifth lumbar vertebra and the first sacral segment." Equagesic, a sedative, and a sacroiliac belt were prescribed for appellant although Dr. Fulcher did not think appellant's condition sufficiently severe to warrant a myelogram,[3] a hospital stay or cessation of appellant's desk job. Counsel testified that he relied on this latter conclusion when deciding to forego asserting the defense of physical impossibility; yet, he never consulted with Dr. Fulcher. In an affidavit accompanying appellant's post-trial motion, Dr. Fulcher stated that at the time he examined him on November 3, appellant was experiencing an acute pain attack which almost completely incapacitated him and that he was complaining about loss of his "manpower."[4] However, since appellant's previous acute attacks had subsided, Dr. Fulcher, in reaching his conclusion that appellant's condition was not "sufficiently severe," assumed that his present attack would similarly subside in time. But, Dr. Fulcher concluded, "It would have been most unlikely, if not impossible, for him to have improved very much within *265 two days of the examination." A subsequent examination of appellant performed by Dr. Fulcher on May 2, 1977, revealed that the condition of appellant's back had not returned to normal and that he was still experiencing some pain. Dr. Fulcher estimated appellant's disability at that time to be approximately fifteen percent.
Despite counsel's testimony that he decided to forego the "complex" defense of physical impossibility, the record belies that assertion. Counsel elicited testimony from appellant and his wife concerning the debilitative nature of his back condition. Additionally, the prescription for equagesic was introduced into evidence. Counsel did not, however, reinforce this line of defense by calling as witnesses either Dr. Cawood or Dr. Fulcher. Instead, he allowed the prosecution to draw negative inferences[5] from the decision not to call Dr. Fulcher, and he opened the way for the prosecution to present the damaging testimony of Dr. Fulcher's nurse concerning her recollection of appellant's condition.[6] Indeed, in his summation to the jury, the prosecutor stated:
The defense case [is] alibi ... plus a little suggestion of impotency .... Is it reasonable that, here in the courtroom, last minute, a man takes the stand and says he has this slipped disc? He diagnosed himself. Where is the doctor? The nurse... told you ... [that] his chief complaint [to her], pain in the right arm, goes down into the leg and [his] toes fall asleep at times Is this the type of injury... [which is] a defense to rape?
I cannot view counsel's actions as constituting a tactical choice on his part. His presentation to the jury of some testimony and physical evidence as to appellant's back condition indicates counsel's belated realization of the importance of appellant's disability. Unfortunately for appellant, counsel had not adequately prepared this line of defense as witnessed by his failure to comprehend the exact nature of his ailment, employ the favorable report of Dr. Cawood, contact Dr. Fulcher regarding his diagnosis of appellant's condition, or consult a medical expert as to the feasibility of the defense in light of the existing medical evidence.
His lack of preparation and presentation only served to obscure the seriousness and extensiveness of appellant's condition and to blot out an affirmative medical defense to the prejudice of appellant.
I would hold, applying the "totality of circumstances" test, that counsel's gross incompetence in his preparation, investigation and presentation of appellant's medical defense, and in failing to impeach a key government witness with highly credible evidence, has deprived appellant of his Sixth Amendment right to effective assistance of counsel. I respectfully dissent.
NOTES
[*] Judge Gallagher was an Associate Judge of the court at the time the case was submitted. His status changed to Associate Judge, Retired, on February 27, 1981.
[1] The dissent sets out at length the petitioner's side of the issue post-trial. We might comment, in passing, that defense counsel in this case made an extensive pretrial investigation and there were compiled some 200 pages of investigative reports. There was no lack of pretrial diligence. The dispute centers on tactical decisions during trial. The trial court's Memorandum Opinion judiciously deals with these tactical decisions.
It would serve no worthwhile purpose to retrace the ground crossed by the trial court, whose opinion we have included as an Appendix. After a lengthy hearing, observation of the witnesses and consideration of the relevant documents, the trial court made thoughtful and extensive findings of fact and concluded that ineffective assistance of counsel was not established. The dissenting judge will have none of it. We think a careful and deliberate job was done by the trial court and see no reason to reverse.
[1] D.C.Code 23 § 110. A hearing was granted by the Honorable Harold H. Greene on June 13, 1978. See Johnson v. United States, D.C.App. Nos. 11468 and 12492 (March 29, 1978).
[2] Associate Judge, United States District Court for the District of Columbia, then sitting as Chief Judge, Superior Court.
[3] Notice of Appeal was filed on October 3, 1977.
[4] Chief Judge Newman, writing for the court in Monroe, did not specifically readopt the Angarano standard for post-trial claims leaving the issue open for future adjudication. This court, of course, is bound by the outstanding precedent until overruled.
[5] See Bolton v. Harris, 130 U.S.App.D.C. 1, 12, 395 F.2d 642 (1968).
[6] See Arnold v. United States, D.C.App., 358 A.2d 335, 339-44 (1976).
[1] The court alluded to the voluminous investigative reports which were transferred to counsel. I could agree, as we found in Tillery that the "information was all there" (see 419 A.2d at 973) but here as in Tillery counsel did not use it.
[2] At one point in the hearing, counsel stated that he did not know the meaning of a neurologist's diagnosis. Additionally, he could not perceive the connection between appellant's back disorder and impotency. Expert medical testimony presented during the post-trial hearing indicated that back ailments similar to appellant's did diminish or entirely eradicate interest in performing sexual acts, especially during an acute attack of pain.
[3] A myelogram is a film reproduction procedure using roentgen rays whereby the spinal subarchnoid space is visualized after an injection of a contrast medium.
[4] Dr. Fulcher explained that the term "manpower" was understood to mean sexual potency.
[5] Several times during cross-examination, the prosecution questioned appellant concerning the whereabouts of his doctor.
[6] The nurse, Mary Hughes, testified that during his November 3 office visit, appellant did not complain to her of severe back pain or impotency, but only of pain in his right hip and leg.
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733 F. Supp. 1346 (1990)
Todd GANDER, Plaintiff,
v.
FMC CORPORATION, and Pedco, Inc., Defendants.
No. 87-1155C(6).
United States District Court, E.D. Missouri.
April 6, 1990.
*1347 Hullverson, Hullverson & Frank, James E. Hullverson, Jr., Saint Louis, Mo., for plaintiff.
Shepherd, Sandberg & Phoenix, P.C., Paul N. Venker, Saint Louis, Mo., for defendants.
MEMORANDUM AND ORDER
GUNN, District Judge.
This matter is before the Court on plaintiff's motion for payment of appeal bond and defendant's opposition thereto.
On July 13, 1988 this Court entered judgment on a jury verdict in favor of plaintiff Todd Gander for the sum of $2,000,000. Defendant FMC appealed that judgment and this Court stayed execution of the judgment pending appeal pursuant to Fed. R.Civ.P. 62(d) upon the posting of a supersedeas bond in the amount of $2,200,000. On January 12, 1990 the Eighth Circuit Court of Appeals affirmed this Court's judgment. On February 22, 1990 the Court of Appeals denied defendant's petition for rehearing en banc and on March 6, 1990 issued its mandate in this matter. As of the present date, defendant has failed to pay the judgment or tender the supersedeas bond. Plaintiff now moves the Court for an order compelling payment of the judgment from the appeal bond.
In opposition to plaintiff's motion defendant asserts that because it has an "absolute right" to petition the Supreme Court for a writ of certiorari, this Court must stay the execution of its judgment. Defendant seeks sanctions on the ground that plaintiff's request is "frivolous and unsupported by any known case law or federal rule of procedure."
Upon consideration of the applicable law the Court finds that defendant's, rather than plaintiff's position, is unsupported by case law or rules of procedure.
The power of a district court to grant a stay of judgment pending appeal terminates when the Court of Appeals issues its mandate. Newton v. Consol. Gas Co., 258 U.S. 165, 177, 42 S. Ct. 264, 267, 66 L. Ed. 538 (1922); Rakovich v. Wade, 834 F.2d 673, 674 (7th Cir.1987). Pursuant to 28 U.S.C. § 2101(f) a stay pending an application for certiorari to the Supreme Court "may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court...." This provision has been construed to vest authority to grant such a stay with the Court of Appeals or a justice of the Supreme Court. See In re Stumes, 681 F.2d 524, 525 (8th Cir.1982); Hovater v. Equifax Services, Inc., 669 F. Supp. 392, 393 (N.D.Ala. 1987); Deretich v. City of St. Francis, 650 F. Supp. 645, 647 (D.Minn.1986); Studiengesellschaft Kohle, mbH v. Novamont Corp., 578 F. Supp. 78, 80 (S.D.N.Y.1983). The mandate of the Eighth Circuit Court of Appeals having issued in this matter, the stay issued by this Court during the pendency of the appeal has expired. In addition, this Court lacks jurisdiction to stay the execution of its judgment pending defendant's application for certiorari to the Supreme Court. In re Stumes, 681 F.2d at 525; Hovater, 669 F.Supp. at 393; Deretich, 650 F.Supp. at 647; Studiengesellschaft Kohle, mbH, 578 F.Supp. at 80.
Inasmuch as the stay entered in this cause on February 23, 1989 dissolved upon the issuance of the mandate of the Eighth Circuit Court of Appeals, the Court concludes that defendant is now obligated to pay this Court's judgment unless it is able to obtain a stay pursuant to 28 U.S.C. § 2101. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for payment of appeal bond shall be and it is granted.
IT IS FURTHER ORDERED that plaintiff's motion for sanctions shall be and it is denied.
IT IS FURTHER ORDERED that defendant FMC's motion for sanctions shall be and it is denied.
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183 Conn. 444 (1981)
STATE OF CONNECTICUT
v.
ROLAND BOULWARE
Supreme Court of Connecticut.
Argued January 8, 1981.
Decision released April 14, 1981.
BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JS.
*445 Jerrold H. Barnett, public defender, with whom, on the brief, was Suzanne Zitser Gottlieb, assistant public defender, for the appellant (defendant).
Robert J. O'Brien, assistant state's attorney, with whom, on the brief, was Arnold Markle, state's attorney, for the appellee (state).
WRIGHT, J.
The only issue in this appeal is whether the trial court erred in instructing the jury that they "may not draw any unfavorable inference as to [the defendant's] guilt merely because of his failure or refusal to testify." Under the jury's verdict the defendant was found guilty of burglary in the third degree,[1] and not guilty of larceny in the third degree. The defendant challenges his conviction of third degree burglary by mounting a twofold attack on the court's instruction: He contends that the instruction violated his fifth amendment right to remain silent[2] and that it ran afoul of the mandate of General Statutes § 54-84 (b).[3] We reject both arguments and affirm the conviction.
*446 At the outset, we note that the defendant's claims are reviewable notwithstanding his failure to submit a request to charge or to except to the charge as given. See Practice Book § 854. The fifth amendment claim is reviewable because it amounts to a claim that the defendant was deprived of a fundamental constitutional right and a fair trial and the record is sufficiently complete for us to consider the claim on the merits. State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973). The § 54-84 (b) claim is reviewable for the reasons stated in State v. Burke, 182 Conn. 330, 331-33, 438 A.2d 93 (1980). See State v. Carter, 182 Conn. 580, 581, 438 A.2d 778 (1980). Both claims must be considered in light of the charge as a whole. State v. McDaniel, 176 Conn. 131, 136, 405 A.2d 68 (1978).
The defects in the instruction[4] which the defendant relies on were the court's use of the word "may" and its insertion of the word "merely" before the words "because of his failure or refusal to testify." The defendant claims that these words offend both the fifth amendment and § 54-84 (b). We cannot agree.
*447 With respect to the fifth amendment claim, the defendant has a right, upon proper request, to have the court instruct the jury that no adverse inferences may be drawn from his failure to testify. Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). From the record and briefs, it appears that no such request was made in this case. Moreover, we conclude that the contested instruction discharged the trial court's "constitutional obligation ... to minimize the danger that the jury [would] give evidentiary weight to a defendant's failure to testify." Id.
We next consider the § 54-84 (b) claim. As to the word "may," the statute provides that "the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." (Emphasis added.) Thus the charge given satisfied the statute in this respect.
The defendant also maintains that by the court's use of the word "merely," the instruction left open the possibility that the jury would draw adverse inferences from the accused's failure to testify. The defendant interprets the instruction as precluding adverse inferences based on his silence alone, but allowing such inferences if the jury found some evidence of guilt. Although we discourage the use of the word "merely" in this situation because it adds nothing of substance to the charge, we conclude that the defendant has viewed the instruction in a far too technical manner. See State v. Tropiano, 158 Conn. 412, 432-33, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970). We think a reasonable juror hearing this instruction within the context of the entire charge would naturally assume that the defendant's *448 silence formed no part of the case. This is in harmony with both the letter and the spirit of § 54-84 (b).
There is no error.
In this opinion the other judges concurred.
NOTES
[1] "[General Statutes] Sec. 53a-103. BURGLARY IN THE THIRD DEGREE: CLASS D FELONY. (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein."
[2] The fifth amendment to the United States constitution provides in part that "[n]o person ... shall be compelled in any criminal case to be a witness against himself...."
[3] General Statutes § 54-84 (b) provides: "Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused's silence."
[4] The full instruction on the defendant's failure to testify was as follows: "I'm going to give you another instruction dealing with the credibility of a witness. Now, as I am sure you know, under our law in a criminal case the person on trial for any offense which he might be charged with has the option of testifying or not to testify in his own behalf. In this case the defendant elected not to testify. It is my duty to tell you that you may not draw any unfavorable inference as to his guilt merely because of his failure or refusal to testify. In other words, the defendant has no duty to prove his own innocence. The burden is still upon the State to offer evidence sufficient to establish beyond a reasonable doubt that the defendant committed the crime or crimes with which he is charged."
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733 F. Supp. 1189 (1990)
Barbara SORRELLS, Plaintiff,
v.
Warren BABCOCK, M.D., James Frakes, M.D., Douglas Kinkel, M.D., Mark T. Shiels, M.D., and Swedish American Hospital, Defendants.
No. 89 C 20292.
United States District Court, N.D. Illinois, W.D.
March 20, 1990.
*1190 Kenneth C. Chessick, M.C., Law Offices of Kenneth C. Chessick, Schaumburg, Ill., for plaintiff.
Edward Maher, Clark, McGreevy & Johnson, Robert McWilliams and Gregory P. Guth, Rockford, Ill., for defendants.
ORDER
ROSZKOWSKI, District Judge.
This action comes before the court on Defendant Dr. Douglas Kinkel's motion to dismiss Counts II and III of Plaintiff's complaint. For the reasons set forth herein, the court denies Defendant's motion to dismiss.
BACKGROUND
Plaintiff, Barbara Sorrells, filed suit in the United States District Court for the Northern District of Illinois on June 8, 1989 alleging a personal injury/medical malpractice action against Defendants. Plaintiff and all individual Defendants are residents of the State of Illinois. Defendant Swedish American Hospital is licensed by the State of Illinois and is located in Rockford, Illinois. Defendants Warren Babcock, James Frakes, Douglas Kinkel and Mark Shiels are all licensed physicians who are practicing in the State of Illinois.
Count II of Plaintiff's complaint alleges an action against Defendant Douglas Kinkel under 42 U.S.C. § 1395dd. This section is referred to as the COBRA Act or the Emergency Medical Treatment and Active Labor Act. The acronym "COBRA" refers to the Consolidated Omnibus Budget Reconciliation Act of 1986 of which § 1395dd is a part.
Plaintiff's complaint states that on June 26, 1987, Plaintiff was admitted to the emergency room of Swedish American Hospital in an unstable emergency medical condition. The condition was subsequently diagnosed as gastrointestinal bleeding. Plaintiff alleges that she was discharged from the emergency room without stabilization of her signs and symptoms. Plaintiff states that at the time of her discharge she exhibited dizziness, recurrent vomiting, diffuse abdominal pain and diffuse abdominal tenderness. As a result of her discharge from the emergency room, Plaintiff contends she suffered severe complications *1191 of her gastrointestinal bleeding and gastroesophageal reflux. At the time of this incident, Defendant Kinkel had an employment contract with Defendant Swedish American Hospital. Dr. Kinkel treated Plaintiff while she was in the emergency room.
Count III of Plaintiff's complaint alleges a pendent state law claim for medical malpractice against Defendant Kinkel. Plaintiff lists eight allegations in support of her medical malpractice action. Basically, Plaintiff contends that Defendant Kinkel carelessly and negligently breached his duty to render adequate and proper care and treatment to Plaintiff. Plaintiff states that the care and treatment rendered to her did not meet the standard of care for a patient in Plaintiff's condition.
Defendant Kinkel has brought a motion to dismiss Counts II and III of Plaintiff's complaint for want of federal subject matter jurisdiction. Defendant Kinkel first contends that a COBRA violation cannot be pursued in a federal forum. If the court, however, finds a federal remedy exists under COBRA, Defendant Kinkel requests an evidentiary hearing in order to determine if Plaintiff left the emergency room in an unstabilized emergency medical condition. Defendant asserts that jurisdiction is heavily dependant on whether Plaintiff left the hospital in an unstabilized medical condition. Defendant Kinkel further contends that there must be a knowing and/or an intentional violation of COBRA in order for a plaintiff to seek protection from the Act. Defendant Kinkel also moves for dismissal on the basis that COBRA applies only to hospitals and not to physicians. Finally, Defendant Kinkel argues that Counts II and III must be dismissed because COBRA does not authorize any private recovery by a plaintiff.
DISCUSSION
In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiff could prove consistent with the pleadings that would entitle her to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 107 S. Ct. 2489, 96 L. Ed. 2d 381 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hospital of Fort Wayne, 788 F.2d 411, 414 (7th Cir.1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S. Ct. 1758, 84 L. Ed. 2d 821 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984).
COBRA was enacted to end "patient dumping". "Patient dumping" refers to the practice of a hospital that, despite being capable of providing the needed medical care, transfers patients to another institution or refuses to treat patients because the patient is unable to pay. Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. Supp. 853, 853-54 (S.D.Ind.1989). Congress sought to end patient dumping by providing that any hospital receiving federal funds must accept any patient seeking treatment in its emergency room or risk the loss of funding. Section 1395dd(d)(3)(A) provides that an individual suffering harm as a direct result of a COBRA violation may recover damages in a civil action against the participating hospital. COBRA does not, however, specifically provide for a remedy in the United States District Courts.
Defendant Kinkel first argues that a COBRA violation cannot be pursued in a federal forum. COBRA took effect on August 1, 1986. Due to its recent enactment, very little case law exists interpreting the Act. One case, however, is directly on point as to this issue.
In Bryant v. Riddle Memorial Hosp., 689 F. Supp. 490 (1988), the United States District Court for the Eastern District of Pennsylvania determined, for the first time, whether COBRA provided for a private *1192 cause of action in federal court. The Bryant court first noted that Section 1395dd(d)(3)(A) of the Act clearly allows for civil enforcement of its provisions through a private cause of action. Section 1395dd(d)(3)(A) provides:
Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.
The court then engaged in an extensive examination of the legislative history surrounding the enactment of COBRA before concluding that it was the intent of Congress to allow a COBRA action to be brought in federal court.
The Bryant court first looked to congressional committee reports in order to determine Congress' intent. The Ways and Means Committee stated the following:
Any persons or entity adversely and directly affected by a participating hospital's violation of these requirements may bring an action, in an appropriate state or Federal district court, for damages to the person arising from the violation and for other relief as may be appropriate to remedy the violation or deter subsequent violations. (emphasis added).
Bryant, 689 F.Supp. at 492, citing, H.R. Rep. No. 241(I), 99th Cong., 1st Sess. 28, reprinted in 1986 U.S.Code Cong. & Admin.News 42, 606. The Judiciary Committee, after concurring with the findings of the Ways and Means Committee, clarified COBRA's enforcement provisions. The Judiciary Committee stated that "state courts will have concurrent jurisdiction to hear and decide actions brought under (COBRA), and ... the Act allows an aggrieved party to bring an action in federal or state court." Bryant, 689 F.Supp. at 493, citing, H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 7, reprinted in 1986 U.S.Code Cong. & Admin.News 729.
Finally, the Bryant court noted that the Judiciary Committee considered an amendment which would have stricken the federal cause of action. The amendment, however, was defeated. Bryant, 689 F.Supp. at 493, citing, H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 8, reprinted in 1986 U.S.Code Cong. & Admin.News 730. The Bryant court concluded that "it is therefore clear that both the Senate and the House agreed to provide a federal cause of action and to instruct both state and federal courts to apply state law when determining damages." Bryant, 689 F.Supp. at 493. See, also, Thompson v. St. Anne's Hosp., 716 F. Supp. 8, 9 (N.D.Ill.1989) and Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. Supp. 853, 854 n. 1 (S.D.Ind.1989), agreeing that § 1395dd allows civil actions in federal court to enforce COBRA's provisions.
This court agrees with the three other United States District Courts considering the issue that COBRA does provide for enforcement of its provisions in a federal forum. Defendant Kinkel then requests an evidentiary hearing to determine this court's jurisdiction. Defendant argues that this court's jurisdiction is heavily dependant on demonstrating that Plaintiff left the emergency room in an unstabilized emergency medical condition. Defendant's reasoning for an evidentiary hearing is that if Plaintiff did not leave the emergency room in an unstable condition, she is not a member of the class that Congress sought to protect in passing COBRA and, therefore, this court would lack jurisdiction over the matter.
The court understands Defendant's thinking in this matter; however, what the Defendant is really asking the court to do is to determine an ultimate issue of fact in order to assert jurisdiction. For purposes of a motion to dismiss, the court accepts all well-pleaded factual allegations as true. Plaintiff has asserted in her complaint that she left Swedish American Hospital's emergency room in an unstabilized condition. Therefore, the court must accept that allegation as true. Plaintiff is, therefore, considered a member of the class that Congress intended to protect in passing the COBRA Act. As stated above, a federal *1193 court has jurisdiction over cases brought to enforce COBRA's provisions. Moreover, the court believes that an issue so intertwined with a cause of action as to be an ultimate issue in the case, takes precedent over a jurisdictional question.
Defendant Kinkel also argues in support of his motion to dismiss that knowledge or intent is a crucial determination in order to find a violation of COBRA. Defendant states in his memorandum in support of his motion that "although it is hard to ascertain the vehicle for establishing this at the pleading stage ... the examination was appropriate and adequate as was the treatment for the diagnosis which was made." Def. brief at 11. Frankly, the court does not understand Defendant's reasoning in this regard.
Plaintiff's complaint asserts that she was discharged from the emergency room despite signs and symptoms of an emergency medical condition. As stated above, the court accepts this allegation as true for purposes of the motion to dismiss. Defendant's defenses have no place in a motion to dismiss, especially when Defendant Kinkel acknowledges that it is difficult to ascertain, at this stage of the proceedings, whether the treatment of Plaintiff was appropriate. Furthermore, the court does not see how Defendant's argument supports a motion to dismiss based on the lack of federal subject matter jurisdiction.
Defendant Kinkel asserts that dismissal of Counts II and III of Plaintiff's complaint is proper because COBRA only applies to hospitals, not to physicians. Again, the court must disagree. In Thompson v. St. Anne's Hosp., 716 F. Supp. 8, 10 (1989), the United States District Court for the Northern District of Illinois, Eastern Division, held that an action under § 1395dd against a hospital, its Board of Commissions and two medical doctors was proper under the facts alleged in that case. In Thompson, Plaintiff brought an action against the defendants for failure to provide her with proper medical treatment in connection with the premature delivery of her baby. Id. at 9. The defendants in Thompson argued that a cause of action could not be maintained as they had not engaged in any "patient dumping" activity. The Thompson court disagreed and held that COBRA not only prohibits "patient dumping", but also prohibits denial of stabilizing treatment to patients having an emergency medical condition or to patients in labor. Id. at 9-10.
COBRA's legislative history, as well as the language in the statute itself, also support a finding that federal jurisdiction is proper over emergency room physicians. COBRA specifically provides for civil monetary penalties and sanctions against a physician for knowingly violating COBRA's provisions. Under § 1395dd(d)(2)(B):
The responsible physician in a participating hospital with respect to the hospital's violation of a requirement of this subsection is subject to the sanctions described in section 1395u(j)(2) of this title, except that, for purposes of this subparagraph, the civil money penalty with respect to each violation may not exceed $50,000, rather than $2,000.
Section 1395dd(d)(2)(C) goes on to state:
As used in the this (sic) paragraph the term "responsible physician" means, with respect to a hospital's violation of a requirement of this section, a physician who
(i) is employed by, or under contract with, the participating hospital, and
(ii) acting as such an employee or under such a contract, has professional responsibility for the provision of examinations or treatments for the individual, or transfers of the individual, with respect to which the violation occurred.
COBRA's legislative history provides further support that a federal cause of action can be brought against a responsible physician. The Ways and Means Committee initially provided for criminal sanctions against physicians who have responsibility for the treatment of patients and who knowingly fail to meet his or her responsibilities under COBRA. H.R.Rep. No. 241(I), 99th Cong., 1st Sess. 28, reprinted in 1986 U.S.Code Cong. & Admin.News 606. The Judiciary Committee, however, rejected this proposal. The following language *1194 was used by the Judiciary Committee in rejecting the criminal sanctions provision:
... (T)he Judiciary Committee amendment would delete that portion ... which would impose criminal penalties on a physician who has professional responsibilities for the screening, examination, or treatment of a patient as required by [COBRA]. The Judiciary Committee understands and strongly supports holding physicians responsible for denying medical care. Indeed, it is for this reason that the Committee has recommended a provision ... which would provide that a $25,000 fine may be imposed on a physician, as well as a hospital, who fails to properly respond to the genuine medical needs of individuals who come to emergency rooms.
* * * * * *
The criminal sanction is unnecessary because the other sanctions in subsection (d) ... will serve to deter violations of the standards ... As noted above, [COBRA] provides for three sanctions, and these sanctions may be imposed against both hospitals and doctors.
H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 7, reprinted in 1986 U.S.Code Cong. & Admin.News 729.
The Judiciary Committee did, however, recognize the need for civil sanctions against physicians who violate COBRA's provisions. The Judiciary Committee stated:
... (T)he Judiciary Committee amendment would extend the civil fines provision to the responsible physician, so that the physician, like the hospital, could be fined for violating the requirements of [COBRA] by up to $25,000 per violation. The current provision allows this civil penalty to be assessed only against the hospital. The Committee believes the ability to assess this fine against the responsible physician as well as the hospital will be a strong incentive for both to respond to the medical needs of individuals with emergency medical conditions and women in active labor.
H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 6, reprinted in 1986 U.S.Code Cong. & Admin.News 728. The Judiciary Committee noted, however, that damage actions may only be brought against hospitals. H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 6-7, reprinted in 1986 U.S.Code Cong. & Admin.News 728. Accordingly, this court believes it is clear that a federal court has jurisdiction in COBRA suits against emergency room physicians who are alleged to have violated COBRA's provisions.
Defendant Kinkel's final argument for dismissal of Counts II and III of Plaintiff's complaint is that § 1395u(j)(2) does not authorize any private recovery by a patient. Rather, Defendant argues that any amount recoverable must go to the Secretary of Health and Human Services. The court finds that the issue of whether Plaintiff or a governmental entity is entitled to recover any civil monetary penalty imposed against a hospital and/or a physician is not relevant to Defendant's motion to dismiss for want of federal subject matter jurisdiction. The court does, however, note that it would be a strange situation indeed for an individual to bring a civil suit so that a governmental entity could recover a monetary penalty. The court does not see why an individual would expend the monies and the time necessary in bringing the civil suit when he or she would not benefit in a favorable outcome. The court cannot fathom that Congress would have intended such a result.
The possibility that Plaintiff may not recover a civil monetary penalty does not affect her standing to bring a COBRA claim, as Defendant would have this court believe. In fact, § 1395dd(d)(3) specifically states that an individual suffering personal harm as a result of a COBRA violation may bring a civil action. COBRA's legislative history further supports the fact that individual suits are proper under COBRA. See, e.g., H.R.Rep. No. 241(III), 99th Cong., 1st Sess. 6, reprinted in 1986 U.S.Code Cong. & Admin.News 728, where the Judiciary Committee noted that COBRA authorizes two types of actions for damages one by an individual and one by a medical *1195 facility that received an improperly transferred patient.
This court has found that it properly has federal jurisdiction over the present cause of action. As such, the court also has ancillary jurisdiction over pendent State law claims arising out of a "common nucleus of operative fact". United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Thus, this court asserts jurisdiction over Count III of Plaintiff's complaint. Count III alleges a State medical malpractice action against Defendant Kinkel that arises out of a common nucleus of operative fact as Plaintiff's federal claims.
CONCLUSION
For the reasons set forth herein, the court denies Defendant Kinkel's motion to dismiss Counts II and III of Plaintiff's complaint. A status hearing is set for April 11, 1990 at 9:30 a.m.
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295 Pa. Super. 293 (1982)
441 A.2d 1239
COMMONWEALTH of Pennsylvania
v.
Ronald Vernon MATT, Appellant.
Superior Court of Pennsylvania.
Submitted March 21, 1980.
Filed February 16, 1982.
*294 Harry C.J. Blair, Easton, for appellant.
John Gallagher, District Attorney, Easton, for Commonwealth, appellee.
Before PRICE, CAVANAUGH and WATKINS, JJ.
CAVANAUGH, Judge:
On April 17, 1975, following a jury trial, the appellant, Ronald Vernon Matt, was found guilty of robbery. Post trial motions were denied and dismissed by the court en banc. On October 18, 1975, Matt was sentenced to a term of imprisonment of four to eight years. Matt, by his trial counsel, appealed and we affirmed the lower court. Commonwealth v. Matt, 249 Pa.Super. 98, 375 A.2d 777 (1977).
In the matter now before us the appellant attacks his conviction by way of a Post Conviction Hearing Act petition. The petition claims that the appellant has been denied his constitutional right to effective assistance of counsel; and that his sentencing was defective due to the trial court's failure to comply with the requirements of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). The lower court, recognizing that Riggins has been given retroactive application in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977), ordered that Matt be resentenced,[1] but dismissed the remaining claims as without merit. This appeal followed. We reverse.
Perceived in the light most favorable to the Commonwealth, see Commonwealth v. Lee, 460 Pa. 374, 333 A.2d 773 (1975); Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d *295 1042 (1978), the following was adduced at trial. On February 3, 1975 the victim of the robbery, Joseph Feist, met appellant and discussed the purchase of a stereo from one of appellant's friends. Later in the day appellant and Feist joined a third person who was to drive them to see the stereo. While in the car the appellant grabbed a spatula and held it to the victim's throat. He demanded the victim's money, punched him and forced his head against the dash-board. While the victim was so positioned, the appellant removed $140.00 from him. According to the appellant he and Feist had been playing pool earlier in the day and that as a result Feist owed him $55.00. Matt claimed that the scuffle in the car arose due to his efforts to recover the gambling debt. Appellant admitted that he tried to get money from Feist, that he struck him with his hand and attempted to hit him with the spatula. However, he denied taking any money. The victim, Feist, on the other hand denied losing $55.00 to Matt while playing pool and stated that he did not know how to play pool.
First we will consider appellant's claim of ineffective assistance of counsel. We have often stated the test for determining whether trial counsel has been effective:
We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decisions had any reasonable basis.
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967).
As noted above, as part of Matt's defense he claimed that he had been playing pool with Feist on the day of the alleged robbery. During cross-examination the Commonwealth *296 questioned Matt as to the whereabouts of the attendant at the pool hall who might corroborate Matt's testimony. The following exchange took place:
Q How long were you playing pool there that day?
A No more than no more than an hour, if that long.
Q You mean he lost $55 to you in one hour's time?
A Less than an hour, yeah.
Q Less than an hour?
A Yeah.
Q Is that pool hall attendant is he in the courtroom here? Do you see him here?
MR. PASLINE: I object to that.
THE COURT: The objection is overruled.
BY MR. FREEDBERG:
Q. The man that was the attendant there, you don't see him in the courtroom here today. Do you?
A. No, I don't.
Q. And he could bear out your story that you
MR. PASLINE: I'm going to object to that.
THE COURT: Overruled.
BY MR. FREEDBERG:
Q According to you, he was there. He can bear out your story that there was a pool game between you and Feist. Isn't that correct?
A Not necessarily.
Q Well, he was there. Wasn't he?
A Yes. He was there.
Appellant's trial counsel did not question the appellant concerning the attendant. During the charge to the jury the court stated:
The pool room owner or the pool room operator was not called as a witness by the defendant and he did not testify. In light of this, you may, if you wish, conclude that had he testified, his testimony would have been unfavorable to the defendant, but you cannot reach that conclusion until you are sure that the following conditions have not been met: First, the defendant must have given *297 no reasonable explanation of why the witness did not testify. Secondly, you must conclude that the witness would have some knowledge or information important to your decision in this case; and, third, that he must have been more available to and had he been called, more likely to be favorable to the defendant than the Commonwealth. If those conditions are met, as I have outlined them, then you may conclude that the owner's testimony would have been unfavorable to the defendant, who failed to call him, but even if those conditions do not exist, then, of course, you are not required to draw that conclusion.
The charge is consistent with the "missing witness rule" which provides that a negative inference may be drawn from a party's failure to call a corroborating witness who was in his control:
The criteria for determining when an inference can properly be drawn from the failure of a party to call a witness are well-settled. `Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.' Wills v. Hardcastle, 19 Pa.Super. 525, 529 (1902); Green v. Brooks, 215 Pa. 492, 496, 64 A. 672 (1906); Haas v. Kasnot, 371 Pa. 580, 584, 585, 92 A.2d 171 (1952).
Commonwealth v. Gibson, 245 Pa.Super. 103, 105-06, 369 A.2d 314, 315 (1976).[2]See also Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971);[3]Commonwealth v. Paull, *298 250 Pa.Super. 416, 378 A.2d 1006 (1977). One exception to this rule is where the witness is not available or not within the control of the party against whom the negative inference is desired. See Commonwealth v. Wright, supra; Commonwealth v. Gibson, supra. Appellant argues that his trial counsel was ineffective for failing to establish that the attendant was not in appellant's control because Matt was unable to contact him.[4] Matt was a newcomer and therefore unknown in the area; he did not know the attendant's name and, more importantly, he was incarcerated from the time of his arrest until trial.
At the PCHA hearing the following exchange took place during the direct examination of appellant's trial counsel, Harris Pasline:
Q So you made no attempt to find any attendant in the pool hall?
A I didn't feel it was relevant, until Mr. Freedberg brought it out at trial, and which I objected to.
.....
Q [But you did not cross-examine or] redirect with respect to his prison status. Did you?
A That is always a delicate situation and that is a decision that's made there on the spot. I must assume that if I made a decision not to discuss it with his prison record, I did feel that was also detrimental to his case.
The lower court held that trial counsel's decision not to inform the jury that appellant was in prison was not ineffective in that it had "at least some reasonable basis designed to effectuate his client's interest." However, the record *299 discloses that trial counsel did not, in fact, make a decision not to discuss appellant's prison status. Rather, trial counsel specifically requested that the lower court judge instruct the jury that because Matt was in prison he would have difficulty finding the missing witness. The following discussion took place at side bar during the jury charge:
Gentlemen, is there anything you wish me to add to this charge?
MR. FREEDBERG: No, your honor.
(the following discussion took place at side bar:)
MR. PASLINE: One of the problems also in bringing a witness in, which you did not charge on, is the fact that he is in prison, which makes it, you know, difficult for him to go out and find this person.
MR. FREEDBERG: There is no evidence to that effect.
THE COURT: You are his lawyer.
This contradicts trial counsel's testimony at the PCHA hearing. Just as the benefit of hindsight cannot be used to determine the reasonableness of a particular trial tactic, the benefit of hindsight cannot be used to transform counsel's omission into a tactical decision. Thus counsel's failure to explain the absence of the corroborating witness cannot be said to have had a reasonable basis so as to effectuate appellant's interests. If evidence had been admitted that Matt was incarcerated the objection to the charge should have been sustained. As it was, the jury was permitted to infer that the testimony of this attendant would have been adverse to the appellant. Therefore, we hold that the appellant was denied the effective assistance of counsel and is entitled to a new trial.
In view of our disposition, we need not address the appellant's remaining arguments.
Order reversed. New trial granted.
WATKINS, J., files dissenting opinion.
*300 WATKINS, Judge, dissenting:
I respectfully dissent. Although the defendant's trial counsel might have handled this matter in a better fashion, I cannot say that the one, isolated incident during the trial which is cited by the Majority as the reason for its holding amounts to ineffective assistance of counsel.
A defendant is not entitled to a "perfect trial", but is merely entitled to a fair trial. Under all of the circumstances of this case, I believe that the defendant in the instant case was given a fair trial.
NOTES
[1] The propriety of appellant's sentence is, therefore, not before us.
[2] Cf. McCormick on Evidence, § 272 (2d ed. 1972):
"It is often stated that when a particular witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference would have been unfavorable." [footnotes omitted].
[3] In Wright the court emphasized that the inference the jury is permitted to draw is only permissible and not mandatory. The court went on to state that "such inferences do not affect the presumption of innocence. The Commonwealth must still prove that the defendant committed the crimes alleged beyond a reasonable doubt." 444 Pa. at 541, 282 A.2d at 325.
[4] There is no evidence on the record that appellant's trial counsel undertook an investigation concerning the existence of the pool hall attendant. In fact counsel admitted that he did not think the testimony of such a witness would be relevant. It is clear, however, that the pool hall attendant could have corroborated appellant's version of the events and serve to discredit the testimony of Feist. As such counsel was ineffective for failing to investigate. See Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166, 170 (1978).
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441 A.2d 940 (1982)
CECO CORPORATION, Appellant,
v.
Norman D. COLEMAN, Appellee.
No. 80-483.
District of Columbia Court of Appeals.
Argued March 10, 1981.
Decided January 27, 1982.
*943 Richard W. Galiher, Washington, D. C., with whom Richard W. Galiher, Jr., Washington, D. C., was on the briefs, for appellant.
Wayne M. Mansulla, Washington, D. C., with whom Kevin B. Byrd and Robert A. Taylor, Jr., Washington, D. C., were on the brief, for appellee.
Before HARRIS and FERREN, Associate Judges, and GALLAGHER, Associate Judge, Retired.
GALLAGHER, Associate Judge, Retired:
On April 17, 1975, appellee Norman Coleman (Coleman), then a construction worker, was injured while working on the erection of the East Wing of the National Gallery of Art. As a consequence of his job-related injury, Coleman was paid workers' compensation benefits by his employer, the Charles H. Tompkins Company (Tompkins), the general contractor for the East Wing construction project. Coleman later brought suit against appellant, Ceco Corporation (Ceco), a subcontractor on the East Wing job, alleging that it and its employees had negligently caused or contributed to his injury. After trial, a jury awarded Coleman $150,000, judgment was entered thereon, and Ceco appealed.
Three main issues are presented by this appeal. First, Ceco contends that it was entitled to a directed verdict because the evidence established that it was the negligence of Tompkins, Coleman's employer, which proximately caused his injury. Second, Ceco contests several instructions given to the jury. Finally, Ceco argues that it was entitled to a credit of one-half of the verdict in light of the trial court's post-verdict determination that Tompkins, Coleman's employer, was concurrently negligent. We affirm.
I.
Ceco was employed by Tompkins to provide shoring and support for overhead concrete floors to be installed by Tompkins, and was also required to remove its bracing (a process called "stripping") once the concrete had hardened. On the day before the accident, Ceco had commenced stripping an area but, unable to complete the operation before the day's end, had allegedly left considerable debris on the floor as well as pieces of shoring stuck to the ceiling. Early the next day, Tompkins sent several of its employees, including appellee Coleman, into this area to partially reshore the ceiling, as Tompkins wished to roll several heavy concrete buggies over the floor overhead. While the workmen were reinstalling so-called Ellis jacks, some of the material stuck to the ceiling suddenly came loose. Coleman sustained a compound fracture of the left leg when he tripped over debris on the floor in his attempt to escape a falling beam.
*944 Extensive evidence was presented by both parties in an effort to establish liability for the accident. Coleman's evidence showed that Ceco had suspended its stripping operations without removing debris from the floor and remnants of shoring material from the ceiling, and had left the site without roping off the area or posting warning signs; safety experts testified that these actions violated applicable safety codes. Ceco, for its part, conceded that it had left material suspended from the ceiling but sought to prove that the material was securely adhered to the ceiling surface and posed no danger of falling, and that, in any event, the floor area immediately below the suspended material was cordoned off with a rope. Ceco denied, however, that it had left the debris on the floor over which Coleman had tripped, suggesting through its witnesses that the floor debris in fact belonged to Tompkins. Ceco sought to explain any failure to clear the area by presenting evidence that Tompkins' rushed reshoring operation had prevented Ceco from reentering the area to complete its job. Finally, Ceco argued that the proximate cause of the accident was Tompkins' negligence in failing itself to clear the floor area before beginning work and in disturbing the ceiling braces while installing the Ellis jacks. Ceco now renews the latter argument on appeal, contending that it was error for the trial court to have denied its motion for a directed verdict on the question of the proximate cause of Coleman's injury.
In acting on a defendant's motion for a directed verdict, the trial court must view the evidence in the light most favorable to the plaintiff, and may only take the case from the jury if no reasonable man could find the defendant liable. Courtney v. Giant Food, Inc., D.C.App., 221 A.2d 92, 93 (1966). In reviewing the trial court's denial of the motion, we are governed by the same standard. Gaither v. District of Columbia, D.C.App., 333 A.2d 57, 59 (1975). See Order of Ahepa v. Travel Consultants, Inc., D.C.App., 367 A.2d 119, 125 (1976), cert. dismissed, 434 U.S. 802, 98 S. Ct. 30, 54 L. Ed. 2d 60 (1977). Where the evidence is such that reasonable men could differ as to negligence and causation, the question of liability is properly put before the jury. See Baker v. D. C. Transit System, Inc., D.C.App., 248 A.2d 829, 831 (1966).
We are satisfied that the evidence, viewed in the light most favorable to appellee Coleman, permitted the jury reasonably to infer that Ceco had left the site in disarray and without adequate warning or barrier posted, and that these acts of negligence proximately caused Coleman's injury. "Proximate cause is ... a test of whether the injury is the natural and probable consequence of the negligence or wrongful act and ought to be foreseen in light of the circumstances." Spar v. Obwoya, D.C.App., 369 A.2d 173, 178 (1977); see Wagshal v. District of Columbia, D.C.App., 216 A.2d 172, 175 (1966). The negligent act of a third party will operate as a superseding cause of the plaintiff's harm only where the original actor should not have anticipated that act. Sears, Roebuck & Co. v. Donovan, D.C.App., 137 A.2d 716, 719 (1958); Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 392, 563 F.2d 462, 479 (1977), reinstated after rehearing, 188 U.S.App.D.C. 384, 580 F.2d 647 (1978) (en banc); Restatement (Second) of Torts § 447 (1965). Here, Coleman presented evidence that Ceco did not rope off the area in question or post warning signs. Indeed, the only witness for Ceco to contradict this evidence testified only that the area immediately under the suspended ceiling material was roped off; he expressly denied that the pile of debris over which Coleman tripped was inside the rope barrier. A Tompkins' construction superintendent also testified that he had gotten express assurances from a Ceco representative that the shoring material adhered to the ceiling did not pose a hazard.[1] If *945 believed, this evidence would support the jury's inference that Ceco should have anticipated that employees of Tompkins or some other contractor might enter the area and face the risk of being injured due to the hazardous condition of the floor and ceiling. It was not necessary for the jury to conclude that Tompkins was innocent of all wrongdoing in order for it to find Ceco liable; indeed, the jury could well have agreed with Ceco that Tompkins had been negligent, yet declined to find that Ceco should not have foreseen that negligence. See Rieser, supra at 392-93 & nn. 93-95, 563 F.2d at 479-80 & nn. 93-95. In short, on the facts of this case, the trial judge properly submitted the question of causation to the jury.
II.
Ceco's second contention is that the trial judge's charge to the jury was erroneous in three particulars: first, in instructing the jury that violation of a safety statute or regulation was negligence as a matter of law; second, in instructing on concurrent causation; and third, in charging the jury that it could award Coleman damages for any temporary or permanent disfigurement or deformity. We hold that Ceco's failure to comply with Super.Ct.Civ.R. 51 prevents us from noticing any error in giving the negligence per se concurrent causation instructions. Furthermore, while there are certain deficiencies in the record, our review leads us to conclude that any error in that regard was harmless.[2]
a. Negligence per se
The "general rule" in this jurisdiction is that "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law." Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 F.2d 626, 629 (1960) (emphasis added). See generally W. Prosser, The Law of Torts § 36 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts § 17.6 (1956). If a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard, the jury is properly instructed, upon proper request of the party, that the violation is evidence of negligence, but not negligence as a matter of law. See Hecht Co. v. McLaughlin, 93 U.S.App.D.C. 382, 385-86, 214 F.2d 212, 215-16 (1954). See also Karlow v. Fitzgerald, 110 U.S.App.D.C. 9, 13, 288 F.2d 411, 415 (1961); Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 392, 282 F.2d 943, 950 (1960).
In this case, the trial court instructed the jury that a District of Columbia safety statute[3]*946 and certain regulations of the Occupational Safety and Health Administration (OSHA)[4] fixed the duty of care owed by one in Ceco's circumstances, and that the violation of either the statute or the regulation by Ceco was negligence as a matter of law. The court's charge was taken verbatim from Standardized Jury Instruction No. 60. See Young Lawyers Section of the Bar Association of the District of Columbia, Standardized Jury Instructions for the District of Columbia p. 46 (1968 rev. ed.) [hereinafter cited as 1968 Jury Instructions].[5] Counsel for Ceco timely objected to the court's proposal to give this instruction, but on the sole ground that there was no basis for it "under the facts of this case, and under the decisions which are cited in support of [Standardized Jury Instruction No. 60]." Counsel for Ceco did not at the time propose, as an alternative, that the trial court give Standardized Jury Instruction No. 61, see 1968 Jury Instructions, which incorporates the doctrine of "justifiable violation" discussed above,[6] but now contends on appeal that it was entitled to such an *947 instruction because it had "explained" its alleged violation of the safety statute and regulations. We decline to pass upon this argument.
Superior Ct.Civ.R. 51 provides that "[n]o party may assign as error the giving of or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection" (emphasis added). The purpose of this rule is to give the trial judge an opportunity to reconsider and, if necessary, correct his proposed charge. Montgomery v. Virginia Stage Lines, Inc., 89 U.S.App.D.C. 213, 216, 191 F.2d 770, 773 (1951); Harlem Taxicab Association, 89 U.S.App.D.C. 123, 125, 191 F.2d 459, 461 (1951). To fulfill this purpose, more than a general objection must be noted; the grounds of the objection must be "called to the attention of the trial court in such manner as to clearly advise it as to the question of law involved ...," Montgomery v. Virginia Stage Lines, Inc., supra at 216, 191 F.2d at 773, quoting Williams v. Powers, 135 F.2d 153, 156 (6th Cir. 1943), and must be "sufficiently specific to bring into focus the precise nature of the alleged error," Palmer v. Hoffman, 318 U.S. 109, 119, 63 S. Ct. 477, 483, 87 L. Ed. 645 (1943). In our view, the stated ground for Ceco's objection that there was no factual or legal basis for the court's proposed charge was too oblique to satisfy Rule 51 and preserve for our review the question of whether Ceco had adequately "explained" its violation. "[W]e find nothing in the record of the proceedings in the trial court to indicate that the trial court was in any way apprised of the particular matter relied on here for reversal." Rogers v. Northern Rio Arriba Electric Cooperative, Inc., 580 F.2d 1039, 1042 (10th Cir. 1978).
While we have on occasion considered error raised for the first time on appeal where "it is apparent from the fact of the record that a `miscarriage of justice' has occurred," Weisman v. Middleton, D.C. App., 390 A.2d 996, 1000 (1978) (citations omitted), see, e.g., id.; Montague v. Henderson, D.C.App., 409 A.2d 627 (1979); Barnes v. Wheeler, Inc., D.C.Mun.App., 55 A.2d 83 (1947), we are not convinced that this is such a case. See Mark Keshishian & Sons, Inc. v. Washington Square, Inc., D.C. App., 414 A.2d 834 (1980). What Ceco now urges as an "explanation" for its OSHA violation entitling it to an instruction based on Standardized Jury Instruction No. 61 (see note 6 supra) that it did not have an opportunity to complete its stripping operation because Tompkins had moved into the area to commence reshoring was fully presented, via evidence and argument, as a defense below. Ceco also vigorously contended that the statute and OSHA regulations bound Tompkins as well as itself. The charge actually given by the court, which was based on Standardized Jury Instruction No. 60 (see note 5 supra), instructed the jury that it was to determine both whether Ceco had in fact violated the statute and OSHA regulations, and whether that violation was the proximate cause of Coleman's injury. If the jury believed that Ceco had not been given fair opportunity to comply with the regulations, or that Tompkins was the responsible wrongdoer, it was open to the jury to absolve Ceco by finding either that there was simply no violation of the statute or regulations on its part, or that any violation by Ceco was superseded by a similar violation by Tompkins. Thus, while we cannot say that Ceco was in no way disadvantaged by the court's failure to give a charge based on Standardized Jury Instruction No. 61, we conclude that this failure did not cause a "miscarriage of justice."
*948 b. Concurrent causation
In its charge to the jury, the trial court gave the standard instructions on proximate cause and concurrent causation[7] over Ceco's objection that the latter were inappropriate because Tompkins was not joinable as a defendant in the case.[8] Like the trial court, we find no merit to this argument, since it confounds the concepts of concurrent causation and joint and several liability. Tompkins' absence as a party defendant had no bearing on the question of whether it or Ceco caused Coleman's accident. Ceco also contends on appeal, however, that the trial judge unduly emphasized that the jury could find that both Tompkins and Ceco rather than Tompkins alone had caused Coleman's injury when the court departed from the standardized instruction with the following example:
What that means here is that it's possible that the Tompkins Company could have been negligent, and it's possible that the Ceco Corporation could have been negligent, or it's possible that both of them could have been negligent. The Tompkins Company is not a part of this action, for reasons that need not concern you and should not concern you, but if you find, or were to feel that the Tompkins Company was negligent, but you were also to feel that the Ceco Corporation was negligent, and that its negligence caused the injury to the plaintiff, then you should find in favor of the plaintiff against the Defendant, Ceco Corporation, quite apart from any negligence that may or may not have existed on the part of the Charles Tompkins Company. [Emphasis added.]
Because no specific objection was raised at trial with respect to this portion of the charge, we defer to Super.Ct.Civ.R. 51 and decline to recognize any error on appeal. See discussion supra. Cf. Wellman v. Jellison, 593 F.2d 876 (9th Cir. 1979) (per curiam) (held, trial counsel's objection that instruction did not apply to the facts of the case did not preserve for appeal the question of that instruction's adequacy as a fair explanation of the law).
The trial judge would doubtless have been better advised to refrain from giving the italicized portion of the above example, for it suggests contrary to the first, nonitalicized portion of the charge that the jury was not permitted to find the negligence of Tompkins to have been the sole proximate cause of Coleman's injury. The trial court would have done better to explain to the jury that if it found that negligence of both Ceco and Tompkins caused Coleman's injury in fact, then it should return a verdict for Coleman unless it found that Ceco should not have foreseen Tompkins' negligence. See Sears, Roebuck & Co. v. Donovan, supra at 719; Rieser v. District of Columbia, supra at 392, 563 F.2d at 479.[9] But our rules of Superior Court practice place the onus on a party to insure that the court's charge presents the applicable law in the light most favorable to his case. This court will intervene only when a failure to do this creates the chance of a "miscarriage of justice." See discussion supra. Because we conclude that the trial court's charge was, as a whole, sufficient to instruct the jury as to the relevant legal principles involved, we decline to give dispositive weight to its minor inadequacies.
c. Damages
The trial judge instructed the jury that one of the factors they could take into consideration in determining the measure of Coleman's damages was "[a]ny temporary or permanent disfigurement or deformity resulting to [Coleman], and any humiliation *949 or embarrassment associated therewith." Counsel for Ceco had earlier objected, when the court proposed to give this instruction, that there had been no evidence that Coleman's injury had resulted in any type of cosmetic disfigurement or deformity. The trial judge responded that while he agreed there was no claim of permanent disfigurement or deformity, he interpreted Standardized Jury Instruction No. 180[10] to permit recovery for the temporary disfigurement or deformity of wearing a cast and walking on crutches. Ceco, on appeal, renews its contention that the court's instruction was erroneous. We agree that the trial judge's expressed reason for giving the instruction was incorrect, but hold that any error in giving the instruction itself was harmless.
"In laymen's language, to disfigure is "to make less complete, perfect or beautiful in appearance or character.'" United States v. Cook, 149 U.S.App.D.C. 197, 200, 462 F.2d 301, 304 (1972), quoting Merriam-Webster New International Dictionary 649 (3d ed. 1964). "Disfigurement" entails the impairment of a person's beauty, symmetry or appearance so as to render his or her external form unsightly, misshapen or imperfect. Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 90, 167 A.2d 458, 461 (1961). Similarly, a "deformity" is described as a misshapen condition, an unnatural growth, or a distorted or misshapen body part or member. People v. Lehrman, 251 A.D. 451, 452, 296 N.Y.S. 580, 582 (1937). Thus, while we agree that a disfigurement or deformity need not be permanent to be a compensable item of damage, see United States v. Cook, supra at 200, 462 F.2d at 304, we think it clear that a disfigurement or deformity must, by definition, inhere in the injured person's flesh. Plaster casts and crutches may cause a plaintiff discomfort or inconvenience for which money damages may be had,[11] but they do not, in and of themselves, disfigure or deform.
It is elementary that an instruction should not be given if there is no evidence to support it. Kasmer v. Sternal, 83 U.S.App.D.C. 50, 52, 165 F.2d 624, 626 (1948); Bowles v. Marsh, D.C.Mun.App., 82 A.2d 135, 139 (1951). See generally Mitchell v. Potomac Insurance Co., 183 U.S. 42, 22 S. Ct. 22, 46 L. Ed. 74 (1901). Hence, if, as Ceco claims, there was no evidence that Coleman's injury caused his leg to become unsightly or misshapen, the trial judge's charge was erroneous.[12] We are unable intelligently to assess this claim of error, however. "[T]he predicate for appellate review is a record of sufficient detail to allow this court to decide whether or not the trial court committed an error justifying reversal." Thrower v. Harris Beauty Supply Co., D.C.App., 283 A.2d 825, 826 (1971) (per curiam). See also Watwood v. Hall, D.C.App., 349 A.2d 478, 479 (1975) (per curiam); Franklin Investment Co. v. Boyd, D.C.App., 201 A.2d 871, 872 (1964). While the recorded testimony of Coleman himself supports no claim of disfigurement or deformity, we note that the trial testimony of at least two *950 doctors was not reproduced in the printed transcript. We cannot merely accept Ceco's contention on appeal that the testimony of the doctors provided no evidence of disfigurement or deformity.
In any event, if we assume arguendo that no evidence of disfigurement or deformity was presented below and thus, that the challenged portion of the damages instruction was erroneous we are satisfied that the error was harmless. The impact of the challenged portion of the charge must be ascertained in context, not in isolation. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 156-57, 87 S. Ct. 1975, 1992-93, 18 L. Ed. 2d 1094 (1967). Here, the assumedly improper language was only one of eight separate elements of damage, the enumeration of which was preceded by the qualification that "You may take into consideration any of the following which you find, by a preponderance of the evidence, to have resulted from the negligence of the Defendant" (emphasis added).[13] Furthermore, the judge elaborated on virtually all of these elements except disfigurement and deformity and their attendant humiliation or embarrassment. Finally, each of the elements was introduced by the word "any," thereby negating any implication that the trial judge believed any particular element of damage to have been established by the evidence. We have enough confidence in the intelligence and integrity of juries generally to believe that the jury here would have awarded Coleman damages for disfigurement and deformity only to the extent that such disfigurement and deformity had been proved. We do not regard the instruction as substantially prejudicial to Ceco. See Bourne v. Washburn, 142 U.S.App.D.C. 332, 334, 441 F.2d 1022, 1024 (1971).
III.
Following the jury's verdict for Coleman, the trial court heard argument on the issue of whether Ceco was entitled to a credit of one-half of the verdict, pursuant to Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968). Although the trial judge found as a fact, as prescribed by Murray, that Tompkins and Ceco had been concurrently negligent, he declined to apply the so-called Murray credit to mitigate the judgment against Ceco alone on the ground, inter alia, that the Murray credit was only dictum. We agree in all respects with the trial judge's thorough analysis of this issue, and accordingly reject Ceco's contention that it was error to refuse to apply Murray.
In order to put the issue of the Murray credit in context, a short explanation of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976), is necessary.
The LHWCA, which since 1928 has served as the workers' compensation law for private employees in the District of Columbia, D.C.Code 1973, § 36-501, requires all employers to secure the payment of prescribed benefits to their employees injured on the job, irrespective of fault. 33 U.S.C. § 904 (1976). As the price of this absolute and comprehensive protection, the employee is divested of his common-law right of action against his employer for negligence. The payment of workers' compensation benefits is the employer's exclusive liability. Id. §§ 905(a), 933(i). See Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 413, 89 S. Ct. 1144, 1149, 22 L. Ed. 2d 371 (1969). But the employee's right to proceed against allegedly negligent third parties is preserved by the LHWCA. See 33 U.S.C. § 933(a), (i) (1976). This preserved right of action for damages serves two related purposes regarded as salutary under the LHWCA: it enables the injured employee to secure full compensation for his injuries, and also helps to minimize the costs to employers (and ultimately, to consumers) of providing comprehensive protection. See Potomac Electric Power Co. v. Wynn, 120 U.S.App.D.C. 13, 15-16, 343 F.2d 295, 297-98 (1965). The latter purpose is accomplished by the LHWCA's requirement that an employee obtaining a judgment against a third party reimburse his employer for all benefits paid *951 and payable. See 33 U.S.C. § 933(e) (1976). To protect this right of recoupment, the employer is given a lien on the judgment proceeds, Travelers Insurance Co. v. Haden, D.C.App., 418 A.2d 1078, 1082 (1980); Potomac Electric Power Co. v. Wynn, supra at 16, 343 F.2d at 298, and may itself sue the third party if the employee has not commenced proceedings within six months after a compensation award. See 33 U.S.C. § 933(b), (d), (e) (1976). See also Federal Marine Terminals, Inc. v. Burnside Shipping Co., supra (employer may sue either as subrogee of employee or in its own right, by a direct action in tort).
Where the employer who has paid benefits is totally blameless for the accident in question, the LHWCA's requirement that the employer be fully reimbursed for its compensation causes no conceptual problem whatsoever, for it is not the purpose of the LHWCA to provide the injured employee with a double recovery. See Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74, 81, 100 S. Ct. 925, 929, 63 L. Ed. 2d 215 (1980), citing S.Rep.No.428, 86th Cong., 1st Sess. 2 (1959); The Etna, 138 F.2d 37, 40 (3d Cir. 1943); 33 U.S.C. § 933(f) (1976). See also 2A. A. Larson, The Law of Workmen's Compensation § 71.20 (1976). In this situation, the injured employee should be made whole at the expense of the actual wrongdoer the third party and the faultless employer ought justly to come out even. But where the employer is not itself faultless, but is, for example, concurrently negligent with the third party, a problem is posed. In this situation, some courts have felt it unjust to place the employee's full loss on the negligent third party while allowing the perhaps equally negligent employer to escape liability altogether by recouping its benefits. In the instant case, for example, Tompkins was immune from suit on account of Coleman's injury and is entitled by the LHWCA to recoup the full $17,000 in benefits which it has paid to Coleman, notwithstanding the trial court's finding (the correctness of which we will assume) that Tompkins was itself negligent. See Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953); Shellman v. U. S. Lines, Inc., 528 F.2d 675 (9th Cir. 1975), cert. denied, 425 U.S. 936, 96 S. Ct. 1668, 48 L. Ed. 2d 177 (1976); Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, 528 F.2d 669 (9th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed. 2d 188 (1976); Landon v. Lief Hoegh & Co., 521 F.2d 756 (2d Cir. 1975), cert. denied, 423 U.S. 1053, 96 S. Ct. 783, 46 L. Ed. 2d 642 (1976). Ceco, on the other hand, as the sole party defendant, presently stands liable for $150,000 the full amount of Coleman's litigated damages as found by the jury.
Ordinarily, joint tortfeasors such as Ceco and Tompkins have rights of contribution from each other. See Yellow Cab Co. of D. C. v. Dreslin, 86 U.S.App.D.C. 327, 328, 181 F.2d 626, 627 (1950); George's Radio, Inc. v. Capital Transit Co., 75 U.S.App. D.C. 187, 189, 126 F.2d 219, 221 (1942). But in Murray v. United States, supra, the Circuit Court stated, in a case arising under the Federal Employees Compensation Act (FECA), 5 U.S.C. §§ 8101-93 (1976), that contribution is not available as means of equitably distributing damages liability between a third party tortfeasor and a negligent employer. Id. at 94, 405 F.2d at 1364. Accord, Pope & Talbot, Inc. v. Hawn, supra; Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952) (but both cases dealt with cases brought under the LHWCA's maritime jurisdiction, which has its own body of law peculiar to the maritime). The Murray court reasoned that the employer could not be said to be "jointly liable" to the employee for damages and so liable for contribution in light of the provision in the FECA (nearly identical to a corresponding provision of the LHWCA) that the employer's liability for statutory benefits shall be exclusive and in place of all liability of the employer to the employee. See 5 U.S.C. § 8116(c) (1976); 33 U.S.C. § 905(a) (1976). Accordingly, the court upheld the dismissal of the third party tortfeasor's third-party complaint against the United States government (there, the employer). But the court rather abruptly concluded this part of its opinion with the following curious paragraph:
*952 Any inequity residing in the denial of contribution against the employer is mitigated if not eliminated by our rule in Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962). Martello holds that where one joint tortfeasor causing injury compromises the claim, the other tortfeasor, though unable to obtain contribution because the settling tortfeasor had "bought his peace," is nonetheless protected by having his tort judgment reduced by one-half, on the theory that one-half of the claim was sold by the victim when he executed the settlement. In our situation if the [third party tortfeasor] is held liable the damages payable should be limited to one-half of the amount of damages sustained by plaintiff, assuming the facts would have entitled the [third party] to contribution from the employer if the statute had not interposed a bar. A tortfeasor jointly responsible with an employer is not compelled to pay the total common law damages. The common law recovery of the injured employee is thus reduced in consequence of the employee's compensation act, but that act gave him assurance of compensation even in the absence of fault. [Murray v. United States, supra at 95-96, 405 F.2d at 1365-66 (footnote omitted) (emphasis added).]
Thus was the so-called Murray credit born.
In denying Ceco a credit of one-half the amount of the verdict, the trial court held here, as an initial matter as, indeed, it had to that the Murray credit was non-binding dictum. We agree. The narrow question before the Murray court was whether the exclusive liability provision of the FECA barred a claim for contribution by the third party against the employer. In other words, the issue was whether the employer could be impleaded in the employee's suit against the third party. The Murray court's narrow answer was that suit against the employer was barred. The court's attempt to justify this result by announcing, in advance of a jury finding on whether there is liability on the part of the third party, that any future plaintiff's verdict might be reduced by one-half, was palpable dictum.[14]See 2A A. Larson, supra, § 76.22 at 14-314 through 14-315; there in § 76 one will find a learned exposition by Professor Larson on this complex question with all its ramifications.
The question of the authoritativeness of the Murray credit has been directly broached in three prior decisions in this jurisdiction. In Dawson v. Contractors Transport Corp., 151 U.S.App.D.C. 401, 467 F.2d 727 (1972), an injured construction worker, having been compensated under the LHWCA by his employer, a subcontractor, sued the project's general contractor and another subcontractor for negligence. After the plaintiff's employer was impleaded by the general contractor on a contractual indemnity theory, the third party subcontractor filed a class-claim against the employer for a Murray credit. The question presented on appeal was whether the issue of the employer's negligence and thus, the third party's entitlement to a Murray credit was triable by the court or the jury. In holding that the issue was triable by the trial judge sitting in equity, the Dawson court did assume that the Murray credit applied to the LHWCA and that a panel of the circuit court was powerless to overturn it. Id. at 403-04 n.3, 467 F.2d at 729-30 n.3. But we are not bound by the latter characterization in light of the date of the Dawson decision, see M. A. P. v. Ryan, D.C.App., 285 A.2d 310, 312 (1971), and find more persuasive the reasoning of the earlier District Court cases of Turner v. Excavation Construction Inc., 324 F. Supp. 704 (D.D.C.1971), and Anthony v. Norfleet, 330 F. Supp. 1211 (D.D.C.1971).
In Turner, Judge Gesell called the Murray credit "dictum," supra at 705, and declined to apply it in a LHWCA, rather than FECA, context because of the credit's "anomalous result[s]." Id. Chief among *953 these was Judge Gesell's perception which he suggested the Murray panel had not shared that the employer would, regardless of its negligence, be entitled to recoup its benefit payments from the verdict which Murray decreed ought, in "equity," to be halved beforehand. Id.[15] Judge Gesell found "incongruous" an equitable remedy which deprived the injured employee of half his verdict on account of his employer's negligence, as well as a further amount required to reimburse the employer. Id. Judge Gasch, in Anthony v. Norfleet, supra, agreed with Judge Gesell's opinion that the Murray credit was dictum, 330 F.Supp. at 1214, and similarly declined to extend Murray to a case arising under title IV of the District of Columbia Code (pertaining to third-party negligence actions by injured police and firefighters).
It is our opinion that the Murray credit is obiter dictum and thus, of no precedential effect. We are accordingly not bound to apply it, see M. A. P. v. Ryan, supra at 312. Consequently, we should adopt the Murray credit as the rule in this jurisdiction only if persuaded of its merits. We decline to do so.
As an initial matter, the Murray court's rationale for its unique credit seems to us analytically unsound. The court derived its concept of a pro rata credit from Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962), a case holding that a verdict against one of the two joint tortfeasors must be reduced by half when the plaintiff has earlier settled his claim against the other joint tortfeasor. To be sure, there is some similarity between the two situations: both the settling tortfeasor and the employer who has paid workmen's compensation benefits are immune from a claim for contribution by reason of their respective payments to the plaintiff. Martello v. Hawley, supra; Murray v. United States, supra. But, as Professor Larson has observed, there is a crucial difference. The primary rationale for reducing the plaintiff's recovery in Martello was to prevent collusive and fraudulent settlements between the plaintiff and one tortfeasor at the expense of the other. See Martello v. Hawley, supra at 131, 300 F.2d at 723. As Professor Larson observes, this rationale has little, if any, applicability in the workmen's compensation context, for "[t]he employee has no choice whether his injury should be under the compensation act, and his employer's liability under that act is fixed by law." 2A A. Larson, supra, § 76.22 at 14-318. Accord, Lucas v. "Brinknes" Schiffahrts Ges. Franz Lange G. M. B. H. & Co., K. G., 379 F. Supp. 759, 764 (E.D.Pa.1974) (three judge court). The danger of collusion central to Martello is absent from the situation addressed here and by Murray. Moreover, the ostensibly equitable results of Martello and Murray do not coincide; the Martello plaintiff is left with one-half his verdict plus the amount of his settlement (i.e., the amount for which he "sold" the other half of his claim), while the Murray plaintiff is left, in the end, with only one-half his verdict; he must reimburse his employer for benefits paid. 2A A. Larson, supra, § 76.22 at 14-318. Judge Gesell considered this result "incongruous." Turner v. Excavation Construction, Inc., supra at 705.
Here, Coleman was found by the jury to have suffered $150,000 in damages; yet if Murray is applied, Coleman will, in the end, effectively have received only $75,000 from all sources. Ceco will have to pay $58,000 cash to Coleman and, in addition, reimburse Tompkins for the $17,000 in benefits which Coleman has already received. This result would relieve Ceco of the supposed inequity produced by the LHWCA's insulation of Tompkins from a claim for contribution for Ceco would pay, in the end, precisely what it would if contribution were available. Moreover, Tompkins, for its part, would remain unaffected by application of the credit, for it would, in this case, obtain full reimbursement for its compensation *954 outlay (as the LHWCA requires).[16] It is thus plain that the inequity to Ceco would merely have been shifted to Coleman, who would be forced to absorb a loss of $75,000 a loss attributable, not to his own negligence, but to that of his immunized employer, Tompkins. We see little equity in that result.
The terse comment interjected without forewarning or advance discussion in the opinion by the Circuit Court for this jurisdiction in Murray, supra later to be referred to as the Murray credit nevertheless was treated as a new doctrine and has evoked considerable discussion in the Circuit Courts throughout the country, as well as in the state courts, even though the point was not in issue in Murray. After exploring the Murray credit from all sides, for the most part it has been widely rejected because it did not perceive the problems it was creating.
As Judge Gesell observed in Turner, supra: The Court must be "[m]indful of the Supreme Court's admonition in the Long-shoremen's Act case of Halcyon Lines v. Haenn Ship Ceiling and Refitting Corp., 342 U.S. 282, 285, 72 S. Ct. 277, 279, 96 L. Ed. 318... (1951), against attempting to fashion new judicial rules of contribution." (324 F.Supp. at 705). To demonstrate the unacceptable result of an application of the Murray credit, the trial judge in this case incisively posed this hypothetical:
Suppose the jury verdict herein was the same ($150,000) but that [the plaintiff employee] had previously been awarded $75,000 from Tompkins in workmen's compensation benefits.... Ceco would be awarded a credit of $75,000 and all of that sum would have to be reimbursed to Tompkins under Section 33 of the Long-shoremen's Act. Nothing would be left for the plaintiff and his total gross recovery would be the $75,000 in benefits he had already received from Tompkins. That is the ... unfair result to the plaintiff as derives from applying Murray, ... plaintiff has gained nothing from his law suit except to accomplish reimbursement to Tompkins for all his trouble and expense." [Memorandum Opinion at 7-8].
The Murray credit, observed the trial judge in this case, "merely shifts the inequity from the defendant sued to the plaintiff-employee." (Memorandum Opinion at 9).
Several of the Circuit Courts have declined to adopt the Murray credit for essentially the same reasons. See Zapico-Bucyrus-Erie Co., 579 F.2d 714 (2d Cir. 1978); Samuels v. Empresa Lineas Maritimas Argentinas, 573 F.2d 884 (5th Cir. 1978);[17]*955 Dodge v. Mitsui Shintaku Ginko K. K. Tokyo, supra; Shellman v. United States Lines, Inc., supra; Santino v. Liberian Distance Transports, Inc., 405 F. Supp. 34 (W.D. Wash.1975); Hubbard v. Great Pacific Shipping Co., Monrovia, 404 F. Supp. 1242 (D.Ore.1975); Solsvik v. Maremar Compania Naviera, S. A., 399 F. Supp. 712 (W.D. Wash.1975); Lucas v. "Brinknes" Schiffahrts Ges. Franz Lange G. M. B. H. & Co., K. G., supra. See also 2A A. Larson, supra, § 76.22 at 14-314 through 14-319.
The Supreme Court recently rejected a proportionate fault rule similar in theory to the Murray credit in Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753, 61 L. Ed. 2d 521, reh. denied, 444 U.S. 889, 100 S. Ct. 194, 62 L. Ed. 2d 126 (1979), a case arising under the LHWCA's maritime jurisdiction. The rule at issue espoused by the en banc Fourth Circuit, see 577 F.2d 1153 (1978) had given a third party shipowner a credit of 70 per cent of the verdict on the basis of a jury finding that the immunized stevedore-employer was 70 per cent at fault in causing the plaintiff-longshoreman's injury. In rejecting this "equitable credit," the Court stated that "[i]t may remove some inequities, but it creates others and appears to shift some burdens to the longshoreman." 443 U.S. at 268, 99 S.Ct. at 2760. The Court held that the third-party shipowner should be given no credit whatsoever, and explained:
Under this arrangement, it is true that the ship will be liable for all of the damages found by the judge or jury; yet its negligence may have been only a minor cause of the injury. The stevedore-employer may have been predominantly responsible; yet its liability is limited to the Act, and if it has lien rights on the longshoreman's recovery it may be out-of-pocket even less.
Under the Court of Appeals' proportionate-fault rule, however, there will be many circumstances where the longshoreman will not be able to recover in any way the full amount of damages determined in this suit against the vessel. If, for example, his damages are at least twice the benefits paid or payable under the Act and the ship is less than 50% at fault, the total statutory benefits plus the reduced recovery from the ship will not equal his total damages. More generally, it would appear that if the stevedore's proportionate fault is more than the proportion of compensation to actual damages, the longshoreman will always fall short of recovering the amount that the factfinder has determined is necessary to remedy his total injury, even though the diminution is due not to his fault, but to that of his employer.[[18]]
* * * * * *
Some inequity appears inevitable in the present statutory scheme, but we find nothing to indicate and should not presume that Congress intended to place the burden of the inequity of the longshoreman whom the Act seeks to protect.... [Id. at 270, 99 S.Ct. at 2761.]
While in Edmonds the court stated that its decision "does not necessarily" affect cases, such as Dawson, supra, which are under the non-maritime jurisdiction of the LHWCA, see 443 U.S. at 272 n.31, 99 S.Ct. at 2762 n.31,[19] we find Edmonds' reasoning compelling. Accordingly, we agree with the trial court's rejection of the Murray *956 credit and hold that Ceco was entitled to no credit on account of Tompkins' concurrent negligence. The Supreme Court counseled wisely when it said that efforts to remedy the perceived inequities in tripartite litigation under the LHWCA are better left to the legislature. See Edmonds v. Compagnie Generale Transatlantique, supra, 443 U.S. at 271-73, 99 S.Ct. at 2762-63.
Affirmed.
NOTES
[1] Ceco argues that it was error for the trial court to have permitted counsel for Coleman to use the Tompkins' superintendent's written record of the conversation in cross-examining the Ceco foreman alleged to have given these assurances. Ceco urges that the written record should first have been identified when the Tompkins' superintendent was on the stand so that Ceco could then have explored the statement's competency. This contention is without merit. Coleman never attempted to introduce the writing itself into evidence. The Tompkins' construction superintendent recounted the conversation from memory, and the veracity of this account was not challenged by Ceco on cross-examination. Instead counsel for Ceco later asked the Ceco foreman on direct whether he recalled having such a conversation, and the witness said he did not. It was only then, on cross-examination of the Ceco foreman, that counsel for Coleman handed the witness a copy of the Tompkins' superintendent's record of the conversation, and asked, over objection, if it refreshed his recollection; when the witness said it did not, the line of questioning ceased.
Even were we to find something objectionable in this manner of questioning and we do not we are satisfied that any error would be harmless. See Kotteakos v. United States, 328 U.S. 750, 757 n.9, 762-64, 66 S. Ct. 239, 1244 n.9, 1246-47, 90 L. Ed. 1557 (1946); 11 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2883 (1973).
[2] Ceco also contests the trial court's refusal to instruct the jury on ordinary contributory negligence and assumption of risk. We conclude that, on the facts of this case, the trial judge was correct in charging the jury instead in accordance with Martin v. George Hyman Construction Co., D.C.App., 395 A.2d 63 (1978) that only aggravated negligence or assumption of risk approaching intent on the part of Coleman would bar recovery. We decline Ceco's invitation to reconsider Martin, and are, in any event, powerless to do so as a hearing division of this court.
[3] D.C.Code 1973, § 36-438(a), reads:
Every employer shall furnish a place of employment which shall be reasonably safe for employees, shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations and processes which are reasonably safe and adequate to render such employment and place of employment reasonably safe.
[4] 29 C.F.R. pt. 1926 (1980) entitled "Safety and Health Regulations for Construction" and effective April 24, 1971 contained the following applicable provisions:
§ 1926.25(a): During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other debris, shall be kept cleared from work areas, passageways, and stairs, in and around buildings or other structures.
§ 1926.252(c): All scrap lumber, waste material, and rubbish shall be removed from the immediate work area as the work progresses.
§ 1926.701(a)(3): Stripper forms and shoring shall be removed and stockpiled promptly after stripping, in all areas in which persons are required to work or pass....
[5] Standard Jury Instruction No. 60 reads:
At the time that the incident under consideration occurred the following regulation/statute was in effect in the District of Columbia:
This regulation/statute sets out the applicable standard of conduct which itself fixes the duty of care required by one in the same situation as the plaintiff/defendant. You are instructed, therefore, that the violation of this regulation/statute, if any, by the plaintiff/defendant is negligence as a matter of law.
Whether or not this negligence caused the injury, however, is a separate question. Negligence alone does not equal liability. Unless this negligence proximately caused the injury, the fact of its existence is of no consequence. Stated another way, if the violation created a hazard which the regulation/statute was intended to avoid and which does in fact bring about the harm to plaintiff which the regulation/statute was intended to prevent, the violation is a legal cause of the harm.
You must, therefore, find that the regulation/statute was violated and that this violation was a proximate cause or one of the proximate causes of the injury to the plaintiff before you can determine liability or contributory negligence. [1968 Jury Instructions.]
The Bar Association's most recent version of the standardized negligence per se instruction is considerably briefer than that in the 1968 edition, and offers little guidance as to when that charge, rather than the instruction that the violation of a statutory or regulatory standard is only evidence of negligence, is applicable. See Young Lawyers Section of the Bar Association of the District of Columbia, Standardized Civil Jury Instructions for the District of Columbia, No. 5-8, at p. 42 (1981 rev. ed.) [hereinafter cited as 1981 Jury Instructions].
[6] Standardized Jury Instruction No. 61 reads as follows:
At the time that the incident under consideration occurred the following regulation/statute was in effect in the District of Columbia:
This regulation/statute sets out the applicable standard of conduct which, of itself normally fixes the duty of care required by a person in the same situation as the plaintiff/defendant. Ordinarily, the unexplained violation of this regulation/statute is negligence as a matter of law. However, in this case, the plaintiff/defendant has presented evidence which he claims excuses or justifies the violation. Therefore, the violation of this regulation/statute is only evidence of negligence which you may consider along with all the other evidence presented on that question.
Whether or not such negligence, if any, caused the injury is a separate question. Unless this negligence proximately caused the injury the fact of its existence is of no consequence. Stated another way, if the violation was not explained to your satisfaction and created a hazard which the regulation/statute was intended to avoid and which does in fact bring about the harm to the plaintiff which the regulation/statute was intended to prevent, the violation is a legal cause of the harm.
You must, therefore, find that there was an unexplained or unjustified violation of the regulation/statute and that this violation was proximate cause or one of the proximate causes of the injury to the plaintiff before you can determine liability (or contributory negligence). [1968 Jury Instructions.]
[7] The court gave Standardized Jury Instructions Nos. 64, 65, and 66. 1968 Jury Instructions.
[8] The reasons for Tompkins' immunity from suit on account of Coleman's injury are detailed infra.
[9] When the trial court first asked counsel for their proposed jury instructions, counsel for Ceco stated that he desired "[o]nly the standardized instructions ... plus an instruction on intervening cause." However, other matters were at that point attended to, and counsel never submitted an instruction on superseding cause to the court.
[10] Standardized Jury Instruction 180, on which the court's charge was based, states that the jury may consider "[a]ny disfigurement or deformity resulting to [the plaintiff] and any humiliation or embarrassment associated therewith." (1968 Jury Instructions.) The most recent revision of the standardized instructions contains the identical wording. See Standardized Civil Jury Instruction 13-1 in 1981 Jury Instructions, supra at 143.
[11] The trial judge included "[a]ny inconvenience or discomfort caused [Coleman] in the past" as a separate element of damage in his charge to the jury. This is in accordance with the Standardized Jury Instruction. Cf. Snodgrass v. Cohen, 96 F. Supp. 292, 295 (D.D.C. 1951) (plaintiff "should receive some recompense for pain and suffering, as well as the discomfort and distress caused by being required to keep his leg in a plaster cast for a considerable period").
[12] It was unnecessary for Coleman to present direct evidence of actual humiliation and embarrassment in order to justify the second portion of the challenged instruction. The jury could reasonably have inferred a degree of humiliation and embarrassment from the fact of a disfigurement or deformity. See Bennett v. Haley, 132 Ga.App. 512, 520, 208 S.E.2d 302, 309 (1974); Swersky v. McPeek, 214 Va. 253, 254, 199 S.E.2d 507, 508 (1973) (per curiam); Beasley v. Bosschermuller, 206 Va. 360, 367, 143 S.E.2d 881, 887 (1965).
[13] A similar qualification was added at the end of the damages charge.
[14] The party with the greatest interest in this issue the plaintiff employee was not even a party to the appeal in Murray.
[15] Interestingly, the Circuit Court, in Dawson, supra, noted Judge Gesell's substantive criticism of Murray, stating only that the question of Murray's validity had not been there raised before it. Dawson v. Contractors Transport Corp., supra at 403-04 n.3, 467 F.2d at 729-30 n.3.
[16] It is not hard to imagine a case, however, in which application of the Murray credit would compromise the employer's compensation lien. For example, in the instant case, if the jury had awarded Coleman only $30,000, application of the credit (reducing the judgment to $15,000) would have left Tompkins $2,000 short of securing full reimbursement for its compensation outlay with Coleman, by the way, receiving nothing from Ceco. While it might be agreed that there is little injustice in not fully reimbursing an employer who is negligent, this situation points up a major problem with the Murray credit: the employer who has been adjudged negligent and deprived of a portion of its compensation lien as a result has not had its day in court. It is thus that one pair of commentators has suggested that if Murray is to be the rule, some procedural mechanism must be used to implead, join, or otherwise bring the employer before the court. Cohen & Dougherty, The 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act: An Opportunity for Equitable Uniformity in Tripartite Industrial Accident Litigation, 19 N.Y.L.F. 587, 597-98 (1974). But as Judge Gasch observed in McKenney v. Capitol Crane Corp., 321 F. Supp. 880 (D.D.C.1971), the exclusive liability provision of the LHWCA (33 U.S.C. § 905 (1976)) would seem to protect an employer from even the expenses of appearing in an action against the third party. Id. at 882 n.2. Cf. Bloomer v. Liberty Mutual Insurance Co., 445 U.S. 74, 100 S. Ct. 925, 63 L. Ed. 2d 215 (1980) (employer's right of recoupment is so absolute that it may not even be required to contribute to the legal fees of an employee who himself recovers from the third party). Note that Dawson v. Contractors Transport Corp., supra, is distinguishable; there, the employer was brought before the court on an independent contractual claim for indemnity, not on the basis of the Murray credit claim later lodged by a co-defendant. See Smither & Co. v. Coles, 100 U.S.App.D.C. 68, 70 n. 18, 242 F.2d 220, 224 n.18, cert. denied, 354 U.S. 914, 77 S. Ct. 1299, 1 L. Ed. 2d 1129 (1957).
[17] In Samuels, the court stated:
To permit the employer's negligence to reduce the joint tortfeasor vessel's liability would reduce the award of plaintiff, the one person who is blameless. [Id. at 889.]
[18] In note 24, the Supreme Court referred to Zapico v. Bucyrus-Erie Co., where the Second Circuit wondered "why the longshoreman injured by the negligence of a third party should recover less when his employer has also been negligent than when the employer has been without fault." 579 F.2d at 725.
[19] But see Edmonds v. Compagnie Generale Transatlantique, supra, 443 U.S. at 273, 99 S.Ct. at 2763, where the Court speculated that "Congress might have intended to adopt the existing maritime [no credit] rule even for third-party actions under the Act that are not within the admiralty jurisdiction, though we need not and do not reach that issue today." See also McCormack v. Noble Drilling Corp., 608 F.2d 169, 175 (5th Cir. 1979) (implying that the Murray credit is no longer viable after Edmonds).
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/1517277/
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441 A.2d 644 (1982)
Charlene McBRIDE, Appellant,
v.
UNITED STATES, Appellee.
No. 80-703.
District of Columbia Court of Appeals.
Argued February 12, 1981.
Decided January 6, 1982.
*646 Andrew L. Lipps, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on the brief, for appellant.
David Howard Saffern, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell, and Robert B. Cornell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before KERN, MACK, and FERREN, Associate Judges.
FERREN, Associate Judge:
This case presents two closely related questions of the law of evidence applicable to a prosecution for possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b): whether the trial court erred in refusing to permit appellant to present testimony about certain threats against her, specifically (1) threats uncommunicated to appellant by the complaining witness, and (2) threats both communicated and uncommunicated to appellant by the complainant's sister and boyfriend. We conclude that the trial court erred in excluding this testimony. Because we cannot determine on this record whether the error was prejudicial or harmless, we remand the case for further proceedings.
I.
The United States filed an information against appellant, Charlene McBride, charging simple assault on Adrian Gray, see D.C. Code 1973, § 22-504, and possession of a prohibited weapon ("a stick"). See id. § 22-3214(b).[1] A jury trial followed.
A. The Government's Evidence
The government's theory was that on April 26, 1979, appellant, a private security guard, struck Adrian Gray with a nightstick which she had been carrying beneath her jacket; thus, she was guilty of both simple assault and possession of prohibited weapon. The government presented its case chiefly through the testimony of (1) the complaining witness, Adrian Gray; (2) Adrian's sister, Georgia Gray; and (3) Adrian's boyfriend, Conrad Williams, commonly known as "Warchild."
According to prosecution witnesses, on April 25, 1979, the day before the fight leading to these charges, appellant won a fistfight with Georgia Gray. Georgia reported the fight to her sister, Adrian, and to Conrad Williams. On cross-examination, Georgia Gray and Williams denied that in the wake of that fight they had threatened appellant. On rebuttal, Adrian, too, denied that she had threatened appellant. She testified, to the contrary, that appellant had called her and "said something to the effect that she had beat up my sister and that I was next."
The next day, April 26, Adrian Gray, Georgia Gray, and Conrad Williams visited a friend who lived in the same apartment complex as appellant. As they departed, they encountered appellant and her sister, Tercora Snead, outside. Prosecution witnesses testified that appellant confronted Adrian, who was five-months pregnant, and "said she was going to knock the baby out of her stomach." Appellant then pulled a brown nightstick from beneath her jacket and swung at Adrian Gray's stomach. Adrian jumped back to avoid the blow.
Georgia Gray then jumped on appellant. Conrad Williams and Tercora and Michael Snead tried to break up the fight. During the commotion, appellant broke loose and hit Adrian Gray across the forehead with the nightstick. Georgia testified that Adrian did not strike appellant during the fight. In addition, Adrian, Georgia, and Conrad Williams all denied that any of them had carried knives or any other weapon that day.
B. The Defense Evidence
Appellant admitted possessing a stick and hitting Adrian Gray with it, but she *647 claimed, with respect to both the assault and possession charges, that she had acted in self-defense. In that regard, in her opening statement, defense counsel alerted the jurors that they would be hearing testimony about threats against appellant by Adrian Gray, Georgia Gray, and Conrad Williams. During trial, defense counsel sought to elicit such testimony from (1) appellant, (2) her sister, Tercora Snead, and (3) appellant's boyfriend, Frank Lloyd. The trial court, however, barred the testimony on relevance and hearsay grounds.
According to defense witnesses, at the time of this incident appellant lived with her sister and brother-in-law, Tercora and Michael Snead. Appellant worked as a private security officer and carried a nightstick while on duty. She left the nightstick in her locker at work on April 24, 1979, and did not pick it up again until after her arrest and release.
Defense witnesses further testified that on April 25, 1979, Georgia Gray had cursed appellant and swung at her, causing a fight between them. Tercora Snead received "about 10" telephone calls from Adrian or Georgia Gray that day. Tercora did not testify as to the substance of the calls, however, for the trial court "sustain[ed] the [government's] objection regarding hearsay telephone conversations."
The trial court also prevented Frank Lloyd, appellant's boyfriend, from testifying about a phone call he had received at appellant's home from the Gray sisters, as well as about his conversation with Georgia Gray concerning her relationship with appellant.
In addition to these calls from the Gray sisters to Tercora Snead and Frank Lloyd, appellant testified that she herself received telephone calls at home on the evening of April 25 from Adrian Gray, who allegedly said, "[Y]ou B, you got my sister, but I am going to kick your ___" Defense counsel asked appellant whether Adrian's boy-friend, Conrad Williams, had said anything to her over the phone. The trial court, however, sustained the government's objection, stating: "We are not interested in what Warchild said. If he were the complaining witness in this case and said something in the nature of a threat, I would listen to it. But Warchild is not the complaining witness, and neither is Georgia...."
On April 26, the morning after appellant's fight with Georgia Gray, appellant left her apartment to go to the grocery store. Just after she had departed, her sister, Tercora Snead, received a call from Adrian Gray, who said, "MF, I am here." Outside, appellant saw Adrian and Georgia Gray and Conrad Williams. When they began to chase appellant with a knife, she fled back to the apartment and called the police.
When the police did not respond to the call, appellant, this time accompanied by Tercora Snead, began walking to the market again. Adrian Gray, Georgia Gray, and Conrad Williams still were standing outside. Adrian came toward appellant and swung at her; both women started fighting. When Adrian brandished a knife, appellant retreated to the custodian's trashcan, picked up a stick, and hit Adrian Gray on the forehead with it.
Tercora Snead tried to break up the fight and, as a result, began to struggle with Georgia Gray. Conrad Williams grabbed appellant and Tercora Snead. Michael Snead then pulled Williams off his wife. Michael Snead and appellant's nephew, Samuel Robinson, broke up the fight between appellant and Adrian Gray.
C. The Verdict
The jury acquitted appellant of simple assault, D.C.Code 1973, § 22-504, but convicted her of possession of a prohibited weapon with intent to use it unlawfully against another. Id. § 22-3214(b).[2] The trial court suspended sentence and placed *648 appellant on one-year probation under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a) (1976). Appellant timely noted her appeal. See D.C.Code 1973, § 11-721(a)(1); D.C.App.R. 4 II(b)(1).
II.
We begin by examining the crime of possession of a prohibited weapon, D.C.Code 1973, § 22-3214(b) (PPW (b)),[3] and then considering, in general, the relevance and admissibility of threats evidence in relation to a defense against that charge.[4]
A. In 1953, in order to strengthen controls over possession of dangerous weapons in the District of Columbia, Congress amended the statutes governing weapons offenses. Degree v. United States, D.C. Mun.App., 144 A.2d 547, 549 (1958); see United States v. Shannon, D.C.Mun.App., 144 A.2d 267, 268 (1958); District of Columbia Law Enforcement Act of 1953, Pub. L.No. 85, 67 Stat. 90. In addition to making changes in the laws proscribing "carrying a concealed weapon"[5] and barring the possession of certain necessarily dangerous weapons[6] (as well as changes in other weapons provisions), Congress added a new section outlawing possession of certain dangerous instruments ifbut only ifpossession of the weapon is coupled with "intent to use [it] unlawfully against another." District of Columbia Law Enforcement Act of 1953, supra § 204(h) (codified at D.C. Code 1973, § 22-3214(b)); see Jones v. United States, D.C.App., 401 A.2d 473, 475 (1979); Darden v. United States, D.C.App., 342 A.2d 24, 27 (1975); note 3 supra.
In contrast with other weapons offenses, therefore, this new section, PPW(b), created a "specific intent" crime.[7] The government *649 must prove beyond a reasonable doubt that the defendant had the "intent to use [the weapon] in an assaultive or otherwise unlawful manner." United States v. Brooks, D.C.App., 330 A.2d 245, 246-47 (1974). Although PPW(b) does "not require evidence of an attempt to do harm," Cooke v. United States, D.C.App., 213 A.2d 508, 510 (1965); accord, Jones, supra at 475-76, such an attempt may provide evidence of the defendant's unlawful intent. See Cooke, supra, at 510; Rucker v. United States, 109 U.S.App. D.C. 362, 363-64, 288 F.2d 146, 147-48 (1961).
The specific intent element of PPW(b) provides the basis for a broader defense than the defenses available for general-intent weapons offenses. Three possibilities are instructive. First, if a defendant admits possessing an instrument but denies using (or attempting to use) it against another, she could defend on the ground that during the entire period of possession she had carried the instrument for a wholly innocent,[8] merely defensive,[9] or other lawful (or legally excusable) purpose.[10] Second, if the defendant admits carrying an instrument and ultimately using or attempting to use it against another, she still could defend on the ground that during the period before the fight she had possessed the weapon for a permissible purpose, see notes 8-10 supra, and that during the fight itself she had harbored no assaultive intent but acted, instead, in self-defense.[11]*650 Third, as in the present case, a defendant could claim she had not been carrying the weapon before the fight but had seized it on the spot for use in self-defense. See Cooke, supra at 508-09, 510; note 11 supra.
B. As to any relevant period of time during which the evidence suggests the defendant was not using (or attempting to use) a weapon against another, a PPW(b) charge presents only two questions: (1) Did the defendant possess a dangerous weapon? and (2) Did the defendant intend to use the weapon unlawfully? Evidence tending to prove that the defendant had the weapon for a permissible purpose, therefore, would tend to negate the government's evidence of unlawful intent. It follows that threats communicated to a defendant could be relevant by illuminating her state of mind during this period.[12] Threats uncommunicated to the defendant, however, would be irrelevant.[13]
In contrast, as to a period of a fight when the defendant used (or attempted to use) the weapon against another and makes a claim of self-defense, both communicated and uncommunicated threats become relevant to negate the prosecution's effort to prove unlawful intent. This conclusion follows from the dual aspects of a claim of self-defense: (1) the objective question whether the ultimate victim was the aggressor, and (2) the subjective question whether the defendant was in reasonable fear of imminent great bodily injury. Johns v. United States, D.C.App., 434 A.2d 463, 469 (1981); United States v. Burks, supra at 286 & n.4-287 & n.5, 470 F.2d at 434 & n.4-435 & n.5. See generally W. La Fave & A. Scott, Criminal Law § 53 (1972).
Threats communicated to the defendant may be relevant to both aspects of the self-defense claim, see Johns, supra at 469; Burks, supra at 286-87, 470 F.2d at 434-35, although the principal focus generally is on their relationship to the defendant's subjective fear. See Rink v. United States, D.C.App., 388 A.2d 52, 57 (1978); Cooper v. United States, D.C.App., 353 A.2d 696, 702 (1976); King v. United States, D.C. Mun.App., 177 A.2d 912, 913 (1962). See generally 1 C. Torcia, Wharton's Criminal Evidence § 205 (1972 & Supp. 1981); 2 J. Wigmore, Evidence § 247 (Chadbourn rev. ed. 1979). Moreover, threats communicated directly by the complaining witness typically have the greatest relevance, for those *651 threats not only pass between the principal parties but also are probative of both the "aggressor" and "fear" issues. See generally 1 Wharton's, supra § 205. Threats communicated by persons other than the complainant, however, also may shed light on the defendant's state of mind if the defendant can lay a foundation showing that she reasonably believed these third persons were acting against her in concert with the complainant. See Annot. 98 A.L.R. 6, § 20 (1964 & Later Case Service 1976).
Unlike communicated threats, the complainant's threats uncommunicated to the defendant have no direct connection to the defendant's state of mind. They can be relevant only to the question of who struck the first blow. Griffin v. United States, 87 U.S.App.D.C. 172, 174, 183 F.2d 990, 992 (1950); accord, Sellars v. United States, D.C.App., 401 A.2d 974, 979 (1979); see Johns, supra at 469; Burks, supra at 286 & n.4, 470 F.2d at 434 & n.4; Evans v. United States, 107 U.S.App.D.C. 324, 325-26, 277 F.2d 354, 355-56 (1960).[14] Similarly, uncommunicated threats against the defendant by third persons may be pertinent to the "aggressor" issue if the defendant lays a foundation showing that the third persons were acting against her in concert with the complainant. See Epperson v. State, 7 Md. App. 464, 469, 256 A.2d 372, 375 (1969), cert. denied, 397 U.S. 1078, 90 S. Ct. 1530, 25 L. Ed. 2d 814 (1970). See generally 1 Wharton's, supra §§ 206-07; Annot., 98 A.L.R. 2d 6, supra § 20.[15]
C. Testimony about threats faces a barrier beyond relevance: the hearsay rule. As we have just seen, a defendant charged with PPW(b) may offer evidence of communicated threats in order to show her state of mind during different, relevant time periods. If, for example, the evidence suggests that the defendant used, or attempted to use, an instrument against another, she can seek to introduce communicated threats to support a claim that she reasonably feared the other person and acted only in self-defense. Those threats, moreover, would tend to show that even if the defendant had possessed the instrument before the fight, she lacked intent at that time to use it unlawfully.
As to either time period, therefore, the defendant will be offering threats evidence to show its effect on her own state of mind. We have held that threats offered for that purpose are admissible hearsay. Cooper, supra at 702.[16] Because, however, such threats are offered not for their truth but for their effect, perhaps they should be characterized, more properly, as nonhearsay. See E. Cleary, McCormick on Evidence § 249, at 590-91, § 295, at 700 (2d ed. 1972 & Supp. 1978); 6 J. Wigmore, Evidence § 1789 (Chadbourn rev. ed. 1976 & Supp. 1981); cf. King, supra at 913 (reports of prior acts of violence by victim against third persons, known to defendant, are nonhearsay).
Furthermore, as indicated above, if a defendant engaged in a fight with the instrument, she may introduce both communicated and uncommunicated threats in an effort to show that she was not the aggressor. See Part II.B. supra. When a declarant's actions are relevant to a material issue in a case (as are the victim's aggressive actions toward a defendant who asserts self-defense), the declarant's expression of *652 intention to perform an aggressive act increases the likelihood that the declarant did so. Such expressions are admissible under the "state of mind" exception to the hearsay rule. See Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295-96, 12 S. Ct. 909, 912, 36 L. Ed. 706 (1892); Clark v. United States, D.C.App., 412 A.2d 21, 26, 29 (1980); United States v. Brown, 160 U.S.App.D.C. 190, 194-95, 490 F.2d 758, 762-63 (1974). See generally McCormick, supra § 295; 6 Wigmore, supra § 1725.
D. In summary, if a defendant denies using or attempting to use a weapon and thus makes no self-defense claim in a PPW(b) prosecution, then only communicated threats (which bear on the specific intent element of the crime) are directly relevant to the defense. If a defendant raises a claim of self-defense, however, both communicated and uncommunicated threats become germane: communicated threats bear on the defendant's fear, and both communicated and uncommunicated threats bear on the question whether the complaining witness or the defendant was the aggressor. Accordingly, whether the defendant offers threats evidence for its effect on her own state of mind or for the inference that the victim acted in accordance with expressed hostile intentions toward the defendant, the evidence is relevant and not excludable on hearsay grounds.
In this case the trial court admitted testimony about the complainant's communicated threats against appellant. The government does not question the relevance or admissibility of that evidence. The threats that the trial court excluded are one or more steps removed. Specifically, appellant challenges the exclusion of evidence about (1) threats uncommunicated to appellant by the complaining witness, and (2) threats both communicated and uncommunicated to appellant by third persons, namely the complainant's sister, Georgia Gray, and boyfriend, Conrad Williams.[17] Each set of threats presents a particular problem of relevance or admissibility beyond the general rules discussed in this section. In the succeeding parts of the opinion, therefore, we examine each set of threats in turn.
III.
Appellant first maintains that the trial court erred in excluding evidence of the complainant's threats uncommunicated to appellant. She urges that the trial court should have permitted her sister, Tercora Snead, and her boyfriend, Frank Lloyd, to testify about Adrian Gray's threats, made to them, against appellant.[18]
Relying chiefly on United States v. Akers, D.C.App., 374 A.2d 874 (1977), the government contends that this court has limited admissibility of uncommunicated threats evidence to homicide cases. To the contrary, we do not read Akers to preclude such evidence in every nonhomicide case.
In Akers, supra, the defendant, charged with assault on three police officers, claimed self-defense and sought to discover police records that might reveal prior acts of violence by the officers and thus their "proclivity to abusive force." Id. at 876. We held that the defendant could not obtain such information when he had not known of the officer's violent character at the time of the alleged offense. Id. at 877-78; accord, In re M.W.G., D.C.App., 427 A.2d 440, 443-44 (1981). We acknowledged the established admissibility of prior acts of violence by a victim, whether known or unknown to a defendant, to support a claim of self-defense in a homicide case; but we explained that rule by noting that "in recognition of [the deceased's] absence from the trial, an exception is necessarily made to the general rule against showing conduct by proof of character." Akers, supra at 877.
In its factual context, therefore, Akers held that because of this general *653 policy against admissibility of evidence to show "proclivity" or propensity to commit a crime, no evidence of the victim's prior bad acts against third persons, unknown to the defendant, is admissible in a nonhomicide case to help answer the objective question of who was the more likely aggressor.[19] We acknowledged in Akers, however, that such evidence, if known to the defendant at the time of the altercation, is admissible to help answer the subjective question whether the defendant reasonably believed she was in imminent danger of great bodily injury. See id. at 877. Akers, therefore, did not address the intermediate question presented here: whether a complainant's uncommunicated threats against a defendant are admissible in a nonhomicide case to show not the victim's general propensity to violence, based on acts against third persons but the victim's specific intentions toward the defendant.[20]
We see no reason to limit the admissibility of uncommunicated threats to homicide cases when the threats bear directly on the victim's intentions regarding the defendant. Although a complainant's uncommunicated threats against the defendant may reflect the victim's general willingness to use force, they have a more specific probative value. The courts of this jurisdiction long have recognized that when a defendant claims self-defense and introduces some evidence that the victim was the attacker, she also may introduce evidence of threats by the victim, even if uncommunicated to her, in order to illuminate the victim's specific intentions and thus present the concomitant likelihood that the victim struck the first blow. See Kleinbart v. United States, D.C. App., 426 A.2d 343, 357 (1981); Sellars, supra at 979; Griffin, supra at 174, 183 F.2d at 992.[21] Such threats have relevance to a self-defense claim far more targeted than the relevance of general evidence of the victim's character. The Akers rule against admissibility of propensity evidence, unknown to the defendant, in a nonhomicide case lacks force in the context of specific though uncommunicated threats by the victim against the defendant.[22]
We decline, then, to extend the Akers line between homicide and nonhomicide cases *654 beyond the limits of the policy against propensity evidence that originally justified it. We conclude that if the evidence establishes the required foundation, see note 14 supra, there is no policy barrier against evidence of uncommunicated threats that illuminate the victim's state of mind toward the defendant, either in homicide or nonhomicide cases. Moreover, such evidence going to the declarant's state of mind also clears the hearsay hurdle to admissibility. See Hillmon, supra 145 U.S. at 295-96, 12 S.Ct. at 912; Part II.C. supra.
In the present case, the trial court excluded evidence of uncommunicated threats against appellant by the complaining witness, Adrian Gray, apparently on hearsay grounds. To the contrary, this evidence, for which there was ample foundation,[23] was relevant to the aggressor issue and was admissible hearsay going to Adrian Gray's state of mind. The trial court erred in excluding it.
IV.
Appellant next claims that the trial court erred in excluding testimony about communicated and uncommunicated threats against her by third persons. Specifically, she contends that the trial court (1) should have permitted her to testify about threats communicated to her by Georgia Gray and Conrad Williams,[24] and (2) should have allowed Tercora Snead and Frank Lloyd to testify about threats uncommunicated to appellant which Georgia Gray made to them.[25] We agree that this testimony would have been relevant and admissible, and that the trial court's ruling accordingly was error.
The government and the defense presented two different versions of the facts and two different legal theories. The jury, however, could have interpreted the evidence in still other ways and, indeed, apparently did so. The government sought to prove that on April 26, 1979, appellant had struck Adrian Gray with a nightstick, presumably the one appellant used on her job as a security guard. The prosecution argued that appellant therefore was guilty of both simple assault and PPW(b).
Appellant admitted hitting Adrian Gray, but sought to show that she had used only a *655 stick that she had grabbed from a trashcan in self-defense. Accordingly, appellant contended, she was not guilty of assault and, because she had been acting in self-defense during the entire period of her possession of the stick, she had lacked the unlawful intent necessary to sustain a conviction for PPW(b).
The jury's verdict, acquitting appellant of assault but convicting her of PPW(b), suggests that the jury fully credited neither the government nor the defense. The acquittal on the assault charge suggests the jury believed that appellant had acted in self-defense during the fight. The conviction of PPW(b), however, suggests the jury discredited appellant's theory that she had grabbed a stick from a trashcan. Rather, the jury may have found that appellant had been carrying her nightstick before the fight and at that time had harbored an intent to assault someone perhaps Georgia Gray, with whom appellant had fought the day before, or perhaps Adrian Gray, who allegedly had been threatening revenge.
The government's evidence suggested that appellant had been carrying her nightstick before the fight with Adrian Gray. Threats communicated to appellant by Georgia Gray and Conrad Williams might have strengthened the evidence that appellant was carrying the nightstick during that period only for a defensive purpose, not with an assaultive intent. See Part II.B. supra. This evidence, offered to show its effect on appellant's state of mind, is admissible hearsay (or nonhearsay). See Part II.C. supra.
As to the period during the fight, the evidence provided an adequate foundation to make both communicated and uncommunicated threats relevant to appellant's claim that she had struck Adrian Gray in self-defense. See Part II.B. supra.[26] Georgia Gray's and Conrad Williams' threats communicated to appellant therefore had some bearing on the question whether appellant, confronted by Adrian and her associates, was in reasonable fear of immediate bodily injury. Moreover, both their communicated and uncommunicated threats were relevant to the question whether Adrian more than likely started the fight. See Part II.B. supra. Such threats, accordingly, may have increased the likelihood that appellant acted reasonably by striking out in self-defense. The trial court erred in excluding this testimony as irrelevant or as inadmissible hearsay. See Part II.C. supra.
V.
The government contends that defense counsel failed to object to the trial court's exclusion of threats testimony and did not make an offer of proof of its substance; thus, it says, this court must apply the "plain error" standard of review. See Watts v. United States, D.C.App., 362 A.2d 706, 709 (1976) (en banc). We disagree. We hold that under the circumstances defense counsel adequately raised this issue at trial and preserved it for appeal. The proper standard of review, therefore, is "harmless error," as articulated in Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946).[27]
*656 A. When a trial court balks at admitting certain evidence, counsel normally should make an offer of proof. A proffer helps the trial court determine admissibility; it may enable the offering party to take action lessening the impact of an adverse ruling; and it enables the appellate court to provide effective review. See United States v. Walker, 146 U.S.App.D.C. 95, 99, 449 F.2d 1171, 1175 (1971); McCormick, supra § 51. Accordingly, the courts of this jurisdiction long have adhered to the following general proposition:
A ruling of the court that a question propounded by a party to his own witness should not be answered must be followed by an offer of the testimony expected, or by something which would clearly indicate it, if it is desired to reserve the point for review in this court. [McCurley v. National Savings & Trust Co., 49 App. D.C. 10, 12, 258 F. 154, 156 (1919).]
See Wilson v. United States, D.C.App., 261 A.2d 513, 514 & n.4 (1970) (per curiam); Reed v. District of Columbia, D.C.App., 226 A.2d 581, 584 (1967); Pitts v. United States, D.C.Mun.App., 95 A.2d 588, 590 (1953); Sisson v. United States, 54 App.D.C. 189, 190, 295 F. 1010, 1011 (1924); cf. Super.Ct.Cr.R. 51.[28]
The courts, however, have not enforced the proffer requirement in a rigid fashion. When the thrust of the expected answer is apparent from the record, relevant to a material issue, and favorable to the party calling the witness, a reviewing court will consider whether or not the trial court erred and, to the best of its ability on the existing record, whether or not the error was prejudicial. United States v. Chichester Chemical Co., 54 App.D.C. 370, 372, 298 F. 829, 831 (1924) (following Buckstaff v. Russell, 151 U.S. 626, 636-37, 14 S. Ct. 448, 451-452, 38 L. Ed. 292 (1894));[29]accord Stafford v. American Security & Trust Co., 60 App.D.C. 380, 380, 55 F.2d 542, 542 (1931); see Origet v. Hedden, 155 U.S. 228, 235, 15 S. Ct. 92, 94, 39 L. Ed. 130 (1894); King v. Davis, 54 App.D.C. 239, 242, 296 F. 986, 989 (1924).
In the present case, defense counsel announced at the outset of trial her intention to produce evidence of threats against appellant by Adrian Gray, Georgia Gray, and Conrad Williams. Defense counsel cross-examined the prosecution witnesses on this issue, but elicited only denials. Defense counsel then attempted to question *657 three defense witnesses appellant, Tercora Snead, and Frank Lloyd about telephone conversations with the Gray sisters and Conrad Williams on the day preceding the fight leading to these charges. On this record, it is apparent that the purpose of defense counsel's line of questioning was to elicit testimony from the defense witnesses that Adrian Gray, Georgia Gray, and Conrad Williams had made threats against appellant. Such testimony presumably would have been favorable to appellant's defense.
In this case, moreover, the trial court's own actions provide a basis for excusing counsel from the proffer requirement. In support of appellant's self-defense claim, defense counsel asked Frank Lloyd, appellant's boyfriend, about his conversations about appellant with Georgia Gray. See Part IV. supra. When the government objected, however, the trial court refused an offer of proof:
THE COURT: That is hearsay, [counsel], and I keep telling you that this stuff is inadmissible and you persist.
[DEFENSE COUNSEL]: Your Honor, may I state my grounds?
THE COURT: No, [counsel], you will just ask your next question please.
Subsequently, when counsel asked appellant about threats the complainant's boyfriend had made directly to her, the trial court once again sustained an objection, politely but firmly.
[DEFENSE COUNSEL]:
Q.: Was anything said to you by Warchild in that telephone call?
A.: Yes, he
[PROSECUTOR]: Objection, Your Honor.
THE COURT: We are not interested in what Warchild said. If he were the complaining witness in this case and said something in the nature of a threat, I would listen to it. But Warchild is not the complaining witness, and neither is Georgia, [counsel]. Let's move on please.
"[A]lthough confronting a judge after he has ruled may be risky business," counsel does have a responsibility to make clear her desire to make a proffer. Walker, supra at 99, 449 F.2d at 1175. Moreover, we cannot say from this record that the court doubtless would have held defense counsel in contempt for pressing a bit further to make an offer of proof. Compare In re Schwartz, D.C.App., 391 A.2d 278, 281-82 (1978) (per curiam) (counsel's persistence in trying to make offer of proof insufficient to sustain contempt citation). On the other hand, the trial court was manifestly unwilling to entertain a proffer of relevant evidence, contrary to its responsibility. See id. at 281-82; Walker, supra at 99, 449 F.2d at 1175.
We conclude that when, as in this case, counsel has attempted to proffer a particular type of evidence and the trial court has made its unwillingness to entertain a proffer absolutely clear, counsel should not be expected to risk contempt by pressing further to make an offer of proof. Under such circumstances, counsel can be said to have preserved the point for review, subject of course to the possibility of harmless error. Cf. Super.Ct.Cr.R. 51 ("if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him").
B. Because the record here does not reveal the content of the alleged threats, we are unable to determine whether the trial court's error was harmless or prejudicial.[30] Accordingly, we remand the *658 case for an offer of proof of the excluded threats. On remand, the trial court shall rule on the admissibility of the proffered statements. If the court determines that any or all of the testimony should have been admitted at trial, the court shall decide whether its exclusion constituted prejudicial or harmless error. See Kotteakos, supra, 328 U.S. at 765, 66 S.Ct. at 1248. If the trial court finds the error prejudicial, it shall order a new trial on the PPW(b) charge. If the trial court rules that the error was harmless, the conviction shall stand, subject to a right of appeal to this court. Greenwell v. United States, 115 U.S. App.D.C. 44, 47, 317 F.2d 108, 111 (1963). See Laumer v. United States, D.C.App., 409 A.2d 190, 204 (1979) (en banc) (same remand procedure); Lewis v. United States, D.C. App., 393 A.2d 109, 118-19 & n.11 (1978), aff'd on rehearing, 408 A.2d 303 (1979) (same); Brooks v. United States, D.C.App., 367 A.2d 1297, 1311 (1976) (same).
So ordered.
KERN, Associate Judge, dissenting:
With all deference, the decision to remand this simple assault case after the issue of self-defense was fully tried to the jury for still more proceedings in the trial court constitutes the kind of appellate nit-picking which erodes public confidence in the courts and confirms Mr. Bumble's acrid observation about the law.[1]
Appellant's brief succinctly[2] puts the case in context.
There is no dispute that on the morning of April 26, 1979, Charlene McBride at one point hit Adrian Gray with a stick. The contested issue at trial was whether Ms. McBride acted without provocation, as the Government contended, or in self-defense as appellant claimed.
The government witnesses, consisting of complainant, her sister and a friend, testified that appellant McBride struck and bloodied complainant Gray with a stick without provocation or justification.
The five defense witnesses, among whom were the defendant, her sister and a friend, testified that appellant had been threatened verbally and physically before finally picking up a stick from a trash can and striking complainant in self-defense.
Specifically, appellant recounted to the jury that on the day before the alleged stick-swinging incident she had had a fight with complainant's sister and, as a consequence, was threatened over the phone by complainant (Record at 127, 129, 132); that her sister, with whom she was living (Record at 75), also received threatening phone calls from the complainant, the complainant's sister and a friend of complainant (Record at 129, 156); that, thereafter, on the day of the incident, she encountered these same people armed with a knife and they chased her home (Record at 130-31); and that, finally, when she went back outside, she had to pluck up a stick to defend herself from their armed attack. (Record at 143.)
Appellant's sister told the jury from the stand that the apartment which she shared with appellant was the target of abusive phone calls from complainant and her sister just prior to the alleged criminal incident. (Record at 79-80.)
Two other defense witnesses testified that the complainant had been armed with a knife and attacked appellant. (Record at 96, 111-12.) Another defense witness confirmed seeing a knife exactly at the scene *659 of the confrontation where complainant had been. (Record at 71, 73.)
The jury, with this rich tapestry of testimony before it, acquitted appellant of assault but convicted her of possessing a prohibited weapon, viz., the stick. The majority, however, is dissatisfied with the result of the trial. It concludes that the judge hamstrung the defendant's presentation of her defense of self-defense.
The majority objects to two rulings by the court during this multi-witness trial. The majority opines that such rulings prevented the jury from hearing sufficiently about the threats from the complaining witness and her sister and her friend which were directed, variously, to appellant, her sister and her friend before the stick-swinging encounter. Thus, the majority sees the jury insufficiently apprised of the state of appellant's mind at the time of the crucial incident.
Even the most fastidious review of the record reveals substantial evidence about the threats directed to appellant preceding the alleged criminal incident. Thus, appellant herself testified to the jurors that she received threatening phone calls from the complainant (Record at 127, 129, 132), and further testified that on the morning of the incident her sister, with whom she lived (Record at 75), received calls from complainant and a friend of complainant. (Record at 129, 156.)
Appellant's sister in turn told the jury that on the day before the incident at least ten abusive and threatening phone calls were received at their apartment from complainant and her sister. Appellant's sister testified that, as a result of these phone calls from complainant and her sister, she called the police. She was permitted to testify how the officer who responded answered one such call and had been cursed by complainant or her sister. (Record at 79.)
In addition, this witness who lived with appellant was permitted to testify that she had complained to the telephone company about these abusive phone calls from complainant and her sister. (Record at 80.) Finally, on the very morning of the alleged incident, appellant's sister told the jury of a threatening phone call from complainant. (Record at 85.)
But, says the majority, the trial court erred in refusing to allow a defense witness (neither appellant nor her sister) to testify over objection as to "the substance" of a "conversation" this witness had had with the sister of complainant "about her relationship with Ms. McBride [the appellant]." (Record at 107.) Given the fact that the jury heard voluminous testimony about the hostile relationship that existed between complainant's sister and appellant from their very own lips, it strikes me as patently unnecessary to remand the case now for a proffer from defense counsel as to what exactly this witness would have said about his conversation with complainant's sister about her relationship with appellant.
The other ruling during this trial which so troubles the majority that a remand is ordered for a proffer by defendant is the refusal by the court to permit appellant to testify about a conversation she had over the phone with a friend of complainant. Again, given the evidence in this record of the number of threatening calls appellant received from complainant and her sister, as summarized above, this evidence was at best cumulative and therefore the ruling, if error, was surely harmless.
In sum, the majority writes a dissertation complete with charts concerning the relevance of communicated and uncommunicated threats to the proof of self-defense generally in assault cases when the record in the instant assault case is overflowing with evidence of threats admitted by the trial court at the behest of the defense to show appellant's apprehension of complainant and to justify her use of the stick in self-defense. The majority also plucks two isolated rulings by the trial court from the transcript of a case fully and fairly tried on the issue of self-defense vel non (and justification for appellant's possession of the stick) and requires further proceedings for defense proffers of a most speculative nature, so as to prolong the process of determination of guilt or innocence.
*660 I protest this misuse of judicial resources, and I dissent from the majority's opinion.[3]
NOTES
[1] The information also contained a count of simple assault on Georgia Gray. See D.C.Code 1973, § 22-504. On the government's motion, the court dismissed this charge before trial.
[2] Cf. Darden v. United States, D.C.App., 342 A.2d 24, 25 (1975) (defendant convicted of simple assault but acquitted of possession of a prohibited weapon); Matthews v. United States, D.C.App., 267 A.2d 826, 826 (1970) (same), cert. denied, 404 U.S. 884, 92 S. Ct. 221, 30 L. Ed. 2d 166 (1971).
[3] D.C.Code 1973, § 22-3214(b) provides:
No person shall within the District of Columbia possess, with intent to use unlawfully against another, an imitation pistol, or a dagger, dirk, razor, stiletto, or knife with a blade longer than three inches, or other dangerous weapon.
[4] This case presents no question concerning the prosecution's use of threats evidence to prove a defendant guilty of PPW(b). The trial court permitted testimony, without defense objection, about threats by appellant to the complaining witness, Adrian Gray. Appellant does not contest the admission of this evidence.
We need not specifically consider whether the trial court erred in excluding threats evidence in relation to the assault charge. Because appellant was acquitted of assault, any error as to that charge necessarily would be harmless. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557 (1946). The double jeopardy clause, moreover, bars a retrial on that charge. See Burks v. United States, 437 U.S. 1, 10-11, 98 S. Ct. 2141, 2146-2147, 57 L. Ed. 2d 1 (1978); Kepner v. United States, 195 U.S. 100, 130, 24 S. Ct. 797, 804, 49 L. Ed. 114 (1904).
[5] See District of Columbia Law Enforcement Act of 1953, Pub.L.No. 85, § 204(c), 67 Stat. 90 (amending Act of July 8, 1932, Pub.L.No. 275, § 4, 47 Stat. 650). This statute, codified at D.C.Code 1973, § 22-3204, provides in pertinent part:
No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefor issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed....
[6] See District of Columbia Law Enforcement Act of 1953, supra § 204(h) (amending Act of July 8, 1932, supra note 5, § 14). This statute is codified at D.C.Code 1973, § 22-3214(a):
No person shall within the District of Columbia possess any machine gun, sawed-off shotgun, or any instrument or weapon of the kind commonly known as a blackjack, slung shot [sic], sand club, sandbag, switch-blade knife, or metal knuckles, nor any instrument, attachment, or appliance for causing the firing of any firearm to be silent or intended to lessen or muffle the noise of the firing of any firearms: Provided, however, That machine guns, or sawed-off shotguns, and blackjacks may be possessed by the members of the Army, Navy, Air Force, or Marine Corps of the United States, the National Guard, or Organized Reserves when on duty, the Post Office Department or its employees when on duty, marshals, sheriffs, prison or jail wardens, or their deputies, policemen, or other duly-appointed law-enforcement officers, officers or employees of the United States duly authorized to carry such weapons, banking institutions, public carriers who are engaged in the business of transporting mail, money, securities, or other valuables, wholesale dealers and retail dealers licensed under section 22-3210.
[7] "General intent" weapons offenses include possession of a prohibited weapon under D.C. Code 1973, § 22-3214(a), see Worthy v. United States, D.C.App., 420 A.2d 1216, 1218 (1980); United States v. Brooks, D.C.App., 330 A.2d 245, 247 (1974); note 6 supra, and carrying a concealed weapon, D.C.Code 1973, § 22-3204. See McMillen v. United States, D.C.App., 407 A.2d 603, 605 (1979); Shannon, supra at 268-69; note 5 supra.
[8] Cf. Brooks, supra at 247 ("dangerous weapon" under PPW(b) includes an otherwise useful object that possessor intends to use for dangerous purpose); Leftwich v. United States, D.C. App., 251 A.2d 646, 649 (1969) (focus on possessor's purpose in determining whether object is a "dangerous weapon" under D.C.Code 1973, § 22-3204); Scott v. United States, D.C.App., 243 A.2d 54, 56 (1968) (same); Degree, supra at 549 (same).
Even as to general-intent weapons offenses, we have recognized the possibility of a defense of "innocent or momentary possession" if a defendant could show "not only an absence of criminal purpose" but also "the intent of ensuring that [the] newfound [weapon] is taken as soon and as directly as possible to law enforcement officers." Hines v. United States, D.C. App., 326 A.2d 247, 248-49 (1974) (D.C.Code 1973, § 22-3204); accord, Worthy, supra at 1218 (D.C.Code 1973, § 22-3214(a)); Logan v. United States, D.C.App., 402 A.2d 822, 824-26 (1979) (D.C.Code 1973, § 22-3204); Carey v. United States, D.C.App., 377 A.2d 40, 42-44 (1977) (same); Blango v. United States, D.C. App., 335 A.2d 230, 235 (1975) (same).
[9] A person who possesses a "dangerous weapon" in good faith anticipation of a need to use it in self-defense may be guilty of a general-intent weapons offense, see notes 6-7 supra, but lack the specific intent to use the weapon in an unlawful manner necessary to sustain a conviction for PPW(b). See Logan, supra at 826; Wilson v. United States, 91 U.S.App.D.C. 135, 136, 198 F.2d 299, 300 (1952). It is conceivable, of course, that if a defendant introduced evidence of known threats against her in order to show her honest fear of attack, the jury could infer the contrary: that the defendant had possessed the weapon in order to make a preemptive strike against her enemy. If the jury believed, however, that the defendant had possessed the weapon only for a defensive purpose, the defendant would not be guilty of PPW(b).
By way of comparison, we note that the statute barring carrying a concealed weapon, D.C.Code 1973, § 22-3204, exempts from its coverage carrying a concealed weapon "in [one's] dwelling house or place of business or other land possessed by him ...." Id.; see Billinger v. United States, D.C.App., 425 A.2d 1304, 1304-06 (1981). In limited circumstances a person can obtain a license to carry a pistol "if it appears that the applicant has good reason to fear injury to his person or property...." D.C.Code 1973, § 22-3206; see Jordan v. District of Columbia, D.C.App., 362 A.2d 114, 116-17 (1976); Jordan v. District of Columbia Board of Appeals & Review, D.C.App., 315 A.2d 153, 155-56 (1974). Congress, however, has outlawed possession by civilians of machine guns, sawed-off shotguns, and certain other weapons without exception. See D.C. Code 1973, § 22-3214(a); note 6 supra.
[10] See Jenkins v. United States, D.C.App., 242 A.2d 214, 216 (1968) (evidence insufficient to find ineffective assistance of counsel because counsel failed to raise a voluntary intoxication defense to PPW(b)).
[11] Similarly, courts have recognized that self-defense may be an affirmative defense to carrying a pistol without a license, D.C.Code 1973, § 22-3204 (CPWOL). See Mitchell v. United States, D.C.App., 302 A.2d 216, 217-18 (1973); Cooke v. United States, 107 U.S.App.D.C. 223, 224, 275 F.2d 887, 888 (1960); Dandridge v. United States, 105 U.S.App.D.C. 157, 158, 265 F.2d 349, 350 (1959); Wilson, supra at 136, 198 F.2d at 300. Unlike PPW(b), however, CPWOL is a general-intent crime. See note 5 supra and accompanying text. A defendant in a CPWOL prosecution, therefore, cannot claim self-defense to justify possession of the weapon before its use in self-defense. Hurt v. United States, D.C.App., 337 A.2d 215, 217 (1975) (per curiam); see Mitchell, supra at 218; Cooke, supra at 224, 275 F.2d at 888; Dandridge, supra at 158, 265 F.2d at 350.
[12] Cf. Cooper v. United States, D.C.App., 353 A.2d 696, 702 (1976) (when defendant claims self-defense, communicated threats against defendant are relevant to defendant's state of mind); King v. United States, D.C.Mun.App., 177 A.2d 912, 913 (1962) (testimony regarding victim's reputation for committing specific violent acts admissible to show defendant's state of mind); United States v. Burks, 152 U.S.App. D.C. 284, 286-87 & n.5, 470 F.2d 432, 434-35 & n.5 (1972) (extrinsic proof that victim committed violent acts admissible to corroborate defendant's claim he feared the victim).
[13] Cf. Burks, supra at 286-87, 470 F.2d at 434-35 (when defendant claims self-defense, violent aspects of victim's character are relevant to defendant's state of mind only if known to defendant at time of incident); Griffin v. United States, 87 U.S.App.D.C. 172, 174, 183 F.2d 990, 992 (1950) (when defendant claims self-defense, uncommunicated threats by victim are probative of victim's conduct).
It is possible, however, that a defendant could offer uncommunicated threats in order to corroborate communicated threats. See generally 1 C. Torcia, Wharton's Criminal Evidence § 207, at 429 (1972 & Supp. 1981); 1 J. Wigmore, Evidence § 111, at 553 (3d ed. 1940); Annot., 98 A.L.R. 2d 6, §§ 7, 19, 21 (1964 & Later Case Service 1976 & Supp. 1981); Annot., 98 A.L.R. 2d 195, § 7 (1964 & Later Case Service 1976).
[14] In order to introduce evidence of uncommunicated threats by the victim, the defendant must lay a foundation of "substantial evidence, though it be only [her] own testimony, that the [victim] attacked [her]." Griffin, supra at 174, 183 F.2d at 992; accord, Kleinbart v. United States, D.C.App., 426 A.2d 343, 357 (1981). See generally 1 Wharton's, supra §§ 205, 207-08; 1 J. Wigmore, Evidence §§ 110-11 (3d ed. 1949 & Supp. 1981); Annot., 98 A.L.R. 2d 6, supra §§ 10, 13-17; Annot., 98 A.L.R. 2d 195, supra §§ 10, 13-15.
[15] Other circumstances bearing on the relevance of a particular threat may include (1) who made the threat to whom, (2) what was said, and (3) when the threat was made. See generally 1 Wharton's, supra §§ 201-08; 1 Wigmore, supra §§ 105-11; 2 Wigmore, supra § 247; Annot., 98 A.L.R. 2d 6, supra §§ 11-12; Annot., 98 A.L.R. 2d 195, supra §§ 11-12.
[16] Cf. Rink, supra at 57 (defendant's statement that deceased had beaten her is admissible under "state of mind exception" to hearsay rule).
[17] Although defense counsel did not proffer the specific content of each threat, see Part VI, infra, defense counsel's opening statement and her questioning of both prosecution and defense witnesses indicate that the threats were made against appellant.
[18] This set of excluded threats made be viewed graphically:
[19] Akers, however, did not affect the rule that a defendant in a nonhomicide case can offer evidence of the victim's general reputation for violence (in contrast with specific acts) whether known or unknown to the defendant at the time of the fight. Johns, supra at 469 n.8; see Akers, supra at 877; Cooper, supra at 699 n.8.
[20] The government also quotes from our recent decision in Clark, supra, to support its theory that we have ruled uncommunicated threats per se inadmissible in nonhomicide cases. In Clark we stated:
In homicide cases, statements of the declarant's state of mind have been held admissible in a number of different contexts. First, hearsay evidence of prior threats and assaults directed at the defendant by the deceased declarant have been held admissible, even if uncommunicated to the defendant himself, to show that the defendant was not the aggressor in the altercation which resulted in the death of the decedent or that the defendant reasonably was in fear of the decedent. United States v. Burks, 152 U.S.App. D.C. 284, 286-87 & n.4, 470 F.2d 432, 434-35 & n.4 (1972); Evans v. United States, 107 U.S.App.D.C. 324, 325-26, 277 F.2d 354, 355-56 (1960); Griffin v. United States, 87 U.S. App.D.C. 172, 174, 183 F.2d 990, 992 (1950). [Clark, supra at 26.]
This statement, however, merely describes the happenstance development of the law: the cases that established this rule were indeed all homicide cases. These cases, however, did not by their terms limit the admissibility of such evidence to homicide cases as a matter of law. Johns, supra at 469 n.8.
[21] Although Akers cited Griffin in support of the statement that evidence of the victim's unknown violent acts is admissible only in homicide cases, see Akers, supra at 877-78, that reference, in context, limits uncommunicated threats to homicide cases only when the defense seeks to introduce such threats as evidence of the victim's generally violent character, not when the defense offers them as evidence of the victim's particular hostility toward the defendant.
[22] In the same way, Wigmore contrasts the admissibility of communicated threats by the victim with the often more limited admissibility of evidence of the victim's reputation known to the defendant:
[Restrictions on admissibility] are less frequently laid down for the present class of evidence, [communicated threats, than for reputation testimony] apparently for two reasons first, because there is less danger of improperly using the deceased's threats in justification for the killing (less danger, that is, than where he can be shown to be an abandoned ruffian, a curse to the community); and, second, because specific threats of violence have a more decided bearing on the probability of aggression than mere dangerousness of character. [2 Wigmore, supra § 247(1)(b), at 66 (emphasis added).]
Although other jurisdictions have given the admissibility of uncommunicated threats more attention in homicide than in nonhomicide cases, they have not established substantively different rules for the introduction of uncommunicated threats in the two classes of cases. Compare 1 Wharton's, supra § 207 with § 208 and Annot., 98 A.L.R. 2d 6, supra with Annot., 98 A.L.R. 2d 195, supra.
[23] The defense laid the following foundation of Adrian Gray's overt acts of hostility against appellant: Tercora Snead testified, without government objection, as to one threat by Adrian Gray, uncommunicated to appellant, on the morning of the fight leading to these charges. Appellant and Tercora Snead testified that Adrian and her companions had chased appellant with a knife that morning as she walked to the grocery store. Corroborated by Tercora Snead and neighbor William Heath, appellant additionally stated that Adrian Gray had started the fight with her. Supported by custodian Floyd Wilson, Tercora Snead, and Michael Snead, appellant also testified that Adrian Gray had pulled a knife on her while she was unarmed. This testimony was more than sufficient to lay the foundation required.
[24] This set of excluded threats may be viewed graphically:
Appellant never actually testified that Georgia Gray had threatened her. Defense counsel's opening statement, however, anticipated such testimony, and the trial court cut off appellant's discussion of these conversations. The same principles of law govern the admissibility of threats communicated to appellant by Conrad Williams and those, if any, made to appellant by Georgia Gray.
[25] This final set of excluded threats may be seen graphically:
[26] Georgia Gray and Conrad Williams accompanied Adrian Gray to appellant's apartment complex on the morning of the fight. According to appellant, they chased her with a knife when she walked past them toward the grocery store. Georgia Gray and Conrad Williams were present outside when Adrian Gray allegedly attacked appellant, and they quickly joined in the fight. This testimony, if credited, would have supported a conclusion that Adrian, Georgia, and Conrad Williams were acting in concert against appellant and that appellant was aware of their joint, hostile intentions.
[27] In Kotteakos, supra, the Supreme Court explained the standard for evaluating error of nonconstitutional dimension:
[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. [Id.]
Appellant contends that we must reverse unless the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967); Brooks v. United States, D.C.App., 367 A.2d 1297, 1309-10 (1976). Because the error in this case involved no violation of appellant's constitutional rights, the Chapman harmless error test does not apply here. See Fox v. United States, D.C.App., 421 A.2d 9, 12 (1980); Clark, supra at 30; Campbell v. United States, D.C. App., 391 A.2d 283, 288 (1978).
[28] Super.Ct.Cr.R. 51 provides:
Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.
[29] In Chichester Chemical Co., supra, the court said:
[W]hen a witness testifies in person at the trial, and is asked a question in proper form, which clearly admits of an answer relevant to the issues and favorable to the party calling him, it is error for the trial court to exclude it, notwithstanding the omission of a tender of the expected answer by the party propounding the question, although of course the court, in its discretion, or on motion, may require the party, in whose behalf the question is put, to state the facts proposed to be proved by the answer. [Id. at 372, 298 F. at 831. (citations omitted)]
Fed.R.Evid. 103(a) now specifically provides:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
. . . . . .
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
[30] Relying on the fact that there was considerable testimony on both sides of "this simple assault case," our dissenting colleague argues that the excluded threats testimony would have been "cumulative" and that any erroneous evidentiary ruling "was surely harmless." We respond as follows. First, our colleague does not dispute our legal analysis of the relevance and admissibility of the excluded threats testimony in a PPW(b) prosecution. Second, he does not deny that the content of those threats, which is not now of record, presumably would add precision to the case for the benefit of the defense in a case with sharply different versions of what took place. Third, where PPW(b) is charged, and thus both specific intent and self-defense are the issues, credibility is especially important. We cannot assume that the jury would find additional, more precise defense testimony bearing on those issues to be merely cumulative.
Under these circumstances, therefore, we could not properly speculate that any error in excluding such testimony would be harmless. That evaluation must be for the trial court based on a defense proffer of testimony not now before this court.
It may be, as our dissenting colleague implies, that this is not a case of great public significance; but it nonetheless presents significant evidentiary issues which, in fairness, this court should not brush aside.
[1] See Charles Dickens, Oliver Twist, Chapter 51.
[2] The brief was prepared by the Public Defender Service, noted for its thoroughness in presenting written argument and its willingness to write in detail and at length to ensure that its points on appeal are clearly understood. Its argument in this case consumes but six pages.
[3] The majority (op. at 657, note 30), terms the dissent as an effort to "brush aside" "significant evidentiary issues." Anyone who takes the time to read the record will discover the evidentiary issues relied upon by the majority for its advisory opinion are wholly insignificant. Anyone who takes the time to read the dissent will discover that it does not brush aside the evidence but rather describes it in detail and at length so as to demonstrate the remand is wholly inappropriate.
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733 F. Supp. 159 (1990)
UNITED STATES of America, ex rel., and Christopher DUVALL, Plaintiffs,
v.
SCOTT AVIATION, A DIVISION OF FIGGIE INTERNATIONAL, INC., Defendant.
No. CIV-88-903E.
United States District Court, W.D. New York.
March 28, 1990.
*160 David C. Laub, Buffalo, N.Y., and Peter M. Smith, Lakewood, Colo., for plaintiffs.
Earl K. Cantwell, Richard Cusick and Anthony J. Latona, Buffalo, N.Y., for defendant.
MEMORANDUM AND ORDER
ELFVIN, District Judge.
Plaintiff Duvall filed this qui tam action pursuant to 31 U.S.C. § 3729 et seq., the "Federal False Claims Act." He alleges that, sometime between the time of hiring on February 20, 1980 as a "Test Engineer" by the defendant and 1984, he discovered and disclosed to the defendant that the "EEBD"[1] being manufactured pursuant to the 1974 contract[2] could not provide the protection factor that the defendant was representing for it to the United States Navy. See Complaint at ¶ 11. In September 1984, the defendant was required to obtain National Institute for Occupational Safety and Health ("NIOSH") approval of the EEBD in order to allow the government's civilian employees to use the device at military installations in toxic environments. See Complaint at ¶ 13. Once again Duvall alleges that the defendant fraudulently represented the safety of this device, this time to NIOSH. See Complaint at ¶ 14. Thus, as this Court interprets the Complaint, he is alleging at least two violations of the Federal False Claims Act, one under the 1974 contract and a second based upon the alleged false representation to NIOSH. On April 12, 1985 Duvall resigned his position with the defendant, citing inter alia the latter's "failure to advise the end users of the [EEBD] of its inability to provide its intended protection factor of 133 by an order of magnitude; directing Plaintiff Duvall to withdraw and suppress those data which uncovered this deficiency * * *." See Complaint at ¶ 15. Presently, the defendant has moved this Court for summary judgment with respect to Duvall's *161 original cause of action.[3]
Summary judgment is appropriate only when it is clear that a case presents no genuine issue of material fact. Fed.R. Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). This Court may not resolve factual disputes upon a motion for such relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). Rather the moving party must be entitled to judgment as a matter of law. Id. at 251-252, 106 S.Ct. at 2511-12.
The party seeking summary judgment thus bears the initial burden of demonstrating to the court the absence of a genuine issue of material fact by reference to the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any." Fed.R. Civ.P. 56(c); Celotex Corp. v. Catrett, supra, 477 U.S. at 322, 106 S.Ct. at 2552.
The defendant asserts that the statute of limitations bars plaintiff's claims under the Federal False Claims Act. 31 U.S.C. § 3731 reads in pertinent part:
"(b) A civil action under section 3730 may not be brought
(1) more than 6 years after the date on which the violation of section 3729 committed, or
(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event or more than 10 years after the date on which the violation is committed."
The defendant contends that the period of limitations commences to run when an alleged "false" claim or request for payment is presented by a vendor to the United States for payment, or when there is an approval for payment by the government. See United States v. Cherokee Implement Company, 216 F. Supp. 374, 375 (N.D.Iowa 1963). Duvall however contends, and this Court agrees, that the time of payment by the United States government triggers the statute of limitations under the Act. See Blusal Meats Inc. v. United States, 638 F. Supp. 824, 829 (S.D.N.Y.1986); United States v. Uzzell, 648 F. Supp. 1362, 1366-68 (D.D.C.1986).
The defendant contends that all claims under the 1974 contract are time barred pursuant to the 10-year "drop dead" provision of the statute. It asserts that the last request for payment by the defendant to the Navy under the 1974 contract occurred February 23, 1977. See Affidavit of Shirlee R. Bowden sworn to November 16, 1989, at ¶ 12. However, the time of payment remains a mystery to this Court. Neither the defendant nor Duvall has informed this Court when the last payment under the 1974 contract occurred. It is the payment and not the request which triggers the statute.
However, Duvall "does not object to deleting such reference [to the 1974 contract] as the 1981 and 1986 contracts are now known to be production contracts, however the remainder of the complaint should stand." Plaintiff's Opposition to Motion for Summary Judgment, December 18, 1989, at p. 5. As Duvall does not contravene the defendant's motion and has actually consented to it, the motion will be granted.
Accordingly, it is hereby ORDERED that the defendant's motion for summary judgment is granted as to claims arising out of the 1974 contract.
NOTES
[1] An EEBD, Emergency Escape Breathing Device, is a lightweight escape hood and life support apparatus designed to provide breathing protection in a semi-closed circuit for 15 minutes. The unit is completely disposable. (The Complaint refers to the device as BDEE.)
[2] The 1974 contract, officially known as Contract No. N0024-74-C-05501, became effective on July 12, 1974. It accepted the defendant's "technical proposal" and called for the defendant to design, develop, test and deliver a limited number of EEBD units (c. 50) and repair parts at an original estimated cost of $126,561 and a fixed fee (profit) of $8,852. See Defendant's Memorandum of Law in Support of Motion for Summary Judgment, November 16, 1989 at p. 6. Duvall asserts that two other contracts existto wit, one in 1981 and another in 1986pursuant to which EEBDs were manufactured. See Plaintiff's Opposition to Motion for Summary Judgment December 18, 1989 at p. 6.
[3] On January 2, 1990 this Court granted leave for plaintiff to file an amended complaint with the provision that defendant's pending summary judgment motion would only apply to the original complaint.
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933 S.W.2d 677 (1996)
Donald Leslie MUENNINK, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-95-00414-CR.
Court of Appeals of Texas, San Antonio.
October 9, 1996.
Rehearing Overruled October 30, 1996.
*679 Richard Lee Urban, Boerne, for appellant.
Anton Hackebeil, District Attorney, Uvalde, Jim Vollers, Austin, for appellee.
Before CHAPA, C.J., and HARDBERGER and GREEN, JJ.
OPINION
HARDBERGER, Justice.
Appellant, Donald L. Muennink ("Muennink"), was convicted by a jury of aggravated assault. Muennink received a probated sentence of two years confinement. He appeals, contending that his trial counsel was ineffective, the trial court erred by excluding him from a pretrial proceeding, and he was denied his right to compulsory process for obtaining witnesses. We affirm the judgment of the trial court.
Facts
This case arose out of a dispute over a piece of land that was part of Muennink's father's estate. Muennink and his sister were co-tenants with the estate in this piece of land, and the assault took place on this tract. Muennink and his sister each owned a one-fourth undivided interest in the land where the assault occurred, and the estate owned a one-half interest.
The complainant, Salome Flores ("Flores"), worked for one of Muennink's relatives who had leased the land for farming purposes from the executor of the estate of Muennink's father. Muennink had objected to the lease given by the estate because all of the proceeds of the lease were going to the executor and the executor had made no distribution of those proceeds to Muennink or his sister. The dispute over the proceeds of the lease prompted the assault in this case.
*680 On October 31, 1994, Flores was farming the land in question and was approached by Muennink. At Muennink's request, Flores left the property on that day. The next day, however, Muennink returned to the property. The evidence is conflicting as to what transpired during this encounter. Flores testified that Muennink approached him in the field and told him he had tried to be nice to him the day before, but that now he was "going to have it." According to Flores, Muennink then pulled a gun and pointed it at him, threatening Flores and threatening to blow the windows off a tractor on the land. Muennink denied pulling a gun on Flores on November 1st and testified that he threatened to handcuff Flores and arrest him if he did not leave. Muennink was a certified police officer and was carrying a gun.
Ineffective Assistance of Counsel
In his first and second points of error, Muennink asserts that his trial counsel was ineffective. In a claim that counsel provided ineffective assistance during the guilt-innocence phase of a trial, the defendant must show that counsel's performance was deficient and the deficiency prejudiced the outcome of the case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) (en banc). The defendant bears the burden of rebutting the presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. It is a difficult burden.
The operative standard for determining whether an accused has suffered a deprivation of his right to effective assistance of counsel is the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). To establish ineffective assistance of counsel, a convicted defendant must show: (1) his trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Butler v. State, 872 S.W.2d 227, 241 (Tex.Crim.App.1994) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995). A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Counsel's performance is judged by considering the "`totality of the representation,'" not by isolated omissions or acts of the trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986) (en banc) (quoting Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim. App.1983)), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). Counsel is not required to perform flawlessly, and ineffectiveness is not established solely by the fact that a different trial strategy may have been pursued by another attorney in hindsight. Ybarra v. State, 890 S.W.2d 98, 112 (Tex.App.San Antonio 1994, pet. ref'd).
Muennink claims that his trial counsel was ineffective in that both of his trial attorneys: (1) failed to request a jury instruction regarding Muennink's protection-of-property defense under sections 9.41, 9.04, and 1.07 of the Texas Penal Code; (2) had a conflict of interest as material witnesses; (3) neglected to request that a record be made of various stages of the proceedings; and (4) failed to object when Muennink was asked to leave a pre-trial hearing on a motion to quash a subpoena. We will address each of these assertions in turn.
With respect to the omitted jury instruction, Muennink maintains that his trial counsel established during the trial that he had a right to lawful possession of the property on which the assault occurred, and that this evidence raised a statutory defense under sections 9.41[1], *681 9.04[2], and 1.07[3] of the Texas Penal Code that should have been presented to the jury. Taken together, these sections of the Penal Code provide that persons may use force or threats of force to defend property of which they have lawful possession against those that they reasonably believe to be trespassing or unlawfully interfering with the property.
The State argues that Muennink was not factually entitled to such a defensive justification. We agree. No evidence was presented at trial to show that the person at which the force or threat of force was directed, Flores, was either a trespasser or unlawfully interfering with Muennink's possession of the land. Muennink knew that Flores was on the property working for Muennink's relative who had leased the property from the executor of Muennink's father's estate. The estate had a one-half interest in the land. There is an absence of evidence that Muennink "reasonably believed" Flores was a trespasser or that he was unlawfully interfering with the property and that force was necessary to prevent or terminate a trespass or unlawful interference with the land. Muennink was apparently motivated by what he claimed to be incorrect distributions of lease payments concerning the land. Muennink's trial counsel could have logically concluded that there was no evidence from which the jury could find for Muennink upon submission of this issue.
Muennink further asserts that his trial counsel's assistance was ineffective because both of his trial attorneys had a conflict of interest in that they were material witnesses. This assertion is based on the fact that both attorneys had represented him in civil proceedings from which they had gained knowledge regarding his legal right to possession of the property. Muennink claims that the information his attorneys learned from representing him in the civil proceedings would have supported his defense if communicated to the jury in the form of an expert legal opinion. We cannot agree that these circumstances created a conflict of interest that rendered the assistance of Muennink's trial counsel ineffective. As the United States Supreme Court explained in Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980), prejudice is shown in an ineffective assistance of counsel claim based on a conflict of interest when the defendant establishes that his trial counsel "actively represented conflicting interests" and that "a conflict of interest actually affected the adequacy of his representation." In this case, the fact that Muennink's attorneys could have testified in the form of expert legal opinions regarding his ownership interest in the land does not show that there was any breach of the duty of loyalty or a conflict of interest that adversely affected the attorneys' performance at trial. This case is distinguishable from the cases Muennink cites in his brief to this court. These cases involved potential conflicts of interest stemming from counsel's representation of codefendants with adverse interests. See Calloway v. State, 699 S.W.2d 824 (Tex.Crim. App.1985); Foster v. State, 693 S.W.2d 412 (Tex.Crim.App.1985); Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App.1984); Ex parte Parham, 611 S.W.2d 103 (Tex.Crim.App. 1981); Ex parte Alaniz, 583 S.W.2d 380 (Tex. *682 Crim.App.1979). Muennink's attorneys were not attempting to serve two masters; rather, they served only one masterMuennink. There is no evidence that a conflict existed.
Muennink next contends that his trial counsel's performance was deficient because his attorneys failed to request that the court reporter record voir dire, opening statements, a pre-trial hearing on a motion to quash a subpoena, and closing arguments. Muennink claims that he was harmed by counsel's failure to request a complete record in that he was (1) "denied ... any possibility of a meaningful appeal" and (2) cannot meet the test to show harm under his third point of error to this court, in which he argues that he was improperly excluded from a pre-trial hearing on a motion to quash. We cannot conclude that these omissions amounted to such serious errors so as to deprive Muennink of a fair trial under the Strickland standard. As this court has noted, "trial lawyers are not expected to be perfect" and it is only when the effect of counsel's errors undermine the concept of a fair trial that a conviction must be reversed based on ineffective assistance of counsel. Green v. State, 899 S.W.2d 245, 247-48 (Tex.App.San Antonio 1995, no writ). It is true that there are minimum standards of advocacy that cannot be trespassed without undermining confidence in the outcome of a conviction and violating the Sixth Amendment guarantee of effective counsel. The failure of Muennink's trial counsel to verify that a complete record was being made in this case, however, does not fall below those minimum standards of advocacy and does not undermine our confidence in Muennink's conviction.
Finally, Muennink contends that his counsel's performance was deficient because his attorneys failed to object when he was excluded from a pre-trial hearing on a motion to quash a subpoena. Again, however, we believe that Muennink has failed to carry his burden of rebutting the presumption that his "counsel's conduct falls within the wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. It was within the range of counsel's professional judgment to conclude that Muennink's presence, and, therefore, an objection to his exclusion, were not necessary with regard to this pre-trial hearing.
Because we conclude that the totality of Muennink's representation at trial does not amount to ineffective assistance, Muennink's first and second points of error are overruled.
Exclusion of Muennink from Pre-trial Hearing
In his third point of error, Muennink argues that it was error for the trial court to exclude him from a pre-trial hearing on a motion to quash a subpoena. The motion to quash the subpoena was filed by the subpoenaed witness, Mr. Tom Bracey. An inchambers meeting was held in Muennink's absence between the trial judge, the prosecutor, and defense counsel. Muennink attempted to attend the in-chambers meeting, but the trial judge indicated that the conference was for attorneys only. Subsequently, a written order was entered reciting that a motion to quash "came on to be heard" on the day of the in-chambers meeting, and that the motion was granted. Muennink claims that his exclusion from this hearing violated Articles 28.01 and 1.05 of the Texas Code of Criminal Procedure, as well as Article I, Section 10 of the Texas Constitution.
The Texas Court of Criminal Appeals has held that, under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution, there is an absolute requirement within the scope of the right of confrontation that "a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, ... absent a waiver of that right through defendant's own conduct..." Baltierra v. State, 586 S.W.2d 553, 556 (Tex.Crim.App.1979). Articles 1.05 and 28.01 of the Texas Code of Criminal Procedure also address the necessity of the defendant's presence at pre-trial proceedings. Article 1.05 states that "[i]n all criminal prosecutions the accused shall have ... the right of being heard by himself, or counsel, or both ..." TEX.CODE CRIM. PROC. ANN. art. 1.05 (Vernon 1981). Article 28.01, section 1, provides that "[t]he defendant must be *683 present at the arraignment, and his presence is required during any pre-trial proceeding." Id. art. 28.01, § 1.
Applying these principles to the instant case, two lines of inquiry are necessary to determine whether Muennink was improperly excluded from a pre-trial proceeding. The first is whether the events that transpired in Muennink's absence qualify as a "proceeding" for the purposes of Article 28.01. The second is whether Muennink was harmed by his exclusion from the in-chambers meeting.
In resolving the first question, several decisions of the Texas Court of Criminal Appeals are instructive. The first case to address the meaning of the term "proceeding" for purposes of Article 28.01 was Riggall v. State, 590 S.W.2d 460 (Tex.Crim.App. 1979). In Riggall, the court noted that "Article 28.01 does not speak to hearings alone but mandates the appearance of a defendant at `any pretrial proceedings.'" Id. at 461. The order involved in Riggall denied the defendant's motion to dismiss, stated that it was heard on a specified day, and recited findings of fact and conclusions of law. Id. The court of criminal appeals determined that the recitations in the order indicated that some sort of proceeding had taken place at which the defendant should have been present. Id. Conversely, in Malcom v. State, 628 S.W.2d 790 (Tex.Crim.App.1982), the court decided that there had been no proceeding where the defendant's motion was overruled by a notation on the docket sheet, rather than by a written order indicating that some sort of proceeding had been held prior to the court's conclusions. Id. at 792. Finally, in Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994), the court of criminal appeals held that an in-chambers, pre-trial meeting in which the trial judge overruled a motion by the defense, granted a request by the defense to make a bill of exceptions, and gave instructions regarding jury shuffling, strikes, and publicity constituted a pre-trial proceeding within the meaning of Article 28.01. Id. at 219.
Although the in-chambers meeting in this case differs slightly from that in Riggall and Adanandus because this was not a hearing on a motion filed by Muennink or his attorneys, we hold that the meeting was a "pre-trial proceeding" within the meaning of Article 28.01. The order entered denying the motion to quash the subpoena in this case clearly indicated that some sort of proceeding had taken place, and Muennink should have been present during that proceeding. Accordingly, the trial court erred in conducting the in-chambers meeting in Muennink's absence. The next issue to be resolved is whether the error was harmless.
The court of criminal appeals has provided the following guidance regarding the proper harm analysis when the defendant is excluded from pre-trial proceedings:
Prior to the enactment of Rule 81(b)(2), we held that where the presence of the defendant does not bear "a reasonably substantial relationship to the opportunity to defend" no harm is shown by his absence.... The reasonably substantial relationship test is essentially a harm analysis, although it differs from Rule 81(b)(2).... Because the reasonably substantial relationship test predated Rule 81(b)(2), the issue arises as to whether or not it has been replaced by Rule 81(b)(2). The reasonably substantial relationship test seeks to determine the effect of the defendant's absence on the advancement of his defense, as opposed to Rule 81(b)(2) which seeks to determine the effect of the defendant's absence on the outcome of the trial or punishment proceeding. In light of the distinct focus of the two tests, we hold that Rule 81(b)(2) does not supplant the reasonably substantial relationship test, but rather should be applied in addition thereto.
Adanandus, 866 S.W.2d at 219-20. The Adanandus court ultimately concluded that no harm or prejudice was shown as a result of the defendant's absence because the defendant was represented by counsel at the meeting, the defendant's personal insight was not required to assist the court in ruling on the issues raised, and there was "no evidence that [the defendant] had any information, not available to the attorneys or the court, regarding any of the matters discussed at the *684 meeting." Id. at 220; see also Lawton v. State, 913 S.W.2d 542, 550 n. 4 (Tex.Crim. App.1995) (en banc).
Muennink was represented by his two attorneys at the in-chambers meeting. Although Muennink states in his brief that his testimony "obviously" would have been helpful in demonstrating why the motion to quash the subpoena should have been denied, there is no evidence that Muennink had any information not already available to his attorneys or the court that was relevant to the motion discussed at the meeting. Muennink has failed to demonstrate how his presence could have furthered his defense. Because Muennink's presence did not bear a "reasonably substantial relationship to the opportunity to defend," we find that no harm or prejudice has been shown as a result of his absence. See Cooper v. State, 631 S.W.2d 508, 512 (Tex.Crim.App.1982); Mares v. State, 571 S.W.2d 303, 307 (Tex.Crim.App.1978).[4] Moreover, we conclude beyond a reasonable doubt that Muennink's absence from the inchambers meeting made no contribution to his conviction or punishment. See TEX. R.APP. P. 81(b)(2).
Muennink's third point of error is overruled.
Right to Compulsory Process for Obtaining Witnesses
In his fourth and fifth points of error, Muennink contends that the trial court erred in denying him his right to compulsory process for obtaining witnesses in violation of the Texas and federal constitutions. Muennink argues that, by granting the motion to quash the subpoena of Bracey, the trial court unconstitutionally deprived him of the relevant testimony of a material witness.
Article I, Section 10 of the Texas Constitution provides that criminal defendants have a right to "compulsory process for obtaining witnesses." TEX. CONST. art. I, § 10. Further, the Texas Court of Criminal Appeals has recognized that "the right of an accused to have compulsory process for obtaining witnesses in his behalf as guaranteed by the Sixth Amendment is so fundamental and essential to a fair trial that it is incorporated in the due process clause of the Fourteenth Amendment and is applicable to state trials." Brito v. State, 459 S.W.2d 834, 837-38 (Tex.Crim.App.1970) (citing Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)); see also Hardin v. State, 471 S.W.2d 60, 62 (Tex.Crim.App. 1971). The right to compulsory process, however, is not absolute; rather, it is addressed to the trial court's discretion. Drew v. State, 743 S.W.2d 207, 225 n. 11 (Tex.Crim. App.1987) (en banc) (citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Ross v. Estelle, 694 F.2d 1008 (5th Cir.1983)). Accordingly, a claim that the trial court improperly quashed a subpoena is reviewed for an abuse of discretion. Id.; Coleman v. State, 915 S.W.2d 80, 83 (Tex.App.Waco 1996, pet. granted).
In this case, we are unable to determine if the trial court abused its discretion in granting the motion to quash the subpoena of Mr. Bracey because Muennink has failed to present this court with a statement of facts from the hearing on the motion to quash. The burden is on the party seeking review to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP. P. 50(d); State v. Pierce, 816 S.W.2d 824, 831 (Tex.App.Austin 1991, no writ). In the absence of a record of the hearing on the motion to quash, we must presume that the ruling of the trial court was correct and that the evidence supported the court's decision to quash the subpoena. See Hardin, 471 S.W.2d at 63. Muennink's fourth and fifth points of error are overruled.
The judgment of the trial court is in all things affirmed.
NOTES
[1] Section 9.41 of the Texas Penal Code provides:
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, moveable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
TEX. PENAL CODE ANN. § 9.41 (Vernon 1994).
[2] Section 9.04 states:
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
TEX. PENAL CODE ANN. § 9.04 (Vernon 1994).
[3] Section 1.07 defines "reasonable belief" and reads as follows:
(42) "Reasonable belief" means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.
TEX. PENAL CODE ANN. § 1.07(42) (Vernon 1994).
[4] Both Cooper and Mares involved violations of TEX.CODE CRIM. PROC. ANN. art 33.03, which requires the defendant's presence at trial. The court of criminal appeals held in Adanandus that the same rationale is applicable to violations of Article 28.01. Adanandus, 866 S.W.2d at 219-20.
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733 F. Supp. 1324 (1990)
Craton LIDDELL, et al., Plaintiffs,
v.
BOARD OF EDUCATION OF the CITY OF ST. LOUIS, MISSOURI, et al., Defendants.
No. 72-100 C (5).
United States District Court, E.D. Missouri, E.D.
January 12, 1990.
William P. Russell, Joseph McDuffie, St. Louis, Mo., for Liddell plaintiffs.
Michael A. Middleton, Columbia, Mo., William L. Taylor, Washington, D.C., Wayne C. Harvey, Caldwell Harvey Hughes McHugh & Singleton, St. Louis, Mo., for Caldwell/NAACP plaintiffs.
Kenneth C. Brostron, Lashly Baer & Hamel, St. Louis, Mo., for City Bd. defendants.
Michael J. Fields, Bart A. Matanic, Asst. Missouri Attys. Gen., Jefferson City, Mo., John J. Lynch, Asst. Missouri Atty. Gen., St. Louis, Mo., David R. Boyd, Sutherland Asbill & Brennan, Washington, D.C., for State of Mo., defendants.
Andrew J. Minardi, Joseph D. Ferry, St. Louis, Mo., for St. Louis County defendants.
Shulamith Simon, Husch Eppenberger Donohue Cornfeld & Jenkins, St. Louis, Mo., for Court-Appointed amicus curiae.
Craig M. Crenshaw, Jr., Jeremiah Glassman, U.S. Dept. of Justice, Civ. Rights Div., Washington, D.C., for U.S.
James J. Wilson, St. Louis City Counselor, St. Louis, Mo., for City of St. Louis.
Anthony J. Sestric, Sestric & Cipolla, St. Louis, Mo., for St. Louis Collector of Revenue.
Charles Werner, St. Louis, Mo., for Missouri NEA.
Charles R. Oldham, St. Louis, Mo., for St. Louis Teachers Local Union 420.
Henry D. Menghini, Robert J. Krehbiel, Evans & Dixon, St. Louis, Mo., for St. Louis County School Districts Affton & Lindbergh.
Darold E. Crotzer, Jr., St. Louis, Mo., for Bayless, Jennings, Normandy & Wellston.
Bertram W. Tremayne, Jr., Tremayne Lay Carr Bauer & Nouss, St. Louis, Mo., for Kirkwood & University City.
Frank Susman, Susman Schermer Rimmel & Parker, St. Louis, Mo., for Ferguson-Florissant.
George J. Bude, St. Louis, Mo., for Brentwood, Clayton & Hancock Place.
Robert P. Baine, Jr., St. Louis, Mo., for Hazelwood.
Robert G. McClintock, St. Louis, Mo., for Ladue.
Richard H. Ulrich, Summers Compton Wells & Hamburg, St. Louis, Mo., for Maplewood-Richmond Heights.
John Gianoulakis, Kohn Shands Elbert Gianoulakis & Giljum, St. Louis, Mo., for Mehlville, Pattonville & Ritenour.
Donald J. Stohr, James W. Erwin and R.J. Robertson, Thompson & Mitchell, St. Louis, Mo., for Parkway.
*1325 Edward J. Murphy, Jr., Garry K. Seltzer, St. Louis, Mo., for Riverview Gardens.
Douglas A. Copeland, Robert W. Copeland, Copeland Gertner & Thompson, St. Louis, Mo., for Rockwood & Webster Groves.
Joseph Niemann, Eric Schmitz, Jordan Cherrick, Armstrong Teasdale Schlafly Davis & Dicus, St. Louis, Mo., for St. Louis County Special.
Kenneth V. Byrne, Schlueter & Byrne, St. Louis, Mo., for Valley Park.
ORDER
LIMBAUGH, District Judge.
For over seven long years parents, students, and vocational education staff have endured substandard vocational-education programs while the Court and the parties have struggled with desegregating the present dual-vocational-education system.[1] Schools were closed, staff transferred back and forth among schools, programs eliminated and programs shifted around. Nothing seemed to be working. Enrollments continued to plunge and racial numbers virtually remained unchanged.
Pursuant to the remand of Liddell XI, a hearing was held on the 12(b) Phase III plan with a decision to be made after the hearing on the long range magnet proposal.[2] Subsequently, as part of the comprehensive magnet plan, the Court determined that the most optimal use for O'Fallon, the premier vocational education school in the City, was as the Gateway Magnet, incorporating certain vocational-education programs into a math/science/high technology magnet program. See, L(2090)88.
After this decision was made, the Court turned its attention to the remaining vocational-education schools and the problem of who should administer a comprehensive vocational-education system for metropolitan St. Louis students. For the reasons stated in Order L(2293)89, the Court decided the St. Louis Community College was best qualified to develop and administer a new secondary vocational-education system. The Special School District, the City Board and the State thought otherwise and instead of focusing upon the best interests of the students, chose to protect their own proprietary interests by embarking upon a crusade to sabotage the Community College's efforts to gather information and formulate a vocational-education plan which addressed the students' needs and this Court's concerns. On the eve of a hearing[3] to consider the Community College's plan, the Community College asked to withdraw its participation from this case due to the substantial amount of hostility generated by the parties mentioned. It felt its reputation and goodwill in the St. Louis community were being jeopardized by this negativism.
So now we are back to square one. The remaining parties' positions have not changed. The City Board and the Special School District have filed revised plans with essentially the same promises of change.[4] The Metropolitan Coordinating Committee (MCC) has also filed a Phase IV 12(b) plan, but no one of these plans has been particularly impressive.
The proposals are all self-explanatory as to how the respective parties intend to create a desegregated secondary vocational-education system. On paper, the proposals all look adequate. The problem lies with this Court's profound lack of confidence in either the City Board or the Special School District's ability to manage a secondary vocational-education system which meets the needs of all students and parents, wherever they may reside. Furthermore, neither district has ever (at least not in the *1326 last seven years) shown the slightest interest in renovating an antiquated vocational education system. They have persisted in maintaining programs and equipment totally unsuitable to meet the challenges of 21st century technology.
The City Board wants O'Fallon as the only secondary vocational-education school available to metropolitan St. Louis students, to be designated the AVTS[5] for the City and County. It proposes that all programs be consolidated at O'Fallon and that the State provide funds for renovation. The City Board would be solely responsible for programming and staffing. Start-up and capital costs would be paid by the State; operating costs would be paid through City Board's routine budget sources plus the present amount of local tax revenue the Special School District receives and uses for vocational-education. L(2573)89.
The Special School District wants sole control and authority to staff and program South County Tech, North County Tech and West County Tech (reopened). It will conduct a feasibility study on the issue of a limited city secondary vocational-education site. There will be no city representation in the Special School District administration or school board; however, a grievance procedure will be instituted for complaints by city students and parents. There are promises of reviews of curriculum and instructional materials by the newly appointed Assistant Superintendent of Vocational-Education. Start-up and capital costs would be paid by the State. Operating costs will be reimbursable to the Special School District by the City Board and/or the State based upon a "local tax effort per student" formula for city students at a county site or a city site.
The dilemma the Court finds itself in is due partly to its concern for the welfare of all vocational-education students, especially city students, and partly to its concern for fiscal responsibility. The Court has serious reservations about each districts' commitment and ability to develop and provide programs able to meet sophisticated and specialized industry demands, equip schools with modern machinery, and staff schools with persons qualified to instruct students in an integrated vocational facility.
The City Board is presently faced with numerous administrative and educational problems. It would be impractical to add to the struggles by turning over the entire secondary vocational-education system to the City Board. It is barely able to address the needs of its own students. The present superintendent has suggested he will not attempt to have his contract renewed after it expires in June of 1991. The hostilities among the board members have prevented them from making and carrying out the simplest decision which at times has rendered the Board impotent. The City Board as an entity and its administrators have consistently carried out a policy of community aloofness which has angered a great number of parents, students and teachers. The school system is well known for its historical inability to make curricular and staff improvements. The St. Louis city voters have consistently failed to pass a school bond issue since 1962. At some point, the City Board will have to increase its tax revenue in order to meet the vocational-education needs of its resident students and the additional county students. If school bond issues continue to fail passage, the financial strain on the city school system could be catastrophic. The Court cannot risk the education of county children on the extremely weak financial support of the city voting populace.
However, neither is the Special School District an acceptable candidate. It has had eight superintendents in thirteen years and has only recently replaced its last superintendent. The Special School District's first priority, as it should be, is its special-handicapped students. It is in this area that the District has expertise. It appears, therefore, on occasion the District has been inclined to use vocational-education programs to support special education needs. Since the inception of 12(b), the Special School District has never demonstrated any *1327 desire to improve existing programs, change programs, or modify its curriculum in any way to meet contemporary industry and student needs, except perhaps, its recent appointment of a black Assistant Superintendent for Vocational-Education. Nonetheless, the main focus of the District is on special education, generally for handicapped students and not on vocational education.
What makes the Court's ultimate decision more difficult is that 12(b) involves a relatively small number of students, especially city students (black and white). According to the MCC's latest figures, L(2656)89, there are approximately 2,140 students enrolled in the secondary vocational-education system. Of this total number, there are 416 black city vocational-education students, 107 of which attend county vocational education schools, with the balance of 309 students attending O'Fallon. There are 157 white city vocational education students, 35 of which attend O'Fallon[6] and approximately 122 enrolled in the county vocational-education schools. Thus, only 573 of the 2,140 total vocational education students live in the city and of this number, only 344 attend the city located school at O'Fallon. 380 county students attend O'Fallon and the balance go to North and South in the county.
The City Board wants O'Fallon back as the only secondary vocational-education school. O'Fallon has the building capacity[7] to accommodate all presently enrolled students plus a few hundred more, but no matter what is done, O'Fallon fails to attract a substantial number of county students. No amount of money and wishful thinking will change that fact. The two currently operating county facilities (North and South County Tech) are grossly under-enrolled. Knowing full well that attracting white county students to a city facility will be a very difficult task, the Special School District pays only lip service to the need of a city site for secondary vocational-education. It feels that a vague "vocational presence" in the city is enough. It is not enough. Although their numbers are few, black city vocational-education students are entitled to more than a token city site.
Everyone appears to agree that a single governing entity for secondary vocational-education in metropolitan St. Louis is the best way to administer a stable, integrated vocational educational system. The Court has no quarrel with this contention. In fact, the Court goes on record as believing that the Community College offered the best plan and hope for a quality integrated vocational-education secondary system. Unfortunately, the Community College's efforts (as well as the Court's) were effectively sabotaged by the self-serving interests of the parties. Assuming arguendo, that the Court prefers a single governance structure, but not with either the City Board or Special School District as the governing entity, there really are only a few options left.
The Court could create an entirely new independent school district, encompassing St. Louis city and county. The new school board would be designated as the AVTS provider for St. Louis city and county. This board would have total authority for the operation of the current vocational-education system. The new district would be divided into electorial subdistricts utilizing the current community college district boundaries. The initial board members probably would consist of four independent MCC members and two board members, nominated by the Special School District and the City Board. Eventually these initial board members would be replaced through a subdistrict electoral process. Details of operating the vocational-education system would be worked out between the Court and the new district's board.
A second option would be to expand the powers and scope of the MCC. It would be *1328 given legal authority to control operation of the secondary vocational-education system. This "new" MCC would have authority to contract with other individuals or entities for personnel, facilities, services, etc. It would employ and supervise all instructional personnel and support staff. The independent members would remain and party representatives would be replaced over time through a sub-district electoral process. Details of operating the vocational-education system would be worked out between the Court and this "new" MCC.
Neither of these two options appeals to the Court because of the enormous time it would take to create a new independent vocational-education school district. There would no doubt be never-ending disagreements as to who would serve on the new board, what facilities would be used, how to finance the new district, and how to staff the new district. It would no longer be just debate among the City Board, Special School District and the State, but now would include active input from all the individual county school districts. As is the historical trend in this case, appeals over every issue decided by this Court would further delay the implementation of stable, viable integrated vocational training for students in the St. Louis metropolitan area.
The truth of the matter is that an incredible amount of time and money has been expended in trying to integrate an alternative school system comprised of a relatively small number of students. Frankly, whether or not approximately 2,100 students attend two or three integrated or non-integrated vocational-education schools has little significant impact upon desegregation. The real problem is that these children are not getting a quality solid education in regular academics and vocational training. The theory has always been that integration would bring better education, but that theory simply is not working in vocational-education. It is definitely time for a new theory. Instead of focusing upon integration, this Court is now focusing on better education for it believes that better educational opportunities will bring integration.
Just as regular school students may transfer to city or county schools or magnets under 12(c), there is no reason that vocational-education students, city and county, cannot choose a school for themselves. All students desiring a vocational education should be able to obtain it. Under the present system, racial quotas and non-duplicative programming (i.e. a program offered at one site only) has only served to inhibit students from choosing a vocational education. More often than not, a potential vocational-education student will either stay in the home district or drop out of school altogether rather than attend classes in a school not to his or her liking.
What the Court proposes is a restructured vocational-education system based upon choice and competition. A shift in strategy is necessary to foster school improvement and student learning. In order for changes to be effective and long-lasting, they must spring from a district's own desire to respond to new challenges. Up to now, neither the City Board nor the Special School District has felt any real need to implement new or creative ways to meet the needs of vocational-education students. Choice and competition are the incentives this Court believes will spur educational excellence.
The Special School District and the City Board are each going to be responsible for the operation of a secondary vocational-education school. Just as the county districts "compete" for transfer students under 12(c), the Special School District and City Board will "compete" for vocational-education students. Each of these parties will have complete control over programming and staffing. Simply stated, the Special School District and City Board now have the chance to put into action the promises they have made on paper.
The Court has not arbitrarily jumped on the "school by choice" bandwagon. Choice is not a foreign concept to the St. Louis case. This concept is central to implementation of the 12(c) Plan. It is now being applied to the 12(b) Plan. However, just as *1329 the 12(c) Plan has certain conditions attached, so does the 12(b) choice plan.
It is hoped that choice under the 12(b) plan will encourage increased innovation in educational programming, better responsiveness by school administrators, better student and teacher performance, and increased commitment by students and parents. Choice is a strategy that will force reform within the present vocational-education system. Competition makes for better accountability. Choice empowers parents and students to control their own educational destiny and in so doing creates incentives for schools and/or districts to attract students and sanctions for failing to retain them.
The 12(b) choice plan will be a controlled-choice plan. To insure that all vocational-education students have access to schools of acceptable quality, special provisions to protect racial balance will be put in place.
The Special School District will retain ownership and control of North County Tech and South County Tech. It will equip, staff and implement programs in these schools as it sees fit to meet national, community and individual educational needs. These schools will attain and maintain a racial balance of 50% black/50% white with an allowable variance of ± 5%. The Special School District will institute a faculty plan similar to the one contained in the 12(c) Settlement Agreement.
The City Board will renovate Southwest as a secondary vocational-education facility. The renovation costs of Southwest will be divided equally between the State and the City Board. Representatives of the State, City Board and MCC will jointly tour and consider the work necessary to renovate Southwest. Although Southwest shall be a modern facility capable of meeting the present and future needs of vocational-education students, the Court strongly advises the State and City Board to be realistic regarding cost. In order to insure objectivity, the MCC will monitor the renovation work and costs. The City Board will equip, staff and implement programs at Southwest as it sees fit to meet national, community and individual education needs. Southwest will attain and maintain racial balance of 60% black/40% white with an allowable variance of ± 5%. The City Board shall also implement a faculty plan similar to the one contained in the 12(c) Settlement Agreement.
The MCC's present membership structure will remain the same; however, its duties will change. The MCC will act in the same capacity for 12(b) as VICC does for 12(c). The MCC shall supervise recruitment, counseling and placement of vocational-education students; coordinate dissemination of information on available programs to the community; assist in developing and implementing an effective and safe transportation system; develop and implement student grievance procedures; assist in staff development and in-service training activities in order to prepare and continually assist staff to function in integrated settings; and generally perform such other monitoring activities as are necessary to effectively implement 12(b). Although placement of instructive and non-instructive staff will be the responsibility of the respective districts, the MCC shall develop and implement a teacher exchange program. Furthermore, the MCC shall report annually to the parties and the Court progress being made in implementing 12(b). This report shall include information including, but not limited to, student transfers; teacher exchanges; recruitment; counseling and placement efforts; student placement and modifications and disciplinary actions regarding transfer students. The MCC shall develop procedures necessary to gather relevant data, evaluate implementation process, and identify problem areas to be targeted for special intervention or additional revenues.
The Special School District and the City Board will retain their individual authority for the local tax presently collected for vocational programming. Each district is responsible for its own vocational-education operating and capital budget. The MCC shall prepare an annual budget for its operation for approval by the parties and the Court as it has always done in the past. *1330 The State will be responsible for 100% of transportation costs for transfer students.
The Special School District and the City Board will each prepare a staffing plan for certified teaching personnel, administrative and support staff personnel, and non-certified staff personnel. However, these staffing plans will not be implemented until such time as Southwest High School is renovated and operational as a vocational-education school. Meanwhile, all vocational education employees currently assigned will remain in their respective positions. Employees directly displaced by the relocation of programs from O'Fallon shall have the option of either being placed on the seniority lists of Special School District or the City Board for purposes of employment. Former employees of the City Board who are employed by the Special School District shall be subject to the policies and regulations of the Special School District; however, such persons shall not suffer a reduction in salary or seniority upon initial reassignment, but the Special School District may, with court approval, devise a system by which former City Board employees and their Special School District counterparts eventually achieve salary parity. Former employees of the City Board hired by the Special School District may elect to remain in the City Board's retirement system or join the Missouri State Teacher's Retirement System. The Special School District shall make the required contributions according to the former City Board employee's elected retirement system.
Equipment and support material at O'Fallon not required for the programs remaining as part of the Gateway Magnet will be relocated to Southwest at cost to the State. This equipment will be owned by the City Board. Other than the initial relocation of some equipment to Southwest, the City Board and Special School District shall bear all costs to equip their schools.
As stated before the MCC will remain intact albeit responsible now for providing monitoring activities for the Court. The need for the Bi-Racial Monitoring Team (BRMT) and Vocational Education Advisory Council (VEAC) no longer exists and these two entities will be eliminated.
What the Court has just outlined is its basic requirements for a change in the operation of the 12(b) plan. The Court realizes that there will be at least an interim period of instability until Southwest is operational as a secondary vocational-education school. However, the Court believes that in the long run, its decision will facilitate a quality integrated vocational education for all St. Louis children who desire one.
The ultimate success of 12(b) as always remains hinged on the cooperation of the parties. Vocational education has suffered greatly due in large part to the selfish interests of the parties. Equipment and buildings became more important than the educational needs of the students involved. The Court has chosen this direction because of the adamant cries of the City Board and the Special School District to retain control of vocational-education. This is not the direction the Court would have liked to have pursued, but is willing to give it a try as long as the parties cooperate. In the alternative, the Court will not hesitate to merge the two vocational education systems into one system managed by a newly created (and court-appointed) school board if the parties persist in resisting the implementation of court orders.
The Court concedes that this new 12(b) plan is rough and requires some fine tuning, especially with regard to an interim period before the Special School District and the City Board can operate their respective vocational education schools autonomously. Therefore, the Court will meet with counsel for the City Board, Special School District, State of Missouri, teachers' unions, plaintiffs, United States, Dr. Beacham and any other party in the case desiring to attend on Wednesday, January 24, 1990 at 5:00 p.m. in chambers to discuss only the implementation of 12(b) as outlined in this order.
NOTES
[1] For a general history of the vocational-education dispute, see Liddell V, 677 F.2d 626 (8th Cir.1982) and Liddell XI, 822 F.2d 1446 (8th Cir.1987).
[2] A hearing on vocational-education issues was held before the Court on November 2, 1987 through November 6, 1987 and November 9, 1987 through November 10, 1987.
[3] A hearing on the Community College's plan had been scheduled for June 5, 1989.
[4] See the docket sheets for a complete listing of all vocational-education proposals and responses thereto from 1987-1989.
[5] Area Vocational Technical School.
[6] The breakdown of black students and white students, city and county, are approximate figures. Transfer students who also attend vocational-education classes are considered applicants from the transferee district, i.e. a black city student attending a Parkway school and a vocational-education school is listed as a Parkway applicant by the MCC.
[7] See court order L(1269)87.
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933 S.W.2d 370 (1996)
326 Ark. 564
William George Edward WEBER, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 96-706.
Supreme Court of Arkansas.
November 11, 1996.
*371 Richard R. Parker, Harrison, for appellant.
Sandy Moll, Asst. Atty. General, Little Rock, for appellee.
*372 NEWBERN, Justice.
William George Edward Weber was convicted of rape in violation of Ark.Code Ann. § 5-14-103(a)(3) (Repl.1993) upon evidence that he engaged in deviate sexual activity with a person less than fourteen years of age. He was sentenced to sixty years' imprisonment as an habitual offender. The charge arose from allegations that Mr. Weber engaged in fellatio and other sexual misconduct with an eight-year-old child.
Mr. Weber contends that the evidence was insufficient to support the conviction and that his motion for a directed verdict should have been granted. He also argues that a written statement made by the victim should not have been admitted into evidence because it had not been furnished to him by the prosecution prior to trial and was admitted in violation of the hearsay rule. In addition, he argues a statement made to an investigating officer should not have been admitted into evidence. He also questions the Trial Court's refusal to instruct on first-degree sexual abuse as a lesser included offense.
We hold that it was not error to overrule the directed verdict motion and that the admission of the child's written statement was harmless because it was cumulative of other evidence. We also hold Mr. Weber's statement to the investigating police officer was admissible because it was spontaneous, and we conclude that first-degree sexual abuse is not a lesser included offense of rape. The judgment is affirmed.
1. Sufficiency of the evidence
The victim testified about instances in which fellatio had occurred and about an instance in which Mr. Weber placed his finger in her anus. The mother of the victim stated Mr. Weber sometimes stayed overnight at her home and had opportunities to engage in the conduct alleged. She knew nothing of it until she came home unexpectedly on the evening of May 29, 1995, entered a bedroom, and found her daughter with her pants down and leaning over a bed. Mr. Weber came from behind a door looking nervous and said he had been examining the child for tick bites. The child said Mr. Weber had told her he intended to place his penis in her anus, and she then revealed the other conduct which led to the charge. The mother testified that Mr. Weber admitted his acts with the child to her but said the child "started it." She testified that, after Mr. Weber became aware that she had notified the police, he admitted his guilt and said something like, "I'm busted ain't I?"
In arguing that the evidence is insufficient, Mr. Weber points to inconsistencies in the child's and the mother's statements. While that argument could have affected the jury's assessment of the credibility of the witnesses, it does not provide a reason for us to hold the Trial Court erred in refusing to grant a directed verdict in favor of Mr. Weber.
Mr. Weber argues further that the evidence was insufficient because a medical report resulting from an emergency room examination of the child did not indicate that the child had suffered any physical injuries and showed no physical abnormality.
The evidence was sufficient that Mr. Weber engaged in deviate sexual activity with the child. "Deviate sexual activity" is defined as
any act of sexual gratification involving: (A) The penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) The penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person.
Ark.Code Ann. § 5-14-101(1) (Repl.1993).
As we have repeatedly held, "The uncorroborated testimony of a child rape victim is sufficient evidence to sustain a conviction." Caldwell v. State, 319 Ark. 243, 246, 891 S.W.2d 42 (1995). See Gunter v. State, 313 Ark. 504, 509, 857 S.W.2d 156, cert. denied 510 U.S. 948, 114 S. Ct. 391, 126 L. Ed. 2d 339 (1993); Jones v. State, 300 Ark. 565, 566, 780 S.W.2d 556 (1989); Winfrey v. State, 293 Ark. 342, 351, 738 S.W.2d 391 (1987).
2. Statement to police
On the evening mentioned above when the child's mother discovered the child and Mr. Weber in a compromising position, the mother *373 called the police. Officer Marc Arnold of the Harrison Police Department was sent to the residence where he encountered Mr. Weber outdoors nearby. Officer Arnold knew only that he was to investigate a child abuse case, and he had no knowledge that Mr. Weber was the accused. Officer Arnold greeted Mr. Weber, and Mr. Weber's response was "Man, I've really messed up." The officer testified he then informed Mr. Weber of his rights and stayed with him until backup officers arrived. Officer Arnold then went into the house and spoke with the mother and child while another officer stayed outside with Mr. Weber.
Mr. Weber asserts that his statement should have been suppressed because it was made in the context of a custodial interrogation and without the benefit of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Mr. Weber further argues that the State failed to show that he made a voluntary and intelligent waiver of his right to remain silent.
In considering whether Mr. Weber's statement was properly admitted, "we evaluate the totality of the circumstances and reverse only if the trial court's finding is clearly against the preponderance of the evidence." Day v. State, 306 Ark. 520, 525, 816 S.W.2d 852 (1991). In denying Mr. Weber's suppression motion, the Trial Court found that Mr. Weber made the incriminating statement in response to Officer Arnold's greeting or salutation and that the statement was not elicited by police questioning. Although Mr. Weber does not dispute that finding, he insists that reversal is nonetheless required because (1) he made the statement before receiving Miranda warnings; (2) he did not feel "free to leave" and therefore was in police custody at the time he made the statement; and (3) he may have made the statement while under the influence of drugs and alcohol.
Even if those assertions are true, "the important point," in the words of Justice George Rose Smith, is that Mr. Weber "was not being interrogated as a suspect, with respect to his possible guilt, when the statements were made." Lacy v. State, 271 Ark. 334, 335, 609 S.W.2d 13 (1980). Although Mr. Weber argues that the statements made prior to his arrest should be suppressed because he was not advised of his Miranda rights, the Miranda warning is not required unless the statements were a result of custodial interrogation. The Miranda warning is not required for voluntary, spontaneous statements. Ward v. State, 308 Ark. 415, 421, 827 S.W.2d 110 (1992). A spontaneous statement is admissible because it is "not compelled or coerced in any way significant under the Fifth Amendment's privilege against self-incrimination." Stone v. State, 321 Ark. 46, 53, 900 S.W.2d 515 (1995).
The record leaves no doubt that Officer Arnold was not interrogating Mr. Weber when he made the incriminating statement. According to the United States Supreme Court,
the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980). It is undisputed that Officer Arnold posed no express questions to Mr. Weber that could have elicited his incriminating statement. It is also undisputed that Mr. Weber was not "subjected to the `functional equivalent' of questioning," as discussed in the Innis case. Officer Arnold could not have known that his simple greeting was reasonably likely to trigger an inculpatory response on the part of Mr. Weber. It was not error to refuse to suppress the statement.
3. The written statement
A counsellor who worked with the victim asked that she write about the events with Mr. Weber. The child prepared such a statement, and the prosecution offered it as evidence at the trial. It was received as an exhibit. Mr. Weber argues the written statement should not have been received into evidence because his counsel had not been *374 furnished a copy of it prior to trial as required by his discovery motion and because it is hearsay. Ark.R.Evid. 801, 802.
Any error which may have occurred in the admission of the exhibit was harmless. As abstracted by Mr. Weber, the written statement contained the same information to which the child victim testified in person at the trial. The written statement was, therefore, merely cumulative of evidence which was admitted without objection.
When hearsay evidence is erroneously admitted, we will not reverse if it is "cumulative to other evidence admitted without objection." Zufari v. Architecture Plus, 323 Ark. 411, 420-21, 914 S.W.2d 756 (1996). See Luedemann v. Wade, 323 Ark. 161, 913 S.W.2d 773 (1996); Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). See also Williams v. Southwestern Bell Tel. Co., 319 Ark. 626, 631, 893 S.W.2d 770 (1995).
The same is true with respect to evidence which may not have been provided to the defendant in violation of the State's obligation under Ark.R.Crim.P. 17.1(a)(v). There was a dispute between Mr. Weber's counsel and the prosecutor over whether the statement had been in the prosecutor's file which had been open to inspection by the defense. Even if we were to assume that the State had improperly failed to provide the statement to the defense, we would affirm in this instance.
When evidence is not disclosed pursuant to pretrial discovery procedures, the burden is on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial.... The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor's failure to disclose; absent a showing of prejudice, we will not reverse.
Burton v. State, 314 Ark. 317, 319, 862 S.W.2d 252 (1993).
In view of the fact that the abstract of the record reveals that the written statement was not different in any significant detail from the oral testimony of the victim, which was received without objection, we cannot say that Mr. Weber was prejudiced by its admission into evidence.
4. Lesser included offense
Mr. Weber argues the Trial Court erred in refusing to instruct the jury on the offense of first-degree sexual abuse, Ark.Code Ann. § 5-14-108(a)(3) (Repl.1993), as a lesser included offense of rape.
A defendant is entitled to an instruction on a lesser included offense if two conditions are satisfied. First, the proffered instruction must truly cover a lesser included offense." An offense is so included if: (1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged;...." Ark.Code Ann. § 5-1-110(b) (Repl.1993). As we said in Cozzaglio v. State, 289 Ark. 33, 38, 709 S.W.2d 70 (1986), an offense is not a lesser included offense of another if "[e]ach crime requires a different element of proof."
The second condition is that there must be "a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." § 5-1-110(c). We need not consider the rational basis requirement because we have concluded that first-degree sexual abuse, as it might have been proven in this case, and as Mr. Weber asked that it be described to the jury by his proffered instruction, contains an element not included in rape, and thus it is not a lesser offense included in the offense charged.
In considering Mr. Weber's contention, it is necessary to compare the elements of the offense charged with those of first-degree sexual abuse. As stated above, Mr. Weber was charged with rape based on the provision that, "A person commits rape if he engages in ... deviate sexual activity with another person: ... (3) Who is less than fourteen (14) years of age." § 5-14-103(a)(3).
The elements of first-degree sexual abuse which might have applied in this case are described as follows: "A person commits sexual abuse in the first degree if: ... (3) Being eighteen (18) years old or older, he engages in sexual contact with a person not his spouse *375 who is less than fourteen (14) years old." Ark.Code Ann. § 5-14-108(a)(3) (Repl.1993). "Sexual contact" is defined as "any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, or buttocks, or anus of a person or the breast of a female." § 5-14-101(8).
We have no case in which the Court has held that first-degree sexual abuse is, or is not, a lesser offense included in rape. We have, however, held that rape does not include certain degrees of carnal abuse because, unlike the rape provision, the carnal abuse statutes permit conviction only if the defendant is a certain age. See Ark.Code Ann. §§ 5-14-104(a) (Repl.1993) (stating accused must be "under the age of eighteen (18) years" to commit first-degree carnal abuse); 5-14-106(a) (stating accused must be "twenty (20) years old or older" to commit third-degree carnal abuse). Because the carnal abuse statutes contain an element not included in the rape statute (i.e., the accused's age requirement), we have concluded that certain degrees of carnal abuse are not included in the offense of rape. Bonds v. State, 310 Ark. 541, 543-44, 837 S.W.2d 881 (1992); Leshe v. State, 304 Ark. 442, 448, 803 S.W.2d 522 (1991); Kester v. State, 303 Ark. 303, 308, 797 S.W.2d 704 (1990); Sullivan v. State, 289 Ark. 323, 328-30, 711 S.W.2d 469 (1986).
By clear analogy to the carnal abuse cases, we hold that first-degree sexual abuse, as it might have been proven by the evidence in this case, is not a lesser included offense of rape because it contains an element (age of the perpetrator) not found in the rape statute. Therefore, Mr. Weber was not entitled to an instruction on first-degree sexual abuse under Ark.Code Ann. § 5-1-110(b) (Repl. 1993).
Before leaving this subject, we must point out that in obiter dicta we and the Court of Appeals have said from time to time that first-degree sexual abuse is a lesser included offense of rape. We said it in Bonds v. State, supra, and in at least four other cases. See Langley v. State, 315 Ark. 472, 473, 868 S.W.2d 81 (1994) (stating, where defendant was charged with rape, that "the trial court correctly charged the jury on the lesser included offense of sexual abuse"); Curtis v. State, 279 Ark. 64, 65, 648 S.W.2d 487 (1983) ("The jury also found the appellant not guilty of rape but guilty of the lesser included offense of sexual abuse in the first degree...."); Beed v. State, 271 Ark. 526, 547, 609 S.W.2d 898 (1980) (where defendant was charged with rape and Trial Court failed to instruct on first-degree sexual abuse, Supreme Court affirmed because there was no rational basis for the instruction; the Court did not dispute the contention that sexual abuse was included in rape); Speer v. State, 18 Ark.App. 1, 8, 708 S.W.2d 94 (1986) (stating first-degree sexual abuse is a lesser included offense of attempted rape but that "sexual abuse in the first degree is proven by a finding of the same or less than all of the elements of rape").
We note that first-degree sexual abuse may be proven by facts other than those evident in this case, and we decline to say that it may not be a lesser included offense in rape in any case. Our holding in this instance is solely that first-degree sexual abuse as defined in § 5-5-14-108(a)(3), the subsection upon which Mr. Weber wanted the Trial Court to instruct the jury, is not a lesser offense included in rape as charged here pursuant to § 5-14-103(a)(3).
Affirmed.
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933 S.W.2d 321 (1996)
Grace KEHLER, individually and on behalf of the Estates of Michael Trekell and Jayson Kehler, deceased, and Lester C. Trekell and June E. Trekell, Appellant,
v.
Harold EUDALY, M.D., Saint Joseph Hospital and John W. Koechel, Ph.D., Appellees.
No. 2-94-204-CV.
Court of Appeals of Texas, Fort Worth.
October 24, 1996.
Rehearing Overruled December 5, 1996.
*322 Darrell L. Keith, Sue S. Walker, Law Firm of Darrell L. Keith, P.C., Fort Worth, for appellant.
James G. Bennett, Bennett & Hall, L.L.P., Daniel R. Barrett, Fielding, Barrett & Taylor, Richard Griffith, Evelyn R. Leopold, Carol J. Traylor, Jordan M. Parker, Cantey & Hanger, L.L.P., Franklin Moore, Murphy, Moore & Bell, Don Driver, Fort Worth, for appellees.
Before DAY, LIVINGSTON and HOLMAN, JJ.
OPINION
LIVINGSTON, Justice.
In this appeal we must determine whether Texas law recognizes a cause of action based on a defendant's duty to protect third parties who are injured by an actor's criminal conduct. Appellants appeal from a summary *323 judgment entered by the trial court in favor of appellees, the defendants in the court below. Appellants sued the appellees for the death damages arising from the murders of Michael Trekell and his four-month-old son, Jayson Kehler, by James Bigby, who had been a patient of the doctors and hospital appellees at various times.
The suit was brought by Grace Kehler, Jayson's mother and alleged common-law wife of Michael Trekell, along with Michael's parents. The claims were asserted under the wrongful death and survival statutes, TEX. CIV. PRAC. & REM. CODE, §§ 71.001-71.011, 71.021 (Vernon 1986), against Bigby's medical providers, but not against Bigby. The trial court found that none of the defendants owed a duty to the victims and granted the defendants' summary judgment motions. We affirm.
FACTS
James Bigby and Michael Trekell had been friends since 1980. They shared an interest in auto mechanics and spent time at each other's homes. Michael and Grace met sometime in 1985 and began living together in 1986. Their son, Jayson, was born in August 1987.
Dr. Naifees Saifee, who was the Bigby family physician, had seen Bigby off and on for minor ailments from April 1979 to 1985. Bigby was an employee at Frito-Lay and was injured on the job in 1983. Bigby attempted to return to work but ultimately pursued a worker's compensation claim. Sometime in June 1985, Dr. Saifee saw Bigby for the job-related injury that caused lower back pain, headaches, rib and muscle injuries, cervical pain, and numbness in his arms. She referred him to a neurologist and an orthopedic surgeon for his physical conditions. In March 1986, she referred him to Dr. Allen Kent, an orthopedic surgeon for his back and neck pain. Later in September 1986, she referred him to a psychiatrist, appellee Dr. Harold Eudaly, for treatment of his depression. Dr. Eudaly first treated Bigby on September 3, 1986. He diagnosed Bigby as depressed and prescribed antidepressant medication. In August 1985, Dr. Saifee also referred Bigby to Dr. Lincoln Chin, a neurologist, because of the symptoms related to the job injury. He was simultaneously under the care of another orthopedic surgeon, Dr. John Stasikowski. The last time Dr. Saifee saw Bigby was on November 20, 1987.
Bigby's first hospitalization was on September 26, 1986 when he was admitted by Dr. Saifee to Saint Joseph Hospital for depression. His primary complaint was a burning sensation all over as a result of fumes from air vents during physical therapy. Dr. Eudaly was consulted and was the attending psychiatrist who diagnosed him with schizoaffective disorder with secondary diagnoses of back pain and severe headaches. While at Saint Joseph, he was also seen by Drs. Chin and Kent for pain. He was released by Dr. Eudaly on October 29, 1986 with a psychiatric diagnosis of acute schizoaffective disorder. On Bigby's release, Dr. Eudaly referred him to appellee Dr. John Koechel, a psychologist, for therapy and medication management sessions through about December 18, 1987. Dr. Koechel performed a psychological evaluation and diagnosed him with generalized anxiety disorder with passive-aggressive personality and antisocial traits.
On July 2, 1987, Dr. Eudaly admitted Bigby to CPC Oakbend Hospital after receiving a call from Dr. Koechel indicating Bigby was suicidal. He appeared "withdrawn, cried easily and his mood was pervasively depressed." Dr. Koechel performed another psychological evaluation and diagnosed him with "major depression with melancholia, passive-aggressive personality and prominent anti-social traits." Dr. Eudaly's diagnosis was dysthymic disorder and secondarily chronic muscle strain. During his stay, he left a suicide note in an administrator's box and asked nurses about fruit pits with poison. After treatment and therapy, he was released on October 29, 1986, much improved. Between September 29, 1986 and December 18, 1987, Dr. Koechel saw Bigby forty times.
Bigby had scheduled an appointment with Dr. Eudaly on November 10, 1987, but did not keep it. Dr. Koechel saw Bigby for an office visit on November 23, 1987. Dr. Koechel recommended that Bigby be admitted *324 again because of the severity of his depression. That night, Bigby's mother took him to the emergency room at Saint Joseph Hospital because she thought he had overdosed, which was "unconfirmed."
Later, on December 1, 1987, Dr. Eudaly heard from Bigby and recommended admission to Saint Joseph Hospital because of increasing depression of major depressive disorder. During this stay, Bigby received electroshock therapy (ECT) treatments that improved his mood.
On December 11, 1987, Bigby left the hospital after his third ECT treatment before being officially discharged from the hospital. He called the hospital indicating he did not intend to return, despite the nurses' requests to do so. Dr. Eudaly was notified by the hospital, and he told the staff to allow Bigby to stay out overnight. The next morning when Dr. Eudaly and Bigby talked, Dr. Eudaly encouraged Bigby to return, or at least continue his medication (which had been discontinued during the ECT treatment) and continue outpatient treatment. Bigby did not return and Dr. Eudaly changed Bigby's status to "discharged" on December 12, 1987 with a final psychiatric diagnostic impression of major depressive disorder.
On December 18, Dr. Koechel saw Bigby for an office visit. Bigby complained about the ECT treatments and said he wasn't going back. Dr. Koechel apparently did not inform Dr. Eudaly of Bigby's intent.
Eleven days after Bigby left the hospital, he killed two Frito-Lay employees. The next day, he killed Michael and Jayson and was subsequently convicted of capital murder on both counts and sentenced to death. See Bigby v. State, 892 S.W.2d 864, 870 (Tex. Crim.App.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2617, 132 L. Ed. 2d 860 (1995).
PROCEDURAL HISTORY
On December 1, 1989, appellants filed suit against the doctors and hospital appellees and Dr. Saifee and Jane A. Bernhardt, C.S.W. Dr. Saifee filed and was granted a summary judgment in her favor, which was severed from this suit, and appellants nonsuited Bernhardt.
All remaining appellees subsequently filed motions for summary judgment that were granted. Appellants have appealed those summary judgments except for the summary judgment in favor of defendant CPC Oakbend Hospital. The trial court found that the appellees owed no legal duty to the appellants as a matter of law. While some of the appellees asserted various bases for their motions, they each contained the "no legal duty" theory upon which the judgment was ultimately entered.
STANDARD OF REVIEW
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301-02 (Tex.1990), and all doubts about the existence of a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562; Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant, the appellants. Great Am. Reserve Ins. Co., 391 S.W.2d at 47.
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am. Reserve Ins. Co., 391 S.W.2d at 47. The summary judgment will be affirmed only if the record establishes that the movant has conclusively proven all essential elements of the movant's cause of action or defense as a matter of law. City of Houston, 589 S.W.2d at 678.
*325 A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of the plaintiff's claim. Once this evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact on the element challenged by the defendant. Centeq Realty, 899 S.W.2d at 197.
In reviewing the summary judgment evidence, we are only allowed to review the summary judgment evidence on file at the time of the hearing. Statement of facts and arguments made at the hearing are not considered on appeal from the granting of a summary judgment, as correctly argued by Dr. Eudaly. TEX. R. CIV. P. 166a(c); McConnell v. Southside I.S.D., 858 S.W.2d 337, 341 (Tex.1993). While summary judgment may not generally be based on the weakness of the nonmovant's pleading or proof, it may if it shows the absence of a right of action or an insurmountable bar to recovery. State v. Durham, 860 S.W.2d 63, 68 (Tex.1993); James v. Hitchcock I.S.D., 742 S.W.2d 701, 704 (Tex.App.Houston [1st Dist.] 1987, writ denied).
Appellants argue that the trial court erroneously granted the summary judgment for failure to state a cause of action. In essence, appellants argue that they should have been given the opportunity to replead viable causes of action and that the appellees should have been required to specially except to the appellants' Fourth Amended Original Petition. These arguments were asserted by appellants in their motion for new trial based generally on Massey v. Armco Steel Co., 652 S.W.2d 932, 933-34 (Tex.1983).
In general, it is improper to grant a summary judgment on a deficient pleading's failure to state a cause of action when the deficiency can be attacked through special exceptions. Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974); see also In re B.I.V., 870 S.W.2d 12, 13-14 (Tex. 1994); Pietila v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex.1993). An exception to this rule exists when the pleading deficiency is the type that cannot be cured by an amendment; in such cases a special exception is unnecessary and a summary judgment based on the pleading's failure to state a legal claim is in order. Jacobs v. Cude, 641 S.W.2d 258, 261 (Tex.App.Houston [14th Dist.] 1982, writ ref'd. n.r.e.); see also Frasier v. Schauweker, 915 S.W.2d 601, 605 n. 3 (Tex.App.Houston [14th Dist.] 1996, no writ) (trial court could not have granted "no cause of action" summary judgment without first giving plaintiffs adequate opportunity to replead unless petition affirmatively demonstrated no cause of action existed or recovery was barred, i.e., repleading could not cure defect) (citing Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex.1989)); Ryan v. Friesenhahn, 911 S.W.2d 113, 116 (Tex.App.San Antonio 1995, writ requested) (summary judgment may also be proper if pleading deficiency is the type that could not be cured by amendment); Cavanaugh v. Jones, 863 S.W.2d 551, 553 (Tex.App.Austin 1993, writ denied) (trial court may grant summary judgment where plaintiff fails to state a cause of action and has been given opportunity to replead). A recent supreme court opinion goes further, stating that when a plaintiff failed to object or request an opportunity to amend their petition following a motion for summary judgment, they waived their complaint. Kassen v. Hatley, 887 S.W.2d 4, 16 n. 10 (Tex.1994). Thus, it was proper for the trial court to grant the summary judgment if it was correct in its ruling that these defendants owed "no duty" to appellants because "duty" is an essential element of negligence.[1]
*326 DISCUSSION OF THE SUMMARY JUDGMENT MOTIONS AND THE PLEADINGS
Because the summary judgment order was based upon and limited to the "no duty theory," appellants have properly challenged that theory only. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993) (where trial court's order explicitly specifies ground relied on, summary judgment can only be affirmed on theory relied on by trial court, otherwise case must be remanded).
Appellants argue that they alleged a "duty" under three theoriesTarasoff,[2]Otis Engineering,[3] and Texas common lawand appellees limited their motions for summary judgment to the "no duty theory" set forth in Tarasoff. In other words, appellants argue that appellees only asserted that there was no "readily identifiable victim" or there was no "foreseeable danger" under the Tarasoff theory and that because appellees failed to move for summary judgment under Otis Engineering, El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987) and other Texas common-law causes of action, their other causes of action remain unresolved.
Appellants further argue that the issue of the existence of a duty is usually a question of law but when foreseeability, as an element of that duty, requires a resolution of some fact issue, it is a question of fact. In other words, where knowledge and foreseeability are elements of the duty alleged, the fact finder should be allowed to make the factual determination on the foreseeability of the risk and the foreseeability facts to establish the foreseeability of the risk involved. Appellants base this argument on the Texas Supreme Court's application of the Palsgraf rule used in both Otis Engineering and El Chico. Palsgraf is the seminal case that analyzes the duty question by looking at "the risk reasonably to be perceived as defining the duty to be obeyed."[4]
Appellants also cite Midkiff v. Hines, 866 S.W.2d 328, 332 (Tex.App.Houston [1st Dist.] 1993, no writ) ("no duty" summary judgment constituted error when genuine fact issue existed on foreseeability of risk of harm from criminal conduct of third parties) and Kendrick v. Allright Parking, 846 S.W.2d 453, 457-58 (Tex.App.San Antonio 1992, writ denied) ("no duty" summary judgment constituted error when fact issue existed on whether, based on what defendant knew or should have known, defendant should have foreseen criminal attack on appellant).
Appellants focus on the affidavit of their expert, Dr. Dietz, in support of their position that Dr. Eudaly, Dr. Koechel, and Saint Joseph Hospital could have determined Bigby's homicidal tendencies and could have ascertained the names of Bigby's foreseeable victims. In other words, had they acted within appropriate standards of care, each would have known Bigby's dangerousness to others and his intended victims. Bigby had not previously volunteered this specific information.
Saint Joseph Hospital's Motion for Summary Judgment
Saint Joseph Hospital's motion is based on three theories:
1) that plaintiffs' pleadings do not state a cause of action under Texas law because there was no identifiable victim (no duty);
2) that plaintiffs' pleadings do not state a cause of action under the "foreseeable danger" test of other jurisdictions because there was no "foreseeable danger" to others (no duty); and
3) that defendant is entitled to summary judgment because it has met the standard of care in its treatment of James Bigby (no breach of duty).
In Saint Joseph Hospital's post-submission brief, they assert, for the first time *327 on appeal, an additional ground for granting their motion for summary judgmentlack of proximate cause. We agree with appellants that Saint Joseph Hospital cannot now assert a ground not previously raised by its motion for summary judgment. However, the issue is moot since the summary judgment was granted only on the basis that Saint Joseph Hospital owed no duty to the victims and the summary judgment can be upheld on that theory only. State Farm Fire & Casualty Co., 858 S.W.2d at 380.
Dr. Eudaly's Motion for Summary Judgment
Dr. Eudaly's motion is based on the theory that plaintiffs' allegations of "failure to protect" are based on an alleged failure to warn the decedents or on an alleged failure to confine or restrain Bigby, which does not exist and cannot exist under current case law until and if there is a specific threat against a specific victim (i.e., no duty).
Dr. Koechel's Motion for Summary Judgment
Dr. Koechel's motion is also based on the claim that he owed no duty to confine or restrain Bigby or warn the victims since Bigby never made any threat against any identifiable person (i.e., no duty).
Review of Appellants' Theories That May Create a Duty
Appellants' claims, filed under the wrongful death statute, the survival statute, and Texas common law, all are based on a single cause of actionnegligence. Although the "theories" or "bases" for their claims vary against each of the defendants because of the factual distinctions involved in their relationships to Bigby, the actor, they are all claims of negligence.
Appellants claim that different legal theories support their negligence claims and that the appellees were required to disprove each and every legal theory under which appellants assert their negligence claims. However, any negligence claim requires proof of these elements: 1) existence of a legal duty; 2) breach of that duty; and 3) damages proximately resulting from that breach. Disproving any one of the elements under any "theory" of that specific element may be sufficient for a defendant to obtain a summary judgment. As mentioned above, appellants now argue that they asserted negligence under several theories and that because appellees' motions for summary judgment challenge only the Tarasoff duty theory, the summary judgment is not final because other claims may be outstanding.
However, Plaintiffs' Fourth Amended Original Petition alleges claims based on Tarasoff, not on Otis Engineering and El Chico. The first time Otis Engineering and El Chico are specifically addressed is in Appellants' Brief in Opposition to Defendants' Motions for Summary Judgment. Briefs are not summary judgment pleadings and are not to be considered by the appellate court. McConnell, 858 S.W.2d at 339-41. Neither are letters between the parties or letters between the parties and the court. Shannon v. Texas Gen. Indem. Co., 889 S.W.2d 662, 664 (Tex.App.Houston [14th Dist.] 1994, no writ); Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 199 (Tex.App.Texarkana 1993, writ denied); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.Corpus Christi 1988, no writ). Therefore, appellees were only required to move for summary judgment based on the claims asserted in the petition, not claims or analogous theories asserted in responses to the motions for summary judgment and subsequent briefs. McConnell, 858 S.W.2d at 341. A summary judgment granted by a trial court is a final judgment as long as it disposes of all claims asserted in the petition. Harris County Appraisal Dist. v. Johnson, 889 S.W.2d 531, 532 (Tex.App.Houston [14th Dist.] 1994, orig. proceeding). Inclusion of a "Mother Hubbard" clause, which was done here, assures that all of the claims have been disposed. Atchison v. Weingarten Realty Management Co., 916 S.W.2d 74, 76 (Tex.App.Houston [1st Dist.] 1996, no writ); Amerivest Inc. v. Bluebonnet Savings Bank, F.S.B., 897 S.W.2d 513, 515-16 (Tex. App.Fort Worth 1995, writ denied).
The core of appellants' claims are based on the type of duty created in 1976 by the *328 California Supreme Court, commonly referred to as a "Tarasoff duty." Tarasoff, 131 Cal.Rptr. at 22, 551 P.2d at 342. In Tarasoff, the parents of the murdered victim, Tatiana Tarasoff, sued the university after a man named Poddar told the psychotherapist doctors, employed by the Cowell Memorial Hospital at the University, of his intent to kill an unnamed girl, Tatiana; whom he subsequently killed. Id. at 19, 551 P.2d at 339. The evidence showed she was a readily identifiable victim. Id. at 25, 551 P.2d at 345.
Therapists examined Poddar and decided he should be committed. Id. at 20 n. 2, 551 P.2d at 340 n. 2. One of the defendant doctors directed the police to take Poddar into custody, which they did. Id. at 20, 551 P.2d at 340. However, the officers who took him into custody became satisfied he was rational, and he promised to stay away from Tatiana. Id. It was at this point that the chief of psychiatry countermanded the other therapists' decision and withdrew the commitment order, and Poddar was released. Id.
The breach of the duty, if any, in Tarasoff was alleged to be either 1) failure to warn (the intended victim) or 2) failure to confine (the actor). The court, in discussing the existence of whether the psychiatrists owed a duty to the victim, stated:
[W]hen the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim.
Id. at 22-23, 551 P.2d at 342-43. Citing section 315 of the RESTATEMENT (SECOND) OF TORTS, the court stated that a duty to control or a duty to warn can be created if there is a "special relationship to either the person whose conduct needs to be controlled or in a relationship to [sic] the foreseeable victim of that conduct." Id. at 23, 551 P.2d at 343; see Restatement (Second) of Torts § 315 (1965). By finding that one role of a therapist is to make diagnoses and predictions of whether a patient presents a serious danger of violence and that such role is comparable to that of other doctors' and professionals' type of judgment, the court concluded that the therapist must in essence `forecast' a patient's violence. Tarasoff, 131 Cal.Rptr. at 25, 551 P.2d at 345. "[T]he therapist need only exercise `that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.' "Id. (citations omitted.)
In balancing the competing interests society has in promoting open communication between patient and therapist, the patient's right to privacy, and the safety of the public from violent attacks, the court noted that the California Legislature had basically undertaken that task. The California Evidence Code established a general privilege for confidential communications between patient and psychotherapist but created an exception from the privilege "if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent this threatened danger." Cal. Evid. Code § 1024 (West 1986). In applying the evidentiary privilege to create a duty, the court stated, "[t]he protective privilege ends where the public peril begins." Tarasoff, 131 Cal. Rptr. at 27, 551 P.2d at 347. The court allowed the plaintiff the opportunity to replead to state a cause of action against the therapists to whom the patient confided his intent to kill the plaintiff's daughter on a failure to warn theory of duty. Id. at 14, 28, 551 P.2d at 334, 348.
The California Supreme Court subsequently clarified the Tarasoff rule, stating:
[T]he therapist has no general duty to warn of each threat.... Although the intended victim as a precondition to liability need not be specifically named, he [the victim] must be "readily identifiable."
Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 76, 614 P.2d 728, 734 (1980). In Thompson, the actor threatened to kill a "young child residing in the [his mother's] neighborhood." Id. 167 Cal.Rptr. at 72, 614 P.2d at 730. After his release, he killed a young child and the child's parents sued the county that had custody of the actor, a juvenile offender. Id. The parents *329 contended that the county was liable for its failure to warn the police and all parents of children in the neighborhood or to warn the juvenile's mother of his expressed threat. Id. at 74, 614 P.2d at 732.
In affirming the dismissal of the case, the California Supreme Court observed the following key factors in determining the existence of a duty:
[F]oreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty ..., and the availability, cost and prevalence of insurance for the risk involved.
Id. at 74-75, 614 P.2d at 732-33 (quoting Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 100, 443 P.2d 561, 564 (1968)). While discussing Tarasoff, the court reiterated that the duty created in Tarasoff was limited to the foreseeable victim of danger. Id. at 76, 614 P.2d at 734. Thus, the court considered that while the victim does not necessarily have to be specifically named, the victim must be "readily identifiable." Id. (emphasis added). Because the victim was not specifically named and was a member of a general group of neighbors, the court did not impose a duty on the county to warn, protect, or control.
The question raised by this case then, is to determine whether Tarasoff and Thompson have been adopted by the Texas courts, if so, to what extent, and then, whether they apply here.
The Law of Duty in the State of Texas
Any claim based on negligence in Texas requires proof of three elements: a legal duty owed by one to another; breach of that duty; and damages that proximately result from that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The Phillips case, citing El Chico, establishes duty as the threshold inquiry in a negligence case. Id. (citation omitted). The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id. In Phillips, the court, citing Otis Engineering, stated:
In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.
Id. (citation omitted). "Of all these factors, foreseeability of the risk is `the foremost and dominant consideration.'" Id. (quoting El Chico, 732 S.W.2d at 311).
According to Phillips and section 315 of the RESTATEMENT (SECOND) OF TORTS, there is generally no duty to control the conduct of third persons. Id.; RESTATEMENT (SECOND) OF TORTS § 315 (1965). The exceptions are limited to situations where a special relationship exists between the actor and the third person such as employer/employee, parent/child, and, in some situations independent contractor/contractee. Id. Although the Phillips court acknowledged the Palsgraf rule that the "risk reasonably to be perceived defines the duty to be obeyed," and that such a rule was applied in El Chico and Otis Engineering, those cases were held distinguishable from Phillips. Id. at 526.
In the 1983 El Chico case, the Texas Supreme Court explored the application of duty to third parties. In El Chico, two wrongful death and survival cases were consolidated to determine whether a third party injured by an intoxicated driver could recover damages from the alcoholic beverage licensee who allegedly sold liquor to intoxicated drivers, thus violating the Texas Alcohol and Beverage Code. In both cases, the summary judgment and dismissal by the respective trial courts were reversed by the intermediate appellate courts, and those decisions were affirmed by the Texas Supreme Court. El Chico, 732 S.W.2d at 315.
In its discussion of whether a duty existed, the supreme court, citing Otis Engineering, *330 focused on the foreseeability of the risk as the dominant consideration:
The duty here is merely the application of the general duty to exercise reasonable care to avoid foreseeable injury to others.... The duty is the same whether the foreseeable injury involves the drunkard himself or a third party who may be placed in peril because of the drunkard's condition. Moreover, the common law recognizes the duty to take affirmative action to control or avoid increasing the danger from another's conduct which the actor has at least partially created.
Id. at 311-12 (citation omitted).
The court also acknowledged that the standard of conduct was, in these cases, determined by statute because the sale of liquor to an intoxicated person was a penal code violation. See TEX. ALCO. BEV. CODE ANN. § 101.63(a) (Vernon 1978). Thus, the El Chico court based liability on a breach of a statutorily created duty to the public. Id. at 313.
In focusing on the foreseeability factor in the proximate cause analysis, the court noted that the actor "should have anticipated the dangers his negligent act creates for others.... Foreseeability does not require the actor anticipate the particular accident, but only that he reasonably anticipate the general character of the injury." Id. (citations omitted). After applying the statutory prohibition found in the Alcoholic Beverage Code, the court held that "[a]n alcoholic beverage licensee owes a duty to the general public not to serve alcoholic beverages to a person when the licensee knows or should know the patron is intoxicated." Id. at 314 (emphasis added).
In Otis Engineering, the spouses of occupants killed in an accident with an intoxicated employee brought a wrongful death action against his employer. Although the deaths did not occur while the employee, Robert Matheson, was in the course of his employment, the accident occurred shortly after he left his place of employment in an intoxicated state. Otis Engineering, 668 S.W.2d at 308. Apparently, Matheson was sent home during the middle of his shift because he was intoxicated and his supervisor knew it. Id. There was additional evidence that Matheson's alcohol problem was generally known by his supervisor and other employees. Id. Otis's motion for summary judgment was granted on the basis that Otis owed no duty, as a matter of law, to the victims. Id. at 309. The supreme court upheld the appellate court's reversal of summary judgment in favor of Otis, stating:
While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation. One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care.
Id. (citations omitted). The court specifically held, as related to an employer/employee duty, that "when, because of an employee's incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstance would take to prevent the employee from causing an unreasonable risk of harm to others." Id. at 311; see also Randle v. Stop N'Go Markets of Texas, Inc., 929 S.W.2d 17, 18-19 (Tex.App.Houston [1st Dist.] 1996, n.w.h.);
In Otis Engineering the court created the duty to prevent the employee from causing an unreasonable risk of harm to others, where, because of an employee's incapacity, an employer exercises control over the employee. Id. at 311. An Otis Engineering type of duty requires: 1) a special relationship between defendant and actor; and 2) exercise of control over the actor by the employer. Otis Eng'g, 668 S.W.2d at 309-10. Otis Engineering created liability under the special relationship theory of employer and employee.
In Williams v. Sun Valley Hosp., 723 S.W.2d 783, 784 (Tex.App.El Paso 1987, writ ref'd n.r.e.), a mental patient escaped from the hospital and threw himself in front of a car driven by the appellant. The patient was killed and the appellant was injured. The El Paso Court of Appeals held that the *331 hospital did not owe the driver a duty to warn because the actor's conduct was not foreseeable. "Where there is no allegation of a threat or danger to a readily identifiable person, we, like those courts whose logic we follow, are unwilling to impose a blanket liability upon all hospitals and therapists for the unpredictable conduct of their patients with a mental disorder." Id. at 787 (emphasis added).
In Gooden v. Tips, 651 S.W.2d 364, 365 (Tex.App.Tyler 1983, no writ), the Goodens were injured by Goodpastures in a traffic accident. They sued Goodpastures's doctor for negligence in failing to warn her not to drive while under the influence of the drug Quaalude. Gooden urged the court to recognize a physician/third-party duty to "use reasonable care to protect the driving public when a physician's negligence in diagnosis or treatment of his patient contributes to plaintiff's injuries." Id. at 369. The appellate court held that, in focusing on the foreseeability of the potential harm, the doctor may have had a duty to warn her patient not to drive. Id. However, it explicitly distinguished this case from Tarasoff and specifically held that the doctor had no duty to control the conduct of the patient since there was no indication that the doctor had "taken charge" of the patient. Id. at 370. Thus, the duty to warn was limited to warning the patient, not some third party.
In Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 583 (Tex.1996), a murdered woman's parents sued the Kerrville state hospital for wrongful death damages after she was murdered by her husband, who had been released from the hospital. Id. The husband had originally been treated at the hospital in 1989 after he had threatened his wife and resisted arrest. Id. Pursuant to a court order, he subsequently began outpatient commitment for nearly a year. Id. In May of the next year, he voluntarily checked himself into the hospital for treatment. He was released two days later, and his outpatient commitment was reinstated. Id. About one week later, he brutally murdered his estranged wife. Id. The trial court's $200,000 judgment under the Texas Tort Claims Act was affirmed by the appellate court. Kerrville State Hosp. v. Clark, 900 S.W.2d 425, 436 (Tex.App.Austin 1995), rev'd, 923 S.W.2d 582 (Tex.1996). The appellate court agreed with the parents that the hospital had a duty to third parties injured by their patient because they knew or had reason to know he was a danger. Id. In other words, the Austin Court of Appeals would impose a duty to use reasonable care in the release of the husband based on the control the hospital had over the husband. The appellate court held that the duty then would be to confine the patient (seek involuntary in-patient commitment) or to control the patient (prescribe medicine that may have prevented the episode). Id. The court acknowledged the hospital's claim that no duty should be imposed because there was no readily identifiable victim, but did not reach this issue on the merits because of its holding on the duty to the general public to use reasonable care in its release of the husband. The Texas Supreme Court reversed on the hospital's claim of sovereign immunity and therefore did not reach the issue of the duty of the hospital to confine or control its patient. Kerrville State Hosp., 923 S.W.2d at 586. That aspect of the appellate opinion remains undisturbed and indicates at least a recognition of a Tarasoff/Thompson analysis.
The only other appellate court that has adopted a Tarasoff/Thompson duty under somewhat analogous facts, the El Paso Court of Appeals, found that there was no duty and there could be no duty because there was no readily identifiable victim. Williams, 723 S.W.2d at 787. Whether the duty is to warn or to confine is tied more to identifying what the actual duty is. In other words, if an action threatens a specific victim or a readily identifiable victim, then the duty is probably to warn. See Gooden, 651 S.W.2d at 370. But when no specific or readily identifiable victim is threatened, perhaps the duty would be to confine the actor, a much more drastic and restrictive approach. Kerrville, 900 S.W.2d at 436.
The Texas Supreme Court has not adopted the Tarasoff duty to warn and neither has this court. Texas only recognizes duties to third parties if the potential act is foreseeable. Wheaton Van Lines, Inc. v. *332 Mason, 925 S.W.2d 722, 727-30 (Tex.App. Fort Worth, May 30, 1996, n.w.h.).
All of the appellants' causes of action focus on the existence or nonexistence of a duty to third parties under Texas law. The only time duties to third persons have been recognized by the Texas Supreme Court are when there is a special relationship between the defendant and the actor that implicitly includes some right to control the action (Otis Engineering employer/employee) or when the defendant who created or contributed to the actor's situation violated a statute (El Chico sale of liquor to intoxicated patron) or when a duty is imposed to protect the general driving public. Praesel v. Johnson, 925 S.W.2d 255, 257 (Tex.App.Corpus Christi 1996, no writ); Gooden, 651 S.W.2d at 369.
The Otis Engineering theory of duty is inapplicable because there was no employer/employee relationship between the appellees and Bigby that would dictate the type of control imposed on the defendant, Otis. Additionally, there was no basis for the appellants to assert an El Chico theory because it cannot be said that the defendants' conduct necessarily created a situation that was unlawful. In essence, the appellants have attempted to use Otis Engineering and El Chico in their arguments as analogies to support the application of and extension of a Tarasoff/Thompson duty to warn or to confine to situations where the victim is unidentified or not readily identifiable in Texas.
While it is likely a foreseeable duty would be recognized in Texas under a Tarasoff/Thompson fact situation with an identifiable victim, this case would nevertheless fail to fall within its parameters. Thus, each of the appellees' motion for summary judgment properly responded to the appellants' only viable claim, a claim arising under Tarasoff/Thompson that has not yet been affirmatively adopted by our Texas Supreme Court and, in any event, is not applicable here. See Kerrville State Hosp., 923 S.W.2d at passim.
Appellants' discussion on the quasi-factual issue involved on foreseeability is moot because their claims fail on the duty question. Appellants' point of error is overruled, and the trial court's summary judgment based on no duty is affirmed.
NOTES
[1] The record shows orders on special exceptions were signed by the court in November and December of 1990 and on August 7, 1991. However, because none of the motion(s) nor order(s) were included in the transcript, we cannot determine to which parties they applied. We also note that one party filed special exceptions in October of 1992 and plaintiffs' petition was amended for the fourth time over a year later.
[2] Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 131 Cal. Rptr. 14, 23, 551 P.2d 334, 343 (1976).
[3] Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex.1983).
[4] Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928); see Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex.1990).
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