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https://www.courtlistener.com/api/rest/v3/opinions/2259339/
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364 F.Supp. 967 (1973)
David SPATZ et al.,
v.
Frank J. NASCONE and Frank J. Zappala, Jr.
Civ. A. No. 72-847.
United States District Court, W. D. Pennsylvania.
October 12, 1973.
*968 Judd N. Poffinberger, Jr., Pittsburgh, Pa., for plaintiffs.
Walter T. McGough, Pittsburgh, Pa., for defendants.
OPINION
SNYDER, District Judge.
This matter is before the Court on the defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The action involves an agreement for the sale of real estate located in the State of New York in which the defendants, residents of Pennsylvania, were the sellers, and the plaintiffs' assignee, a resident of Illinois, was the purchaser. It is alleged that, pursuant to the terms of the agreement, the defendants completed their acquisition of the subject premises; completed the construction of a shopping plaza; obtained a lease from S. S. Kresge Company; obtained the requisite mortgage; and conveyed the subject premises as directed to Orchard Park Associates, a joint venture composed solely of the plaintiffs herein. It is further alleged that pursuant to the terms of the agreement, Orchard Park Associates paid to the defendants the full purchase price of $200,000.00, and that, in addition, they performed every other condition precedent to the operation of the agreement.
A dispute arose as to the liability of the defendants to repay the aggregate sum of $72,371.37, being the amount by which the real estate taxes assessed against the parcel for the years 1968 through 1971 exceeded the sum of $20,000.00 per annum. The agreement also provided:
"In addition, after receipt of the fourth of the tax bills (the bill for the fourth of the years described herein-before), the difference between such fourth tax bill and the estimated figure of TWENTY THOUSAND DOLLARS ($20,000.00) capitalized at 10.4% shall be repaid by Seller to Purchaser when such tax is due".
The real estate taxes assessed against the parcel for 1971 were $53,464.49, which capitalized at the rate of 10.4% *969 would be an additional $321,773.94. In 1969 there was an adjustment made on the agreement to increase the estimated tax figure of $20,000.00 to $22,500.00. This was done to reflect the additional minimum rental of $2,500.00 to be received during the last three months of 1969. Further, the estimated $20,000.00 was increased to $30,000.00 for the years 1970 and 1971 to reflect the additional minimum rental of $10,000.00 to be received by the plaintiffs during 1970 and subsequent years of the lease. Because of the changes, the sums presently claimed by the plaintiffs are: (1) the additional taxes for the years 1969, 1970 and 1971 which equal $49,871.37, and (2) the amount due as the capitalized figure of $225,620.09 ($23,464.49 capitalized at the rate of 10.4%). Thus, the plaintiffs claimed that by the end of 1971 the defendants owed the plaintiffs the total sum of $275,491.46 under the terms of the agreement, which sum the defendants repeatedly refused to pay.
Attached to the plaintiffs' Complaint was a copy of the Agreement which was eleven pages in length and which detailed the property to be conveyed, permitted encumbrances and other documents deemed necessary. Paragraph No. 18 of the Agreement, provides as follows:
"MISCELLANEOUS. Risk of loss to the date of closing shall be upon the Seller. This Agreement shall be interpreted under Pennsylvania law and any disputes hereunder shall be tried in the Courts of the Commonwealth of Pennsylvania, the parties hereby waiving the right to a jury trial. Any transfer taxes imposed upon this transaction shall be paid by Seller. Seller shall not be bound by any possible custom or practice of the State of New York in connection with the transfer of title to any real estate, such as a presentation of an abstract of title."
To this Complaint, defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b) on the ground that the Court lacked jurisdiction over either the parties or the subject matter of the action, contending that the above quoted section of the agreement was to be interpreted as limiting "any disputes hereunder" to the Courts of the Commonwealth of Pennsylvania.
On February 12, 1973, Judge Joseph F. Weis, Jr. (then District Judge and now on the Third Circuit Court of Appeals) heard oral arguments and received briefs from the parties, and time was enlarged for the filing of additional memorandums by both plaintiffs and defendants. On March 26, 1973, Judge Weis filed a Memorandum and Order treating the motion to dismiss as one for summary judgment and denying the motion without prejudice to renew after a hearing to resolve the disputed factual issue. This Order is set forth in full below as it is pertinent to the discussion herein contained.
MEMORANDUM AND ORDER
"The question presented to us is whether this Court in a diversity action should decline to exercise jurisdiction because of a contractual provision limiting the forum in which relief can be sought.
Plaintiffs claim that the defendants breached a certain Agreement, dated September 2, 1966 and later amended in October 1969, for the sale of real property located in the State of New York. The defendants moved to dismiss the action under Rule 12(b) of the Federal Rules of Civil Procedure on the ground that Section 18 of the Agreement limits the plaintiffs to maintain their action only in the state courts of Pennsylvania. Section 18 of the Agreement provides:
`. . . This Agreement shall be interpreted under Pennsylvania law and any disputes hereunder shall be tried in the Courts of the Commonwealth of Pennsylvania, the parties hereby waiving the right to a jury trial . . .'
*970 This court finds that the phrase `Courts of the Commonwealth of Pennsylvania' is ambiguous since it is susceptible of either a possessive or geographic connotation. See 29 Words and Phrases, `Of', page 341 (1972) where numerous cited cases held that the preposition `of' does not mean just ownership or possession, but rather has the identical meaning of the preposition `in' which conveys the meaning of location or inclusion within.
Both parties filed opposing affidavits of fact concerning the discussions that had occurred before the execution of the Agreement as to the meaning of Section 18 of the Agreement. Consequently the motion to dismiss will be treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 343 (3rd Cir. 1966).
Since Section 18 of the Agreement is ambiguous and there is a genuine factual issue as to its meaning, summary judgment must be denied. See 6 Moore's Federal Practice, § 56.-17(43), page 2590, n.n. 7, 10 (1972); Adickes v. Kress & Co., 398 U.S. 144, 153-161 [90 S.Ct. 1598, 26 L.Ed.2d 142] (1970).
This case will be scheduled for a preliminary hearing to resolve the factual issue, so that the litigation may proceed on the merits in either this court or the state forum.
ORDER
AND NOW, to-wit, this 26th day of March, 1973, upon consideration of the Motion to Dismiss and opposing Affidavits, the Motion to Dismiss will be treated as one for Summary Judgment and for the reasons stated in this Memorandum, IT IS ORDERED that the Motion be denied, without prejudice to renewal after a hearing to resolve the disputed factual issue has been held."
Subsequent to the Court's Order, plaintiffs served on the defendants an interrogatory requesting the defendants to disclose any witness having knowledge of the conversations, discussions or negotiations relating in any way to the subject matter of Paragraph No. 18 of the Agreement. The defendants answered that the other parties having knowledge of any such conversations, discussions or negotiations were the defendants, Richard Zappala, Donald A. Kahan and Jake Jacobs. The depositions of Richard Zappala and Donald A. Kahan were duly filed with the Court. On September 10, 1973, the defendants filed their Motion for Summary Judgment supported by the sworn testimony of Richard A. Zappala at his deposition. In addition, an affidavit was filed by Richard Zappala.
We approach the duty of deciding the very interesting but difficult question posed by the motion within the confines of the law that a summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. This is the mandate of the Federal Rule of Civil Procedure 56(c). Furthermore, any doubt as to the existence of a genuine issue of fact must be resolved against the moving party, and documents filed in support of a motion for summary judgment are to be used to determine whether issues of fact exist and not in order to decide the fact issues themselves. United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3rd Cir. 1973); Bowman Steel Corp. v. Lumbermens Mutual Casualty Co., 364 F.2d 246 (3rd Cir. 1966); Janek v. Celebrezze, 336 F.2d 828 (3rd Cir. 1964); Krieger v. Ownership Corporation, 270 F.2d 265 (3rd Cir. 1959). Furthermore, the burden of demonstrating the justification for the motion for summary judgment always lies with the movant. Adickes v. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1969). To state it another way, the Court is authorized to examine proferred materials extraneous *971 to the pleadings not for the purpose of trying an issue but to determine whether there is a genuine issue of material fact to be tried. If there is no such genuine issue of material fact, the parties are not entitled to a trial and the Court applying the law to the undisputed material facts may render summary judgment. See 6 Moore's Federal Practice, Par. 56.04 (1972 ed.).
As indicated in the above discussion, the complaint and the agreement disclosed that the defendants, real estate developers based in Pennsylvania, sold to the plaintiffs' assignee who was a citizen of Illinois, certain commercial real estate located in the State of New York. Thus, the transaction touched three states. In order to resolve any uncertainty as to which of the three states' laws would govern, or to avoid any uncertainty within a given foreign state as to the proper choice of law, the parties determined that the agreement should be interpreted under Pennsylvania law. Secondly, it prescribed clearly that any dispute was to be tried in Pennsylvania which was the defendants' domicile. Since Judge Weis' previous order declared that the agreement was patently ambiguous, the parties then went through the process of taking additional depositions for any light they might shed on the derivation of the phrase and the intent with which this phrase was used.
We deem it initially necessary to discuss briefly the law applicable to the interpretation of a phrase which is patently ambiguous. It is contended by the plaintiffs, for example, that when the agreement refers to "the Courts of the Commonwealth of Pennsylvania" that the word "of" may be used in a purely geographical sense as synonymous with "in" or "within". Defendants contend that the word has a political connotation referring to courts deriving their authority from the Sovereign Commonwealth of Pennsylvania. In this regard, the plaintiffs assert that there is no apparent reason why the defendants, having once been assured that suit would be brought in their home state (rather than in Illinois or New York) and that Pennsylvania law would be applied, would have had any interest in whether suit was brought in state or federal court within Pennsylvania.
We glean from the deposition of Richard Zappala that he acted as attorney for the defendants in this transaction, and his affidavit shows that the language of the forum selection clause was carried over verbatim from the language of a previous real estate purchase agreement between the principals. During the negotiations resulting in the previous agreement, Richard Zappala had informed Donald A. Kahan, attorney for the plaintiffs, that "Courts of the Commonwealth of Pennsylvania" meant the state courts and that Mr. Kahan voiced no objection to this construction of the forum selection language. Under these circumstances, even in the face of a patent ambiguity, the forum selection language is not to be strongly construed against the defendants because the initial draft of the agreement was prepared by defendants' counsel. There exists a well recognized exception to that rule where a contract is the result of the joint efforts of the attorneys or negotiators for both sides. Kaiser Aluminum & Chemical Corporation v. United States, 388 F.2d 317, 329, 181 Ct.Cl. 902 (1967); United States v. Continental Oil Company, 237 F.Supp. 294, 298 (W. D.Oklahoma 1964); Carter v. Certain-Teed Products Corp., 200 F.2d 754, 757 (8th Cir. 1953).
Under Section 230 of the Restatement of the Law of Contracts, it is stated as follows:
STANDARD OF INTERPRETATION WHERE THERE IS INTEGRATION
"The standard of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration *972 by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean."
Under Comments "a" and "b" to this section of the Restatement, if there is an ambiguity evidence may be received that a particular meaning is given to the language in a particular locality or by those engaged in a particular occupation, subject to the qualification that the viewpoint be the objective one of a third person. This objective third person is assumed to have knowledge of the operative usages as well as all other accompanying circumstances. "But oral statements by the parties of what they intended the written language to mean are excluded, though these statements might show the parties gave their words a meaning that would not be apparent. Such a common understanding may justify reformation, but cannot be the basis of interpretation of an integration." (Comment a.)
The agreement in this case is an integrated agreement within the context of the Restatement of Contracts, Section 228, for it is there stated that "an agreement is integrated where the parties thereto adopt the writing or writings as the final and complete expression of the agreement. An integration is the writing or writings so adopted." Both Sections 228 and 230 of the Restatement of Contracts have been adopted as the law in Pennsylvania. In National Cash Reg. Co. v. Modern Transfer Co. Inc., 224 Pa.Super. 138, 302 A.2d 486 (1973), where the court was required to consider; (1) whether a party to a written contract could introduce parol evidence or prior oral representations inducing the party to enter into the contract but which would be inconsistent with or in addition to the written agreement? and, (2) whether a party may recover consequential damage for an alleged breach of performance under the contract where the parties expressly agreed to an exclusion of damage clause to their agreement?, the following appears at page 488:
"Parties sui juris are free to make their own contracts, which, in the absence of an allegation of fraud, accident, or mistake, will be interpreted and enforced as written, except as to unconscionable provisions. Peter J. Mascaro Co. v. Milonas, 401 Pa. 632, 166 A.2d 15 (1961); Insley v. State Mutual Life Assurance Co., 334 Pa. 368, 5 A.2d 544 (1939). Likewise, a court ordinarily cannot disregard a clause in a contract to which a reasonable meaning can be given. The general rule is that a court will make no inference or give any construction to the terms of a written contract that may be in conflict with the clearly expressed language of the written agreement. Spigelmire v. School District of Borough of North Braddock, 352 Pa. 504, 43 A.2d 229 (1945); General Finance Co. v. Pa. Threshermen & Farmers' Mutual Casualty Ins. Co., 348 Pa. 358, 35 A.2d 409 (1944). Thus, when the language is clear, there is no need for interpretation, and words cannot be added.
In the absence of ambiguity, a written contract is held to express all negotiations and agreements made prior to and leading up to its execution; that is, the negotiations are presumed to be merged in the writing, and oral testimony is inadmissible to explain or vary the writing. Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). This exclusionary rule has been referred to as the `parol evidence rule'.
Appellant seeks to recover damages from appellee on the basis of oral representations allegedly made by appellee's sales agent prior to execution of the written computer lease agreement, but not contained therein. Despite the existence of an integration clause in the executed contract, appellant argues that existing case law permits us to consider extrinsic and parol evidence to justify its claim.
*973 We believe that Judge Backenstoe ably stated the analysis of the case law and its applicability to the peculiar facts of the instant case:
`In deciding under what circumstances an oral agreement is superseded by a written one, "it is necessary to consider whether the parties situated as were the ones interested in the contract would naturally and normally include the one in the other. If they relate to the same subject matter and are so interrelated that both would naturally be executed at the same time and in the same contract, the scope of the oral agreement must be considered as covered by the writing." Henry On Evidence, Section 604, Page 31. The effect of the integration clause is to make the parol evidence rule "particularly applicable". Henry On Evidence, Section 591, Page 3, Note 3. Williston on Contracts, Section 811, Third Edition.
`In applying these principles to the instant case, we note that this is a contract apparently executed by senior officials of two active corporations. The defendant's officers, while perhaps not familiar with plaintiff's particular product, had direct experience in the computer field, having leased a computer from one of plaintiff's competitors. While the contract is a form lease, prepared by the plaintiff, there is a carefully drafted addendum to it which contains warranties and agreements dealing with most of the allegations contained in defendant's counterclaim. The addendum was signed by the defendant's president. We believe this addendum represents the final negotiations of the parties and supersedes any prior understandings.'
Our Supreme Court has upheld `integration' or `merger' clauses in contracts, and have refused to admit parol or prior written agreements where the language of the contract is clear and unambiguous. In Appeal of Edwin J. Schoettle Co., 390 Pa. 365, 372, 134 A.2d 908, 912 (1957), the Supreme Court said that while a court may take into consideration extrinsic circumstances in certain situations, it `does not mean that where there is an integrated agreement "where the parties thereto adopt a writing or writings as the final and complete expression of the agreement" (from Restatement of the Law of Contracts, § 228) evidence of the negotiations which have led to the formation of this integrated agreement is admissible to show an intent at variance with the language of the written agreement . . .. The language of the instant agreement is clear and unambiguous. The buyer's evidence would tend to prove that in the negotiations leading up to the integrated agreement it was intended that the sellers warrant the company's and its subsidiaries' financial condition, whereas the language of the agreement plainly expresses a contrary intent. The admission of such evidence would vary and change the language of the agreement and its exclusion was eminently proper under the circumstances.'"
In the case of Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 170 A.2d 97 (1961), the Pennsylvania Supreme Court was called upon to interpret the terms of a deed, and stated the following (at page 99):
". . . . . Further, the standard of interpretation to be applied is the meaning that would be attached by a reasonably intelligent person, acquainted with all operative usages, and knowing all the circumstances prior to and contemporaneous with the making of the contract: Restatement, Contracts § 320 (obviously meaning § 230); Clearfield Development Corp. v. Devonian Co., 1956, 385 Pa. 248, 122 A.2d 718."
Following these rules of interpretation, we have looked to the contract, the affidavits and the depositions, not for the purpose of determining intent, and without consideration of any expressed intent of the parties in these depositions, but to determine whether or not there is contained therein any operative *974 usage or any circumstances which would affect the judgment of a reasonably intelligent person on the matter of interpretation. This is in accordance with the portion of Comment a, Section 230 of the Restatement of Contracts set forth above. Our examination has led us to no defined operative usage or circumstance which would aid us in the interpretation of the language that was used.
In light of this conclusion and upon very careful analysis of the disputed language and all circumstances surrounding the formation and execution of the agreement, we are of the opinion, and so hold, that the agreement is to be interpreted to mean that suit shall be brought only in courts of the Commonwealth of Pennsylvania and not in the federal court, although the latter has jurisdiction within the Commonwealth of Pennsylvania.
Our consideration of this case, however, cannot terminate at this point due to the fact that plaintiffs raised the additional question: Granting that the parties have made a reasonable selection of the place of suit, should a federal court give effect to a cause which purports to bar access to an otherwise available federal court at that place? Counsel for the plaintiffs claim that this is an issue of first impression and strongly urge that the question must be answered in the negative, for two reasons:
1. Any and all legitimate commercial interests of the defendants have been fully served by the institution of suit in the Federal Court for the Western District of Pennsylvania, since suit is now lodged at the defendants' home base and in a court which is bound to apply Pennsylvania law as bargained for. They thus claim that there is no conceivable legitimate commercial interest of the defendants which could be served by requiring the suit to be reinstituted in the Pennsylvania state court, and that such action would serve only to delay the ultimate disposition on the merits.
2. Counsel claims that to close the doors of this Court to the plaintiffs denies them a substantial federal constitutional and statutory right. It is claimed that since the plaintiffs are citizens of Illinois and the defendants are citizens of Pennsylvania that under Article 3 of the Constitution and Title 28 U.S.C. Section 1332, the plaintiffs have been given an absolute right to maintain a suit against the defendants in this court.
With respect to the first contention of the plaintiffs, we think it perfectly clear that the parties to the agreement have the right to determine whether or not there is a particular commercial interest which would be served by the institution of suit in a state court as related to suit in a federal court, and consequently that this can not be brushed aside solely on the contention that "there is no conceivable legitimate commercial interest of the defendant which could be served by requiring the suit to be reinstituted in the Pennsylvania state court". We agree with cases cited by counsel for the defendant that the court has discretion to decline jurisdiction where it is appropriate to give effect to parties' bargain. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972); Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 345 (3rd Cir. 1966); Geiger v. Keilani, 270 F.Supp. 761, 765 (E.D.Mich.1967). We hold, thus, that the interpretation of this contract and the appropriate forum to give effect to the parties' bargain is the state court of the Commonwealth of Pennsylvania.
We must then decide upon the plaintiffs' second contention that to close the doors of this Court is to deny them a substantial federal constitutional and statutory right. It is noted that Section 2 of Article 3 of the United States Constitution specifically extends the judicial power of the United States as vested "in the Supreme Court and in the inferior courts as established by Congress, to all *975 cases * * * between citizens of different states * * *".
It is further provided under Section 1332 of Title 28 U.S.C.:
"(a) The district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between (1) citizens of different States; * * *"
There is no indication in the wording either of the Constitution or of Section 1332 that there is an absolute right to maintain a suit under the circumstances therein set forth. Counsel for the plaintiffs have failed to cite a single case in which this proposition has been sustained by an appellate court. Counsel argues that the situation of the plaintiffs here is, by reason of diversity, "a classic one for which the diversity jurisdiction was designed". That this is undoubtedly true does not answer the question, however, as to whether or not the bargain of the parties has not eliminated the federal courts as a place in which suit can be brought.
In the case of M/S Bremen, supra, certiorari was granted by the Supreme Court to review a judgment in the United States Court of Appeals for the Fifth Circuit declining to enforce a forum selection clause governing disputes arising under an international towage contract in which an American corporation contracted with a German corporation to tow the American corporation's drilling rig from Louisiana to a point off Ravenna, Italy. Zapata had solicited bids for the towage and several companies, including Unterweser, had responded. Unterweser was the low bidder and Zapata requested it to submit a contract which it did. The contract submitted by Unterweser contained a provision that:
"Any dispute arising must be treated before the London Court of Justice."
While the flotilla was in international waters, a severe storm arose and the rig was seriously damaged. Zapata, ignoring its promise to litigate "any dispute arising" in the English courts, commenced a suit in admiralty in the United States District Court seeking damages against Unterweser in personam, and the Tow Bremen in rem, alleging negligent towage and breach of contract. Unterweser invoked the forum clause and moved to dismiss for lack of jurisdiction or on forum non conveniens grounds, or in the alternative to stay the execution pending submission of the dispute to the "London Court of Justice". After several other matters were disposed of, the District Court finally denied Unterweser's motion to dismiss or stay Zapata's initial action. The District Court relied on the decision of Carbon Black Export v. The S S Monrosa, 254 F.2d 297 (5th Cir. 1958), appeal dismissed 359 U.S. 180, 79 S.Ct. 710, 3 L. Ed.2d 723 (1959). In that case the Court of Appeals had held a forum selection clause unenforceable, reiterating the traditional view of many American courts that "agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced". 254 F.2d at 300-301. The court then treated the motion to dismiss under normal forum non conveniens doctrine, and concluded that the balance of conveniences there was not strongly in favor of Unterweser, and Zapata's choice of forum should not, therefore, be disturbed. On appeal, the majority of the Circuit held that, following the Carbon Black decision, a forum selection clause "will not be enforced unless the selected state would provide a more convenient forum than the state in which suit is brought." The Court of Appeals affirmed the District Court using its discretion in refusing to decline jurisdiction on the basis of forum non conveniens. In the view of the Court of Appeals, enforcement of such clauses would be contrary to public policy under Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L. Ed. 911 (1955), and Dixilyn Drilling Corp. v. Crescent T. & S. Co., 371 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963), *976 but the District Court was entitled to consider that remanding Zapata to a foreign forum, with no practical contact with the controversy, could raise a bar to recovery by a United States citizen which its own convenient courts would not countenance. The Supreme Court, on appeal, in an opinion by Mr. Chief Justice Burger expressing the view of seven members of the court, held that the forum selection clause should be specifically enforced unless Zapata could clearly show that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching; that there was nothing in the record which would support a refusal to enforce the forum selection clause; and that the clause provided for an exclusive forum and included even in rem actions. While the entire opinion in the Bremen case is of substantial importance here, we quote only those parts which we deem to be most pertinent, as follows:
"We hold, with the six dissenting members of the Court of Appeals, that far too little weight and effect was given to the forum clause in resolving this controversy. For at least two decades we have witnessed an expansion of overseas commercial activities by business enterprises based in the United States. The barrier of distance that once tended to confine a business concern to a modest territory no longer does so. Here we see an American company with special expertise contracting with a foreign company to tow a complex machine thousands of miles across seas and oceans. The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts. Absent a contract forum, the considerations relied on by the Court of Appeals would be persuasive reasons for holding an American forum convenient in the traditional sense, but in an era of expanding world trade and commerce, the absolute aspects of the doctrine of the Carbon Black case have little place and would be a heavy hand indeed on the future development of international commercial dealings by Americans. We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.
Forum-selection clauses have historically not been favored by American courts. Many courts, federal and state, have declined to enforce such clauses on the ground that they were `contrary to public policy', or that their effect was to `oust the jurisdiction' of the court. Although this view apparently still has considerable acceptance, other courts are tending to adopt a more hospitable attitude toward forum-selection clauses. This view, advanced in the well-reasoned dissenting opinion in the instant case, is that such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances. We believe this is the correct doctrine to be followed by federal district courts sitting in admiralty. It is merely the other side of the proposition recognized by this Court in National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964), holding that in federal courts a party may validly consent to be sued in a jurisdiction where he cannot be found for service of process through contractual designation of an `agent' for receipt of process in that jurisdiction. In so holding, the Court stated:
`[I]t is settled . . . . that parties to a contract may agree in advance to submit to the jurisdiction of a given court, to permit notice to be served by the opposing party, or even to waive notice altogether.' Id., at 315-316 [84 S. Ct. at 414], 11 L.Ed.2d at 358.
This approach is substantially that followed in other common-law countries including England. It is the view advanced by noted scholars and that adopted by the Restatement of the Conflict of Laws. It accords with ancient concepts of freedom of contract and reflects an *977 appreciation of the expanding horizons of American contractors who seek business in all parts of the world. (407 U.S. 11, 92 S.Ct. 1914, 32 L.Ed.2d 519-521)
* * * * * *
The argument that such clauses are improper because they tend to `oust' a court of jurisdiction is hardly more than a vestigal legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court and has little place in an era when all courts are overloaded and when businesses once essentially local now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. No one seriously contends in this case that the forum-selection clause `ousted' the District Court of jurisdiction over Zapata's action. The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement, by specifically enforcing the forum clause.
There are compelling reasons why a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect. In this case, for example, we are concerned with a far from routine transaction between companies of two different nations contemplating the tow of an extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea. In the course of its voyage, it was to traverse the waters of many jurisdictions. The Chaparral could have been damaged at any point along the route, and there were countless possible ports of refuge. That the accident occurred in the Gulf of Mexico and the barge was towed to Tampa in an emergency were mere fortuities. It cannot be doubted for a moment that the parties sought to provide for a neutral forum for the resolution of any disputes arising during the tow. Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting. There is strong evidence that the forum clause was a vital part of the agreement, and it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations. Under these circumstances, as Justice Karminski reasoned in sustaining jurisdiction over Zapata in the High Court of Justice, `the force of an agreement for litigation in this country, freely entered into between two competent parties, seems to me to be very powerful.'
Thus, in the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside." (407 U.S. 15, 92 S.Ct. 1916, 32 L.Ed.2d 521-523)
* * * * * *
Courts have also suggested that a forum clause, even though it is freely bargained for and contravenes no important public policy of the forum, may nevertheless be `unreasonable' and unenforceable if the chosen forum is seriously inconvenient for the trial of the action. Of course, where it can be said with reasonable assurance that at the time they entered the contract, the parties to a freely negotiated private international commercial agreement contemplated the claimed inconvenience, it is difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable. We are not here dealing with an agreement between two *978 Americans to resolve their essentially local disputes in a remote alien forum. In such a case, the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause. The remoteness of the forum might suggest that the agreement was an adhesive one, or that the parties did not have the particular controversy in mind when they made their agreement, yet even there the party claiming should bear a heavy burden of proof. Similarly, selection of a remote forum to apply differing foreign law to an essentially American controversy might contravene an important public policy of the forum. For example, so long as Bisso governs American courts with respect to the towage business in American waters, it would quite arguably be improper to permit an American tower to avoid that policy by providing a foreign forum for resolution of his disputes with an American towee.
This case, however, involves a freely negotiated international commercial transaction between a German and an American corporation for towage of a vessel from the Gulf of Mexico to the Adriatic Sea. As noted, selection of a London forum was clearly a reasonable effort to bring vital certainty to this international transaction and to provide a neutral forum experienced and capable in the resolution of admiralty litigation. Whatever `inconvenience' Zapata would suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting. In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Absent that there is no basis for concluding that it would be unfair, unjust, or unreasonable to hold that party to his bargain." (407 U.S. 17, 92 S.Ct. 1917, 32 L.Ed.2d 524-525)
We are perfectly aware that this Supreme Court decision came only in the context of choice of forum between one in this country and one in England. However, there is no reason that the broad principles announced in that decision would not be applicable to the instant situation. There is support for this interpretation of the Bremen decision in the case of In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir. 1972) where there was an action for breach of contract and for damages for injuries to a business reputation. There a Minnesota corporation entered into contract negotiations involving a substantial order for manufacture of goods with a firm which it knew was based in Ohio and where its production facilities were located. An Ohio "long-arm" statute was held to apply to a personal jurisdiction over the corporation in an action of tort based on a claim of the Ohio corporation for damage to business reputation because of the act of the Minnesota corporation in stopping payment on the check issued to satisfy outstanding obligations under the purchase contract. In the District Court, Van Dusen moved to dismiss the action on the ground that the court lacked jurisdiction. After considering affidavits and briefs filed by the parties, the District Court granted the defendant's motion and dismissed the case. On appeal, the judgment of the District Court was reversed on the basis that in enacting its "long-arm" statute the Ohio legislature intended to extend the jurisdiction of its courts to the constitutional limits with respect to the section dealing with the transaction of any business in the state. In connection with this opinion, the court made the following statement (pages 233-234):
"One factor which has been identified as making the assertion of jurisdiction over a non-resident unfair in a given case is the sense of surprise the disappointment of expectation which may result from the use of *979 long-arm jurisdiction. A purchaser who engages in an essentially one state operation and occasionally buys an item or two out of state, for instance, is far more likely to be unprepared to deal with out of state litigation than an individual or corporation whose business frequently involves him or it in interstate transactions. The existence of substantial interstate business in general cannot substitute for some direct contacts with the forum state under the first test of Southern Machine [Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir.)] of course, but where such direct contact consists primarily of the entering of a contract with a resident of the forum state by the non-resident defendant the general interstate involvement of the defendant is suggestive of the latter's expectation that it may be involved in litigation far from its home base. Here, the parent Van Dusen Corporation's in-house operations are spread across state lines with its headquarters in Minnesota and its purchasing operations centered in Missouri. Its dealings with its subsidiaries alone treating such subsidiaries as the independent entities Van Dusen asserts them to be involve dealings with corporate `residents' of states spread across the country. It can hardly surprise Van Dusen or disappoint its general expectations that it is called upon to defend in a forum far from its home base(s)."
And the Court then makes the following statement by way of footnote (Page 234, Footnote 24):
"A party in Van Dusen's position desiring to eliminate the possibility of out of state litigation could do so by avoiding any contractual relationship with an out of state resident, of course. A more practical alternative however might be to stipulate in the contract the forum of choice. In recent years most courts have given effect to such stipulations where the forum chosen is reasonable and the contract involved is not one of adhesion. See, for example, Central Contracting Co. v. Maryland Casualty Co., 367 F. 341 (3d Cir. 1966); but see Indussa Corp. v. S. S. Ranborg, 377 F.2d 200 (2d Cir. 1967). This year it would seem that the Supreme Court gave conclusive sanction to the practice of accepting such stipulations as binding in appropriate circumstances. M/S Bremen and Unterweser, reederei, GMBH v. Zapata Off-Shore Company, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513, decided June 12, 1972. Although the Supreme Court decision came in the context of a choice between a forum in this country and one in England, the principles announced in it would seem equally applicable to domestic choice of forum questions."
Furthermore, we believe our conclusion that the motion for summary judgment must be granted to be consistent with the opinion of the Third Circuit Court of Appeals in the case of Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341 (1966), in which the court affirmed the opinion of Chief Judge Rabe F. Marsh, Jr. of this Court. In that opinion it was held that that provision of the subcontract on a Pennsylvania public project, that any suit against the general contractor or surety should be maintained in New York, was not unreasonable, and justified Pennsylvania District Court's declining jurisdiction of the action against the surety, in view, inter alia, of the general contractors' relations with New York, provision that New York law should govern, and provision for arbitration in New York. It is noted further that in this case the defendant moved to dismiss the action under Rule 12(b) (6) on the ground that the complaint failed to state a claim upon which relief could be granted. The appellate court concluded that the motion to dismiss should have been treated as one for summary judgment under Rule 56, and so considered it. The *980 Court stated as follows (at Page 344-345):
"The validity of Section 45 of the subcontractor's contract recently was reviewed by the Supreme Court of Pennsylvania in the action by this plaintiff against the general contractors. The court there reviewed the earlier Pennsylvania decisions and announced the modern rule which is to prevail in Pennsylvania. `The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation.' Central Contracting Co. v. C. E. Youngdahl & Co., Inc., 418 Pa. 122, 133, 209 A.2d 810, 816 (1965). The court then went on to consider the elements which are relevant in determining the unreasonableness of such a provision. `Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement.' 418 Pa. at 133-134, 209 A.2d at 816.
We need not consider whether in this diversity case we are bound to apply the Pennsylvania rule, for both federal and state courts have increasingly in recent years recognized the same principle which the Supreme Court of Pennsylvania has now adopted. It is becoming more widely recognized that for reasons of business or convenience the parties may have bargained that all litigation arising out of their complex activity under a contract shall be drawn into one jurisdiction. So long as there is nothing unreasonable in such a provision there is no basis for viewing it as an affront to the judicial power, which must be stricken down. On the contrary, it should be respected as the responsible expression of the intention of the parties so long as there is no proof that its provisions will put one of the parties to an unreasonable disadvantage and thereby subvert the interests of justice.
The Pennsylvania rule, therefore, represents the correct principle, and we accept it and apply it here. This brings us to the question whether the provision that the action must be brought only in the courts of New York County is unreasonable.
On the face of it there is no unreasonableness in the provision. Two of the three general contractors were New York corporations. The provision is tied in with the requirement that the rights of the parties should be construed pursuant to the laws of the State of New York and that disputes should be arbitrated in the City of New York subject to the judicial supervision and review of the Supreme Court of New York and the appellate courts of that state. Judge Marsh in the court below noted that the forum in New York is only 400 miles from plaintiff's home office and that this would hardly impose an unreasonable burden upon it. Affidavits by the parties present some fragmentary information on the subject but they are not enough to rise to the dignity of substantial evidence of unreasonableness. Under Pennsylvania law the burden is on the plaintiff to prove the unreasonableness of the provision. *981 Central Contracting Co. v. C. E. Youngdahl & Co., Inc., supra, at 134, 209 A.2d at 816. Even if the Pennsylvania requirement as to the burden of proof is not binding upon us in a diversity case we are satisfied that this is the correct rule. Since the plaintiff had the burden of showing that the provision is unreasonable, the lack of proof is fatal to its claim. We may also add that the construction of the agreement and the arbitration provisions which still surround the litigation must be decided according to the law of New York and that its courts are the most appropriate instruments to carry out this function.
We are mindful that cases may be imagined in which the requirement of a contract limiting resort to a single forum may be the instrument of injustice. But such a provision does not oust the jurisdiction of the courts; in effect it merely constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise its jurisdiction. There will always be open to either party the opportunity to present whatever evidence will move a court in the particular circumstances not to decline to exercise its undoubted jurisdiction. No such showing has been made in the present case."
It is, therefore, our considered opinion that the defendants' motion for summary judgment must be granted. The plaintiffs in this case do not even argue with any degree of force that trial in the contractural forum is either gravely difficult or inconvenient so that for all practical purposes they would be deprived of their day in court. There is nothing in the record, therefore, which forms any basis for a conclusion that our holding would be unfair, unjust, or unreasonable by enforcing the terms of the contract.
An appropriate order will be entered.
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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/2258764/
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883 A.2d 429 (2005)
Robert John SCALICE, Appellant
v.
PENNSYLVANIA EMPLOYEES BENEFIT TRUST FUND, Appellee.
Supreme Court of Pennsylvania.
Argued March 7, 2005.
Decided September 28, 2005.
*430 James D. Belliveau, Pittsburgh, for Robert John Scalice, appellant.
Richard Kirschner, for Pennsylvania Employees Benefit Trust Fund (PEBTF), appellee.
Before: CAPPY, C.J., NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Chief Justice CAPPY.
This appeal raises a question under the Employee Retirement Income Security Act of 1974 ("ERISA" or "Act"), 29 U.S.C. § 1001 et seq. Specifically, we consider whether the Superior Court correctly affirmed the trial court's order granting summary judgment to Appellee Pennsylvania Employees Benefit Trust Fund ("PEBTF") on a counterclaim for subrogation. The grant of summary judgment was premised on the threshold determination that PEBTF was not a governmental plan excluded from the Act's coverage on October 30, 1997, see 29 U.S.C. §§ 1002(32), 1003(b)(1), but rather, was an ERISA plan that could claim ERISA's preemption of the anti-subrogation provision in the Pennsylvania Motor Vehicle Responsibility Law ("MVFRL"), 75 Pa. C.S. § 1720. Because we conclude that PEBTF was not entitled to summary judgment, we hold that the Superior Court erred. Accordingly, we reverse the Superior Court's order and remand to the trial court for further proceedings.
The relevant facts and procedural history are as follows. Appellant Robert Scalice was an employee of the Commonwealth of Pennsylvania, and as such, received health care benefits from PEBTF. On October 30, 1997, Appellant was injured in a motor vehicle accident, and was treated for the injuries he sustained. PEBTF paid a number of Appellant's medical and hospital bills, some in 1997, and others in 1998. In connection with the accident, Appellant pursued an allegedly negligent third party, and secured a settlement of $100,000. PEBTF made a subrogation claim against the settlement for $43,795.96. Appellant refused the claim on the grounds that under the MVFRL, 75 Pa. C.S. § 1720, PEBTF did not have a right of subrogation.[1]
*431 Appellant commenced a federal action under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, requesting a determination that the MVFRL barred PEBTF from seeking subrogation. PEBTF filed a motion to dismiss, raising subject matter jurisdiction. Appellant responded that jurisdiction was based on the federal question that PEBTF would raise in the case by asserting a preemption defense under ERISA to the MVFRL's prohibition against subrogation.[2] The district court ruled that Appellant's expectation that PEBTF would assert ERISA preemption did not provide the court with subject matter jurisdiction, and thus, granted PEBTF's motion to dismiss. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-4, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).
On March 1, 2000, Appellant commenced the present action by filing a Complaint for Declaratory Judgment ("Complaint") in the court of common pleas. In his Complaint, Appellant alleged that PEBTF was exempted from ERISA, having been created as a governmental plan under 29 U.S.C. § 1002(32), and that therefore, PEBTF could not assert ERISA's preemption of the MVFRL.[3] Appellant asked the court to declare whether PEBTF was a governmental plan and whether it had a right to subrogation; to enter a judgment barring PEBTF from subrogation under the MVFRL; and to award him the appropriate counsel fees, costs, and interest. In its Answer to the Complaint and New Matter, PEBTF alleged that at all relevant times, it was an ERISA plan, and that as such, it had the benefit of ERISA preemption and the right to pursue Appellant for subrogation. In a Counterclaim, PEBTF requested that a judgment for $43,795.96 be entered in its favor.
On August 22, 2002, PEBTF filed a Motion for Summary Judgment And/Or Judgment On The Pleadings ("Motion for Summary Judgment" or "Motion").[4] PEBTF's legal argument was as follows. When established in 1988, PEBTF was a governmental plan within the meaning of ERISA and excluded from the Act's coverage. From March 1994 until January 1, 1998, however, PEBTF became an ERISA plan due to private employer participation. Because PEBTF was an ERISA plan at the time of Appellant's accident on October 30, 1997, the MVFRL, and more specifically, *432 its anti-subrogation provision, was preempted. Therefore, PEBTF was able to pursue its right to subrogation against Appellant, which arose out of a provision that the trustees who administer PEBTF adopted in 1995.
As evidence of the undisputed material facts on which its legal argument was premised, PEBTF pointed to the allegation of jurisdiction in Appellant's federal complaint and to three exhibits attached to the Motion. Exhibit A consisted of two "Affidavits" of Tommy Teague, the Executive Director of PEBTF ("Teague Exhibit"); Exhibit B was the "Affidavit" of William Schantzenbach, the Chief Financial Officer of PEBTF ("Schantzenbach Exhibit"); and Exhibit C was a letter to the Fund's attorney from Robert E. Ribic, Jr., the Director of Litigation Support for the Certified Public Accounting Firm of Brown, Schultz, Sheridan Fritz ("Ribic Exhibit").[5]
The Teague Exhibit stated: that PEBTF is a health and welfare trust fund that is administered by trustees who are appointed by the Governor and certain unions; that PEBTF receives its funding from bi-weekly contributions made by the Commonwealth and Commonwealth-related agencies; that when PEBTF was originally established in October 1988, only Commonwealth and Commonwealth-related agencies submitted contributions; that on March 1, 1994, PEBTF began to permit private employers to participate in PEBTF and accepted contributions from them; that the United States Department of Labor ("DOL") sent PEBTF a letter dated July 12, 1996 confirming PEBTF's ERISA status based upon increased private employer contributions; that in 1996 and 1997, PEBTF filed a form ("Form 5500") with the DOL that ERISA requires; and that by January 1, 1998, most of the private employers contributing to PEBTF had withdrawn, causing PEBTF to relinquish ERISA status and resume as a governmental plan. No plan document or other writing evidencing the terms of PEBTF was included in the record. The only documents attached to the Teague Exhibit were a copy of the DOL's July 1996 letter and copies of the Forms 5500.
The Schantzenbach Exhibit included summaries of contributions made to PEBTF from 1993 to 1999, and stated that a review of PEBTF financial records showed that prior to March 1994, private employer contributions amounted to approximately $12,000 per month; that beginning in March 1994, the private employer contributions increased to approximately $270,000 per month; and that by January 1, 1998, the private employer contributions decreased to approximately $82,000 per month.
*433 The Ribic Exhibit summarized contributions made to PEBTF in schedules and charts, and stated that PEBTF's general ledger records showed that private contributions were $842,112 in 1994; $2,468,253 in 1995; $2,745,227 in 1996; $1,589,358 in 1997; $336,670 in 1998; and $173, 924 in 1999.
Appellant filed a Brief in Opposition to PEBTF's Motion. Appellant's argument centered on the dates that PEBTF paid his medical and hospital bills, and relied on the analysis in Wimer v. Pennsylvania Employees Benefit Trust Fund, No. 5322 of 2001 (C.P.Westmoreland, March 11, 2002), in which the court of common pleas ruled that PEBTF was entitled to subrogation for medical treatment payments made in 1997, while it was an ERISA plan, but not in 1998, after it had resumed governmental plan status. Id. at 8-10.[6] Focusing on the statement in the Teague Exhibit that as of January 1, 1998, private employer participation in PEBTF had diminished, Appellant argued that under Wimer, PEBTF's governmental plan status as of January 1998 rendered summary judgment improper because there was no evidence of record as to when PEBTF made the payments that would give rise to a subrogation claim against him. Appellant also contended that nothing in his federal complaint amounted to a judicial admission of PEBTF's ERISA status and that his entitlement to counsel fees should have operated to reduce PEBTF's judgment. Thereafter, Appellant supplemented the record with copies of statements of account and argued that even if PEBTF was an ERISA plan in 1997, it did not have a right to subrogation for payments made in 1998, and that the amount of PEBTF's alleged subrogation claim was open to question.
In an opinion and order, the trial court granted PEBTF's Motion. The trial court determined that at the time of Appellant's accident, the Fund was an ERISA plan because the Teague Exhibit stated that "`the PEBTF continued to maintain its ERISA status [from at least 1996 when the DOL confirmed the [Fund's] ERISA status] through, and until January 1, 1998, when most of the private employers voluntarily withdrew with only de minimis private employer participation thereafter.'" Trial Court Opinion at 21 & n. 2 (alteration in original). The trial court also determined that as of January 1, 1998, PEBTF relinquished its ERISA status and became a governmental plan based on the statements to that effect in the Teague and Schantzenbach Exhibits and Appellant's Brief. Id. at 21 & n. 3. Next, concluding that the date of Appellant's accident, being "manipulation free," dictated PEBTF's entitlement to subrogation, the trial court rejected the analysis in Wimer and Appellant's argument that summary judgment was improper because no documentation existed in the record to indicate precisely when PEBTF paid for Appellant's medical treatment. Id. at 22-25. Therefore, the trial court held that since PEBTF was an ERISA plan on October 30, 1997, it had a right to subrogation against all payments it made on behalf of Appellant in connection therewith, and entered an order granting PEBTF's Motion, dismissing Appellant's Complaint, and entering judgment in PEBTF's favor on its Counterclaim in the amount of $43,795.94. Id. at *434 26 and Trial Court Order dated March 23, 2003.
Appellant filed a timely appeal in the Superior Court. In a published opinion, a majority of the Superior Court panel upheld the trial court. Scalice v. Pennsylvania Employees Benefit Trust Fund, 854 A.2d 987 (Pa.Super.Ct.2004).[7]
The Superior Court first determined that the record established: that PEBTF was deemed a governmental plan and exempt from ERISA's coverage in 1988 inasmuch as it operated as a health and welfare plan, originated to provide health benefits to Commonwealth employees; that after extending coverage to private employees in 1994 and receiving the DOL's letter, PEBTF concluded that it was an ERISA plan as evidenced by its Form 5500 filings; that the DOL voiced no concern to PEBTF's filings and would have raised a challenge had it questioned PEBTF's ERISA status; and that when significant private sector employees left PEBTF, it reverted to an ERISA-exempt governmental plan. Id. at 990. As to PEBTF's status on October 30, 1997, the Superior Court concluded that PEBTF was an ERISA plan because the "documentation of the DOL's involvement in the trustee's decision to transition the PEBTF from a governmental plan to an ERISA plan provided the trial court with evidence to make the legal determination [that PEBTF] was indeed an ERISA-qualified plan at the time of Appellant's October 30, 1997 accident[,]" and Appellant offered no contradictory evidence on the matter. Id.
Considering next whether PEBTF was entitled to subrogation for payments made after January 1, 1998, when it had resumed governmental plan status, the Superior Court agreed with the trial court that "to conclude that for insurance purposes that the date the right to subrogation arises is at the time of payment, rather than the date of injury would cause legal and bureaucratic chaos." Id. at 992. Last, in light of the supplemental exhibit PEBTF placed in the record, the Superior Court rejected Appellant's argument that the amount of PEBTF's subrogation claim was unsettled and determined that Appellant's challenge to PEBTF's subrogation claim was unreasonable, negating any arguable right he had under equitable principles to an award of counsel fees for securing the settlement. Id. at 992-93. Accordingly, the Superior Court affirmed the trial court's March 23, 2003 Order granting PEBTF's Motion for Summary Judgment. Id. at 993.
Judge Kate Ford Elliot filed a Dissenting Statement, and would have followed Triplett v. United Behavioral Health Systems, Inc., 1999 WL 238944 (E.D.Pa. March 29, 1999) (memorandum opinion). 854 A.2d at 993-94. In Triplett, the federal district court concluded, inter alia, that the origins of PEBTF supported the proposition that it was "`established ... for its employees ... by the government of ... any State,'" and that therefore, it was a governmental plan not covered by ERISA. 1999 WL 238944 at *2-3 (quoting 29 U.S.C. § 1002(32)).
Appellant filed a petition for allowance of appeal, which was granted. Scalice v. Pennsylvania Employees Benefit Trust Fund, 581 Pa. 680, 863 A.2d 1148 (Pa. 2004).
We begin with the Pennsylvania Rules of Civil Procedure that govern summary judgment. The Rules instruct in relevant part that the court shall enter *435 judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Pa.R.C.P. 1035.2(1). Under the Rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Note to Pa.R.C.P. 1035.2. For purposes of summary judgment, the record includes any pleadings, interrogatory answers, depositions, admissions, and affidavits. Pa.R.C.P. 1035.1. An appellate court may reverse the granting of a motion for summary judgment if there has been an error of law or an abuse of discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002).[8] In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (2001). Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205, 206 (1991).
We continue with ERISA, and observe that it was enacted to remedy long-standing abuses and deficiencies in the private pension system. Rose v. Long Island Railroad Pension Plan, 828 F.2d 910, 913 (2d Cir.1987); see also 29 U.S.C. § 1001. Generally speaking, ERISA applies to "any employee benefit plan." 29 U.S.C. § 1003(a). Under 29 U.S.C. § 1003(b)(1), however, certain employee benefit plans are excluded from the Act's substantive and procedural requirements. See supra n. 3. One such exclusion is the governmental plan, which, as we noted, is defined in 29 U.S.C. § 1002(32). See id.
We now turn to PEBTF's Motion for Summary Judgment. The threshold issue upon which PEBTF's entitlement to a judgment as a matter of law was premised was that PEBTF had the benefit of ERISA's preemption of the MVFRL's anti-subrogation provision. So as to assert ERISA's preemption of the MVFRL, PEBTF contended that from March 1, 1994 until January of 1998, it was an ERISA plan because it was no longer subject to the governmental plan exclusion.[9] PEBTF argued in the trial court and continues to argue on appeal that three purported facts are conclusive of this issue: Appellant's judicial admission in his federal complaint that the district court had federal question jurisdiction; PEBTF's decision to view and conduct itself as an ERISA plan due to increased private sector employer participation; and the DOL's confirmation of that decision.
We disagree. Neither PEBTF's characterization of the record, nor its position that the record establishes that it was no longer a governmental plan and thereby *436 covered by ERISA on October 30, 1997, has merit. First, Appellant's allegation of federal question jurisdiction in his federal complaint, based on his anticipation of PEBTF's assertion of ERISA preemption, is not a judicial admission that PEBTF was an ERISA plan. See Tops Apparel Manufacturing Co. v. Rothman, 430 Pa. 583, 244 A.2d 436, 438 & n. 8 (1968) (reiterating that the term "judicial admission" refers to an advantageous allegation of fact that is made by a party in a pleading or stipulations or the like). Furthermore, contrary to PEBTF's assertion, the label that PEBTF assigned itself under ERISA is irrelevant. PEBTF's status as a governmental plan is a matter for the court to decide by construing 29 U.S.C. § 1002(32) and determining whether or not it applies. See, e.g., Hightower v. Texas Hospital Ass'n, 65 F.3d 443 (5th Cir.1995) (construing the meaning of 29 U.S.C. 1002(32) and applying that construction to the plan at issue); Silvera v. Mutual Life Ins. Co. of New York, 884 F.2d 423 (9th Cir.1989) (same); Roy v. Teachers Ins. and Annuity Ass'n, 878 F.2d 47 (2nd Cir.1989) (same); Rose, 828 F.2d at 910 (same).[10] And finally, despite PEBTF's description of the DOL's actions, the agency did not confirm PEBTF's declaration of its ERISA plan status. There is no authority to support the proposition that the DOL's silence in the face of PEBTF's Form 5500 filings has any legal significance in this context. In addition, the DOL's correspondence to PEBTF in July of 1996 was only an information letter, setting forth the DOL's previously stated view in connection with other inquiries "that the inclusion of more than a de minimis number of private sector employees as participants in an otherwise governmental plan will result in the plan no longer having the status of a governmental plan within the meaning of section 3(32) of ERISA[;]" it did not address PEBTF's status under ERISA one way or the other.[11] Therefore, we conclude that PEBTF failed to show that the record established that on October 30, 1997, it was an ERISA plan entitled to ERISA's preemption of the MVFRL's anti-subrogation provision and that it was entitled to a judgment as a matter of law. See Pa. R.C.P. 1035.2(1). Accordingly, we hold that the Superior Court erred in affirming the trial court's March 23, 2003 Order.
For these reasons, we reverse the order of the Superior Court affirming the trial court's order granting PEBTF's motion for summary judgment and entering judgment in favor of PEBTF, and remand this *437 case to the trial court for further proceedings consistent with this opinion.[12]
Justice CASTILLE did not participate in the consideration or decision of this case.
Justice NEWMAN files a concurring opinion.
Justice NEWMAN, concurring.
While I join the Majority Opinion, I write separately to further develop my reasoning in reaching this result. In particular, the argument of the Pennsylvania Employees Benefit Trust Fund (PEBTF) concerning the guidance given by the Department of Labor (DOL) in the shifting of a governmental plan from exempt to non-exempt pursuant to the Employees Retirement Income Security Act (ERISA), 29 U.S.C. § 1001, et seq., is unsubstantiated.
As noted by the Majority, Appellant did not raise the disjunctive language in the statute governing the instant matter, 29 U.S.C. § 1002(32), in the court below. Maj. Op. at ___ _ ___ n. 10, 883 A.2d at 436 n. 10. As such, the issue is waived. If this issue is raised in the future, it may render moot the discussion of the DOL's apparent allowance of the change in categorization of a plan from governmental to non-governmental. See Triplett v. United Behavioral Health Systems, Inc., 1999 WL 238944 (E.D.Pa.1999) (holding that, based upon the plain language of 29 U.S.C. § 1002(32), a plan formed as a governmental plan must remain a governmental plan). However, until that time, I note that the interpretation of an agency concerning a regulation within its scope is entitled to deference. See Uniontown Area School District v. Pennsylvania Human Relations Commission, 455 Pa. 52, 313 A.2d 156, 169 (1973) (citing American Telephone & Telegraph Co. v. United States, 299 U.S. 232, 57 S.Ct. 170, 81 L.Ed. 142 (1936)). As such, the guidance given by the DOL in determining the criteria for becoming a non-governmental plan should be heeded.
In 1996, Appellee requested information from the DOL regarding its planned extension of coverage to private sector employees and asked how that would affect its status under the governmental plan exemption of ERISA. The DOL responded in an Opinion Letter (Letter), which Appellee argues states that covering more than a de minimis number of private sector employees would result in a loss of the governmental plan exemption and ERISA qualification. Appellee relied on the Letter as showing that Appellee was indeed ERISA qualified until January of 1998, when it voluntarily relinquished its ERISA status and its right to subrogation. Both the trial court and the Superior Court used the Letter, as well as the lack of challenge from the DOL of the filing of ERISA required documents, as proof that Appellee had gained ERISA status.
At the heart of Appellee's argument is the Letter's reference to a 1995 DOL Opinion Letter (Letter 95-27A), which implies that a non-governmental employee coverage of approximately eight percent still amounts to de minimis coverage of private sector employees. See http:// www.dol. gov/ebsa/programs/ ori/advisory95/95-27a.htm (last visited 7/26/05). In Letter 95-27A, the DOL stated that 270 private sector employees out of 3500 participants in the plan, approximately 7.7%, was insufficient to exceed the de minimis criterion; as such, the plan was still considered a governmental plan for failing to *438 meet the de minimis standard concerning non-governmental employee coverage. Although opinion letters are not necessarily binding, and refer only to the factual situation related therein, a material issue of fact arises as to whether or not Appellee falls within the governmental plan exemption. Moreover, the DOL's interpretation should be given weight when determining the status of a party pursuant to ERISA. See Uniontown Area School District, supra.
In the present case, PEBTF, by its own admission, had more than 85,000 participants, of which approximately 1,000, or 1.2%, were private sector employees. It should be noted that Appellant submits his own criteria stating that in 1997, total Commonwealth contributions to PEBTF amounted to $285,066,966.00, and private contributions in 1997 were a mere $1,589,358.00. Using these figures, the non-government employee contributions totaled a little more than one-half of one percent (0.5%). The Letter did not address the particular situation of Appellee, but merely stated that a plan must include more than a de minimis number of private sector employees. By virtue of the reference to Letter 95-27A, it is reasonable to interpret the Letter as stating that Appellee was still a governmental plan. However, Appellee argues that the sheer number of employees, although small by percentage, may be the deciding factor in determining whether a plan still falls within the governmental plan exemption. Appellee cites no case law or opinion letter to support its solely numeric or percentage based criterion for determining ERISA status.
Additional research would have revealed supplementary DOL guidance. In Letter 95-15A, the DOL concluded that a two percent composition of private sector employees did not exceed the de minimis standard, which is a greater percentage than the one in the instant matter. The generic Letter sent to Appellee, combined with a reading of the two other DOL opinion letters, suggests that the trial court and Superior Court were hasty in classifying Appellee as ERISA qualified. Accordingly, we must determine the tipping point in terms of percentages or numbers of non-government employees covered that will cause the governmental plan exemption to be lost.
I am sympathetic to the argument by Appellee that it would be a breach of fiduciary duty pursuant to ERISA, subjecting its members and the funds itself to fines, if Appellee failed to file the appropriate ERISA forms when ERISA qualified. As a result of this duty, Appellee argues that it is in the best position to determine its status pursuant to ERISA and should not be penalized for attempting to avoid the harsh consequences, labeled draconian by Appellee, imposed by ERISA for failure to comply with its terms. However, as noted by Triplett, supra, and the dissent in the Superior Court, a litigant's attempt to classify itself, even if believed to be correct, does not make it true. "[T]here is no reason to think that a plan's determination of its status under ERISA is any more meaningful than any litigant's determination of its status under any statute. I thus find that Appellee's interpretation of itself as a non-governmental plan is not relevant." Triplett, 1999 WL 238944 at *3.
Moreover, an additional letter asking for clarification from the DOL, or a commonsense interpretation of the DOL's approach to the de minimis standard, would have led to the conclusion that PEBTF was still a governmental plan pursuant to ERISA and, therefore, exempt and subject to the MVFRL. The generic response was not an invitation to Appellee to interpret itself as it saw fit. In the case sub *439 judice, PEBTF covered a mere 1.2% of private sector employees contributing approximately one-half of one percent (0.5%) in monetary terms. As such, the mathematical data available to PEBTF, which the DOL brought to its attention, clearly indicate that its coverage of private sector employees did not exceed the de minimis threshold.
Although the DOL has not promulgated an exact number required to remove a plan from the definition of a governmental plan, as stated above, the DOL has found that two percent private sector coverage is insufficient. DOL Opinion Letter 95-15A. Moreover, the district court in Triplett, supra, addressed PEBTF's ERISA categorization as being a governmental plan and, therefore, non-ERISA qualified. In addition, other jurisdictions have addressed the topic of de minimis for purposes of removing a plan from the governmental plan exemption. In Kirkpatrick v. Merit Behavioral Care Corp., 70 F.Supp.2d 443 (D.Vt.1999), the Vermont District Court stated that, in a case involving 7.6% private employees, "[m]oreover, given the small number of non-governmental employees involved, the governmental plan exception's purpose is not violated and its scope is not unduly broadened by placing the Schools Plan within the exception." Id. at 448. Furthermore, the United States District Court for the District of Maine addressed the issue in Hall v. Maine Municipal Employees Health Trust, 93 F.Supp.2d 73 (D.Me.2000):
In this case, MMEHT has allowed the employees of a small number of non-profit organizations who perform municipal functions to participate in the Trust since 1990. Of the 16,399 employees participating in MMEHT, 609, or 3.7, are non-governmental employees. The Court is satisfied that this number of non-governmental employees is de minimis.
Id. at 81 (citing Kirkpatrick and Triplett) (footnotes deleted).
I find the reasoning of these courts to be persuasive and conclude that, because of the DOL letters addressing de minimis in prior scenarios and the small percentage of non-governmental employees at stake here, PEBTF was a governmental plan exempt from ERISA during the period in question. Accordingly, state law applies pursuant to Section 1720 of the MVFRL, 75 Pa.C.S. § 1720, and Appellee is not entitled to subrogation.
NOTES
[1] The MVFRL provides:
§ 1720. Subrogation
In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to workers' compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719 (relating to coordination of benefits).
75 Pa.C.S. § 1720.
[2] In FMC Corp. v. Holliday, 498 U.S. 52, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990), the United States Supreme Court held that ERISA preempted the application of § 1720 of the MVFRL to a self-funded health care plan that was an employee welfare benefit plan within the meaning of ERISA under 29 U.S.C. § 1002(1). Id. at 65, 111 S.Ct. 403.
[3] ERISA provides that "[t]he provisions of this subchapter shall not apply to any employee benefit plan if(1) such plan is a governmental plan (as defined in section 1002(32) of this title)[,]" and defines "governmental plan" to mean "a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing...." 29 U.S.C. §§ 1002(32), 1003(b)(1).
[4] PEBTF's Motion was not based solely on the pleadings and documents properly attached thereto. Therefore, it was not a motion for judgment on the pleadings under Pa. R.C.P. 1034, and was not treated as such.
[5] We note that although PEBTF designated these three exhibits as "affidavits," they do not satisfy the requirements of an affidavit under the Pennsylvania Rules of Civil Procedure. Not one of them is based on personal knowledge, as is required under Pa.R.C.P. 1035.4; not one of them is sworn, affirmed or made subject to the penalties of 18 Pa.C.S. § 4904, as is required under Pa.R.C.P. 76. We also note that for the most part, verified or certified copies of the documents referred to in the exhibits are not attached, as Pa. R.C.P. 1035.4 requires. Lastly, we note that the exhibits are largely testimonial in nature, which may run afoul of the rule announced in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900, 903 (1989) ("Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.") (quotation omitted). Appellant, however, did not raise any such issues in the trial court. Therefore, any objections to the exhibits were waived. See Pa.R.A.P. 302(a); see also Harber Philadelphia Center City v. LPCI Limited Partnership, LCCO, 764 A.2d 1100, 1104-05 (Pa.Super.Ct.2000).
[6] In Wimer, the status of PEBTF was a matter of stipulation. The parties in that case filed Joint Stipulations of Fact, in which they stipulated that at the time of plaintiff's motor vehicle accident on October 3, 1997, PEBTF was an ERISA plan and that as of January 1, 1998, PEBFT relinquished its ERISA status and resumed the status of governmental plan. Id. at 8.
[7] At this point, PEBTF was permitted to supplement the record on appeal with an "Affidavit In Support of Payments by Highmark Blue Cross Blue Shield to Altoona Hospital" to show the amount of payments it made on Appellant's behalf
[8] As the issue as to whether there are no genuine issues as to any material fact presents a question of law, our standard of review is de novo; thus, we need not defer to the determinations made by the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002).
[9] We note that the record reveals that for purposes of PEBTF's entitlement to ERISA preemption, the only dispute between the parties is PEBTF's status during this time period. The parties do not dispute that PEBTF was an employee benefit plan under 29 U.S.C. § 1003(a), and that PEBTF was excluded from ERISA's coverage under 29 U.S.C. § 1003(b)(1) as a governmental plan within the meaning of 29 U.S.C. § 1002(32), from 1988 until March 1, 1994, and beginning again in January of 1998.
[10] For the first time on appeal in the Superior Court, Appellant raised that ERISA's definition of a governmental plan in 29 U.S.C. § 1002(32), which speaks of "a plan established or maintained" for its employees by the government of any state, rendered summary judgment in PEBTF's favor improper. See supra. n. 3. In this regard, Appellant pointed out that 29 U.S.C. § 1002(32) is written in the disjunctive, and argued that since PEBTF admitted that it was established in 1988 as a governmental plan, federal case law would hold that PEBTF satisfied the Act's definition, regardless of how it was maintained thereafter. Appellant did not raise this issue on summary judgment in the trial court. See supra. p. ___ _ ___, 883 A.2d p. 433. Therefore, the issue was waived in connection with PEBTF's entitlement to summary judgment. Pa.R.A.P. 302(a); see also Harber Philadelphia Center City, 764 A.2d at 1104-05.
[11] We observe that PEBTF placed no proof in the record as to number of its participants who were private sector employees at any given point in time.
We also make clear that we take no position on the merits of PEBTF's interpretation of the DOL's position that PEBTF could establish that it was an ERISA plan and no longer a governmental plan under 29 U.S.C. § 1002(32) on October 30, 1997 by proving that it had more than a de minimis number of private sector employees at some point between March 1, 1994 and January of 1998.
[12] In light of our disposition, we need not and do not consider the merits of any of the other issues resolved on summary judgment by the trial court and affirmed on appeal by the Superior Court.
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714 F.Supp. 1218 (1989)
SONCO STEEL TUBE DIV., FERRUM, INC., Plaintiff,
v.
The UNITED STATES, Defendant,
and
Lone Star Steel Co., Defendant-Intervenor.
Court No. 86-07-00899.
United States Court of International Trade.
May 18, 1989.
*1219 Dow, Lohnes & Albertson, Washington, D.C., (William Silverman, Carrie A. Simon and Douglas J. Heffner), Washington, D.C., for plaintiff.
John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Platte B. Moring, III, Civil Div., U.S. Dept. of Justice, for defendant, Craig L. Jackson, Atty. Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce, Washington, D.C., for defendant.
Dewey, Ballantine, Bushby, Palmer & Wood, Michael H. Stein, Washington, D.C., for defendant-intervenor.
OPINION AND ORDER
RESTANI, Judge:
Plaintiff, Sonco Steel Tube Division, Ferrum, Inc. (Sonco) brings this action challenging the final determination by the Department of Commerce, International Trade Administration (ITA) that oil country tubular goods (OCTG) from Canada are being sold in the United States at less than fair value. Oil Country Tubular Goods from Canada, 51 Fed.Reg. 15,029 (Apr. 22, 1986), as amended, 51 Fed.Reg. 29,579 (Aug. 19, 1986). In its opinion of August 18, 1988, Sonco Steel Tube Div., Ferrum, Inc. v. United States, 12 CIT ___, 694 F.Supp. 959 (1988), the court remanded this action to ITA for (1) a reconsideration and a fuller explanation of the agency's reasons for treating limited service OCTG as a fully-costed co-product of prime OCTG in its calculations of constructed value, (2) an explanation of why certain U.S. sales, which appeared unrepresentative of plaintiff's selling practices in the U.S., were *1220 included in the fair value comparison, and (3) a fuller explanation of why early payment discounts provided to Sonco's customers were treated as reductions in U.S. price while no adjustments for such discounts were made to foreign market value. In its remand determination, dated November 1, 1988, ITA determined that the sales which plaintiff alleged were unrepresentative of its selling practices in the U.S. were in fact unrepresentative and excluded such sales from the fair value comparison. As a result of this exclusion, ITA calculated a new less than fair value margin of 3.18%. Upon remand, ITA adhered to its previous determination with regard to the remaining two issues. Plaintiff presently challenges these remand results.
I. ITA'S TREATMENT OF LIMITED SERVICE OCTG
Plaintiff's arguments concerning ITA's treatment of limited service OCTG are essentially identical to those made by Ipsco, Inc., another Canadian producer of OCTG subject to this same investigation, in its challenge to ITA's final determination. Accordingly, the court's views on plaintiff's proposed by-product accounting methodology and on the accounting methodology actually employed by ITA as expressed in Ipsco, Inc. v. United States, 13 CIT ___, 714 F.Supp. 1211 (1989) are equally applicable in this case and need not be repeated in detail here.
In summary, the court found Ipsco's proposed methodology which simply assigns limited service OCTG a cost of production and/or constructed value equal to its actual net realizable value or estimated market value to be contrary to both the statute and ITA regulations. Additionally, the court found the methodology employed by ITA to be unreasonable because it failed to account for significant differences in value between the prime and limited service product in its calculations of foreign market value. In this case, as in Ipsco, this matter is remanded to ITA so that the agency may adopt a methodology for calculating foreign market value which eliminates the unfairness of failing to account for significant differences in value between the two types of simultaneously produced products subject to investigation.
II. ITA'S TREATMENT OF EARLY PAYMENT DISCOUNTS
In the previous opinion, the court questioned ITA's decision to treat early payment discounts provided to Sonco's U.S. customers as reductions in U.S. price while making no adjustments to foreign market value to account for similar discounts offered on home market sales of the same general class of merchandise as OCTG. Specifically, ITA was ordered to:
clarify whether it is agency policy to account for differing early payment discounts in the respective markets using a circumstances of sale adjustment, and if so under what circumstances. If a circumstances of sale adjustment could have been made here, ITA should indicate why plaintiff has not demonstrated entitlement to such an adjustment. If it is not agency policy to make circumstances of sale adjustments for early payment discounts, ITA must explain why it has made no other adjustment to constructed value.
Sonco, 12 CIT at ___, 694 F.Supp. at 965. In connection with its clarification of these points, ITA was directed to explain its decision in Tool Steel from the Federal Republic of Germany, 51 Fed.Reg. 10071 (Mar. 24, 1986), a previous determination in which the agency permitted early payment discount adjustments to foreign market value based on constructed value.
In the remand determination, ITA has provided the clarification requested by the court, stating that it does not have a policy of treating early payment discounts as circumstances of sale for which adjustments to foreign market value may be made and that it has been substantially consistent in following a policy of treating such discounts as reductions in price. In response to the court's concerns regarding the Tool Steel determination, ITA states, inter alia, "[t]o the extent that the case does indicate that the Department treated a discount as a circumstances of sale adjustment, the *1221 case is simply wrong." Remand Determination at 13. On the other hand, plaintiff argues that ITA's statements to the contrary notwithstanding, the agency does have a policy of granting circumstances of sale adjustments for early payment discounts and that ITA's actions in this case were unreasonable.
Initially, it should be noted that discounts generally provided to customers in either the U.S. or home market do lower the final price to such customers and it is therefore not per se unreasonable for ITA to treat certain discounts as reductions in price in its calculations of foreign market value and U.S. price.[1] Although it remains unclear as to whether the adjustment made in Tool Steel was, in fact, a circumstances of sale adjustment,[2] ITA in its remand determination clearly repudiates the treatment of early payment discounts in this manner. See Remand Determination at 13. Furthermore, it is clear that ITA's policy of treating early payment discounts as reductions in price has been followed in most of its determinations. See Remand Determination at 13 n. 10 (listing previous determinations in which ITA treated early payment discounts as reductions in price).[3] Given ITA's definitive statement of its present *1222 policy and the extent of its consistent past practice, the court does not find that ITA acted unreasonably or arbitrarily in this case based on the existence of the relatively few previous determinations cited in which the department may appear to have acted inconsistently.[4]
The court also notes an additional problem with plaintiff's request that the ITA grant a circumstances of sale adjustment for the difference between "the discounts provided by Sonco in the United States and the discounts that Sonco provided in Canada on the same class or kind of merchandise." Plaintiff's Comments on the Remand Determination at 22. As stated in ITA's remand determination, ITA "does not consider discounts to be actual expenses borne by a manufacturer, and as such did not include them in figure for general expenses when calculating constructed value." Remand Determination at 16 n. 11. Had ITA treated these discounts as expenses, the agency presumably would have utilized discount rates provided by Sonco in the home market on "merchandise of the same general class or kind as the merchandise under consideration," pursuant to 19 U.S.C. § 1677b(e)(1)(B), in its calculation of constructed value. It might be argued that in such a situation, a circumstances of sale adjustment would be appropriate to factor out differences between the United States discount rate and the home market discount rate utilized in the constructed value calculation. This is precisely the method by which ITA calculated differences in credit expenses provided in each market for which a circumstances of sale adjustment was granted. Remand Determination at 16 n. 11. Because, however, ITA determined that discounts are not expenses to be included in its calculation of constructed value, and because plaintiff has failed to demonstrate that this decision was in any way contrary to law,[5] ITA was not obligated to consider discounts made on sales of the same general class or kind of merchandise in the home market or make the sort of adjustment requested here by plaintiff, but rather could treat the discounts as reductions in price.
Having found that ITA may treat the early payments discounts at issue here as reductions in price and that ITA is not required to make the requested circumstances *1223 of sale adjustment under the facts of this case, there remains the question of whether some other type of adjustment or deduction to foreign market value to account for the early payment discounts was necessary. Neither defendant's nor plaintiff's comments on the Tool Steel case have convinced the court that an adjustment of any type to foreign market value was necessary to account for the early payment discounts under the facts of this case. In fact, plaintiff has not explained what the statutory basis for such an adjustment to constructed value might be, other than a circumstances of sale adjustment, and the necessity of such an adjustment has already been rejected as a basis for relief.[6] Accordingly, the court does not find that ITA erred in failing to make an adjustment to foreign market value to account for early payment discounts.
CONCLUSION
This matter is remanded. ITA shall issue a determination on remand within thirty days utilizing a methodology which eliminates the unfairness of failing to account for substantial differences in value of the two types of simultaneously produced products subject to investigation. Within ten days thereafter the parties shall advise the court whether post-remand briefing is necessary, in which case a briefing schedule shall be proposed by plaintiff after consultation with opposing counsel. If ITA finds it necessary to reopen the investigation it shall so advise the court within 20 days hereof and shall, after consultation with the parties, propose a new schedule.
SO ORDERED.
NOTES
[1] Plaintiff argues that ITA's policy on early payment discounts as expressed in the remand determination is inconsistent with the decision of the Court of Appeals for the Federal Circuit in Smith-Corona Group, Consumer Prods. Div., SCM Corp. v. United States, 713 F.2d 1568 (Fed. Cir.1983), cert. denied 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). Plaintiff's reliance on Smith-Corona is misplaced. Smith-Corona deals with the issue of whether certain periodic and monthly rebates based on sales volume were directly related to the sales under consideration. See 19 C.F.R. § 353.15 (1988). On its face, the case does not appear to address directly the more general issue of whether circumstances of sale adjustments may properly be made to foreign market value for rebates and discounts. Nonetheless, in Zenith Radio Corp. v. United States, 9 CIT 110, 115-16, 606 F.Supp. 695, 700-01 (1985) aff'd 783 F.2d 184 (Fed.Cir. 1986), Smith-Corona is interpreted as standing for the proposition that circumstances of sale adjustments under 19 U.S.C. § 1677b(a)(4)(B) may be made for rebates. The distinction between reduction in price and circumstances of sale apparently was important because of certain limitations on home market sales price reductions. In any case, neither Smith-Corona nor Zenith can be read to require ITA to treat all discounts or rebates in this manner. Likewise, neither case addresses the specific issue before this court, namely, whether ITA may properly treat early payment discounts as reductions in price. Plaintiff's Smith-Corona argument also assumes that all rebate and discount programs are analogous. In fact, such programs may have different effects requiring different treatments.
[2] Defendant suggests that the fact that there were home market sales (which were found to be made at prices below the cost of production) in Tool Steel for which discounts may have been granted, whereas there were no home market sales of OCTG in this case and, hence, no home market discounts, may explain why an adjustment was made to constructed foreign market value in Tool Steel and not here. In actuality, ITA is uncertain as to the meaning of Tool Steel. It should be noted, however, that there is no clear authority under which ITA may calculate constructed value one way in cases where there are no home market sales, and another way in cases where home market sales are disregarded because they were made at prices below the cost of production.
Additionally, the court is somewhat disturbed by ITA's inability to explain fully the agency's own previous determinations. Although the agency is not necessarily bound by its previous determinations, a finding as to the reasonableness of the agency's actions in a given case may depend, in part, on the agency's treatment of similar issues in previous cases. Whether or not ITA's inability to explain Tool Steel is understandable given changes of personnel, such inability may be prejudicial to the opposing party. Here, ITA's calculation seems to be essentially fair and non-arbitrary. Thus, plaintiff is not prejudiced.
[3] Plaintiff cites Cyanuric Acid and Its Chlorinated Derivatives from Japan, 49 Fed.Reg. 7424 (Feb. 29, 1984) in support of its position that a circumstances of sale adjustment should be made for early payment discounts. In that determination, ITA stated that in calculating foreign market value based on home market prices it "made deductions, where appropriate, for after-sales rebates and discounts based upon competitive circumstances." Id. at 7425. In the remand determination in this case, ITA states that Cyanuric Acid, in fact, supports its position in this case. Remand Determination at 14.
Upon examination of the cited determination, it appears that it does not provide conclusive support for either plaintiff's or ITA's position. The rebates and competitive discounts at issue in Cyanuric Acid consisted of home market after-sale cash rebates and additional merchandise shipped at no extra cost. In order to account for these rebate and discount programs, ITA adjusted foreign market value downwards. Although ITA's response to petitioner's comment 6, 49 Fed.Reg. at 7428, at least, implies a circumstances of sale adjustment was made, most likely the distinction at issue here was not of consequence under the facts of the case. That is, an allowable reduction in price applicable to foreign market value may have the same effect as a downward adjustment to foreign market value based on a difference in circumstances of sale.
In Monsanto Co. v. United States, 12 CIT ___, 698 F.Supp. 285 (1988), which dealt with later cyanuric acid determinations, a program involving shipment of additional merchandise is referred to as a "rebate," for which a circumstances of sale adjustment is allowed. In actuality, the court simply upheld ITA's treatment of the program as a "deduction to foreign market value." Distinctions between mandatory and permissible treatment of such programs, between price reductions and circumstances of sale adjustments, and among various discount and rebate programs were not addressed.
[4] Only two cases appear to fall into this category, Tool Steel and Carbon Steel Wire Rod from Brazil, 49 Fed.Reg. 14,156 (Apr. 10, 1984). The remaining cases cited for this proposition are inconclusive. See also note 3.
Plaintiff also argues that ITA's claim that it does not grant circumstances of sale adjustments for early payment discounts directly contradicts statements made by the Department of Commerce in a November 1985 report submitted to Congress entitled, Study of Antidumping Adjustments Methodology and Recommendations for Statutory Change. As defendant notes, however, the section of the report cited by plaintiff is not a discussion of circumstances of sale adjustments and, in fact, immediately precedes the section of the report devoted to circumstances of sale adjustments.
[5] Plaintiff's argument that Sonco's early payment discounts should be viewed as expenses to the producer rather than as reductions in price is not persuasive. Foregoing sales revenue, under any circumstances, may be loosely characterized as a cost to a producer. While plaintiff correctly notes that ITA has treated certain types of imputed or opportunity costs as real expenses in previous determinations, see, e.g., Industrial Phosphoric Acid from Belgium, 52 Fed.Reg. 25,436, 25,438-39 (Jul. 7, 1987) (finding the opportunity cost of holding inventory to be a real expense which may be deducted from exporter's sales price), it has failed to cite any authority indicating that ITA has a practice of treating discounts in this manner or which would require ITA to treat discounts as general expenses which must be included in ITA's calculation of constructed value under 19 U.S.C. § 1677b(e)(1)(B).
[6] If in this case, actual home market sales were being used as the basis for foreign market value, and early payment discounts were also given on those sales, ITA, for the reasons discussed supra, could treat discounts as reductions in price on both sides of the fair value equation. Here, however, the only "prices" used are U.S. prices, thus home market "prices" cannot be reduced. Although Timken Co. v. United States, 11 CIT ___, 673 F.Supp. 495, 507-8 (1987) indicates that circumstances of sale adjustments may be made even when foreign market value is based on constructed value, see also Funai Elec. Co. v. United States, 13 CIT ___, 713 F.Supp. 420, 423-425 (1989), it does not stand for the considerably broader proposition that any type of calculation or adjustment that can be made to price-based foreign market value must also be made to constructed value-based foreign market value.
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37 Cal.Rptr.3d 915 (2006)
135 Cal.App.4th 1251
The PEOPLE, Plaintiff and Respondent,
v.
Clinton Duane CRITES, Defendant and Appellant.
No. B178046.
Court of Appeal, Second District, Division Six.
January 25, 2006.
*916 Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Sharon E. Loughner, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
PERREN, J.
Clinton Duane Crites appeals the judgment after his conviction for first degree murder (Pen.Code,[1] §§ 187, subd. (a), 189). Among other enhancement findings, the jury made true findings on separate allegations that Crites had personally used two deadly or dangerous weapons in the commission of the murder. (§ 12022, subd. (b)(1).) Crites contends there was insufficient evidence of premeditation and deliberation to support a first degree murder conviction. He also claims that the trial court erred in denying his Marsden[2] motion and in staying, rather than striking, one of the two section 12022, subdivision (b)(1) enhancements. We hold that the trial court properly imposed a one-year section 12022, subdivision (b) enhancement for use of one deadly weapon and imposed, but stayed, an additional enhancement under the same statute for use of a second weapon. We affirm.
FACTS
In July and August 2003, appellant's wife Christy Crites was living in the apartment of victim Douglas Okashima. Crites and his wife had separated but he continued to visit her and their children at Okashima's apartment. Mrs. Crites moved out of the apartment in late August or early September 2003.
Crites believed that his wife was having an affair with Okashima and, in statements to friends, threatened to kill Okashima for having the affair. In September 2003, Crites told one friend that he "might have to fuck . . . up" the man his wife was staying with. About a week before the murder, he told another friend he was going to "smash" the person who was sleeping with his wife. Mrs. Crites also told the police that Crites had said "Doug's gonna get his" prior to the murder.
During the night of September 17, 2003, Crites drove to Okashima's apartment and killed him. Okashima died of multiple stab wounds to the head, and multiple skull fractures inflicted when he was kicked by Crites who was wearing steel-toed boots. Crites had bought the boots a week before the murder.
*917 On September 18, 2003, after the murder, Crites told a third friend or acquaintance that he had "smashed someone." Crites also returned to Okashima's apartment for the purpose of cleaning up evidence of the crime, retrieving and disposing of the knife used in the killing, and moving Okashima's body to another location. Crites placed the body in a blue recycling bin or dumpster that was kept in the alley between a restaurant and Okashima's apartment. A still photograph from the restaurant's surveillance cameras shows that the recycling bin was in the alley at 5:22 a.m. on September 18, but another photograph showed that it had disappeared three hours later. The second photograph showed Crites climbing over the fence with something in his hands.
Crites later loaded the recycling bin containing Okashima's body onto a truck and drove the bin to the location where it was found by the police. Crites threw the knife and steel-toed boots into the ocean.
Okashima was reported to the police as missing on September 19, 2003. That evening, the police found the dumpster and Okashima's body.
Crites testified on his own behalf at trial. He testified that he drove to Okashima's apartment to collect some of his wife's belongings that she had left at the apartment when she moved out. Crites testified that when he returned to the apartment a second time to finish picking up his wife's belongings, he was greeted by an angry Okashima. After a hostile exchange of words, Okashima attacked Crites with a kitchen knife. Okashima was cut during the struggle over the knife. The knife broke when both men fell to the floor. Crites testified that he got up and kicked Okashima in the head with his steel-toed boots when Okashima grasped his leg as Crites tried to leave. Crites admitted that he may have continued to kick Okashima after he was released from Okashima's grasp. Crites considered calling an ambulance but, instead, ran from the apartment. He admitted that he returned to the apartment shortly thereafter to retrieve the knife and some of his family's property, and to clean up the apartment.
DISCUSSION
[[/]][**]
Second Weapons Enhancement Properly Stayed
The People alleged that Crites personally used two deadly or dangerous weapons (a knife and steel-toed boots) as separate section 12022, subdivision (b) enhancements. The jury found both allegations true, and the trial court imposed a one-year sentence for use of a knife and imposed, but stayed, a one-year sentence for use of steel-toed boots. Crites contends that two "identical" enhancements under section 12022, subdivision (b) cannot be imposed on the same offense against the same victim. Crites argues that, although stayed, imposition of the second enhancement was unauthorized. We disagree.
Section 1170.1, subdivision (f) provides that, "[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. . . ." This language prevents execution of sentences for multiple enhancements, but not the procedure of imposing but staying all but the greatest *918 enhancement falling within the statute. (People v. Jones (2000) 82 Cal.App.4th 485, 492-493, 98 Cal.Rptr.2d 329; People v. Espinoza (1983) 140 Cal.App.3d 564, 567, 189 Cal.Rptr. 543.)
In the Jones case, the trial court imposed enhancements for personal use of a handgun (§ 12022.5) and personal use of a knife (§ 12022, subd. (b)) with respect to the same offense against the same victim. The appellate court concluded that section 1170.1 required the court to stay the lesser section 12022, subdivision (b) enhancement. (People v. Jones, supra, 82 Cal.App.4th at p. 493, 98 Cal.Rptr.2d 329.)
Crites concedes that Jones applies when one enhancement is lesser than the other, but argues that, when the enhancements are equal, one must be stricken, and not stayed. Crites presents no persuasive argument for this distinction, and it is not supported by legal authority. "`A stay is a temporary suspension of a procedure in a case until the happening of a defined contingency . . .,'" whereas striking an enhancement "'. . . implies that the enhancement is legally insupportable, and must be dismissed. . . .'" (People v. Carrillo (2001) 87 Cal.App.4th 1416, 1421, 105 Cal.Rptr.2d 360.) Here, there is no basis to reject the jury's factual findings as to both personal use allegations, and a reversal on appeal of one enhancement is a "defined contingency" where imposition of a term of imprisonment for the other would be warranted. The trial court properly imposed both enhancements, but stayed execution of one of them.
The judgment is affirmed.
We concur: GILBERT, P.J., and COFFEE, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
[1] All statutory references are to the Penal Code unless otherwise stated.
[2] People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.
[**] See footnote * ante.
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714 F.Supp. 1324 (1987)
UNITED STATES of America
v.
Donald W.D. RAKOWSKI a/k/a Walter Douglas.
Cr. No. 87-55-1.
United States District Court, D. Vermont.
November 27, 1987.
*1325 *1326 R. Jeffrey Behm, Asst. U.S. Atty., Burlington, Vt., for the U.S.
David Miller, Brown, Cahill, Gawne and Miller, St. Albans, Vt., for defendant.
OPINION AND ORDER
COFFRIN, Chief Judge.
Defendant Donald Rakowski is charged under a two count indictment with offenses concerning the unlawful, knowing receipt through the mail of sexually explicit depictions of minors. Defendant filed three motions to suppress evidence and statements obtained as a result of a roadside questioning and the subsequent search of his residence on May 13, 1987 pursuant to a search warrant. In addition, defendant *1327 moved to suppress the search warrant upon which the search of defendant's residence was based and the fruits of that search. A hearing was held on the motions on October 26, 1987. Decision was reserved. The court now denies these motions for the reasons below.
FINDINGS OF FACT
On May 12, 1987, special agent for the United States Customs Service at Rouse's Point, New York, Dennis Harrison, submitted a written affidavit and application for a search warrant to Magistrate Niedermeier. Harrison had prepared the affidavit with the assistance of two Assistant United States Attorneys and a United States Postal Inspector. The parties are familiar with the affidavit and its contents are not set forth here.
On May 12, 1987, Magistrate Niedermeier issued a warrant to Harrison to search defendant's residence on Decker Road on the basis of the written affidavit prepared by Harrison, including aerial photographs and a description of the Rakowski residence on Decker Road. Harrison proposed to supplement the affidavit with oral testimony after a controlled delivery, that is, delivery under surveillance, of the Japanese magazine was completed. The Magistrate advised that the affidavit alone was sufficient to establish probable cause and further testimony was unnecessary. Harrison planned to conduct the search on the same day that defendant picked up the magazine, and he arranged with the Vermont State Police to assist in a stop on Route 7 of defendant's vehicle and established surveillance outside the post office. On the same day, Harrison placed the magazine in the box, removing the magazine at the end of the business day when it was not picked up.
On the following day, May 13, Harrison again established surveillance and put a notice in the box that there was a package to be picked up. Defendant picked up the magazine and two additional magazines at about 4 p.m. and drove away in a cream colored Toyota, under surveillance. After two stops, defendant continued along Route 7 and drove to a gas station on the left side of the road. The State police were notified, and they drove into the gas station lot without lights or sirens, in one or two unmarked cars, with their police lights concealed.
State Police Sergeant William Northrup approached the car, told defendant that a United States Customs Agent wanted to speak to him, and asked defendant to drive his car to the edge of the gas station lot. It is unclear how many officers approached defendant's car or where the officers parked relative to defendant's vehicle, but it is irrelevant to this decision. The officers did not draw their guns. Northrup asked defendant to drive to the edge of the lot, and defendant did so and got out of his car. Harrison approached defendant, and identified himself. He told defendant that he believed defendant had in his possession magazines prohibited from entering the United States, whereupon defendant said "you must mean this," reached into his car, and removed the unwrapped Japanese magazine from the front seat. Harrison then advised defendant that he believed defendant had other materials. Defendant at that point removed other magazines from the seat, stating "you mean these." This additional material included nudist colony photographs, including nude children photographs. Harrison next asked defendant for identification, and defendant produced identification for Donald Walter Rakowski. Harrison then informed defendant that he had a search warrant for material in defendant's residence. Defendant requested and read it. Harrison advised defendant that he would be going to the residence and defendant could accompany him if he liked and that it would be more convenient for all if defendant assisted. Defendant said that he did want to accompany the search and asked if he could first put gas in his car. Defendant got into his car alone, drove to the pumps, put gas in the car, and drove to the edge of the lot. He then got into Harrison's customs vehicle.
It is unclear whether Harrison requested defendant to ride with him, but defendant's understanding was that he had to ride over *1328 with Harrison. Tr. at 92. Under either version there was nothing coercive about the arrangements in view of the fact that defendant wished to participate in the search of the house. Defendant heard Harrison state on a police radio that Harrison had the "subject in custody" and would arrive at the house soon. The two drove to defendant's residence. While in the car, Harrison did not read defendant Miranda warnings. On the way to defendant's residence, defendant asked if he was under arrest. Harrison told defendant that he was not then under arrest, and arrest would depend on what the residence search revealed.
Upon Harrison's and defendant's arrival, defendant unlocked the house and two customs agents, one state police officer (who had arrived earlier), Harrison and defendant went inside the house. One agent remained downstairs, while Harrison, the other agent, and defendant proceeded upstairs. At that point, defendant made a call to his children's baby-sitter in the presence of the agents and a call to his wife. Defendant phoned his wife out of the agents' earshot by calling from an outside deck with the glass doors closed.
Defendant then returned to the inside of the house. Defendant began to look for a phone book to call his attorney, but Harrison advised him he wanted to start the search. There is no indication that Harrison intended to interfere with defendant calling his attorney or that he knew that he wished to do so. Likewise, there is no indication that Harrison would have prevented defendant from calling his attorney had defendant made it known that he wished to do so.
Before starting the search, Harrison advised defendant of his Miranda rights, reading from a card. Harrison then asked defendant if he understood his rights and defendant said "yes." It is not clear whether Harrison again told defendant that he was not under arrest, but it is clear that he never told defendant that he was under arrest. It is also not clear whether defendant told Harrison that he would not waive his rights, as defendant testified, or defendant did not expressly decline to waive his rights, as Harrison testified. Either version does not affect the outcome of defendant's motions.
Harrison did tell defendant that the warrant authorized them to take the house apart panel by panel if necessary and that he would search with or without defendant's help. Defendant understood that he had the option to help or not with the search.
In response to a question by Harrison as to where he was hiding the material described in the search warrant, defendant said nothing and took the agents to a file cabinet in another room, where he pulled out materials involving adult spanking. Harrison then told defendant that the agents were looking for pornography involving children, and defendant showed the agents a bookcase with several child behavior books. Harrison then told defendant that he wanted any child pornography that defendant had received through the mail, that they would search the house with or without defendant's assistance, and that they would take the house apart panel by panel if necessary. Defendant asked "just the stuff in the mail?", and Harrison said "yes."
Defendant then led the agents to the basement. At that point Harrison stopped defendant, told him his assistance was not required and would make no difference to the search and advised defendant that he was helping them voluntarily. Defendant obtained a ladder, removed a ceiling panel, and removed 35 magazines, two 8-millimeter movies, and five video tapes. He informed the agents that the video tapes were not child pornography and were tapes about which his wife knew nothing. The agents then asked defendant if he had revealed all. Defendant answered "yes." The agents then asked if defendant wanted to answer any questions. The defendant said no, that he wanted to call his attorney. The agents then followed defendant upstairs, he called an attorney, and the attorney arrived as the agents continued to search.
*1329 Throughout the search an officer remained beside defendant at all times to assure that he did not destroy evidence. At no time was defendant frisked or patted down, although he was asked for the key to the post office box after the search of the residence. Defendant knew what the searchers were looking for, that receiving child pornography was illegal, and that he possessed those types of photographs in the house.
Defendant has been an engineer for IBM for 17 years. He received a bachelors degree in engineering. His job involves the manufacture of memory and logic chips. Defendant had had no prior experience with law enforcement. Defendant signs his name Donald W.D. Rakowski.
DISCUSSION
1. Motion to Suppress Search Warrant
Defendant argues that the affidavit in support of the search warrant did not contain sufficient facts to establish probable cause the evidence sought was in defendant's residence. In addition, he asserts that the information concerning the November 6, 1986 magazine was stale by the time the warrant was issued. Defendant further argues that if the warrant fails for lack of probable cause, it was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" and, because the agent was the affiant, he could not rely in good faith on the warrant. United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 3422, 82 L.Ed.2d 677 (1984).
A valid search warrant may only be issued upon an affidavit or complaint which sets forth facts establishing probable cause. U.S. Const. amend. IV; Fed.R. Crim.P. 41(c). Probable cause exists where the facts and circumstances within an officer's knowledge and of which he or she has reasonably trustworthy information are "`sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)). A law enforcement officer is entitled to assess the facts in light of his or her experience detecting the unlawful conduct. See United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). The Supreme Court has stated that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause," Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969) (citing Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964)), and has applied a totality of the circumstances analysis to determine probable cause. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). Finally, the fourth amendment does not proscribe the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate even if the warrant is later found to be unsupported by probable cause. United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984).
Probable cause must exist at the time the government seeks to make the search; if the information is too old, it is considered stale and probable cause no longer exists. Sgro v. United States, 287 U.S. 206, 210-12, 53 S.Ct. 138, 140-41, 77 L.Ed. 260 (1932). To determine whether the affidavit establishes that objects probably connected with criminal activity can currently be found at a particularly described place, a court should look not only at the number of days between the facts relied upon in the affidavit and the time the warrant is issued, but also at the character of the crime and the thing to be seized. See, e.g., United States v. Forsythe, 560 F.2d 1127, 1132 (3d Cir.1977) (evidence that documents would be preserved and operation of business was continuous); United States v. Dauphinee, 538 F.2d 1, 5 (1st Cir.1976) ("hand grenades ... do not lend themselves to rapid disposition in the market place.").
*1330 To establish probable cause to search a residence, two factual showings are necessary. The facts must show that "a crime was committed, and ... that there is probable cause to believe that evidence of such crime is located at the residence." United States v. Travisano, 724 F.2d 341, 345 (2d Cir.1983). In sum, there must be "a fair probability that the premises will yield the objects specified in the search warrant." Id. at 346 (citations omitted). See also United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) ("The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.") (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).
Once a magistrate has made a determination on the issue of probable cause, a reviewing court should pay "great deference" to that determination. Spinelli, 393 U.S. at 419, 89 S.Ct. 584 (citing Jones v. United States, 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697 (1960)). The Supreme Court has stated that "the traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a `substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Jones, 362 U.S. at 271, 80 S.Ct. at 736). The magistrate's probable cause finding is itself a substantial factor tending to uphold the warrant's validity. Travisano, 724 F.2d at 345.
We conclude that the magistrate had sufficient underlying facts before him to make it a fair probability that a crime had been committed and that the items sought would be found in defendant's residence. Harrison knew that the package intercepted in November, 1986, at the "Douglas" post office box in Milton was from a known foreign distributor of child pornography and upon consultation with the Federal Bureau of Investigation that the photographs were prohibited by statute. Monitoring the post office box disclosed two additional packages from known importers or distributors of child pornography. Another package of photographs received at the box in April 1987 was verified by Harrison with a pediatrician as being of children and Harrison and the postal inspector concluded that the children were photographed in poses proscribed by statute. Given these circumstances, the magistrate could reasonably have concluded that the crime of knowing receipt of sexually explicit depiction of minors had been committed.
In addition, the magistrate could reasonably have concluded, although the question is closer, that there was an "articulable connection," Travisano, 724 F.2d at 346, between the crime and defendant's residence. The affidavit recited that at least four packages including sexually explicit depictions of minors had been mailed to Box 155. The affidavit recited that defendant opened the box, listing Walter Douglas as co-owner, a white male appeared to be the only one to pick up mail from the box, and an individual who removed mail addressed to Walter Douglas from the box was observed to drive a car registered to defendant directly to the defendant's residence in May 1987. No drivers licenses had been issued to individuals named Walter Douglas that lived in or near Milton, Walter Douglas appeared to receive no household mail, that is, bills, and defendant's middle name was Walter. The affidavit recited that defendant appeared to receive all mail addressed to him at his residence on Decker Road. The affiant, an experienced customs agent, stated that those who collect child pornography often open up post office boxes, listing fictitious owners. The affidavit also revealed another experienced agent's conclusions that those who collect child pornography keep the pornography, do not destroy their collections, and keep the pornography accessible. The magistrate could reasonably have concluded on these facts that defendant set up the box for the purpose of receiving child pornography and other sexually explicit materials and that defendant stored these materials at his residence.
*1331 We also find that the magistrate could reasonably have concluded that probable cause was not stale in May because of the character of the crime and the evidence to be seized. The affidavit described a continuing offense of receiving child pornography and the enduring utility of the materials to their holder. The affidavit recited that at least four packages had been mailed to Box 155, in November and December 1986 and January and April 1987, and provided a substantial basis for concluding that the defendant set up the box to receive one genre of mail under a fictitious name. The affidavit also stated an experienced agent's conclusion that a collector of such materials would not destroy the collection.
Furthermore, even if the magistrate did not have a substantial basis for finding probable cause, the agents and searching officers' actions were in good faith on a warrant which they reasonably believed to be valid. There is no evidence that the agent made false statements in the application or that the magistrate abandoned his role as a neutral and detached decisionmaker. The warrant is not facially deficient or so lacking in indicia of probable cause to make agent Harrison's reliance on the magistrate's determination unreasonable. On the contrary, facts and circumstances within Harrison's knowledge and of which he gained trustworthy information could have warranted a person of reasonable caution to conclude that probable cause existed to search defendant's home. In addition, Harrison relied on the advice of two Assistant United States Attorneys in preparing the affidavit.
2. Motion to suppress automobile evidence
Defendant has moved to suppress all evidence found in defendant's automobile as the product of an unlawful arrest. Defendant argues that agent Harrison took defendant into custody, without a warrant or probable cause, in the parking lot of the gas station. Defendant asserts that because there was no probable cause or valid arrest, evidence seized from his car should be suppressed.
When officers detain an individual for the purpose of requiring him or her to identify himself or herself or answer questions, they perform a seizure of the person subject to the fourth amendment's requirement that the seizure be reasonable. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The Supreme Court has recognized that in some circumstances officers may detain a suspect briefly for questioning although they lack probable cause, as is required for a traditional arrest. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) (citing Dunaway v. New York, 442 U.S. 200, 207-11, 99 S.Ct. 2248, 2253-56, 60 L.Ed.2d 824 (1979)). The Court has required, however, that the officers have a reasonable suspicion, based on specific and articulable facts, that the individual is involved in criminal activity. Id. (citing Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 1395-97, 59 L.Ed.2d 660 (1979)). One important factor in finding reasonable suspicion existed is the personal experience and expertise the law enforcement officer brings to the investigation. United States v. Oates, 560 F.2d 45, 61 (2d Cir.1977) (citations omitted).
If a detention is valid, "the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released." Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984) (citing Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (White, J. concurring)). Officers "do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Florida v. Royer, 460 *1332 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (citing Dunaway, 442 U.S. at 210, n. 12, 99 S.Ct. at 2255, n. 12; Terry, 392 U.S. at 31, 32-33, 88 S.Ct. at 1885, 1885-86 (Harlan, J., concurring); id. at 34, 88 S.Ct. at 1886 (White, J., concurring)).
During a legal detention, officers can request to search defendant and his or her belongings, and if, under the totality of the circumstances, the court finds that defendant's consent was voluntary, the evidence will be admissible in a criminal prosecution against the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 226, 93 S.Ct. 2041, 2047, 2055, 36 L.Ed. 2d 854 (1973). Coercive law enforcement conduct, however, can invalidate a manifestation of consent, but the mere fact of custody or the presence of many officers will not alone invalidate consent. Schneckloth, 412 U.S. at 233-34, 93 S.Ct. at 2050-51 (citations omitted); United States v. Vasquez, 638 F.2d 507 (2nd Cir.1980), cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981).
An investigative detention may become unreasonable and ripen into an illegal arrest, however, if probable cause is absent and the stop is not temporary and limited in duration to the time period necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500, 103 S.Ct. at 1325. The Supreme Court stated in United States v. Sharpe, "[i]n assessing whether a detention is too long to be justified as an investigatory stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) (citations omitted).
We conclude that the initial detention of defendant was justified. We find that agent Harrison testified to specific, articulable facts which, in light of his experience, gave rise to a reasonable inference that defendant had committed a crime. In addition to the facts we noted above which justified Harrison's reasonable inference that probable cause existed to search defendant's residence for evidence of defendant's criminal activity, we note that Harrison intercepted a magazine addressed to Walter Douglas, a pediatrician told Harrison that he believed the magazine's photographs were of children, and Harrison and Postal Inspector Dunn concluded that the photographs were prohibited by statute. Harrison placed the magazine in box 155 and observed defendant take mail from the box. Harrison followed defendant and approached the defendant at a gas station where defendant had stopped to buy gas. We find that these specific facts justified the detention.
In addition, we find that the detention was brief and did not ripen into an illegal arrest; the Vermont State Police officer told defendant that a United States Customs agent wished to speak with defendant, and Harrison asked defendant for identification and the materials in his car, showed defendant the search warrant for defendant's residence, and told defendant that defendant could choose whether or not to accompany Harrison to search. Thus after a brief exchange, defendant was told that he was free to leave. We find that no delay here was unnecessary to Harrison's legitimate investigation and that defendant has produced no evidence that Harrison was dilatory in his investigation.
We also find that defendant was not in custody or subjected to custodial interrogation when agent Harrison asked him for his identification or the materials Harrison had observed defendant taking from P.O. Box 155. Defendant had stopped and stepped out of his car, unaware of a planned stop of his vehicle. The detention was in public, defendant stood outside his car with Harrison, and no officers showed guns or told defendant that he was under arrest. Although the stop cannot be characterized as an ordinary traffic stop, as the government suggests, the detention was nevertheless less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, *1333 16 L.Ed.2d 694 (1966), discussed below. Thus, defendant's removal of the magazines from the car and statements "you must mean this" and "you mean these" did not result from custodial interrogation in that no significant deprivation of freedom had occurred. Indeed, we find that defendant voluntarily produced the evidence in response to two questions, which could hardly be characterized as coercive.
Finally, we find that defendant's removal of the magazines from his car after a minimum of questioning constituted a consensual search. There is no evidence that Harrison or any of the officers reached into the car, visually inspected the car interior, or asked for defendant's car keys. There is no claim that defendant's car was searched after defendant left the car in the gas station lot. Defendant is an educated adult with a bachelors degree, was not under arrest at the time he gave consent, was not intoxicated, was not overpowered by officers or physically restricted by handcuffs or a show of guns, or was not frisk searched, had not yet been told that the officers had a search warrant for defendant's home, did not appear hesitant in agreeing to the search, and never asked to speak to a lawyer before reaching into the car and giving the agent the magazines. We can only conclude that defendant acted "voluntarily in a spirit of apparent cooperation with the officer's investigation." Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).
3. Motion to suppress statements made and evidence found at defendant's residence
Defendant seeks to suppress any statements or testimonial communication made to the searching officers during the search of defendant's residence. Defendant asserts that although he was not formally arrested, he was subject to custodial interrogation after he had expressly declined to waive his right to remain silent. Defendant contends that he reasonably felt that he was not free to leave his residence during the search because law enforcement officials blocked his vehicle at the gas station, at least three officers confronted him at the station, Harrison ordered defendant into Harrison's car and told defendant that he would not be able to pick up his children from the baby-sitter, defendant heard Harrison state on his police radio that he had the subject in custody, an officer remained by defendant's side from the gas station until the search of his residence was completed, defendant was the target of a criminal investigation, and the officers told defendant that without his cooperation they would take his residence apart panel by panel. He argues that all evidence obtained as a result of the alleged violation of his right to remain silent should be suppressed as the "fruit" of the illegality. Wong Sun v. United States, 371 U.S. 471, 485-87, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963).
In Miranda v. Arizona, the Supreme Court held that the prohibition against compelled self-incrimination, as contained in the fifth and fourteenth amendments, requires that custodial interrogation be preceded by advice to the defendant that he or she has the right to remain silent and the right to the presence of an attorney. 384 U.S. 436, 467-69, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694 (1966). If the accused indicates that he or she wishes to remain silent or requests counsel, interrogation must cease. Id. at 473-74, 86 S.Ct. at 1627-28. The Miranda Court recognized that confessions and admissions made during custodial interrogation are presumptively products of coercion and therefore a form of compelled self-incrimination, and therefore require special safeguards in cases of "incommunicado interrogation of individuals in a police-dominated atmosphere." Id. at 445, 86 S.Ct. at 1612.
Since Miranda, the Court has "specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of its Miranda holding." Beckwith v. United States, 425 U.S. 341, 346, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976) (emphasis original) (citing Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed. 2d 311 (1969); Mathis v. United States, 391 *1334 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968)). More than "a coercive atmosphere" is required to determine whether or not an individual is in custody, Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam); the defendant must be "deprived of his freedom of action in any significant way," id. at 494, 97 S.Ct. at 713 (citing Miranda, 384 U.S. at 444, 86 S.Ct. at 1612), or deprived of freedom of action to a degree associated with formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 2520, 77 L.Ed.2d 1275 (1983) (per curiam) (citing Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). Custodial interrogation is not defined by the officer's or the defendant's subjective intent or by the officer's unarticulated purposes; rather, courts should evaluate "how a reasonable man in the suspect's position would have understood the situation." Berkemer v. McCarty, 468 U.S. at 442, 104 S.Ct. 3151. If a reasonable individual in the suspect's position would believe he or she was not free to go, the interrogation is custodial for Miranda purposes.
Lower courts rarely find custody where interrogation is conducted outside a police station or vehicle, and almost universally hold that questioning in a suspect's home is not custodial because individuals in a familiar environment are less likely to be intimidated by law enforcement officers. See, e.g., Beckwith, 425 U.S. at 342, 347, 96 S.Ct. at 1614, 1616; United States v. Hall, 421 F.2d 540, 544-45 (2d Cir.1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970); Hicks v. United States, 382 F.2d 158, 161 (D.C.Cir.1967); Thompson v. United States, 382 F.2d 390, 393 (9th Cir.1967). But see Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (incommunicado interrogation by four police officers at 4:00 a.m. in suspect's bedroom after arrest was in-custody interrogation). In addition, courts often find that questioning following law enforcement officers' statements that the individual is not under arrest is noncustodial, especially where there is insufficient evidence to show that the defendant did not believe the officer's statement. See, e.g., United States v. Semkiw, 712 F.2d 891, 892-93 (3d Cir.1983); United States v. Wallraff, 705 F.2d 980, 992 (8th Cir.1983); United States v. Jones, 630 F.2d 613, 616 (8th Cir.1980); Lucas v. United States, 408 F.2d 835, 836 (9th Cir.1969). Of course, where the circumstances undermine the sincerity of the officer's reassurances to the suspect that he or she is not under arrest, courts may find that the setting was a "custodial" one despite the officer's assertions. See, e.g., United States v. Glen-Archila, 677 F.2d 809, 812, 814 n. 12 (11th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 137 (1982).
The Court has refused to extend Miranda to cover interrogation in noncustodial circumstances even after a police investigation has focused on the suspect, Beckwith, 425 U.S. at 345, 96 S.Ct. at 1615, because "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it." Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. The Court has recognized, however, that in some noncustodial situations, law enforcement officials may "`overbear petitioner's will to resist and bring about confessions not freely self-determined.'" Beckwith, 425 U.S. at 348, 96 S.Ct. at 1617 (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961)). In these situations, proof that warnings were given would be relevant evidence on the issue of whether the questioning was coercive. Id. (citing Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969); Davis v. North Carolina, 384 U.S. 737, 740-41, 86 S.Ct. 1761, 1763-64, 16 L.Ed.2d 895 (1966)).
We find that defendant was not in custody and therefore that the searching officers were not required to administer Miranda warnings. Defendant contends that he was in custody from the initial stop at the gas station throughout the entire search. The circumstances suggest, however, that a reasonable person in defendant's position had every reason to believe Harrison's statements that defendant was not under arrest. In addition, we find no indication that the questioning took place in *1335 a context where defendant's freedom to depart was restricted.
We find that defendant was not in custody at the gas station or in Harrison's vehicle. Defendant was questioned briefly and told that he was not under arrest and that he could choose whether or not to accompany the officers to search his residence. The officers showed no guns, did not frisk or handcuff defendant, and allowed him to drive his car in the lot unaccompanied. There is some disagreement as to whether Harrison invited defendant into Harrison's car or whether defendant assumed he should ride in the agent's car. Yet even if Harrison suggested that defendant ride with him, it appears that defendant could have driven his own car or driven away, but that he never asked or attempted to do either. If he entered the vehicle at his own initiative, clearly the custody requirement has not been met. He voluntarily accompanied the officers to his home after having been informed that he was not under arrest and that he could choose whether or not to accompany Harrison. In addition, although defendant testified that he overheard Harrison state on his police radio that he had the "subject in custody," Harrison's previous statements to defendant that he was not under arrest, could choose to accompany the search, and would not be arrested unless the searchers found unlawful materials would have indicated to a reasonable individual that he was free to leave. The court considers the language "subject in custody" to be police jargon that defendant was with Harrison and not language intended to imply that defendant was not free to leave.
We also find that defendant was not in custody during the search of his residence. Once at his residence, defendant was allowed to make two phone calls, including one private call, although he remained in view through a glass door. It is unclear whether he could have left the house from the deck. He was again told that he was not under arrest and was advised of his right to remain silent and to have an attorney present. The record shows that defendant received the Miranda warning, indicated he understood his rights, and immediately upon questioning began to show the searchers materials in his residence. In addition, defendant was told at least three times that he did not need to assist in the search. Furthermore, defendant is an educated, experienced engineer. Defendant was in familiar surroundings and although there were at least three law enforcement officers in the house, only Harrison appeared to question defendant and not all of the officers appeared to be present at one time. It was defendant's personal choice to stay and assist with the search in view of Harrison's statement that the warrant authorized the searchers to take apart the house panel by panel. His freedom to leave was not restricted, and we have no doubt he could have done so, even though in the circumstances it may have been more prudent for him to stay.
Although a noncustodial situation can be coercive and bring about involuntary self-incriminations, we also find that the questioning of defendant was not coercive. The number of officers, the officer remaining with defendant, and the officer's threat to take apart defendant's residence are factors that would support a finding that the questioning was coercive. These circumstances alone, however, cannot be characterized as a situation in which "the behavior of ... law enforcement officials was such as to overbear [defendant's] will to resist and bring about confessions not freely self-determined." Rogers, 365 U.S. at 544, 81 S.Ct. at 741. Defendant was advised that he had the right to remain silent and have counsel present. He was not in unfamiliar surroundings or unable to communicate with outsiders. We can only conclude, given defendant's education, occupation, and background, that he was fully made aware of his constitutional rights which he was free to exercise at any relevant time if he chose to do so.
Conclusion
This court denies defendant's three motions to suppress.
Defendant's Motion in Limine
Defendant's motion in limine is denied as premature. Upon timely objection by defendant *1336 at trial, the court will rule upon the admissibility of the evidence in question.
This case is scheduled for trial as the No. 2 case for Tuesday, December 8, 1987.
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38 Cal.Rptr.3d 13 (2005)
135 Cal.App.4th 931
The PEOPLE, Plaintiff and Respondent,
v.
HARCO NATIONAL INSURANCE COMPANY, Defendant and Appellant.
No. B178992.
Court of Appeal, Second District, Division One.
December 28, 2005.
Nunez & Bernstein and E. Alan Nunez for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, and Syna N. Dennis, Deputy County Counsel for Plaintiff and Respondent.
ROTHSCHILD, J.
Harco National Insurance Company appeals from an order denying its motion *14 to set aside a summary judgment forfeiting bail issued when Francisco Gonzalez, a criminal defendant for whom Harco issued a bail bond, failed to appear at his arraignment. (Pen.Code, §§ 1305-1308; all further section references are to the Penal Code.) Harco contends that the trial court erred in forfeiting the bond and denying its motion. We agree, reverse the order and the underlying judgment, and remand for the court to grant the motion, vacate the forfeiture, and exonerate the bond.[1]
FACTS
Harco issued a $30,000 bail bond guaranteeing Gonzalez' appearance at his September 26, 2003 initial arraignment. On September 26, a Friday, neither Gonzalez nor his attorney, Edward Pacheco, appeared. The trial court stated: "Apparently, Mr. Pacheco has contacted the court and . . . indicated that he cannot appear today and requested that any bench warrant issued be held. [¶]. . . . [¶] The bench warrant is issued and held until this coming Monday, September the 29th, pursuant to counsel's request."
Pacheco, but not Gonzalez, appeared on September 29. Pacheco said he could not find Gonzalez. This colloquy followed: "The Court: Did he post a $30,000 bond? Did he ever check in? If I am not mistaken, he was supposed to be here on 9/26. [¶] Someone appeared for you; isn't that true? [¶] Mr. Pacheco: Yeah, I think somebody stood in and trailed it until today. [¶] The Court: So I had a bench warrant held until today. [¶] Mr. Pacheco: I am still in that trial, and . . . [m]y office is moving, so everything was out of the office. We had no phone service or anything for the weekend. [¶] The Court: That still doesn't explain Mr. Gonzalez's failure-to-appear not only on 9/26, but here we are, 9/29. [¶] Mr. Pacheco: Let me make a call. I will be right back. [¶] The Court: All right, but I am not intending to hold the warrant again."
After a brief recess, the court recalled the case and, speaking to Pacheco, stated: "As I indicated earlier, [Gonzalez] was not here on Friday. Somebody representing you because you were in trial asked if I would hold the warrant to see if they could get him in here today. I said I would. [¶] He is not here. You have had no contact with him. So, at this time, I will forfeit his bond and issue a bench warrant for his arrest."
After the County notified Harco of the forfeiture and waited the required statutory period, the County obtained a summary judgment forfeiting the bond. Harco moved to set aside the summary judgment, discharge the forfeiture, and exonerate the bond, arguing that the court lost jurisdiction to forfeit the bond when it failed to do so on September 26, 2003. The trial court denied the motion.
DISCUSSION
Harco contends that the trial court erred in forfeiting bail on September 29, and in denying the motion to set aside the forfeiture, because the court's failure to forfeit bail on September 26, when Gonzalez failed to appear without sufficient excuse, deprived it of jurisdiction to do so later. In response, the County argues that sufficient evidence supports the conclusion that the court reasonably believed *15 on September 26 that a sufficient excuse existed for Gonzalez' failure to appear. Harco's contention has merit.
Sections 1305-1308, which govern forfeiture of bail bonds, must be strictly construed because of the traditional abhorrence of forfeitures. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906, 98 Cal.Rptr. 57, 489 P.2d 1385; People v. Ranger Ins. Co. (2003) 108 Cal.App.4th 945, 950-951, 134 Cal.Rptr.2d 199.) Section 1305, subdivision (a)(1) requires that the court "shall in open court declare forfeited the undertaking of bail . . . if, without sufficient excuse, a defendant fails to appear for" arraignment. "[A] forfeiture of a bail bond, where required, must be timely declared." (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 906, 98 Cal.Rptr. 57, 489 P.2d 1385.)
Section 1305.1, however, creates an exception to section 1305, subdivision (a)(1): "If the defendant fails to appear for arraignment . . . but the court has reason to believe that sufficient excuse may exist for the failure to appear, the court may continue the case for a period it deems reasonable to enable the defendant to appear without ordering a forfeiture of bail or issuing a bench warrant. [¶] If, after the court has made the order, the defendant, without sufficient excuse, fails to appear on or before the continuance date set by the court, the bail shall be forfeited and a warrant for the defendant's arrest may be ordered issued." (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 951, 134 Cal.Rptr.2d 199, italics added.)
"Because each case presents its own unique set of circumstances the issue whether the showing of excuse is sufficient is decided on a case-by-case basis. The determination whether an excuse is sufficient is a matter within the trial court's discretion." (People v. Ranger Ins. Co., supra, 108 Cal.App.4th at p. 952, 134 Cal.Rptr.2d 199, fns. omitted; People v. United Bonding Ins. Co., supra, 5 Cal.3d at pp. 906-907, 98 Cal.Rptr. 57, 489 P.2d 1385.) A failure to appear is presumed to be without excuse and the burden to prove otherwise is on the party seeking to enforce a later forfeiture. (People v. United Bonding Ins. Co., supra, 5 Cal.3d at p. 907, 98 Cal.Rptr. 57, 489 P.2d 1385.)
In Ranger Ins. Co., supra, 108 Cal.App.4th at p. 949, 134 Cal.Rptr.2d 199, a defendant who previously had made every appearance failed to appear. His attorney asked to trail the case and issue and hold a bench warrant so he could continue to try and contact the defendant. The trial court agreed because the defendant "`hasn't missed in the past. There is no reason to think otherwise yet.'" When the defendant failed to appear at the next hearing, the trial court issued the warrant and forfeited bail, and later denied the surety's motion to vacate the forfeiture. Division Seven of our District affirmed, holding the trial court's finding of good cause was sufficiently supported by the record. (Id. at p. 953, 134 Cal.Rptr.2d 199.)
In contrast, Division Five of our District reversed a bail forfeiture order where the defendant failed to appear at the first hearing after posting bond. The trial court stated the defendant "`either [was] not coming or forgot.'" The trial court then agreed to hold the warrant for a few days so his attorney "`could endeavor to have him brought in.'" (People v. Surety Ins. Co. (1984) 160 Cal.App.3d 963, 965, 206 Cal.Rptr. 836.) Division Five held this record insufficiently supported a finding that the defendant's failure to appear was with sufficient excuse. (Id. at p. 969, 206 Cal.Rptr. 836.)
Applying these principles to our facts, we agree with Harco that insufficient evidence supports the trial court's implied *16 finding on September 26 that Gonzalez' failure to appear was sufficiently excused to justify not forfeiting bail on that date. As in People v. Surety Ins. Co., supra, 160 Cal.App.3d 963, 206 Cal.Rptr. 836, Gonzalez' counsel requested the court to hold the warrant so he could attempt to get his client to court on a later date. We do not agree with the County's argument that considering all of the facts known to the trial court on September 26, that court rationally could have concluded that Gonzalez did not come to court that day because he was "likely told" his attorney could not appear. Indeed, the trial court itself apparently understood that Gonzalez's failure to appear on September 26 was because counsel had lost contact with him rather than because counsel had told his client not to appear. As the court explained to counsel on September 29, the case was continued on September 26 "because you were in trial [and] asked if I would hold the warrant to see if they could get [Gonzalez] in here today [September 29th]." Thus, unlike in People v. Ranger Ins. Co., supra, 108 Cal.App.4th 945, 134 Cal.Rptr.2d 199, upon which the County relies, Gonzalez had no prior history of consistent appearances implying that his absence on September 26 was sufficiently excused. In fact, September 26 was his first appearance.
Because insufficient evidence supports the finding of sufficient excuse for Gonzalez' failure to appear on September 26, the trial court erred in (1) forfeiting bail on September 29, (2) entering summary judgment forfeiting Harco's bond, and (3) denying the motion to set aside the judgment.
DISPOSITION
The summary judgment forfeiting Harco's bond and the order denying the motion to set aside that judgment are reversed. The case is remanded for the trial court to enter orders granting the motion, vacating the forfeiture, and exonerating the bond. Harco is awarded its costs on appeal.
SPENCER, P.J., and VOGEL, J., concur.
NOTES
[1] An order denying a motion to set aside a bail forfeiture is appealable. (§ 1308.) Moreover, a summary judgment forfeiting bail is appealable when, as Harco contends, "`the judgment was not entered in accordance with the consent given in the undertaking.' [Citation.]" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 664, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)
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687 A.2d 220 (1997)
DISTRICT OF COLUMBIA, Appellant,
v.
Richard A. GREEN, Appellee.
No. 95-CV-1429.
District of Columbia Court of Appeals.
Argued December 11, 1996.
Decided January 9, 1997.
*221 Charles L. Reischel, Deputy Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, and Edward E. Schwab, Assistant Corporation Counsel, for appellant.
Robert E. Deso, Washington, DC, for appellee.
Before FERREN, FARRELL, and REID, Associate Judges.
FARRELL, Associate Judge.
In District of Columbia Metro. District of Columbia Metropolitan Police Dep't v. Broadus, 560 A.2d 501 (D.C.1989), we held that the filing of a criminal indictment for offenses committed by an off-duty police officer was "cause" for suspension without pay from the police force under D.C.Code § 1-617.1(d)(16) (1981). The question this appeal presents is whether the arrest of an officer upon a warrant, together with consideration by police officials of the investigative documents underlying the warrant, may similarly provide cause for suspension under the statute. We hold that it may, and that in the circumstances of this case the police had reasonable cause to suspend appellee, who had been arrested on charges of sexual assault, while the criminal process took its course. We further hold that subsequent events did not undermine, but rather confirmed, the validity of the suspension decision. We therefore reverse the decision of the Superior Court upholding an award of back pay to appellee by the Office of Employee Appeals (OEA) for the period of the suspension.
I. The Facts
On February 21, 1986, appellee Green, a member of the Metropolitan Police Department (MPD), surrendered to the Bladensburg, Maryland police pursuant to a warrant for his arrest. The warrant, issued by a judicial officer of the District Court of Maryland for Prince George's County, contained a statement of charges alleging that Green had sexually assaulted Sarah W. in the parking lot of a restaurant in Prince George's County on February 16, 1986. On being notified of the arrest, the MPD placed Green on administrative leave with pay. On February 24, 1986, the MPD Internal Affairs Division issued a preliminary report and recommendation that, "[i]n view of the facts and circumstances contained [t]herein," Green be suspended indefinitely without pay. On March 14, Green received a formal Advance Notice of Proposed Suspension Without Pay alleging conduct on his part that brought discredit upon the MPD and informing him of his right to reply to the proposed suspension. Green replied to the notice through counsel on March 18. The next day, he was indicted in the Circuit Court for Prince George's County on six counts including assault with intent to rape and assault and battery.
On March 31, 1986, the MPD issued its Final Notice of Decision to Suspend Without Pay, effective April 1, stating that the justification in the Advance Notice was "fully supported and warrants [Green's] suspension." On April 10, 1986, Green appealed the suspension to OEA. At a pre-hearing conference, the OEA hearing examiner inquired whether the MPD's decision was based upon any information other than that set forth in the arrest warrant application. In response, the MPD submitted four documents prepared during the Maryland police investigation which had formed the basis for the decision to suspend Green. These included the police offense report of February 17, 1986, recounting the victim's statement as follows:
On 2-17-86 at approx. 01.15 hrs victim advised [the report] writer that on 02-16-86 at approx. 0300 hrs while at the Cross Roads restaurant/bar with some friends[,] victim advised her friends to go ahead and leave[,] that she was going to wait awhile because she (victim) had been drinking and did not want to drive. At that point the suspect introduced himself and said he *222 would let victim sit in his car and showed a police badge. Victim then got into suspect's veh. and suspect drove victim to her veh. parked in the back alley portion of the parking lot. Victim then got into her veh. and started it up. Victim then got back into suspect's veh. while hers (victim's) was warming up. Suspect then started trying to kiss the victim, victim advised suspect to stop. Suspect then started grabbing victim's breast, then got on top of victim and placed his hand on victim's vaginal area. Victim started yelling and was able to open car door and victim and suspect fell out. Victim got up[,] got into her veh.[,] locked door and pulled off. Suspect followed her[-] victim in his veh. but victim lost suspect.
Victim believes suspect said he was a D.C. police officer.
A second document, the victim's statement in her own hand, confirmed inter alia that "this guy ... introduced himself, said he would let me sit in his car and showed my friends his police badge"; the friends "looked at [the badge] and said something to the effect that this guy looks o.k." She described Green's actions in then feeling her breast, forcing her seat back, climbing on top of her and putting his hand between her legs despite her yells for him to stop. When she managed to escape his hold and flee to her own car, locking the door, "he started toward [her]," and as she drove away "he started following [her]." When she got away from him she wrote down the plate number of his truck, and in a subsequent photo identification identified him as her assailant.
Green's own statement to the Bladensburg police at the time of his arrest was memorialized in the Report of Investigation also relied on by the MPD. He admitted that he had met the woman outside the Crossroads Restaurant and that she had sat in his truck. He had been drinking but was not drunk. He "displayed his ID folder to the lady's companions and told her he was a police officer[,] because he wanted to insure [them] that she would be in good hands." He admitted kissing her and "remarked[:] It just happened." While denying that he had touched her breasts or groin and forcing the seat back and lying on top of her, he admitted that he "had sex on my mind, probably... what else would I have on my mind, I am married...."
At the OEA hearing on October 21, 1987, Carl F. Profater, Assistant Chief of Police and Administrative Service Officer for the MPD, testified that the decision to suspend Green was based upon his conduct as reflected in these documents, not merely his arrest. The investigative reports of the Bladensburg police, together with Green's response to the proposed suspension, satisfied the MPD "that a crime had been committed" so as to trigger its duty to suspend him under § 1-617.1(d)(16): "based on the official documents of [another] police agency, we hold that to be evidence enough that a misconduct has occurred based on their investigation and obtaining statements from witnesses and so forth."
Some eight months before the OEA hearing took place, appellee had gone to trial on the criminal charges in the Circuit Court for Prince George's County. He waived jury trial and stipulated to the evidence the state would present, including the victim's testimony. The trial judge found him not guilty as to assault with intent to rape, but, as to the assault and battery and one of the fourth-degree sex offenses, concluded:
[A]s to assault and battery, touching, grabbing, and assaulting, battering of the victim without her consent obviously from the stipulated facts she did not consent to any of this. There was the touching of the breasts, and the hand in the vaginal area. I think that I am convinced beyond a reasonable doubt, and I think the [d]efendant is guilty of the assault and battery... and I also think that his actions also constitute a fourth degree sex offense ... so on [those two counts] I find him guilty beyond a reasonable doubt.
The judge sentenced Green to concurrent terms of eighteen months and one year in prison, but suspended execution of the sentence. Five months later, the judge reconsidered the sentence and instead imposed probation before judgment under Article 27, *223 § 641 of the Maryland Code.[1] At the OEA hearing, the hearing examiner received in evidence the transcript of the criminal trial stating that he would, "if it is considered relevant, give it whatever weight I can assign it." Green himself also testified at the hearing, and while admitting to having kissed and petted with Sarah W., denied forcing himself upon her.
The OEA hearing examiner recommended reversal of the suspension, concluding that he could "find no other basis upon which [the MPD] suspended [Green] except the arrest itself." The examiner discounted the victim's stipulated testimony at the criminal trial as he could not "examine her demeanor and evaluate her credibility," in contrast to Green's "credible" testimony denying the offenses. The examiner took note of this court's intervening decision in Broadus, supra, that an indictment suffices to establish cause for suspension, but found that decision beside the point because Broadus "did not address the issue of whether an arrest is sufficient grounds."
An OEA reviewing panel reversed and remanded the case to the hearing examiner. It recognized that, in light of Broadus and the intervening indictment, the MPD "had cause to suspend [Green] and its action must, therefore, be sustained." But the panel questioned whether the MPD could "permanently deprive [Green] of back pay" in view of two factors. One, the Maryland court had not entered a judgment of conviction against Green but instead had placed him on probation before judgment. Two, the MPD had not terminated Green in the wake of the criminal proceeding but instead had reinstated him. The panel had reference here to the fact that, although an MPD trial board had recommended Green's termination following an evidentiary hearing at which Green, the victim, and others testified, an arbitrator had ordered reinstatement after finding that dismissal was too harsh given Green's fifteen-year MPD record and his recent efforts at alcoholic rehabilitation notwithstanding that he had committed the criminal offenses.[2] On remand with instructions to reconsider the back pay issue, the hearing examiner a new one again found Broadus inapplicable (despite the OEA panel's apparent contrary determination) because the record contained neither an assertion nor evidence that the MPD in fact had relied on the indictment in suspending Green. The examiner endorsed the first hearing examiner's decision to credit Green's live testimony over the documentary evidence submitted by the MPD, and again recommended reversal of the suspension and award of back pay. The OEA reviewing panel accepted the recommendation, reversed the suspension, and directed reimbursement to Green of "all pay and benefits lost during his suspension without pay." The full OEA Board affirmed, as did the Superior Court on the District's petition for review.
II. Discussion
A.
Green's suspension was an "adverse action," which meant that he could be suspended without pay only for "cause." D.C.Code § 1-617.1(b) (1992). Like the police *224 officer in Broadus, he was suspended on the authority of § 1-617.1(d)(16), which provided at the time of the suspension:
[C]ause shall be defined as ... [o]ther failure of good behavior [by an employee] during duty hours which is of such a nature that it causes discredit to his or her agency or his or her employment. Notwithstanding the foregoing, the provisions of this paragraph shall be applicable to uniformed members of the Metropolitan Police Department during both on-duty and off-duty hours.[3]
In Broadus, as explained earlier, we held that "the fact of an indictment ... constitutes sufficient evidence to establish cause under ... § 1-617.1(d)(16) to support an adverse action by the police department against one of its officers." 560 A.2d 501. In part quoting from Brown v. Department of Justice, 230 U.S.App. D.C. 188, 193, 715 F.2d 662, 667 (1983), we stated:
Certainly, at some point along the continuum of an employee's involvement in the criminal justice system, evidence of that involvement alone gives rise to reasonable cause to believe the employee has committed a crime.
At one end of the continuum, conviction of a crime would most certainly constitute cause for suspension for a failure of good behavior, even where the agency lacked any actual evidence of the alleged criminal acts.... At the other end of the continuum, mere questioning or investigation by police officers into the alleged criminal acts of an employee would seem to constitute insufficient evidence "of a failure of good behavior" to support a suspension.
Broadus, 560 A.2d at 505 (citations and footnotes omitted). In concluding that the fact of indictment lay comfortably within these extremes in supporting suspension for cause, we stressed that if an indictment were insufficient, "[p]resumably ... an independent formal hearing, in effect a `mini-trial,' [would be] necessary" to justify suspension, which could be prejudicial to both the officer-defendant and the government in the criminal case. Id. at 507. We further pointed out that indictments must be supported by probable cause and are not "issue[d] on abstract charges," and that the grand jury's role "serves to protect citizens against unfounded criminal prosecutions." Id. at 504-05.[4]
In the present case, the Maryland indictment concededly had been issued before Green was suspended, but the OEA review panel discounted this fact because (accepting the examiner's finding on remand) it concluded that the indictment had played no actual part in the decision to suspend. The District urges rejection of this analysis: the test of "cause," it argues, should be the objective basis which the MPD had to suspend Green at the time it did so, including the fact of indictment, when the only plausible reason it did not rely on the indictment (or at least did not say it was doing so in the suspension decision) was OEA's erroneous pre-Broadus understanding of the statute that an indictment was not cause. See Broadus, 560 A.2d at 502-03 (noting agency's previous interpretation of statute). There is merit to this argument, but we choose not to rest our decision on it. OEA committed a more basic error by concluding that the documentary evidence undeniably relied on by the MPD, including but not limited to the arrest warrant issued by a Maryland judge, was insufficient to justify the suspension.
Broadus held that an indictment is sufficient cause for suspension under § 1-617.1(d)(16); it did not hold that it is a necessary cause. Whether evidence short *225 of the fact of indictment will justify suspension depends, first of all, on where it places the employee's conduct "`along the continuum of ... involvement in the criminal justice system.'" 560 A.2d at 505 (quoting Brown, supra). Had Green been suspended as a result of "mere questioning or investigation by police officers into the alleged criminal acts," cause probably would not have been established. Id. But Green had been arrested for the crimes based upon a warrant issued by a neutral and detached judicial officer, see Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), who found probable cause to believe he had committed the crimes. Furthermore, the Internal Affairs Division of the MPD had reviewed the documents generated by the Bladensburg police investigation, spoken with the primary investigating officer, and weighed this information against Green's response to the proposed suspension. The documents relied on contained strong internal evidence of the reliability of the charges. Green admitted meeting the victim, kissing her with "sex on [his] mind" ("It just happened"), and displaying his police badge with the avowed intent to reassure her and her companions. He thus corroborated material aspects of the victim's detailed description of how he assaulted her after assuring her with his badge that she could safely wait in his car. She had written down his license tag number and reported the assault to the police within a day. Identity was not an issue.
Given the seriousness of the crimes charged and their obvious bearing on Green's fitness to remain on duty pending their resolution,[5] we hold that the information considered by the MPD before suspending him was enough to establish cause for the suspension. That information included more than the arrest or issuance of an arrest warrant; indeed, "[w]e are not prepared to conclude ... that the issuance of an arrest warrant [a typically ex parte process] ... is the equivalent to more formal proceedings" such as the grand jury indictment in Broadus. Dunnington v. Department of Justice, 956 F.2d 1151, 1157 (Fed.Cir.1992). But, as did the government agency in Dunnington, the MPD went beyond the fact of the arrest warrant and "assure[d] itself that the surrounding facts [were] sufficient to justify [the] summary action [of suspension]." Id. The Dunnington court held that the agency was not bound to conduct its own "factfind[ing]" but instead could rely on the "additional factual material culled from the [criminal] complaints and supporting allegations," including "the supporting statements from the complaining witnesses." Id. at 1157-58. We agree, and hold that the supporting material here together with the warrant established reasonable cause.
B.
The remaining question in this back-pay dispute is whether events subsequent to the suspension cast doubt on its validity up to the point when Green, pursuant to the arbitration award, was reinstated. We hold they do not.
In Brown, supra, the court stated that "the final disposition of the charges is vitally important to an analysis of the relief due" the employee-petitioner, since a suspension based "on work-related charges must necessarily be a conditional suspension, conditioned on the outcome of the employee's involvement in the criminal justice system." 230 U.S.App. D.C. at 194-95, 715 F.2d at 668-69 (emphasis in original). In Broadus we agreed that if the officer is subsequently acquitted of the criminal charges, the MPD must either reinstate him with back pay or "have a new adverse action hearing to determine whether the underlying facts supported a failure of good behavior." 560 A.2d at 508; see also Brown, 230 U.S.App. D.C. at 195, 715 F.2d at 669. ("When an employee ... is acquitted and the agency chooses to reinstate him or her, it would be unfair to penalize the employee for having become a target of the criminal justice system"). In the present case, the OEA treated the ultimate disposition of the Maryland charges on the basis of *226 "probation before judgment" as the legal equivalent of an acquittal. That is wrong as a matter of law. On the basis of a stipulation as to what the state's proof would be, the Maryland trial judge found Green guilty beyond a reasonable doubt of two charges, including assault and battery. By its terms, the Maryland statute requires a finding of guilt (or a plea of guilty or nolo contendere) before probation without verdict may be imposed. Note 1, supra; see Myers v. State, 303 Md. 639, 496 A.2d 312, 315-16 (1985). The fact that, absent revocation and imposition of judgment, no "conviction" results from this procedure and that the guilty finding may be given only limited effect in Maryland administrative proceedings, Powell v. Maryland Aviation Admin., 336 Md. 210, 647 A.2d 437 (1994) (guilty finding underlying probation before judgment is admissible as evidence in administrative proceeding but may not be given preclusive effect), is beside the point here. Nothing in the Maryland criminal proceeding cast doubt on the original decision by the MPD that Green had committed misconduct warranting suspension. For similar reasons, the arbitrator's decision reinstating Green is inapposite: while noting that live testimony at the police trial board hearing on termination confirmed the Maryland finding of guilt, the arbitrator concluded, in effect, that appellant's then-2½ year suspension without pay was penalty enough in view of his rehabilitation and prior exemplary record as an officer. The termination proceeding, far from impeaching the suspension, effectively ratified it.
The order awarding Green back pay is, therefore,
Reversed.
NOTES
[1] MD.CODE ANN. OF 1957, Art. 27, § 641 reads in pertinent part:
(a) Probation after plea or finding of guilt; terms and conditions; waiver of right to appeal from judgment of guilt (1)(i)1. Whenever a person accused of a crime pleads guilty or nolo contendere or is found guilty of an offense, a court exercising criminal jurisdiction, if satisfied that the best interests of the person and the welfare of the people of the State would be served thereby, and with the written consent of the person after determination of guilt or acceptance of a nolo contendere plea, may stay the entering of judgment, defer further proceedings, and place the person on probation subject to reasonable terms and conditions as appropriate.
[2] In this regard the arbitrator stated:
The record before me contains a judicial decision, based on stipulations offered by the State of Maryland and the Grievant, that the Grievant was guilty, beyond a reasonable doubt, of assault and battery and a fourth degree sexual offence. The Panel at the Police Trial Board, after hearing witnesses and examining documents, accepted Ms. W's testimony concerning the incident and found that "something truly offensive or objectionable had in fact happened to her". Even if I were to ignore the judicial and Panel findings, the transcript makes it clear that at some point the Grievant persisted in unwelcome advances which caused Ms. W to scream and to open the truck door in an effort to get away from him.
[3] The paragraph was revised in 1990 and now defines cause to include "[o]ther conduct during and outside of duty hours that would affect adversely the employee's or the agency's ability to perform effectively."
[4] In Broadus we recognized and did not take issue with OEA's standard requiring an agency to prove cause for suspension under § 1-617.1(b) by a preponderance of the evidence, but we implicitly held that the fact of an indictment meets that burden. 560 A.2d at 507. We thereby rejected Green's contention here that the hearing examiner could properly refuse to accept evidence offered without opportunity for cross-examination as capable of demonstrating cause when contrary live testimony (here Green's) is presented. We have rejected such categorical dismissal of hearsay evidence in other administrative contexts as well. See, e.g., James v. District of Columbia Dep't of Employment Servs., 632 A.2d 395 (D.C.1993).
[5] As the arbitrator stated in the termination proceedings, "[Green's] misconduct was serious. He used his status as a police officer to gain Ms. W's confidence to the extent that she went into his truck."
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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/2258794/
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38 Cal.Rptr.3d 333 (2006)
135 Cal.App.4th 1257
Henry C. GACKSTETTER, Plaintiff Appellant,
v.
Patrick FRAWLEY et al., Defendants and Appellants.
No. B173070.
Court of Appeal, Second District, Division Five.
January 25, 2006.
*335 H. Clay Reavis, Jr., Newport Beach, Deborah J. Dewart, Irvine, for Plaintiff and Appellant.
Law Offices of Zilinskas & Woosley, Victor G. Zilinskas, Eric A. Woosley, Santa Barbara, for Defendants and Appellants.
Certified for Partial Publication.[*]
*334 MOSK, J.
I. INTRODUCTION
Attorneys settled a malpractice and negligent misrepresentation action against them by trust beneficiaries and obtained a good faith settlement determination order pursuant to Code of Civil Procedure section 877.6.[1] In a separate probate proceeding, the trust beneficiaries sought relief against the trustee of those trusts for certain derelictions of his trust duties. This dispute was settled. In the case before us, the attorneys were sued by the trustee, whom the attorneys had represented, for various torts related to the services provided the trustee in connection with the trusts. The trial court denied the attorneys' summary judgment and summary adjudication motions to bar claims based on the good faith determination order.
The attorneys cross-claimed against the trustee for equitable indemnity for monies paid by the attorneys to settle the beneficiaries' claims against them. The jury found for the trustee against the attorneys, but found that because the trustee was 50 percent at fault and the attorneys were entitled to equitable indemnification, the judgment should be reduced accordingly. The trial court refused to modify the jury's findings, and a judgment for damages was entered.
In the published portion of the opinion, we hold that the attorneys can appeal from the denial of the summary judgment and summary adjudication motions and that, because of the good faith determination, the trial court erred in not granting summary judgment in favor of the attorneys. We conclude that a good faith determination may bar the claims of an unnamed party; the trustee and the attorneys were joint tortfeasors; the trustee's claims were either for indemnification or in effect for indemnification; and therefore, under section 877.6, the good faith settlement barred the trustee's claims. Accordingly, we reverse the judgment on the trustee's First Amended Complaint.
In the unpublished portion of the opinion, we affirm the judgment on the attorney's cross-complaint against the trustee for equitable indemnity. The jury verdict on the cross-complaint is supported by *336 substantial evidence. We remand the matter to the trial court to enter a judgment in conformity with this opinion.
II. BACKGROUND
A. General Allegations and Proceedings
In 1987, defendant, attorney Patrick Frawley (Frawley),[2] prepared documents establishing two trusts for Agnes Gordon. One trust, the Agnes Gordon Trust (Sisters' Trust), was to benefit Ms. Gordon's sisters (Sisters) and to include a house (the Marlin Place Property) so that one of the Sisters would always have a home. The other trust, the Billy and Agnes Gordon Trust (Charitable Trust), was a residual charitable trust created to establish a program to train dogs to assist hearing-impaired persons. After the creation of the Sisters' Trust, Agnes Gordon allegedly revoked her will. That will provided for distributions comparable to those provided for by the trusts. Plaintiff Henry Gackstetter (Gackstetter), a close friend of Agnes Gordon and her late husband, was the trustee for both trusts. After Agnes Gordon died, Frawley represented her executor and niece, Patricia Murphy (Murphy), in the probate of the estate. According to Gackstetter, Frawley provided legal services to Gackstetter as trustee of the trusts and individually.
By mistake, before Agnes Gordon's death, Frawley had transferred the Marlin Place Property into the Charitable Trust instead of the Sisters' Trust. One of the Sisters continued to live in the house, and Gackstetter used funds in the Charitable Trust to maintain the residence. Gackstetter claimed to have made personal loans to the Charitable Trust and to have repaid himself out of trust funds. Gackstetter also mortgaged the Marlin Place Property to obtain $104,000 for himself. He said that money, or some of it, was later used to repay his loans. As trustee for the trusts, Gackstetter failed to prepare accountings, tax returns, and other necessary documents and otherwise failed to maintain proper records. It was necessary to open a probate proceeding for the Agnes Gordon estate because the Sisters' Trust was not funded, and assets had to be redistributed in view of Frawley's error. Various proceedings and actions ensued.
1. Sisters' Petition Against Gackstetter (Murphy Petition)
In the Agnes Gordon probate proceeding, on May 14, 1998, the Sisters filed a petition against Gackstetter alleging a breach of fiduciary duty in connection with the Marlin Place Property, the taking of money generated by placing a mortgage on that property, and for failure to provide accountings for the trusts. By their petition, the Sisters sought an accounting, appointment of successor trustee, return of trust assets, surcharge of the trustee, and to quiet title. Frawley initially represented Gackstetter in the Murphy Petition proceeding, and Gackstetter signed a retainer fee agreement with Frawley in connection with that representation. Frawley withdrew as counsel after it was disclosed that he caused the Marlin Place Property to be placed in the wrong trust. Gackstetter alleged he thereafter became aware of his own failures to file trust tax returns, prepare trust accountings, and maintain trust records properly. Because of these failures, when records were destroyed in an earthquake, hundreds of hours were required to make proper accountings and to *337 defend the Murphy Petition. In 1999, the Attorney General made claims against Gackstetter in the probate proceeding in connection with alleged mishandling of the Charitable Trust.[3] On July 13, 2000, Gackstetter settled the Murphy Petition claims against him. As part of the settlement, Gackstetter caused the transfer of the Marlin Place Property to the Sisters' Trust. Gackstetter, although attributing his acts and omissions to Frawley, also settled with the Attorney General on July 13, 2000, by, inter alia, waiving any claim for fees and reimbursement. The probate court approved the settlements.
2. Sisters' Action Against Frawley
On July 23, 1999, the Sisters sued Patrick Frawley and doe defendants for malpractice and negligent misrepresentation in connection with placing the Marlin Place Property in the wrong trust and failing to disclose this error. The Sisters also alleged in this action that Frawley represented Gackstetter as trustee, that Gackstetter made misrepresentations regarding the property and took money by placing a mortgage on it, and that claims against Gackstetter had been made by the Murphy Petition. The parties stipulated for the consolidation of discovery in the Murphy Petition proceeding against Gackstetter and in the Sisters' action against Frawley. On July 20, 2000, after the instant case by Gackstetter against Frawley had been filed, Frawley settled the Sister's action against him for $104,000, the amount of the encumbrance Gackstetter had placed on the Marlin Place Property.[4] After giving notice to Gackstetter of an application for good faith settlement, Frawley obtained from the trial court a September 1, 2000 order granting the application for good faith settlement.
3. Gackstetter's Action Against Frawley The Instant Action
On May 5, 2000, Gackstetter, on behalf of himself, sued Frawley in the instant action for improperly advising Gackstetter of his duties and concealing the improper transfer of the Marlin Place Property. The Attorney General intervened in this case, making claims against Frawley that he "aided and abetted Gackstetter in breaching his trust." Frawley settled the Attorney General's claims.
Specifically, in his First Amended Complaint against Frawley, Gackstetter alleged Frawley concealed the incorrect conveyance of the Marlin Place Property, improperly advised him as to his duties and obligations as trustee, and committed other acts resulting in improper distributions that adversely affected the funding of the Charitable Trust. Gackstetter alleged that as a result of Frawley's actions, the trusts were damaged and that he was sued by the Sisters and the Attorney General in the Murphy Petition proceeding. Gackstetter explicitly sought indemnity in connection with his settlement with the Sisters arising out of the Murphy Petition against him, and he also claimed for breach of fiduciary duty, professional negligence, *338 misrepresentation, and breach of the attorney-client retainer agreement.
Frawley asserted as an affirmative defense the bar of section 877.6. Frawley had demurred, and later moved for summary judgment and summary adjudication on the basis of the good faith settlement, but the trial court rejected that contention.[5] Frawley also cross-claimed for indemnity for the amount he paid to the Sisters in settling their action against him.
A jury found Patrick Frawley liable for professional negligence, breach of fiduciary duty, fraud, and breach of contract and assessed damages in the amount of $289,000 for economic damages and $3,000 for emotional distress. The jury found that Gackstetter was responsible, in part, for his own damages, requiring a 10 percent reduction in the economic damages. The jury also found that, as to Frawley's cross-claims for indemnity for his $104,000 payment for the benefit of the Sisters, Gackstetter was 50 percent at fault in connection with the Sisters' damages.
Gackstetter filed a post-trial motion for directed verdict on Frawley's cross-complaint as it pertained to contributory negligence and indemnity. The trial court denied the motion and entered judgment on special verdicts against Frawley for $211,000. The trial court declined to award Gackstetter any attorney fees. Gackstetter had claimed attorney fees in the amount of $521,612.50 based on a special verdict finding that Frawley had breached the retainer fee agreement with Gackstetter. That agreement contained an attorney fees clause.
Frawley appeals, claiming that the good faith settlement in the Sisters' action against him barred Gackstetter's recovery. He asserts that he can appeal from the denial of his motions for summary judgment and summary adjudication, by which he invoked the good faith settlement. He contends that all of Gackstetter's causes of action were, in effect, disguised indemnity claims and therefore barred. He also argues that there could be no contract claim.
Gackstetter cross-appeals, asserting that Frawley is not entitled to the indemnity that resulted in the reduction of damages by the jury based on a percentage of the amount Frawley paid in settlement of his case with the sisters. Gackstetter contends that there can be no contributory negligence in connection with an intentional tort, that Frawley is not entitled to equitable indemnity, and that Gackstetter is entitled to attorney fees because he prevailed in a claim based on a contract that included an attorney fees clause.[6]
B. Specific Allegations, Statements of Undisputed Facts, and Supporting Evidence in the Instant Action
1. Gackstetter's Allegations
In the general allegations incorporated into all of the causes of action in Gackstetter's First Amended Complaint, Gackstetter alleged that Frawley had conveyed the Marlin Place Property to the wrong trust; *339 Frawley represented him in connection with Gackstetter's position as trustee of the trusts and gave "legal guidance" to him in the administration of the trusts; Frawley concealed from him the mistaken placement of the Marlin Place Property in the wrong trust; Frawley "knew or should have known that [Gackstetter] would be sued and be subject to possible civil and criminal liability for his trust management under the supervision of [Frawley]"; Frawley failed to cause the preparation and retention of records for the trusts; Frawley's legal advice regarding the trusts was negligent; Frawley confirmed to Gackstetter that he, Gackstetter, was properly performing his duties as trustee; and Frawley's advice and false representations were made for the purpose of preventing Gackstetter and others from discovering Frawley's errors regarding the trusts.
Gackstetter alleged causes of action for breach of fiduciary duty and fraud, and for each of these causes of action he alleged damages to him and the Charitable Trust. He also alleged a cause of action for negligent misrepresentation. Both the fraud and negligent misrepresentation causes of action are based on misrepresentations concerning the trusts and Gackstetter's duties as trustee. In addition, Gackstetter alleged causes of action for "Implied Indemnity" and "For Equitable Indemnity on a Comparative Fault Basis" in which he claimed he is entitled to damages arising out of the Murphy Petition against him. In his last two causes of action, Gackstetter alleged that Frawley breached agreements to defend him in the Murphy Petition proceeding and to advise him with regard to the administration of the trusts.
2. Summary Judgment Contentions of Undisputed Facts
Frawley stated in his Statement of Undisputed Facts in support of his summary judgment and summary adjudication motions that "Gackstetter and the Frawley defendants are joint tortfeasors with regard to the claims by the Sisters against them in that it was alleged that both Gackstetter and the Frawley defendants caused the Sisters to not receive the Marlin Place Property free and clear." Although Gackstetter disputes this statement in his statement regarding undisputed facts, the dispute was only on the grounds that he did not draft the documents, the Sisters sued Frawley for negligence, the Sisters' action against Frawley did not mention Gackstetter,[7] and the Murphy Petition against Gackstetter did not mention Frawley. This response by Gackstetter, however, does not refute the assertion that Frawley and Gackstetter were joint tortfeasors based on the allegations in the two proceedings brought by the Sisters and the allegations in Gackstetter's First Amended Complaint.
Also in his Statement of Undisputed Facts, Frawley stated that "the only damages sought by Gackstetter in his capacity as an individual and as trustee of the Agnes Gordon Trust [Sisters' Trust] in connection with [each of the causes of action] are damages he incurred in the defense and settlement of the Murphy v. Gackstetter action." In response, Gackstetter stated that the fact is "misleading in that it omits damages to plaintiff, individually, incurred because of the involvement of the Attorney General's Office . . . and based upon his reliance on the advise [sic] and instructions of Defendant's [sic] in his management of the trust for twelve *340 years and in his defense of the Sisters litigation; Forged Documents in Probate." In some responses, Gackstetter said the Murphy Petition proceeding and the Murphy lawsuit against Frawley were not related or that he was damaged by "Concealed Trust Assets."
3. Evidence
In support of his motion for summary judgment, Frawley submitted the Murphy Petition against Gackstetter, in which Murphy sought to compel Gackstetter as trustee to file accountings; transfer the Marlin Place Property to the Sisters' Trust, and, in turn, to the beneficiaries under Agnes Gordon's will; and to obtain a surcharge order and imposition of a constructive trust because of alleged errors Gackstetter committed as trustee. Frawley also submitted the First Amended Complaint in the Sisters' action against Frawley in which it was alleged that he negligently transferred the Marlin Place Property to the wrong trust, failed to disclose the error, and misrepresented where the property should have been transferred. Plaintiffs further alleged in that amended complaint that Frawley represented the trust estate and that the trustee and that Gackstetter had misrepresented the facts about the Marlin Place Property and had obtained monies by placing a deed of trust on the property.
Gackstetter was not named a party in the Sisters' action against Frawley, but the complaint in that action contained a reference to the Murphy Petition against Gackstetter. Other than the substitution of Ms. Murphy as administrator for a recently deceased trust beneficiary, all of the plaintiffs (Sisters) in the legal malpractice action against Frawley were essentially the same as the petitioners in the Murphy Petition against Gackstetter.
Frawley's other evidence consisted of his settlement of the Sisters' lawsuit against him, the good faith settlement, and the application for order and order regarding approval of a settlement of the Murphy Petition against Gackstetter. The application for the good faith settlement in the Sisters' action against Frawley included the settlement agreement between Frawley and the Sisters. In that settlement agreement, which referred to Frawley's representation of Agnes Gordon in preparing the estate planning documents, the parties released each other generally from all claims "relating to or arising" from that representation. The good faith settlement order declared that the settlement agreement described in the application "was made and entered into in good faith . . . within the meaning of and effect of Code of Civil Procedure § 877.6."
In the application for the order settling the Murphy Petition against Gackstetter, among the recitals are the following: Frawley's negligence and concealment in connection with the trusts; Frawley's advice to Gackstetter "in these proceedings, that caused the Petitioners to be unaware of the loss of their rights and interest in and to [the Marlin Place Property] until recently"; Gackstetter as trustee "contends that he has vigorously defended the trust"; Gackstetter "further asserts that he has expended Trust and personal funds and efforts to maintain and improve [the Marlin Place Property]"; and the Attorney General filed his own petition in the proceeding against Gackstetter for an accounting and to surcharge the trustee. The settlement provides that Gackstetter shall, as trustee, transfer the Marlin Place Property from the Charitable Trust to the Sisters Trust and shall pay $104,000 to the beneficiary of the deed of trust on *341 the property. Frawley also submitted in evidence the settlement that was later completed between Gackstetter and the Attorney General. A principal term of that settlement was that Gackstetter waived all claims he had for fees and loan repayments.
Gackstetter, in opposition to the summary judgment and summary adjudication motions, submitted documents from the Agnes Gordon's probate case. He also introduced documents showing Frawley's representation of Gackstetter and Frawley's preparation of the trust estate documents in issue.
III. DISCUSSION
A. Appealability
Frawley contends that the propriety of the denial of a summary judgment[8] may be raised in an appeal from a judgment after a trial. Gackstetter asserts that by not seeking a writ of mandate as provided by section 437(c), subdivision (m)(1),[9] Frawley has forfeited the right to challenge the denial of a summary judgment motion.
Section 437(c), subdivision (m)(1) provides that entry of a summary judgment is appealable and that any order entered pursuant to the summary judgment statute may be challenged by a petition for peremptory writ. The case law has not been uniform on the reviewability of a denial of summary judgment on an appeal from a final judgment. In Lackner v. LaCroix (1979) 25 Cal.3d 747, 753, 159 Cal.Rptr. 693, 602 P.2d 393, the Supreme Court stated that, "[a]n order denying partial summary judgment is a nonappealable order although reviewable on appeal from the final judgment." At that time, however, there was no provision in the summary judgment statute for a peremptory writ.[10] (See also Aas v. Avemco Ins. Co. (1976) 55 Cal.App.3d 312, 323-324; 127 Cal.Rptr. 192; Whitmire v. City of Eureka (1972) 29 Cal.App.3d 28, 32, fn. 3, 105 Cal.Rptr. 185). In Sturm, Ruger & Co. v. Superior Court (1985) 164 Cal.App.3d 579, 582, 210 Cal.Rptr. 573, decided after the summary judgment statute was amended to provide for a writ procedure, the court stated that the denial of a petition for a writ challenging a denial of a summary judgment does not "preclude petitioner from raising the issue in an appeal from an adverse final judgment in the event real parties prevail in the Superior Court." In Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1082, footnote 1, 1 Cal.Rptr.2d 215, this division (Turner, J.) said, "An order denying a summary judgment is an interlocutory order [citation] which may be reviewed on direct appeal from a final judgment entered after a trial. [Citations.]." (See, § 906 ["Upon appeal ... the reviewing court may review ... any intermediate ruling ... which involves the merits or ... which substantially affects the rights of a party ..."].)
In Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836, 16 Cal.Rptr.2d 38 (Waller), the court recognized "as a general proposition, that an order denying a motion for summary judgment, while not directly appealable, may be reviewed on appeal *342 from the final judgment." It added, however, that no case has "considered the merits of the order denying summary judgment as a basis to reverse a judgment entered after the trial on the merits." (Ibid.) The court refused to do so, limiting its opinion "to situations in which a party moves for a summary judgment on the ground that there is no triable issue of fact, the motion is denied, and the same questions raised by the motion are then decided adversely to the unsuccessful moving party after a trial on the merits which is itself free from prejudicial error." (Ibid.) It noted, "We do not intend by this decision to imply that review of such orders is never possible." (Ibid.) But in Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, at page 1256, 75 Cal.Rptr.2d 681, the court said the denial of a summary judgment is reviewable only by a timely writ petition and not by an appeal.
One authority stated, "A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial)." (Eisenberg, Horwitz, Wiener, California Practice Guide: Civil Appeals and Writs (2004) section 8:168.10, p. 8-114). That authority added, "it is difficult to imagine a scenario where error in the denial of summary judgment would cause prejudice at trial." (Id. at section 8.168.11, p. 8-115.)
Gackstetter points to cases under section 877.6[11], the good faith settlement statute, stating that the provision for a writ procedure in that statute is exclusive. (See O'Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 498, 9 Cal.Rptr.3d 342; Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (1999) 73 Cal.App.4th 1130, 1137, 87 Cal.Rptr.2d 108.) Yet, the court in Maryland Casualty Co. v. Andreini & Co. of Southern California (2000) 81 Cal.App.4th 1413, 97 Cal.Rptr.2d 752, concluded that, even though a good faith settlement determination can be reviewed by prejudgment writ, it can also be reviewed by postjudgment appeal. (See Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 103 Cal.Rptr.2d 480.) In view of the conflict of authorities, the analogy to section 877.6, subdivision (e) is not helpful.
Although the denial of a summary judgment after a trial normally would be harmless error, there can be exceptions. (Waller, supra, 12 Cal.App.4th at p. 836, 16 Cal.Rptr.2d 38.) The facts here result in one of those exceptions. The good faith settlement order was not made in this case. Frawley, having obtained that good faith determination in another case was, of course, in no position to seek a writ in that case. In this case, he raised the effect of the good faith settlement by way of demurrer and summary judgment. Frawley could have sought a writ, but the language of section 437c, subdivision (m)(1) providing for a writ procedure contains the permissive word "may." (Cf. Wilshire Ins. Co. v. Tuff Boy Holding, Inc., supra, 86 Cal.App.4th 627, 637, 103 Cal.Rptr.2d 480 ["may" used in section 877.6(e) for writ does not preclude appeal].)
The good faith settlement could have been raised in various ways in the instant action. That it was done by summary judgment should not preclude a party from *343 appealing from a trial court's determination that a good faith settlement in another action does not bar a claim. Accordingly, in this case, the issue of the good faith settlement defense that was raised by a summary judgment motion, which motion the trial court denied, may be a basis for this appeal of the judgment.
B. Standard of Review
On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222, 38 Cal.Rptr.2d 35.) The same standard should apply to review of a denial of summary judgment. Questions of law "are reviewed under a nondeferential standard, affording plenary review." (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800, 35 Cal.Rptr.2d 418, 883 P.2d 960.) Although the trial court's determination of the good faith or lack of good faith of a settlement is reviewed for an abuse of discretion (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1349, 45 Cal.Rptr.2d 581), whether a determination of a good faith settlement applies to a party or claim is a question of law that we review de novo.
C. Good Faith Settlement
1. General Principles
Section 877.6 provides in pertinent part, "(a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors ... [¶] ... [¶] (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault."
Section 877 abrogated the common law rules that precluded the contribution among joint tortfeasors and that a release given to one joint tortfeasor would release all joint tortfeasors. (Topa Ins. Co. v. Fireman's Fund Ins. Companies (1995) 39 Cal.App.4th 1331, 1337, 46 Cal.Rptr.2d 516 (Topa).) The Supreme Court in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899, held that "a concurrent tortfeasor may seek partial indemnity from another concurrent tortfeasor on a comparative fault basis" but that "a tortfeasor who has entered into a `good faith' settlement ... with the plaintiff must also be discharged from any claim for partial or comparative indemnity that may be pressed by a concurrent tortfeasor." (Id. at p. 604, 146 Cal.Rptr. 182, 578 P.2d 899.) That conclusion was codified in section 877.6. The Supreme Court has suggested that section 877.6, subdivision (c) should be interpreted so as to encourage settlements. (Far West Financial Corp. v. D & S Co., Inc. (1988) 46 Cal.3d 796, 810, 251 Cal.Rptr. 202, 760 P.2d 399 (Far West).)
Under section 877.6, if the insured party settles with one of the parties alleged to have caused its damages and the settlement is confirmed to be in good faith "other joint tortfeasors (parties who the injured party also alleges to have caused its damage) are barred from bringing equitable indemnity or contribution actions against the settling tortfeasor. This result achieves the primary objectives of section *344 877.6: promoting the `equitable sharing of costs among the parties at fault and the encouragement of settlements.'" (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 877, 41 Cal.Rptr.2d 519.) A settling tortfeasor may raise the section 877.6 bar of another tortfeasor's claim in a separate action, and this can be by demurrer and summary judgment. (See Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, 182, 86 Cal.Rptr.2d 188 (Britz).)
The Supreme Court has further held that a good faith determination bars all claims for indemnification or contribution, including claims for total as well as partial equitable indemnity. (Far West, supra, 46 Cal.3d at pp. 815-816, 251 Cal.Rptr. 202, 760 P.2d 399; Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1031, fn. 11, 269 Cal.Rptr. 720, 791 P.2d 290.) As discussed post, claims for indemnification can include other claims not labeled as indemnity claims, but that in reality are "disguised" indemnity claims. (Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 964, 75 Cal.Rptr.2d 456 (Norco).) In order to be declared a good faith settlement, the settlement must be within the "reasonable range" of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, 213 Cal.Rptr. 256, 698 P.2d 159; Bay Development, Ltd. v. Superior Court, supra, 50 Cal.3d at pp. 1034-1035, 269 Cal.Rptr. 720, 791 P.2d 290.)
(a) Joint Tortfeasors
Joint tortfeasors are "concurrent tortfeasors (defendants whose independent negligence or other tortious acts have occurred to cause plaintiff's injury)" and "those derivatively or vicariously liable for the settling defendants' acts." (Weil and Brown, California Practice Guide: Civil Procedure Before Trial (2005) § 12:925, pp. 12(11)-76.) In Turcon Construction, Inc. v. Norton-Villiers, Ltd. (1983) 139 Cal.App.3d 280, 283, 188 Cal.Rptr. 580 (Turcon), the court said, "We presume the Legislature was aware of the modern use of the term `joint tortfeasors' as embracing joint, concurrent and successive tortfeasors when section 877.6, subdivision (c) was drafted." Thus, under Turcon, when the negligence of both tortfeasors "concurred to produce the sum total of injuries to the plaintiff," section 877.6 applied. (Id. at p. 284, 188 Cal.Rptr. 580.) And, the court in Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115, 103 Cal.Rptr.2d 858 said, "Joint tortfeasors may act in concert or independently of one another [citation]."
As noted by the court in Topa, supra, 39 Cal.App.4th at page 1341, 46 Cal.Rptr.2d 516, "In many cases courts have construed the term `joint tortfeasor,' as used in Code of Civil Procedure sections 877 and 877.6, quite broadly to apply not only to `those who act in concert in causing an injury' [citation] but generally to `joint, concurrent and successive tortfeasors' [citations], and even more generally to `all tortfeasors joined in a single action' whose acts or omissions `concurred to produce the sum total of the injuries to the plaintiff.' [Citations]." (See also, Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.App.4th 1061, 1078, 13 Cal.Rptr.3d 586 ["Where tortious acts by separate persons produce the same indivisible injury, each person is liable for the whole loss even if they did not act in concert"]; Newhall Land & Farming Co. v. McCarthy Construction (2001) 88 Cal.App.4th 769, 773, 106 Cal.Rptr.2d 10 ["A joint tortfeasor includes joint, concurrent, and successive tortfeasors whose actions combine *345 to cause the plaintiffs' injury"]; GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 431, 261 Cal.Rptr. 626; Kohn v. Superior Court (1983) 142 Cal.App.3d 323, 329, 191 Cal.Rptr. 78 [actions of defendants combined to create on indivisible injury].)
By indicating that the good faith settlement applies to the "vicariously or derivatively liable tortfeasor" (Far West, supra, 46 Cal.3d at p. 815, 251 Cal.Rptr. 202, 760 P.2d 399) and to "multiple tortfeasors" (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 110, 32 Cal.Rptr.2d 263, 876 P.2d 1062), the Supreme Court suggested that the term joint tortfeasor as used in section 877.6 has a broad meaning.[12] "Joint tortfeasors" have been referred to as "two or more persons who are liable to the same person for the same harm. It is not necessary that they act in concert or in pursuance of a common design, nor is it necessary that they be joined as defendants." (Rest.2d. Torts, § 886A, com. (1)(b).)[13]
(b) Parties
Section 877.6 applies to "an action in which it is alleged that two or more parties are joint tortfeasors." There is no reason why a doe allegationsuch as exists in the Sisters' action against Frawleydoes not satisfy the requirement of an allegation of "two or more" parties that are joint tortfeasors. That there are unknown or unnamed tortfeasors is a reason why a settling defendant would, by the good faith settlement procedure, seek to eliminate potential indemnity claims.
A settling tortfeasor's section 877.6, subdivision (c) good faith settlement determination discharges indemnity claims by other tortfeasors, whether or not named as parties, so long as the other tortfeasors were given notice and an opportunity to be heard. (Britz, supra, 73 Cal.App.4th at p. 184, 86 Cal.Rptr.2d 188 (Britz); Wilshire Ins. Co. v. Tuff Boy Holding, Inc., supra, 86 Cal.App.4th at pp. 638-644, 103 Cal.Rptr.2d 480; see Mid-Century Ins. Exchange v. Daimler-Chrysler Corp. (2001) 93 Cal.App.4th 310, 314-315, 112 Cal.Rptr.2d 880; see Singer Co. v. Superior Court (1986) 179 Cal.App.3d 875, 895, 225 Cal.Rptr. 159 ["Having concluded that fundamental constitutional principles of due process require that a likely defendant, who was a stranger to the litigation at the time a determination of good faith was rendered, be afforded a new hearing on this issue ... [and have] a concurrent right in such a later-named defendant to engage in discovery ... to elicit evidence relevant to the Tech-Bilt factors"]; Weil and Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) §§ 12:860, p. 12(11)-63 ["In addition, due process requires notice to *346 other joint tortfeasors who are not presently parties to the action but whose rights may be affected by a `good faith' determination (because § 877.6(c) bars indemnity claims of party and nonparty joint tortfeasors")], 12:926, p. 12(11)-76 ["a settling tortfeasors" § 877.6(c) good faith settlement determination discharges indemnity claims by other tortfeasors, whether or not named as parties to the action, provided they were given notice and an opportunity to be heard ..."].)[14] So long as there is notice, a joint tortfeasor's indemnity claim against the settling tortfeasor will be barred by a good faith settlement "regardless of whether [the nonsettling joint tortfeasor] appeared and contested the determinations." (Britz, supra, 73 Cal.App.4th at p. 185, 86 Cal.Rptr.2d 188.)
(c) Claims Barred
A claim by a joint tortfeasor seeking neither indemnity nor contribution survives a good faith settlement under section 877.6. But a party may not avoid a section 877.6 motion by providing different labels for what are in reality indemnity or contribution claims. (Cal-Jones Properties v. Evans Pacific Corp. (1989) 216 Cal.App.3d 324, 327-328, 264 Cal.Rptr. 737. [court barred claim for breach of fiduciary duty as in reality an indemnity claim].) The words "indemnity" or "contribution" need not be used. It is the substance of the claim that is determinative. (Ibid.; Norco, supra, 64 Cal.App.4th at p. 964, 75 Cal.Rptr.2d 456.) "Following a good faith determination, the judge doubtless may discuss disguised or artfully pleaded claims for indemnity or contributioni.e., causes of action purporting to state direct claims but which, in fact, seek to recover derivative damages." (Norco, supra, at p. 964, 75 Cal.Rptr.2d 456; see Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 607, 106 Cal.Rptr.2d 1 ["negligence claim is essentially a claim for indemnification" for purposes of good faith settlement consequences].)
In addition, a good faith settlement does not bar a claim that the trial court would not contemplate in determining the proportionate liability of a settling tortfeasor. A good faith settlement would not preclude a claim by a tortfeasor who committed a tort separate and distinct from the tort committed by the settling tortfeasor. Under this circumstance, there could be no right to indemnity. (Turcon, supra, 139 Cal.App.3d at p. 284, 188 Cal.Rptr. 580.)
2. Good Faith Settlement Bars Claims in Instant Action
In this case, Gackstetter has alleged that the claims against him arose because of Frawley's acts and omissions. In an allegation incorporated into each cause of action against Frawley, Gackstetter alleged that Frawley improperly conveyed the Marlin Place Property into the wrong trust and failed to disclose this error to Gackstetter who was acting as trustee; as a result, Frawley "knew or should have known that [Gackstetter] would be sued and be subject to possible civil and criminal liability for his trust management under the supervision of [Frawley]."
*347 Both the derelictions of Gackstetter as trustee and those of Frawley as attorney for the trustee caused damages to the trusts and the Sisters as trust beneficiaries. In the Murphy lawsuit against Frawley, in which the good faith settlement order was made, the plaintiffs alleged that Gackstetter committed the same tortious acts as Frawley and that plaintiffs had sought relief in the probate proceedings against Gackstetter for these and other acts. Gackstetter attributed his own conduct to Frawley's tortious acts as attorney for the trusts and trustees.
The uncontradicted evidence shows that Frawley and Gackstetter both committed tortious acts that "`concurred to produce the sum total of the injuries to the plaintiff[s].'" (Topa, supra, 39 Cal.App.4th at p. 1341, 46 Cal.Rptr.2d 516.) They each "contributed to or solely caused the single injury" to the plaintiff Sisters. (Yamaha Motor Corp. v. Paseman (1990) 219 Cal.App.3d 958, 970, 268 Cal.Rptr. 514.) Thus, for purposes of section 877.6, they were joint tortfeasors.[15]
Frawley's alleged misconduct and Gackstetter's lesser culpability because of reliance on negligent or fraudulent advice and vicarious liability do not render section 877.6 inapplicable. (Far West, supra, 46 Cal.3d at p. 815, 251 Cal.Rptr. 202, 760 P.2d 399.) A "vicariously or derivatively liable tortfeasor, like any other minimally culpable tortfeasor" is subject to section 877.6 but has "substantial protection" by the requirement that the settlement be in good faith. (Ibid.)
Gackstetter's claims in the instant action fulfill the requirement of section 877.6 that they be for indemnity. Two of Gackstetter's claims against Frawley explicitly are for indemnification. The other causes of action, although having different labels, are in effect for indemnification. Each of those causes of action is based on alleged damages Gackstetter suffered as a result of claims by the trust beneficiaries. For such damages, Gackstetter seeks to be indemnified by Frawley, who represented Gackstetter as trustee. All of Frawley's acts and omissions were as attorney for the trusts, and therefore his torts were directed at, and damaged, the trusts and their beneficiaries. Likewise, Gackstetter's acts and omissions as trustee were directed at, and damaged, the trusts and their beneficiaries. According to Gackstetter, his liability and expenses were due to Frawley's acts and omissions as attorney for the trusts.
Gackstetter is, in effect, claiming indemnification from Frawley for all of Gackstetter's expenses for his liability as trustee arising from claims of the beneficiaries and the Attorney General. The total indemnity sought is relief that is encompassed within the bar of a good faith settlement. (Far West, supra, 46 Cal.3d 796, 251 Cal.Rptr. 202, 706 P.2d 399.) Moreover, Gackstetter's claim for his attorney fees is considered "a form of implied equitable indemnity" that also can be barred by a good faith settlement. (John Hancock Mutual Life Ins. Co. v. Setser (1996) 42 *348 Cal.App.4th 1524, 1533, 50 Cal.Rptr.2d 413.)
Gackstetter asserts that the Sisters' action against Frawley that was settled was limited to the erroneous transfer of the Marlin Place Property, while Gackstetter's action against Frawley involved claims that were not limited to the conveyance of the property. Gackstetter contends that he is claiming damages incurred because of his reliance on Frawley that resulted in claims against Gackstetter for mismanagement of the trusts, and because of the involvement of the Attorney General. Thus, Gackstetter maintains that the good faith settlement could not bar claims that do not concern the Marlin Place Property.
The scope of a good faith settlement offer is normally addressed by the trial court determining the good faith of the settlement. That court has the "discretion to ferret out those claims that are in fact claims for indemnity" that would be barred by the good faith settlement. At the time of the good faith settlement order, the claims by the Sisters and the Attorney General had been made. (Cal-Jones Properties v. Evans Pacific Corp., supra, 216 Cal.App.3d at pp. 327-328, 264 Cal.Rptr. 737.) Gackstetter had notice and the opportunity to contest the scope of the settlement of the Sisters' action against Frawley. By not appearing at the good faith settlement determination, Gackstetter not only forfeited any opportunity to raise his lack of culpability in determining the good faith of the settlement, but also failed to protect claims he believes should not be covered by that settlement.[16]
Nevertheless, we can determine in this proceeding the application and scope of the good faith order. We should do so in a way that encourages settlements. (Far West, supra, 46 Cal.3d at p. 810, 251 Cal.Rptr. 202, 760 P.2d 399.)
The "negligence of both appellant and respondent[] concurred to produce the sum total of the injuries to the plaintiff[s] [Sisters]." (Turcon, supra, 139 Cal.App.3d at p. 284, 188 Cal.Rptr. 580.) Under that formulation, it is not necessary that all of the tortious acts of the nonsettling party that "concurred" to produce the plaintiffs' "sum total" injuries be alleged specifically in the action in which there was a good faith settlement to be barred by the good faith settlement.
There may be situations in which the joint tortfeasors have committed torts against the plaintiff that are sufficiently distinct from the torts and damages covered by a good faith settlement so that a claim by one of the tortfeasors for indemnification in connection with the distinct torts would not be barred by the good faith settlement. "[I]f there were in fact two separate and distinct torts committed, one by the appellant and one by the respondents, appellant would never, under any theory, be entitled to indemnity for damages attributable to its tortious conduct." (Turcon, supra, 139 Cal.App.3d at p. 284, 188 Cal.Rptr. 580.)
Here, all of Gackstetter's claims involve the management of the trusts and thus either were alleged or could have been alleged in the action in which the good faith settlement occurredthe Sisters' action against Frawley. In that action, in which the good faith settlement order took place, the plaintiffs alleged that Frawley improperly conveyed the Marlin Place *349 Property and failed to disclose or made misrepresentations about that conveyance. Significantly, the allegations in that action also included that Frawley represented the trust and that Gackstetter as trustee made various misrepresentations and misappropriated loan proceeds obtained by placing a mortgage on the Marlin Place Property. Thus, in the very case in which the good faith settlement order was made, Gackstetter was characterized as a joint tortfeasor.
In the instant action, Gackstetter incorporated into every one of his causes of action the allegations that Frawley conveyed the Marlin Place Property to the wrong trust; that Frawley failed to disclose this error; that Frawley "knew or should have known that plaintiff would be sued and be subject to possible civil and criminal liability for this trust management under the supervision [of Frawley]"; and that as a result of the improper conveyance, Gackstetter made improper expenditures. Most, if not all, of the damage Gackstetter alleged resulted from the improper transfer and concealment of the Marlin Place Property. It was that improper transfer and its concealment that were the basis of the Sisters' action. Frawley's acts and omissions alleged by Gackstetter, in effect, constituted acts and omissions by him and by Frawley as joint tortfeasors directed at the trusts and their beneficiaries. And the damages Gackstetter seeks to recover are in essence for indemnification from Frawley for these acts and omissions. The Sisters' respective actions against Frawley and Gackstetter did not specify any damages apart from the result of the wrongs related to the Marlin Place Property.
The Attorney General intervened in the Murphy Petition proceeding against Gackstetter to protect the Charitable Trust, and that intervention resulted from the allegations of the Sisters. The Attorney General alleged improper expenditures by the Charitable Trust, inter alia, those spent on the Marlin Place Property that did not belong in that trust. Other allegations concerned improper expenditures and accountings. The Attorney General in the case before us also intervened claiming that Frawley "aided and abetted Gackstetter in breaching his trust." Many of the alleged improper acts can be attributed to the incorrect placement of the Marlin Place Property in the Charitable Trust. Again, the placement of that property in the Charitable Trust was the subject of the Attorney General's claims.
Gackstetter's attorney, in what the trial court treated as argument, specified the damages and stated that they were "incurred as the result of the concealment/fraud of Defendants and the detrimental reliance of Mr. Gackstetter upon their legal advise [sic] and counseling for over twelve years." But Gackstetter's attorney also contended that Frawley's "ongoing assertions that the Marlin Place Property belonged to the Trust and that the Sisters had no interest therein" caused Gackstetter to expend trust funds on the property and refuse to deliver accountings. In effect, Gackstetter, in the summary judgment proceeding, asserted that much, if not all, of his damages could be attributed to Frawley's misrepresentations concerning in which trust the Marlin Place Property belongedthe very subject of the good faith settlement. Moreover, as noted, Gackstetter incorporated in each of his causes of action the allegations about Frawley's improper conveyance and concealmentallegations that were the basis of the case in which the good faith settlement occurredthe Sisters' action against Frawley.
The acts and omissions of Frawley and Gackstetter concurred to produce "the sum total of the injuries to the plaintiff[s] *350 [Sisters]." (Turcon, supra, 139 Cal.App.3d at p. 284, 188 Cal.Rptr. 580.) "The divisibility or indivisibility of injuries does not rest on the nature of the injuries but on the element of causation." (Ibid.) Both Gackstetter and Frawley caused the same injury to the Sisters. Gackstetter contended that Frawley was the cause of all of Gackstetter's improper conduct. All of Gackstetter's alleged damages from the operation of the trusts, and actions against him by the trust beneficiaries and Attorney General result from the acts and omissions of Frawley and Gackstetter as joint tortfeasors.
Gackstetter's argument that the claims not specifically alleged in the settled action are not barred by the good faith settlement could not, in any event, prevail because Gackstetter has not distinguished between causes of damages to the Sisters. He has not distinguished between, on the one hand, damages that may be a consequence of the claims asserted in the Marlin Place Property action against Frawley for which both Frawley and Gackstetter are liable as joint tortfeasors and that are subject to the good faith settlement and, on the other hand, any other damages he claims might not be subject to the good faith settlement. Accordingly, based on the allegations and evidence, we conclude that Gackstetter's claims in the instant action are, as a matter of law, subject to the bar of section 877.6.
Gackstetter asserts that Frawley's settlement was not in good faith. Gackstetter did not attempt to challenge the good faith of the settlement either when it was made or, if he could, even in this case. Thus, he is bound by that determination. (See Britz, Inc. v. Dow Chemical Co. supra, 73 Cal.App.4th 177, 86 Cal.Rptr.2d 188.)
Based on the uncontradicted facts, all of Gackstetter's claims are for indemnification from a joint tortfeasor as that term is used in section 877.6. By broadly interpreting and applying section 877.6, we conclude that the good faith settlement in the Sisters' action against Frawley encompasses and bars all of Gackstetter's claims against Frawley in the instant action.
D. Cross-Complaint[**]
IV. CONCLUSION
Frawley's good faith settlement of the Sisters' action against Frawley bars Gackstetter's claims. The trial court erred by not granting Frawley's motion for summary judgment. Frawley's judgment on the cross-complaint is affirmed.[20]
V. DISPOSITION
The judgment is reversed as to Henry Gackstetter's recovery against defendants Patrick Frawley, et al. and affirmed as to Cross-Complainants' Patrick Frawley, et al.'s recovery on their First Amended Cross-Complaint against Henry Gackstetter in the amount of $52,000. The matter is remanded to the trial court to enter a judgment dismissing the Amended Complaint of Henry Gackstetter and awarding Patrick Frawley, et al. $52,000 against Henry Gackstetter. Appellants and Cross-respondents Patrick Frawley, et al. shall recover their costs on appeal.
We concur: TURNER, P.J., and ARMSTRONG, J.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III.D.
[1] All statute references are to the Code of Civil Procedure unless otherwise stated.
[2] Reference to Frawley is to Patrick Frawley and his law firm and co-defendant Marc Brauer.
[3] "The role of the Attorney General is as an overseer of charities representing the public, the ultimate beneficiary of the charitable trust [citation]. His duty is to remedy abuses in trust management [citation]. He is a necessary party to proceedings affecting the disposition of the assets of a charitable trust [citation]." (Estate of Horton (1970) 11 Cal.App.3d 680, 684, 90 Cal.Rptr. 66; see Holt v. College of Osteopathic Physicians and Surgeons (1964) 61 Cal.2d 750, 753, 755, 40 Cal.Rptr. 244, 394 P.2d 932.)
[4] The settlement agreement identifies as parties "Patrick Frawley, an individual, on behalf of himself and the law firm of Frawley & Brauer . . . and their agents . . . ."
[5] We take judicial notice of the trial court's minute order in the Superior Court file. Although Gackstetter in his separate statement of undisputed facts notes that the good faith settlement only involved Patrick Frawley, he does not assert that only Patrick Frawley could take advantage of the good faith settlement if it were applicable. Patrick Frawley's law firm's liability was based on Patrick Frawley's actions, and the jury found that Brauer, who was in the firm, had not committed any wrongdoing.
[6] The attorney fees order is appealable. (§ 904.1(a)(2); Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582, fn. 3, 120 Cal.Rptr.2d 213.)
[7] In fact, although Gackstetter was not a named party, there were allegations referring to Gackstetter in that action.
[8] Reference to summary judgment includes summary adjudication.
[9] Section 437c, subdivision (m)(1) states in part: "A summary judgment entered under this section is an appealable judgment as in other cases. Upon entry of any order pursuant to this section, except the entry of summary judgment, a party may, within 20 days after service upon him or her of a written notice of entry of the order, petition an appropriate reviewing court for a peremptory writ."
[10] The provision was added by Stats. 1983, ch. 490.
[11] Section 877.6, subdivision (e) states: "When a determination of the good faith or lack of good faith of a settlement is made, any party aggrieved by the determination may petition the proper court to review the determination by writ of mandate. The petition for writ of mandate shall be filed within 20 days after service of written notice of the determination, or within any additional time not exceeding 20 days as the trial court may allow."
[12] See Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 302, 216 Cal.Rptr. 443, 702 P.2d 601 ["the language of section 877 is significantits drafters did not use the narrow term `joint tortfeasors,' they used the broad term `tortfeasors claimed to be liable for the same tort.' This language was meant to eliminate the distinction between joint tortfeasors and concurrent or successive tortfeasors [citation], and to permit broad application of the statute [citations]. Further, another section in Chapter 1 [which includes section 877.6] expressly extends beyond application to joint tortfeasors: section 876, subdivision (b), applies to `one or more persons ... liable solely for the tort of one of them or of another, as in the case of the liability of a master for the tort of his servant"].
[13] The Restatement Third of Torts, section E18 notes that, "If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each defendant is jointly and severally liable for the economic damages portion of the recoverable damages...."
[14] Here, the notice was by mail to Gackstetter's counsel. It was not given by "certified mail, return receipt requested" as required by section 877.6, subdivision (a)(2). We need not decide any issue concerning the service or service on a non party, because Gackstetter did not challenge the sufficiency of the notice or assert he did not have actual notice. In his separate statement of facts he disputed notice but provided no reference to supporting evidence as required by section 437c, subdivision (b)(3). There is no such evidence. He does not raise on appeal an issue as to notice. It is noteworthy that the Sisters' case against Frawley and the Murphy Petition against Gackstetter were consolidated for discovery.
[15] Cases involving contribution or indemnity among insurance carriers are inapplicable because they do not depend upon fault concepts, and the liability is based upon different insurance policies. (See Hartford Accident & Indemnity Co. v. Superior Court (1994) 29 Cal.App.4th 435, 441, 34 Cal.Rptr.2d 520; Topa Ins. Co. v. Fireman's Fund Ins. Companies, supra, 39 Cal.App.4th 1331, 46 Cal.Rptr.2d 516.) Also, cases involving separate torts not causing damages that are inherently indivisible or when there is no "nexus" between the two tortfeasors are not applicable. (Yamaha Motor Corp. v. Paseman, supra, 219 Cal.App.3d at p. 970, 268 Cal.Rptr. 514; Carr v. Cove (1973) 33 Cal.App.3d 851, 109 Cal.Rptr. 449.)
[16] Allocations among claims are made in good faith determinations when a settling plaintiff retains claims against nonsettling defendants or when settling parties intend to obtain recoveries from nonsettling defendants. (§ 877(a); Dillingham Construction, N.A., Inc. v. Nadel Partnership, Inc. (1998) 64 Cal.App.4th 264, 282-287, 75 Cal.Rptr.2d 207.)
[**] See footnote *, ante.
[20] In view of our opinion, we do not have to decide Gackstetter's claims in his cross-appeal regarding attorney fees and contributory negligence.
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10-30-2013
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687 A.2d 967 (1996)
Wilmer HAFFORD, et al.
v.
GREAT NORTHERN NEKOOSA CORP.
Supreme Judicial Court of Maine.
Submitted on briefs November 22, 1996.
Decided December 31, 1996.
*968 Alan Harding, Presque Isle, ME, for Plaintiff.
Charles Harvey, Harvey & Frank, Portland, ME, for Defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, and DANA, JJ.
DANA, Justice.
Wilmer and Mary Hafford appeal from a summary judgment entered in the Superior Court (Aroostook County, Pierson, J.) concluding that Maine's recreational use statute, 14 M.R.S.A. § 159-A (Supp.1995), limits the liability of Great Northern Nekoosa Corporation for injuries Wilmer Hafford suffered on Great Northern's property. We affirm the judgment.
The Haffords operate an outfitting business called Allagash Outfitters. They rent canoes and camping equipment to people who want to paddle the Allagash Waterway and they sometimes provide transportation for paddlers to the "put-in" point on the river or drive their vehicles to the "take-out" site downstream. Great Northern owns property on the banks of the Allagash where a road runs along the river. The road is a continuation of a public way known as the Inn Road, that intersects with Route 161 in the town of Allagash. After the road enters Great Northern's land, there is a gate operated by the North Maine Woods Association, at which travelers must pay an entrance fee. North Maine Woods Association is the representative of a group of landowners who own property along the river. Hafford paid North Maine Woods $15 for a half-season pass that allowed him to enter Great Northern's property without paying a fee each time he passed through the gate.
In September 1989 Hafford and several of his employees were driving on Great Northern's road in Hafford's van to pick up his customers' vehicles. Before reaching the gate, Hafford came to an area where the road had been washed away by erosion. Several vans, belonging to Janice McBreairty, one of Hafford's competitors, were approaching Hafford on the road from the opposite direction. One of McBreairty's vans *969 collided with Hafford's vehicle and Hafford lost his leg in the accident.
Hafford filed a complaint against Great Northern alleging that it had breached its duty to maintain the road and ensure that users of the road were properly licensed and experienced drivers. The trial court granted a summary judgment for Great Northern, concluding that 14 M.R.S.A. § 159-A provides immunity from liability. The court also awarded Great Northern costs as provided by 14 M.R.S.A. § 159-A(6).
Hafford contends that the court erred in concluding that he was in pursuit of a recreational activity when the accident occurred. He argues that he could not have been pursuing a recreational activity within the meaning of 14 M.R.S.A. § 159-A because he was pursuing his outfitting business. "[W]e examine the record, viewing the evidence in the light most favorable to the plaintiffs and review the trial court's conclusions for errors of law." Robbins v. Great Northern Paper Co., 557 A.2d 614, 616 (Me. 1989) (citing Philbrook v. Gates Formed-Fibre Products, Inc., 536 A.2d 1118, 1119 (Me.1988)).
The statute, in relevant part, provides:
An owner, lessee, manager or occupant of premises does not have a duty of care to keep the premises safe for entry or use by others for recreational or harvesting activities or to give warning of any hazardous condition, use, structure or activity on these premises to persons entering for those purposes.
14 M.R.S.A. § 159-A(2) (Supp.1995). The statute defines "recreational activity" as "activities conducted out-of-doors, including, but not limited to . . . canoeing. . . . It includes entry, use of and passage over premises in order to pursue these activities." § 159-A(1)(B). We construe the immunity provision of section 159-A broadly. Robbins, 557 A.2d at 616.
The trial court correctly concluded that Hafford's travel over Great Northern's land was an action in pursuit of the use of property for recreation even though Hafford was paid by his customers to provide transportation. Hafford was passing over Great Northern's land to facilitate his customers' recreational pursuits; his status as a commercial outfitter does not change the fact that he was using the land for recreational purposes.
Hafford next contends that even if he were pursuing a recreational activity when the accident occurred, Great Northern is not protected by the statute because it charged a fee for entry onto its property, thus invoking an exception to limited liability as provided in subsection (4)(B) of the statute. We disagree.
Section 159-A(4)(B) provides that a landowner is not entitled to limited liability when "permission to pursue any recreational or harvesting activities was granted for a consideration. . . ." Even if Hafford's payment of $15 to the North Maine Woods Association could be construed as consideration paid to use the road where the accident occurred, this exception to limited liability does not apply when "the premises are not used primarily for commercial recreational purposes and . . . the user has not been granted the exclusive right to make use of the premises for recreational activities. . . ." 14 M.R.S.A. § 159-A(4)(B)(2). Because there is no evidence in the record that Great Northern's property was used primarily for commercial recreational purposes or that Hafford had been granted the exclusive right to use the land, his payment of $15 does not invoke the "consideration" exception to the landowner's limited liability.
The entry is:
Judgment affirmed.
All concurring.
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546 Pa. 616 (1996)
687 A.2d 1112
COMMONWEALTH of Pennsylvania, Appellee,
v.
Lawrence COLLINS, Appellant.
Supreme Court of Pennsylvania.
Submitted August 5, 1996.
Decided December 30, 1996.
*617 *618 Francis M. Socha, for Lawrence Collins.
Annmarie Kaiser, for Commonwealth.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
NEWMAN, Justice.
Lawrence Collins (Collins) appeals from the Superior Court Order affirming the Order of the Court of Common Pleas of Dauphin County denying his petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. We affirm.
In 1991, Collins sold merchandise, including more than eighty bottles of cologne, wallets, cordless crimping irons and a Tourister briefcase, on four separate occasions to a Pennsylvania State Trooper who was working in a surplus store as a "fence," someone who buys stolen property. The items were new, and many had the price tags from retail stores still attached.
The Commonwealth charged Collins with four counts of receiving stolen property.[1] At trial, the Commonwealth's witnesses included the undercover officer, the director of security for People's Drug Stores, the loss prevention manager from a local Sears department store, and the loss prevention manager from a local Thrift Drug store. Collins did not testify.
The jury convicted Collins on four counts of theft by receiving stolen property. The trial court denied Collins' post-verdict motions and, on December 21, 1992, sentenced Collins to a term of imprisonment of two to four years and a fine of $100.00. Collins took no further appeals.
On April 26, 1993, Collins filed a pro se PCRA petition in the Court of Common Pleas of Dauphin County (PCRA Court). Appointed counsel filed a Supplemental Petition on *619 November 7, 1994, alleging ineffective assistance of trial counsel for failing to request a jury instruction on Collins' right against self-incrimination and for failing to file a timely appeal to the Superior Court.[2] On March 15, 1995, the PCRA court issued an Order dismissing Collins' Supplemental Petition without a hearing. Collins appealed this Order to the Superior Court, which affirmed the PCRA court. We granted allowance of appeal on both issues on February 15, 1996. We now affirm.
The first issue before us is whether the Superior Court erred in affirming the trial court's ruling that trial counsel was not ineffective for failing to request a curative instruction on Collins' right against self-incrimination and the effect of Collins' decision not to testify at trial. Also presented is whether the Superior Court erred in affirming the lower court's ruling that trial counsel was not ineffective for failing to file a timely appeal in the Superior Court of Pennsylvania.
In the context of a PCRA claim, to establish ineffective assistance of counsel an appellant must prove the following: (1) the underlying issue has arguable merit; (2) counsel had no reasonable basis for the decision, Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); and (3) counsel's error prejudiced appellant and so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771 (1995).
Collins argues that trial counsel was ineffective for failing to request a "no adverse inference" charge concerning Collins' right not to testify at trial because of his right against self-incrimination. Even if this issue had arguable merit because trial counsel did not, in fact, request a no adverse inference charge on the record, a defendant must also establish that trial counsel's failure to timely request a no adverse inference *620 charge prejudiced him to such a degree that the adjudication of guilt was unreliable. Buehl.
An appellate court must assess the jury instructions as a whole to determine whether they are fair and impartial.[3]Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). The trial court has broad discretion in "phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990). We have held that:
[t]he specific constitutionally mandated "no-adverse inference" charge may not be replaced by a patchwork of less direct instructions. . . . Juries must be told in no uncertain terms that no adverse inference may be drawn from the defendant's failure to take the stand.
Commonwealth v. Lewis, 528 Pa. 440, 450, 598 A.2d 975, 980 (1991).[4]
In Lewis, the trial court only instructed the jury that the defendant has no burden of proof because the Commonwealth has the burden to establish the guilt of the defendant beyond a reasonable doubt. The trial court in Lewis did not specifically instruct the jury that it could not draw an adverse inference from the defendant's failure to testify during either its opening instructions or in its final charge to the jury. This Court held that the trial court's less direct instructions could not be *621 patched together to replace a specific no-adverse inference instruction.
In the present case, the trial court instructed the jury at the start of trial as follows:
[I]f the Defendant [Collins] elects not to testify, we don't know whether he will or not, and we don't need to know. We are simply saying to you whatever his election is, if he decides not to testify, it simply means he is availing himself of the protection afforded him by the law and you cannot draw a negative inference from the fact that he may not elect to testify because the law doesn't require him to testify. He is presumed to be innocent and, therefore, he is not required to be a participant. When he comes into the courtroom and takes a seat, that is all that the law requires him to do.
Notes of testimony, January 7, 1992, at 21 (emphasis added).[5] Thus, unlike Lewis, the trial court here clearly instructed the jury that there can be no adverse inference from a defendant's failure to testify.[6] During jury instructions at the end of trial, the trial court elaborated as follows concerning a defendant's right to remain silent at trial:
Now, we said to you at the outset that in a criminal case the presumption is that the Defendant is innocent and that presumption persists unless and until you, ladies and gentlemen of the jury, have had an opportunity to consider the *622 case and you decide that you are satisfied that the Commonwealth had proven its case beyond a reasonable doubt . . . it is important that you understand that a Defendant is not required to be a participant in a trial where he is accused with the commission of a crime, that he has no burden of proof to prove anything, that the burden is on the Commonwealth. . . .
N.T., January 10, 1992, at 188 (emphasis added). The trial court's jury charge in the beginning of trial specifically instructed the jury not to draw a "negative inference" from Collins' decision not to testify and was a sufficient no adverse inference charge. Lewis. We should not let "magic words" get in the way of common sense. Because the trial court gave a sufficient no adverse inference charge, counsel's failure to request the charge did not prejudice Collins. Thus, this claim fails.
Collins next argues that his trial counsel was ineffective for failing to file a direct appeal from the trial court's judgment of sentence. Again, we first assess whether the underlying issue has merit. Durst. A defendant has a right to appeal from a court of record as provided by Article V, Section 9 of the Pennsylvania Constitution:
There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be such other rights of appeal as may be provided by law.
Collins asserts in his Supplemental Petition that he requested that his trial counsel file an appeal from his judgment of sentence. However, a petitioner must present the facts supporting each issue asserted in his PCRA Petition, and if they do not appear on the record, a petitioner must identify affidavits, documents or other evidence proving the alleged facts. Pa.R.Crim.P. 1502(a)(12) and (d). Here, Collins' alleged request, that trial counsel file an appeal, was not in the record and Collins did not provide the PCRA court with any affidavit or other document to prove that he requested that his counsel *623 file a direct appeal. Therefore, pursuant to Pa.R.Crim.P. 1502, this issue has no arguable merit and the Superior Court properly affirmed the PCRA court's dismissal of Collins' PCRA petition.
Accordingly, we affirm the Superior Court's Order of August 18, 1995, affirming the Order of the Court of Common Pleas of Dauphin County denying Collins' PCRA petition.
ZAPPALA, J., concurs in the result.
NIGRO, J., files a concurring and dissenting opinion.
CAPPY, J., files a dissenting opinion.
NIGRO, Justice, concurring and dissenting.
I concur in the result as to trial counsel's failure to request a "No Adverse Inference Charge." I dissent and write separately, however, as I believe the post-conviction court erred in summarily dismissing Appellant's petition under the Post Conviction Relief Act without conducting an evidentiary hearing.
While the right to an evidentiary hearing in connection with a Post Conviction Relief Act Petition is not absolute, a hearing may only be denied if Petitioner's claim is patently frivolous and without trace of support either in the record or from other evidence. 42 Pa.C.S.A. § 9541; Commonwealth v. White, 449 Pa.Super. 386, 674 A.2d 253 (1996). A post-conviction petition may not be summarily dismissed as patently frivolous when the facts alleged in the petition, if proven, would entitle Petitioner to relief. Id. Appellant, through counsel, filed a supplemental petition alleging counsel's failure to file a direct appeal. Appellant's averment provides sufficient basis for the Court to conduct an evidentiary hearing to determine whether appellant had ever requested an appeal be filed. I believe the case should be remanded to the post conviction court for a determination of whether appellant was denied his right to a direct appeal, and if so, appellant should be permitted to proceed nunc pro tunc.
*624 CAPPY, Justice, dissenting.
The majority concludes that the instructions in the instant case were sufficient to inform the jury that no adverse inference can be drawn by the defendant's failure to testify.[1] I cannot agree with that conclusion. Accordingly, I must respectfully dissent.
In Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975 (1991), this court held that it was reversible error for the trial court to omit a no adverse inference instruction from the charge to the jury when the instruction has been specifically requested by the defendant. The underpinning for that holding is the guarantee, set forth in Article I, Section 9 of the Pennsylvania Constitution, that a defendant "cannot be compelled to give evidence against himself." As stated in Lewis, this constitutional guarantee:
protects the right of the defendant to stand mute protected by the presumption of innocence, without facing the oppressive task of having to explain his or her silence.
Id. at 448, 598 A.2d at 979.
In Lewis the Commonwealth argued that the jury had been fully apprised of the no adverse inference instruction since the trial court explained the concept in the opening remarks to the jury and since the trial court had instructed the jury in the final charge, that the burden of proof remained on the Commonwealth to establish the guilt of the defendant beyond a reasonable doubt. The Commonwealth therein also emphasized that the jurors had been subject to individual voir dire wherein they each had been reminded that the defendant had *625 no duty to testify on his own behalf. In Lewis we rejected the position of the Commonwealth finding
. . . [s]uch an argument, however, misses the mark. The specific constitutionally mandated "no adverse inference" charge may not be replaced by a patchwork of less direct instructions. . . . Juries must be told in no uncertain terms that no adverse inference may be drawn from the defendant's failure to take the stand.
Id. at 450, 598 A.2d at 980.
Although the majority acknowledges the above-quoted principle, it ultimately chooses to resolve this case without reliance thereon. (See majority opinion at 620-21.) Rather, the majority, after citing the very language set forth above, finds that this jury was sufficiently apprised of the no adverse inference concept. The majority reaches this conclusion by finding that the no adverse inference concept was explained to the jurors in the opening remarks of the trial judge. The majority then bolsters its conclusion by tying the opening remarks to the language in the final charge which explained to the jury that the defendant has no obligation to participate in his own trial. In reaching this conclusion, the majority has ignored the very essence of Lewis which it professes to follow. Perhaps the error of the majority opinion is best illustrated by its omission of a significant portion of the Lewis opinion from which it quotes the above-referenced language. That missing language explains why piecemeal instructions to the jury throughout the trial are not adequate in replacing the no adverse inference instruction during the final charge prior to deliberation. The entire paragraph reads as follows:
Such an argument, however, misses the mark. The specific constitutionally mandated "no-adverse-inference" charge may not be replaced by a patchwork of less direct instructions. The entire premise underlying our requirement of the "no-adverse-inference" charge to the jury, under Article I, Section 9, is that the trial judge is vested with an obligation to protect the defendant's right to remain silent, free from the insidious danger of adverse inference presented by a jury left free to wander in speculation. *626 Experience teaches us that the very exercise of an individual's right not to testify, under Article I, Section 9, may endanger that right if the jury is left free to draw negative inferences from the defendant's decision to exercise his or her constitutional privilege. The trial court, being in a unique position to protect a defendant's constitutionally secured right through the jury charge, is the only bulwark to ensure that the exercise of a fundamental right does not turn into an act of constitutional suicide. Having determined in this Commonwealth that a "no-adverse-inference" charge is necessary to secure the guarantees of Article I, Section 9, the judge has either given the charge or he has not. Make-shift substitutes will not suffice. Juries must be told in no uncertain terms that no adverse inference may be drawn from a defendant's failure to take the stand; otherwise, we are left to mere guesswork as to the meaning juries have ascribed to tangentially related words of the court. [Footnotes eliminated, Emphasis is added.]
Lewis, 528 Pa. at 450, 598 A.2d at 980. In my view, the majority herein fails to follow the principles underlying the decision in Lewis. The instructions given here were no more sufficient to safeguard the concept embodied within the "no-adverse-inference" instruction than were the similar scattered instructions rejected in Lewis.
In attempting to distinguish Lewis, the majority emphasizes that unlike the jury in Lewis, the Collins jury was given a no adverse inference instruction, albeit it occurred during the opening remarks rather than in the charge. I find the majority's distinction to be insufficient. In Lewis we rejected this piecemeal approach not because of the presence or absence of any "magic words" as the majority suggests, but because less direct means of conveying constitutional safeguards to the jury will not suffice. Legal principles scattered throughout a trial which can take days to conclude can never fulfill the same function as instructions related to the jury during the final charge which they receive immediately before beginning their deliberations. Thus, it is not the words used to convey the message alone which is at issue, but the combination of the *627 words and the timing of the instructions that are essential to protecting the defendant's right to remain silent. To adopt the position of the majority in this case would turn the holding of Lewis on its head.
Accordingly, I am compelled to respectfully dissent.
NOTES
[1] 18 Pa.C.S. § 3925.
[2] Before the PCRA Court ruled on Appellant's Supplemental Petition, Appellant filed a second pro se Petition under the PCRA. The PCRA Court denied Appellant's second Petition on March 27, 1995. That second Petition is not relevant to the instant case.
[3] "The trial judge may give instructions to the jury before the taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury's guidance in hearing the case." Pa. R.Crim.P. 1119(d).
[4] Recently, in Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217 (1996), this Court established a new rule of law concerning the no adverse inference instruction: "from this day forward the no adverse inference instruction shall be given absent an express on the record colloquy by the defendant waiving the charge." Id. at 644, 674 A.2d at 222. The Court did not apply the rule to the defendant in Thompson, holding instead that the defendant had failed to establish that the failure to give the instruction had prejudiced him. Because Thompson is to be prospectively applied, its rule of law does not apply here. See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).
[5] The Pennsylvania Suggested Standard Criminal Jury Instructions include a no adverse inference charge for preliminary and cautionary instructions as follows: "The defendant has the right to remain silent and to present no evidence. You must not hold it against the defendant if he happens to choose not to testify at this trial." 2.01. Clearly the trial court here gave an even more explicit charge.
[6] The dissenting opinion implies that, contrary to Lewis, we are patching together a no adverse inference instruction from less direct instructions concerning the Commonwealth's burden of proof. However, the specific instruction in the instant case, that the jury should not draw any negative inferences from a defendant's failure to testify, was clearly a direct no adverse inference instruction. Further, Lewis did not address the adequacy of a no adverse inference instruction when it is given during opening instructions. Therefore, the specific no adverse inference instruction in the present case was clear and entirely consistent with our holding in Lewis.
[1] Although this court has never formally adopted the Pennsylvania Standard Criminal Jury Instructions, for the purpose of this dissenting opinion, we reference the language as set forth in the "no-adverse-inference" instruction contained therein which provides as follows:
3.10A (Crim) DEFENDANT'S FAILURE TO TESTIFY NOT EVIDENCE OF GUILT
It is entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt from the fact that the defendant did not testify.
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37 Cal.Rptr.3d 768 (2006)
135 Cal.App.4th 856
CARSON GARDENS, L.L.C., Plaintiff and Respondent,
v.
The CITY OF CARSON MOBILEHOME PARK RENTAL REVIEW BOARD, Defendant and Appellant.
No. B180308.
Court of Appeal, Second District, Division Eight.
January 17, 2006.
*769 Aleshire & Wynder, William W. Wynder, Irvine, and Anthony R. Taylor, for Defendant and Appellant.
Hart, King & Coldren, Robert S. Coldren, C. William Dahlin, Mark D. Alpert, Santa Ana, and Christine A. Renken, for Plaintiff and Respondent.
BOLAND, J.
SUMMARY
This case involves a rent control board's decision on reconsideration, based on a trial court's peremptory writ, of a general rent increase application by a mobilehome park owner. The trial court's judgment and writ rejecting the board's initial decision required the board to apply an analysis or methodology that "gives due consideration to" debt service costs (mortgage interest) in calculating a fair return on the owner's investment. The board did not appeal the trial court's judgment. Instead, it conducted a new hearing and received new evidence as required by the writ. However, the methodology it ultimately employed excluded debt service costs in calculating a fair return to the *770 park owner. The park owner moved for an order further enforcing the original judgment. The trial court granted the motion, finding that the board's decision was not in compliance with the judgment and writ because it employed a methodology that excluded debt service costs. The trial court declared the board's decision null and void, and set the rent increase based on a methodology the board had considered and rejected, concluding there was no evidence in the record of any alternative methodology which would comply with the requirements of the writ.
We reverse the trial court's order. While the rent control board failed to comply with the trial court's judgment and peremptory writ, the trial court exceeded its authority by setting the amount of the rent increase instead of again remanding the matter to the board for the exercise of the discretion legally vested in the board.
LEGAL, FACTUAL AND PROCEDURAL BACKGROUND
We describe first the City of Carson's mobilehome space rent control ordinance, and then turn to the particulars of this case.
A. The applicable ordinance.
The City of Carson has a rent control ordinance applicable to mobilehome parks, known as the Mobilehome Space Rent Control Ordinance. (Mun.Code, art. IV, ch. 7.) Under the ordinance, the Mobilehome Park Rental Review Board (Board) hears and determines rent adjustment applications. The Board is authorized to grant "such rent increases as it determines to be fair, just and reasonable." (Mun.Code, § 4704, subd. (g).) A rent increase is fair, just and reasonable "if it protects Homeowners from excessive rent increases and allows a fair return on investment to the Park Owner." In making its determinations, the Board is required to consider 11 factors specified in the ordinance and "any Guidelines adopted by the City Council, as well as any other relevant factors," and "no one (1) factor shall be determinative." (Ibid.) The factors the Board must consider include changes in the Consumer Price Index (CPI); the rent for comparable mobilehome spaces in the City; and changes in reasonable operating and maintenance expenses.[1] The Guidelines the Board is required to consider provide, inter alia, that:
"The Ordinance does not mandate the use of any formula or guarantee increases equal to the increase in the CPI, or any percentage of the CPI."
"Debt service incurred ... to purchase a park may be an allowable operating expense if the purchase price paid was reasonable in light of the rents allowed under the Ordinance and involved prudent and customary financing practices."
"In evaluating a rent increase application, the Board may consider, in addition to the factors specified in § 4704(g) of the Ordinance, a `gross profits maintenance analysis,' which compares the gross profit level expected from the last rent increase granted to the park prior to the current application (`target profit') to the *771 gross profit shown by the current application. This analysis will be included in the staff report to the Board in addition to analysis concerning the eleven factors...."
The gross profits maintenance analysis "is intended to provide an estimate of whether a park is earning the profit estimated to provide a fair return, as established by the immediately prior rent increase, with some adjustment to reflect any increase in the CPI. The analysis is an aid to assist the Board in applying the factors in the Ordinance and is to be considered together with the factors in § 4704(g), other relevant evidence presented and the purposes of the Ordinance. The analysis is not intended to create any entitlement to any particular rent increase."[2]
B. The Carson Gardens rent increase application: Round One.
Carson Gardens, L.L.C. purchased a mobilehome park in the City of Carson in October 1997.[3] On October 11, 2000, three years after acquiring the park, Carson Gardens filed a written application for a rent increase in the amount of $105.50 per space per month.[4] This application was the first rent increase application filed since 1993. Carson Gardens based its proposed rent increase on "gross profits maintenance analysis," a method utilized by the Board for many years in analyzing rent increase applications. This methodology compares the gross profit level expected from the last rent increase granted to the park (here, in June 1993) to the gross profit shown in the current application.[5] In this case, principally because the prior owner had no debt service costs, the gross profit for the park was much higher in 1992 than in 1999 (the last full year of financial information available for the comparison). The difference between the amount required to maintain gross profits at the 1992 level (with CPI adjustments) and the actual gross profit in 1999, divided by the number of spaces in the park, resulted in the requested rent increase of $105.50. Had the rent increase application been granted, rent levels would have increased to a range of $309.80 to $343.66 per space, an increase of 44.30 percent to 51.64 percent for each rental space.
1. The Board's resolution.
The Board, in a resolution adopted August 22, 2001, granted a rent increase of 9.68 percent, ranging from $19.78 to $23.05 per space. The Board found this increase, which equaled 50 percent of the increase in the CPI since the 1993 rent increase (or 84.5 percent of the increase in the CPI since Carson Gardens purchased the park in 1997), would be fair, just and reasonable. The Board stated:
*772 "[T]he comparison provided by [the gross profits maintenance analysis] would not be meaningful because the estimated gross profit target for the Park set by the 1993 rent increase was based on the absence of debt service and much lower property taxes. [Carson Gardens] who purchased the Park with notice of the rents allowed by the Ordinance at the time of purchase and the limitations on rent increases provided by the Ordinance and who incurred such a large amount of debt could not reasonably expect to earn the same profit as the prior owner. Therefore, it is more appropriate to increase rents by a percentage of the increase in the CPI since the last rent increase granted for the Park. Further, because a substantial portion of the large increase in the CPI since the former owner last obtained a rent increase is due to the increase in the CPI before [Carson Gardens] purchased the Park, it would be reasonable to consider only the increase in the CPI since [Carson Gardens] purchased the Park. Further, in these circumstances and considering the rents charged by the comparable parks it would ... not be fair to base an increase in existing rents on 100% or 75% of the increase in the CPI since the last hearing on the park rent application."[6]
2. Trial court proceedings.
Carson Gardens petitioned for administrative mandamus, and later moved for a writ of mandate. On April 16, 2003, the trial court issued a peremptory writ directing the Board to set aside its resolution and to conduct a new hearing. The Board was specifically ordered to:
reconsider its decision on the Carson Gardens rent increase application "in light of all relevant evidence offered at the new hearing, including new evidence, if any, not offered at [its] prior hearing ..."; and
"[t]o apply the gross profits maintenance analysis discussed in the Guidelines ... or another reasonable analysis or methodology that gives due consideration to the Park's actual reasonable operating expenses, including actual reasonable expenses incurred in acquiring the Park, and comports with the requirements of the pre-existing Ordinance and the Guidelines...."
A final judgment was entered the same day in favor of Carson Gardens, ordering issuance of a peremptory writ of mandate remanding the action for further administrative proceedings as set forth in the writ. The Board did not appeal the judgment.
C. The Carson Gardens rent increase application: Round Two.
Consonant with the trial court's judgment and writ, the Board conducted a new hearing at which it received further evidence. However, contrary to the trial court's writ, the Board did not apply the gross profits maintenance (GPM) analysis, and it did not apply another methodology "that gives due consideration to ... actual reasonable expenses incurred in acquiring the Park...." Instead, the Board engaged the services of Dr. Kenneth K. Baar, an expert on "fair return" cases, who utilizes the "maintenance of net operating income" (MNOI) methodology for calculating a fair return on investment to a landlord. The MNOI methodology for determining a fair return on investment, found in other cases *773 to be a fairly constructed formula (Rainbow Disposal Co. v. Escondido Mobilehome Rent Review Bd. (1998) 64 Cal.App.4th 1159, 1172, 75 Cal.Rptr.2d 746), excludes consideration of mortgage interest as an operating expense. Under the MNOI methodology, the park owner is entitled to pass through operating cost increases (exclusive of mortgage interest) between the base year and the current year, and to obtain an increase in net operating income based on the percentage increase in the CPI. The resulting net operating income is available for the payment of debt service and to provide cash return on investment.
1. The Board's resolution.
The Board concluded a rent increase of $36.44 would be fair, just and reasonable. The Board found, inter alia:
The CPI had increased 19.35 percent since the last rent increase. A 19.35 percent increase in the base rent would result in an average increase of $41.58 per space, per month.
The rents at Carson Gardens were $47.45 below one of the comparable mobilehome parks, and $11.73 below the other comparable park, or $29.59 below the average for the two parks.
As for changes in reasonable operating and maintenance expenses, the Board calculated operating cost increases without taking into account the increase in the park owner's debt service. The Board found:
"The prior owner of the park did not have any mortgage obligation.... In 1999, the interest payments on the owners mortgage were ... $76.71 per month per mobilehome space. The Board finds that it would be more consistent with the intent of this ordinance and prevailing judicial fair return doctrine to provide for an increase in net operating income which reflects the inflation which occurred during this period."
Under a GPM analysis, Carson Gardens would be entitled to a rent increase of $113.37.[7] The Board pointed out, however, that under the Guidelines a GPM analysis "may" be considered, but is "not intended to create any entitlement to any particular rent increase," and under the Guidelines debt service to purchase a park "may" be an allowable operating expense.
A pass-through based on the amount of the mortgage interest cost increase would not be reasonable. Allowing a dollar for dollar pass-through of the debt service increase would result in an overall rent increase of 49 percent, "far above the 19.35% increase between the CPI between the base year and the current year. Such an increase would create a `windfall' for the current park owner based on the fact that the prior park owner did not have a mortgage."[8]
A rent increase of $36.44 would be fair, just, reasonable and consistent with the intent of the Carson ordinance, considering that:
The relevant increase in the CPI would justify an increase of $41.58;
*774 An increase of $29.59 would raise the rent to the level of comparable parks; and
An increase of $36.44 under the MNOI standard would meet constitutional fair return standards.
2. Trial court proceedings.
Carson Gardens sought further enforcement of the trial court's April 16, 2003 judgment. Specifically, Carson Gardens requested an order directing the Board to grant a rent increase of $113.37; requiring the Board to grant an additional increase to compensate it for income lost based on the wrongful denial of a rent increase as of August 2001; and imposing a civil fine of $1,000 "upon each of the Respondents who knowingly and willfully disregarded the judgment and writ...."
The trial court declared the Board's resolution authorizing a $36.44 rent increase null and void, and granted Carson Gardens a rent increase of $113.36 retroactive to August 1, 2001. The trial court stated, inter alia:
The court issued the April 16, 2003 writ based on its conclusion that
"the ... Board had historically acted to account for and was required by its own process to utilize a methodology for reviewing discretionary rent increase applications which gives due consideration to the Park's actual reasonable operating expenses, including any financing costs associated with ownership and acquisition of a park."
The Board's resolution was "not in compliance with the April 16, 2003 Judgment or Writ ... in that it fails to consider all of the Park's actual reasonable operating expenses and, in particular, ... adopted, for the first time, a Maintenance of Net Operating Income methodology because that methodology would allow [the Board] to exclude financing costs as an operating expense."
No evidence was presented by the Board of an alternative methodology which would comply with the requirements of the writ.
"[I]t is plain from the record that the methodology utilized to adopt Resolution 200[4]-227 was chosen for the purpose of deleting certain costs from the process."
The Board was required to either adopt the gross profits maintenance methodology "or such other methodology as would actually comply with the Judgment and Writ."
Based on the Board's own calculations, the proper application of the gross profits maintenance methodology "mandates a rent increase of $113.36 per space, per month."
At the hearing, the court repeatedly expressed reservations about the size of the $113 increase. Thus:
"You know, I would have hoped that the City could have come up with or could have applied the G.P.M. method in a way where they maybe don't have to allow the whole $113.00. That is a huge increase, and that may or may not be necessary for the fair return on investment. But I really can't tell at this point because the City did not use that approach at all. Maybe allowing fifty percent of that would amount to a fair return. But I can't tell because the City did not use that method."
"I just would have liked to have seen this thing resolved in some kind of reasonable way without the one-hundred-thirteen-dollar increase unless it is shown that that is, indeed, a fair return, and I have *775 really no way of telling here on this record something in-betweenish. But what I have does not comply with what the court ordered."
"I do have a problem with the $113.00 plus everything else that you want, given that there's really I can't tell that that's needed for a fair return."
"[I]f the Board had used that method [GPM] and would have come to some conclusion that not all of it would be passed because it is too excessive and fifty percent would be fair to add, that's one thing. But that's not what was done here. I'm not going to send it back a second time. I think it is time we need an appellate ruling here."[9]
The trial court's order granting a $113.36 increase, styled "Judgment on Motion for Supplemental Writ," was entered December 14, 2004, and the Board filed this appeal.
On May 5, 2005, this court denied a motion by Carson Gardens to dismiss the appeal, ruling that the order of December 14, 2004 was appealable, but that the Board had waived any right to raise any issues arising out of the April 16, 2003 judgment.
DISCUSSION
If we were writing on the proverbial clean slate, our analysis of the propriety of the trial court's order would first require an assessment of a fundamental, controlling issue: the meaning of the Carson ordinance, including whether Carson Gardens was entitled to rely on the Board's use of gross profits maintenance methodology in determining a fair return. If the trial court correctly determined that the Carson ordinance required, or created a reasonable expectation of, the use of gross profits maintenance methodology, then this court would affirm the trial court's order, because the Board did not do so, and did not comply with the trial court's order to do so. On the other hand, if the ordinance does not require use of that methodology, and does not require the Board to include debt service costs in operating expenses, then the Board was free to use some other method of determining the amount of a rent increase that would provide a fair return. (See Carson Mobilehome Park Owners' Assn. v. City of Carson (1983) 35 Cal.3d 184, 191, 197 Cal.Rptr. 284, 672 P.2d 1297 [rent control agencies are not obliged by the state or federal Constitution to fix rents by application of any particular method or formula].)
We are not, however, writing on a clean slate. As our own order denying Carson Gardens's motion to dismiss this appeal states, by failing to appeal the April 16, 2003 judgment, the Board "waived any right to raise [any] issues" arising out of the judgment. It is perfectly plain from the hearing transcript, although not from the text of the peremptory writ itself that the meaning of the Carson ordinance was in fact an issue central to the trial court's judgment, and the Board could have raised the issue by appealing from the judgment. The Board having failed to do so, we cannot now review that issue. The Board was thus bound to comply with the trial court's writ, which required it to use gross profits maintenance analysis or some other methodology giving due consideration *776 to debt service costs in calculating a fair return.
The Board contends that it fully complied with the original writ, and that its selection of MNOI methodology was authorized by the City's ordinance and Guidelines as well as court of appeal precedents. It is plain, however, that the Board did not in fact comply with the writ, because it did not use a methodology that considered debt service costs. Indeed, the record supports the trial court's finding that the Board chose the MNOI methodology "for the purpose of deleting certain costs from the process." Moreover, because the Board failed to appeal the trial court's judgment, which was based on the conclusion that the ordinance required use of a methodology that considers debt service costs, the Board's claim that its selection of MNOI methodology was proper under the ordinance is not before us for review.
The Board next contends that, even if its rent increase determination was wrong, the trial court exceeded its authority when it ordered a specific rent increase, and should have remanded the matter to the Board for further consideration. Carson Gardens, on the other hand, contends that remand was not required because "there was no discretion for the Rent Board to exercise," as "[n]o evidence in the record supports any other alternative that is consistent with the 2003 Judgment and Writ." On this point, we agree with the Board that remand was required.
First, the trial court's order sets a rent increase in an amount the Board expressly found would create a "windfall" for Carson Gardens. Moreover, the court itself expressly recognized that, if the Board had used gross profits maintenance analysis "and would have come to some conclusion that not all of it would be passed because it is too excessive and fifty percent would be fair to add, that's one thing." The court, however, could not tell whether allowing 50 percent would amount to a fair return, "because the City did not use that method." Under these circumstances, we think the court was obliged to remand the case once again, so that the Board can exercise its discretion on the question of whether passing through the entire amount of debt service costs was necessary to provide a fair return. Code of Civil Procedure section 1094.5, subdivision (f), provides that when a judgment sets aside an agency decision, the judgment "shall not limit or control in any way the discretion legally vested in" the agency. The court's order setting aside the Board's rent decision and setting the rent at $113.36 obviously eliminates any further exercise of discretion that is legally vested in the Board.
Second, while the court's reluctance to "send it back a second time" is understandable in view of the fact that the Board failed to comply with the trial court's writ the first time, other methods were available to remedy the Board's noncompliance with the writ. (See Carroll v. Civil Service Commission (1970) 11 Cal.App.3d 727, 733, 90 Cal.Rptr. 128 [the remedy in cases of refusal or neglect to obey a peremptory writ of mandate "is that provided for in Code of Civil Procedure section 1097, and is in the nature of sanctions for contempt"].) In Carroll, the court of appeal reversed the trial court's second order, which directed that a terminated employee be restored to his position with full back pay and privileges, after the commission failed to obey the court's first order, which directed the commission to restore the employee to his job and impose a penalty less severe than dismissal. The commission did not appeal the first order, and thereafter "rejected the [trial] court's order outright" by again finding that discharge was the proper penalty. (Id. at p. *777 732, 90 Cal.Rptr. 128.) The trial court's second order, restoring the employee to his job without the imposition of any penalty, was improper, in part because the court was "punishing the innocent taxpayer and not the commissioners who defied the court's order." (Id. at p. 734, 90 Cal.Rptr. 128.) This case is similar, as the trial court's order of a rent increase in an amount that may not be necessary to assure the owner a fair return in effect punishes the innocent mobilehome space tenants, who must pay the rent increase, rather than the Board which failed to comply with its order.
Finally, Carson Gardens insists that remand to the Board is not required because no other rent increase is possible based upon the administrative record. In effect, Carson Gardens claims the evidence supports only application of gross profits maintenance analysis, or application of MNOI analysis, without deviation. While the Board cannot take new evidence on remand, nothing in the city's ordinance requires the Board to apply any particular formula or methodology without deviation. Indeed, the city's Guidelines specifically state that the gross profits maintenance analysis "is an aid to assist the Board in applying the factors in the Ordinance and is to be considered together with the factors in [the ordinance], other relevant evidence presented and the purposes of the Ordinance," and is not intended to create any entitlement to any particular rent increase. Accordingly, we see no reason why the Board may not, on the present administrative record, assess the evidence, consider the results of gross profits maintenance analysis, and make findings as to the appropriate implementation of that analysis all in consonance with its duty under the ordinance to grant an increase that both "protects Homeowners from excessive rent increases and allows a fair return on investment...." (Mun.Code, § 4704, subd. (g).) Should the Board again fail to comply with the trial court's order to apply an analysis that gives due consideration to Carson Gardens's debt service costs, the trial court retains the power to impose fines and other sanctions and to make any other orders necessary for complete enforcement of its writ, all as authorized by Code of Civil Procedure section 1097.
DISPOSITION
The order is reversed and the cause is remanded to the trial court with instructions to vacate its order mandating a rent increase of $113.36 per space per month, and to issue a new order remanding the action to the Board for further consideration, on the present administrative record, in accordance with trial court's April 2003 peremptory writ ordering the consideration of debt service costs and in accordance with the views expressed in this opinion. The parties are to bear their own costs on appeal.
COOPER, P.J., and RUBIN, J., concur.
NOTES
[1] The other factors the Board must consider are the length of time since the last hearing and determination by the Board on a rent increase application; the completion of any capital improvements; changes in property taxes or other taxes related to the mobilehome park; changes in the rent paid for the lease of the land; changes in utility charges; the need for repairs caused by circumstances other than ordinary wear and tear; the amount and quality of services provided to the tenant; and any existing written lease between the owner and the tenant. (Mun.Code, § 4704, subd. (g).)
[2] The revised "Guidelines for Implementation of the Mobilehome Space Rent Control Ordinance" were adopted by resolution (No. 98-010) approved by the city council and the mayor in January and February 1998. Section 1 of the resolution states that the city council found it necessary to revise the Guidelines for several reasons, one of which was "to incorporate the Gross Profits Maintenance Analysis that has been utilized by the Board for many years to assist in analyzing rent increase applications."
[3] Carson Gardens purchased the park on October 10, 1997 for $1,550,000 through a line of credit. The property was appraised on December 4, 1997 for the same amount, in connection with Carson Gardens's application for permanent financing.
[4] All of the dollar amounts for rent used in this opinion refer to the rental amount per space, per month.
[5] Gross income less operating expenses equals gross profit.
[6] The Board also found the increase it approved would increase the rents in the Park to the second highest among comparable parks "even though the Park does not contain a recreation building and is not as well maintained as some of the comparison parks."
[7] The components of this increase would be a pass-through of cost increases since the prior rent increase ($16.64), an increase in net income ($20.02), and pass-through of the increase in debt service ($76.71).
[8] The Board observed that under Baar's MNOI analysis, Carson Gardens's adjusted net operating income was $170,470.46, which was available for the payment of its annual debt service costs ($88,638.96) and to provide cash return on its investment.
[9] The trial court also observed: "In this case, my problem is that the [MNOI] does not comply with my order"; "I do think that this ought to be getting to the court of appeals"; and "[i]t just seems to me that this needs some appellate review in terms of what the City can do when it has an ordinance that stresses G.P.M. and doesn't even mention M.N.O.I. and also in terms of the compliance with the court's ruling."
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37 Cal.Rptr.3d 195 (2005)
135 Cal.App.4th 82
AMWEST SURETY INSURANCE COMPANY, Plaintiff and Appellant,
v.
PATRIOT HOMES, INC. et al., Defendants and Respondents.
No. B175822.
Court of Appeal, Second District, Division 1, California.
November 28, 2005.
*196 Watt, Tieder, Hoffar & Fitzgerald, Robert C. Niesley, Irvine and David F. McPherson, McLean, VA, for Plaintiff and Appellant.
Knopfler, Smith & Pazos, George Knopfler and James Pazos, Westlake Village, for Defendants and Respondents Patriot Homes, Inc., Patriot Homes Maple Drive, L.L.C., David Schwartzman and Trust "A" of the Ziegler Family Trust.
ROTHSCHILD, J.
Pursuant to a series of indemnity contracts, plaintiff, Amwest Surety Insurance Company, provided construction and other bonds to David Schwartzman, Trust A of the Ziegler Family Trust, Patriot Homes, Inc., and Patriot Homes Maple Drive, L.L.C. (collectively, the defendants), as part of their real estate development business. In the course of defendants' business, a real estate broker obtained a judgment against Patriot Homes, Inc. and Patriot Homes Maple Drive, L.L.C. (collectively, the contractor defendants). The contractor defendants appealed, and, at their request, Amwest provided an appeal bond for them. (Code Civ. Proc., § 917.1.) The contractor defendants lost the appeal, but refused to pay the judgment and Amwest, acting as surety, paid the judgment. Amwest then brought this action against (1) all the defendants for breach of the indemnity contract and (2) the contractor defendants for statutory indemnity (Civ.Code, § 2847). After a court trial, the court accepted defendants' argument that the indemnity agreements did not cover appeal bonds, and entered judgment for the defendants on the contract (first) cause of action, and judgment for Amwest on the statutory indemnity (second) cause of action against only the contractor defendants.
*197 Amwest appeals from the portion of the judgment in favor of all the defendants on the contract cause of action. Amwest contends that the trial court erred because the indemnity agreements covered all bonds, including appeal bonds. We agree with Amwest, reverse the judgment on the contract cause of action and the related attorney fees and costs award, and remand for the trial court to enter judgment in favor of Amwest on the contract cause of action against all the defendants and redetermine the related fees and costs. In all other respects, we affirm the judgment.[1]
FACTS
The relevant facts are undisputed. On November 21, 1996, Amwest and all the defendants executed one of the indemnity agreements in the opening paragraph of which all the defendants agreed to indemnify Amwest as the surety "in connection with any Bonds written on behalf of" the contractor defendants as principals. (Italics added.)[2] The agreement defined "Bond" as "Any contractual obligation undertaken by Surety for Principal," and "Contract" as "Any agreement of Principal, including that which is bonded by the Surety."
The agreement provided that the defendants would fully indemnify Amwest for any losses arising from Amwest's execution of "any" bond for the contractor defendants. The agreement also stated that the contractor defendants would be in default "with respect to a Contract and hereunder" if they breached any contract or any part of the agreement. The agreement also included many specific provisions granting Amwest various rights and remedies in case of default under a contract, most of which applied only to construction contracts where Amwest provided a performance bond. Thus, for example, the agreement permitted Amwest, at its option, to take over the contractor defendants' contracts, equipment, or records or loan money to complete any contract if the contractor defendants defaulted; assigned the contracts and any funds *198 due under them to Amwest as security in case of default; and gave Amwest free access to defendants' books and records until they could establish that Amwest would not suffer any loss from the issuance of the bond.
While the indemnity agreement was in effect, a real estate broker obtained a judgment against the contractor defendants. At the contractor defendants' request, Amwest filed a surety bond under Code of Civil Procedure Section 917.1 obligating it to pay the broker $184,790.13 "under said statutory obligations" in exchange for the contractor defendants' payment of a $3,696 annual premium. The appellate court affirmed the judgment for the broker. The contractor defendants refused to pay the judgment and their counsel wrote Amwest that it was "free to make payment on this judgment pursuant to" the appeal bond and that the contractor defendants "do[] not have the means to pay the judgment or to pay you relative to any indemnity agreement." When the defendants failed to pay the judgment, Amwest paid the full amount.
Thereafter, Amwest brought this lawsuit against the defendants for breach of the indemnity contract and statutory indemnity. After a court trial, the court entered judgment for all the defendants on the breach of contract cause of action, and judgment for Amwest against the contractor defendants on the statutory indemnity cause of action. The trial court found that the indemnity agreement was subject to only one reasonable interpretation that it did not apply to an appeal bond because the bond was a statutory, not contractual, obligation of the bonding company. The court thus concluded that the agreement "was intended to apply only to bonds given to secure the performance of a contract or . . . to `contract bonds.'" The trial court supported its findings by pointing to the agreement's repeated references to contracts, definition of bonds as contractual obligations by the surety for the principal, its references in the default, remedies, and assignment sections to contract bonds, and its lack of references to appeal bonds or statutory obligations.
DISCUSSION
Amwest contends the trial court erred in entering judgment for the defendants on the breach of indemnity contract cause of action. Amwest argues that the indemnity agreement covered all bonds, including the appeal bond at issue here. Amwest also argues that the appeal bond was a contract obligating Amwest to pay the judgment against the contractor defendants, thus bringing it under the indemnity agreement. We agree.[3]
"In general, a surety bond is interpreted by the same rules as other contracts. That is, we seek to discover the intent of the parties, primarily by examining the words the parties have chosen giving effect to the ordinary meaning of those words. Finally, [w]here a surety bond is given pursuant to the requirements of a particular statute, the statutory provisions are incorporated into the bond." (Corby v. Gulf Ins. Co. (2004) 114 Cal.App.4th 1371, 1375, 8 Cal.Rptr.3d 663, internal quotations and citations omitted; Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 39, 86 Cal.Rptr.2d 855, 980 P.2d 407; Top Cat Productions, Inc. v. Michael's Los Feliz (2002) *199 102 Cal.App.4th 474, 477, 125 Cal.Rptr.2d 553.) Where, as here, the facts are undisputed and no parole evidence was received regarding the parties' intentions, we independently review the indemnity agreement's contractual language. (City of Chino v. Jackson (2002) 97 Cal.App.4th 377, 382, 384-385, 118 Cal.Rptr.2d 349 [similar indemnity agreement applied to all bonds].)
We agree with Amwest that the general indemnity agreement covered the appeal bond, and that defendants breached the agreement by not paying the judgment or indemnifying Amwest for doing so as surety for the bond. The agreement repeatedly and expressly states that it applies to all bonds and thus undisputedly includes appeal bonds if they meet the definition of a bond, i.e. "any contractual obligation undertaken by Surety for Principal." Contrary to defendants' claim, the appeal bond itself is a contract which simply incorporates the terms dictated by statute. Amwest supplied the appeal bond pursuant to the appeal bond agreement. Merely because its terms are provided by statute in no way means it is not a contract as it contractually obligates the surety to pay the contractor defendants' judgment. We reject defendants' argument that the references in the default, remedies, and assignments sections to construction bonds and Amwest's options in the event of default somehow alter our analysis. Although those provisions provide Amwest various options to cure defendants' defaults on construction bonds, they do not limit the overall agreement to such bonds. Indeed, the default provision states that the principal will be in default under a contract or under the indemnity agreement by breaching any portion of the indemnity agreement. Failing to pay the judgment after the appeal was unsuccessful, or failing to reimburse Amwest under the appeal bond, breached the agreement. Accepting defendants' argument would read out of the agreement its repeated express language that it applies to all bonds, not just construction bonds, violating one of the basic rules of contract construction. Thus, the agreement covered the appeal bond, and defendants breached it by not paying the judgment, or indemnifying Amwest. The trial court erred in not entering judgment for Amwest on the breach of contract cause of action against all the defendants.
DISPOSITION
The judgment and attorney fees and costs award for defendants on the breach of contract (first) cause of action are reversed. The case is remanded for the trial court to enter judgment for Amwest and against all the defendants on the breach of contract cause of action and redetermine costs and attorney fees thereon in light of the changed judgment. The judgment and interest and costs award for Amwest on the statutory indemnity (second) cause of action are affirmed. Amwest is awarded its costs on appeal.
We concur: SPENCER, P.J., and VOGEL, J.
NOTES
[1] The trial court entered judgment on March 10, 2004. On May 21, 2004, Amwest moved for a new trial, arguing as it does on appeal that it was entitled to judgment on the breach of contract cause of action, and seeking prejudgment interest and costs on the judgment in its favor on the statutory indemnification cause of action. On June 1, 2004, while the new trial motion was pending, Amwest filed a timely notice of appeal from the March 10, 2004 judgment. Thereafter, the trial court denied Amwest's new trial motion on the legal issue raised in this appeal, but on December 9, 2004 issued a modified judgment awarding (1) Amwest prejudgment interest and costs against only the contractor defendants on the statutory indemnity cause of action and (2) Schwartzman and Trust A (the two defendants who had prevailed on both causes of action) costs and $55,000 in attorney fees. We reject the defendants' contention that we should dismiss Amwest's appeal because it failed to appeal from the modified December 9, 2004 judgment, which the defendants claim is the only final appealable judgment. The modified judgment added only prejudgment interest, costs, and attorney fees to the original judgment, and made no substantive changes to the earlier judgment which finally disposed of all legal issues between the parties. As such, Amwest's appeal properly is before us, because (1) the March 10 judgment was a final judgment regarding the parties' legal dispute which the December 9 modification did not materially change, and, alternatively, (2) the appeal should "`be treated as a premature but valid appeal from the judgment.'" (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698-700, 107 Cal.Rptr.2d 149, 23 P.3d 43; Neff v. Ernst (1957) 48 Cal.2d 628, 633-634, 311 P.2d 849.)
[2] Amwest, Schwartzman, Trust A, and Patriot Homes, Inc. executed several identical indemnity agreements covering other real estate limited partnerships owned by those defendants.
[3] As discussed in footnote 1, the issue is not moot. The contractor defendants claim to be insolvent, and Amwest thus may not be able to recover on the judgment in its favor on the statutory indemnity cause of action against them. Moreover, Amwest, not the remaining defendants, would be entitled to attorney fees if it prevailed on the breach of indemnity cause of action.
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714 F.Supp. 1580 (1989)
Sally L. DENNIS, Plaintiff,
v.
WILLIAM PENN LIFE ASSURANCE COMPANY OF AMERICA, Defendant.
No. CIV-88-854-A.
United States District Court, W.D. Oklahoma.
June 28, 1989.
*1581 Marilyn M. Edens, McAfee & Taft, Oklahoma City, Okl., for plaintiff.
Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, Okl., for defendant.
ORDER
ALLEY, District Judge.
Before the Court in this case is the motion of defendant William Penn Life Assurance Company of America for summary judgment pursuant to Fed.R.Civ.P. 56, to which plaintiff Sally L. Dennis has responded.
Plaintiff's action is for breach of contract by refusal to pay benefits under a life insurance policy insuring the life of Curtis Coye Dennis (hereinafter "Dennis"), on which policy plaintiff was the beneficiary, and for tortious breach of an implied duty of good faith and fair dealing by unexcused *1582 delay in denying plaintiff's claim under the policy.
Summary judgment is appropriate in cases where the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). There is no genuine issue of fact for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or not sufficiently probative, summary judgment may be granted. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The mere scintilla of evidence in support of the plaintiff's position will not be sufficient to defeat a motion for summary judgment; there must be evidence on which the jury could reasonably find for the plaintiff. Id. 106 S.Ct. at 2512.
Two issues are presented by this motion: (1) whether a jury could reasonably find that defendant wrongfully denied plaintiff's claim on the basis of material misrepresentations by Dennis, and (2) whether, under Oklahoma law, a jury could reasonably find that defendant handled plaintiff's claim in bad faith. These issues will be taken up in the order listed.
(1) Material Misrepresentation
Under Oklahoma law, material misrepresentations by an insured in an application for insurance are grounds for rescission of the policy if (1) fraudulent, or (2) material to acceptance of the risk or (3) the insurer in good faith would not have issued the policy if the true facts had been known. 36 O.S. 3609. If any of these conditions is satisfied, the insurer may avoid liability under the policy. Plaintiff's argument that defendant must prove both fraudulent misrepresentation by the insured and also materiality of the misrepresentation[1] is contrary to a plain reading of the statute.
Plaintiff's argument that defendant must prove that Dennis' misstatements in his insurance application were made with an actual intent to deceive is also contrary to Oklahoma law. In construing 36 O.S. 3609, the Oklahoma Supreme Court has stated:
"A misrepresentation in negotiations for a life insurance policy under 36 O.S.1961 § 3609, is a statement as a fact of something which is untrue, and which the insured knows or should know is untrue, ..., and which has a tendency to mislead, where such misrepresentation is material to the risk."
Vaughn v. American National Insurance Co., 543 P.2d 1404, 1406-07 (Okla.1975), quoting Massachusetts Mutual Life Ins. Co. v. Allen, 416 P.2d 935 (1965). In Jacobs v. Time Insurance Co., No. 88-1743 (10th Cir., Oct. 25, 1988), the Court stated at p. 7:
The law in Oklahoma is clear, however, that the Applicant's good faith or his intent in answering a question on an application for insurance are not relevant to the insurer's ability to avoid the policy.
Thus, a misrepresentation by the insured, if material to the acceptance of the risk, need not be made with an actual intent to defraud to be a basis for rescission of the policy by the insurer. It is sufficient if the insured either knows, or should know, that a statement he has made is untrue.
Based on all the evidence presented, the Court finds that there is no genuine issue of fact as to whether Dennis knowingly misrepresented facts in his insurance application, and whether such misrepresentations were material to defendant's acceptance of the risk. Under the evidence presented, a reasonable jury could not find that Dennis did not knowingly misrepresent facts on his application, or that such misrepresentations were not material to defendant's decision to issue the policy. The most obvious misstatement of which Dennis must have been aware was his denial that he had ever had his driver's license revoked or suspended. It is undisputed that Dennis' license was suspended in *1583 March, 1984, approximately a year and a half before he submitted the insurance application to defendant. Although plaintiff argues that Dennis may have subjectively believed some of his other answers were truthful, and that some of the other questions on the application were ambiguous, plaintiff does not contend that the question "Has any person proposed for insurance had driver's license restricted, revoked, or suspended?" was in any way ambiguous, or that Dennis could have honestly believed he answered it truthfully. A reasonable jury could only find that Dennis knew or should have known that he answered this question falsely.
Conscious misrepresentation is equally clear in Dennis answers to two other questions on the application. Dennis answered "no" to an inquiry as to whether he had been under the treatment or consultation of any physicians within the past 5 years. It is undisputed, however, that Dennis had been under the treatment of Drs. Stephen Connor, M.D., Paul Patzkoysky, M.D., and Boyd Lester, M.D., in 1984, the year before he completed this application. Dennis also misrepresented on his application that he at that time had only one other life insurance policy in effect, when he in fact had other undisclosed insurance in effect. Plaintiff has introduced no evidence that these questions were ambiguous, were misunderstood by Dennis, or were answered other than fraudulently. Even assuming, as plaintiff argues, that an issue of fact exists as to whether Dennis knowingly misrepresented that he had not engaged in racing, and had not received treatment for alcoholism, there is no issue of fact as to these other misrepresentations.
With respect to whether a misrepresentation was material to acceptance of the risk by defendant, there is also no genuine issue of fact. A misrepresented fact is material if a reasonable insurance company in determining its course of action would attach importance to the fact misrepresented. Long v. Insurance Co. of North America, 670 F.2d 930, 934 (10th Cir.1982). Furthermore, materiality can be decided as a matter of law if reasonable minds cannot differ on the question. Id. Dennis concealed from defendant the fact that he had been under the treatment of Dr. Boyd Lester for depression as late as 1984. Undoubtedly, a reasonable insurer would attach importance to the fact that a life insurance applicant was being treated for depression in determining whether to issue a policy. Plaintiff acknowledges that, under current case law, failure to disclose known serious health problems is ground for rescission of a life insurance policy.[2] Dennis' failure to disclose his recent treatment for depression and other serious medical conditions was a material misrepresentation, which provides a basis for defendant's rescission of his life insurance policy.
In addition, Dennis' misrepresentation that he had not engaged in or had any intention to engage in racing was material. First, there is abundant evidence that Dennis falsely answered the question on the application related to racing. Both Darrell Cleveland and Connie Edwards had personal knowledge that Dennis raced cars on numerous occasions.[3] Although William Dunford never actually saw Dennis drive in a race, he did see him practice driving a race car at a race track, and was personally present when Dennis discussed his racing activities.[4] Dennis was a member of a racing association, and his name was listed on the association's race reports for 1985. The 1985 medical records of Dr. Connor, his physician, state that Dennis had been driving in races.[5] His obituary states that he was a racing enthusiast. Plaintiff disputes the fact that Dennis actually drove a race car, and contends that he merely sponsored the race car. However, it is undisputed that Dennis died from injuries he sustained while driving, not sponsoring, a race car.
*1584 The materiality of Dennis' misrepresentation concerning racing is evident from the fact that the insurance application specifically inquired about this activity. The application itself attests to the fact that defendant attached importance to an applicant's participation in racing activities.
Under Oklahoma law, an insurer has a right to rescind a life insurance policy procured with an application containing a single material misrepresentation knowingly made. Dennis' application contains not one, but several such misrepresentations. The shear number of these occurrences, together with the lack of evidence by plaintiff that the misrepresentations were neither made with knowledge of their falsity nor material, precludes a finding by reasonable jurors that defendant wrongfully denied plaintiff's claim. Defendant is therefore entitled to summary judgment on this issue.
(2) Bad faith claim
Plaintiff also alleges that defendant breached an implied duty of good faith and fair dealing in unjustifiably delaying the denial of her claim. With respect to this cause of action, plaintiff relies on the implied duty of good faith and fair dealing recognized in Christian v. American Home Assurance Co., 577 P.2d 899 (Okla.1977). However, Christian imposes a duty of good faith on an insurer only in the handling of a valid claim. Id. at 903. As seen above, plaintiff did not have a valid claim.
Plaintiff cites no authority for her proposition that an insurer owes a duty of good faith to a claimant, irrespective of the validity of his claim. In all of the cases cited by plaintiff in which a breach of the duty of good faith was found, the insurer had denied a valid claim. Christian, supra; Timmons v. Royal Globe Ins. Co., 653 P.2d 907 (Okla.1982). Plaintiff cites Lewis v. Farmers Insurance Co., Inc., 681 P.2d 67, 69 (Okla.1983) for the proposition that an insurer's obligation to act in good faith is not limited to the payment of money. However, the holding in Lewis is not that broad. The Court actually states: "The obligation of an insurer to its insured upon presentation of a valid claim is not limited to the payment of money" (emphasis added). 681 P.2d at 69.
Moreover, the Oklahoma Supreme Court has held that a bad faith cause of action under Christian will not lie where there is a legitimate dispute as to the validity of the claim asserted. Manis v. Hartford Fine Ins. Co., 681 P.2d 760 (Okla.1984). "To hold otherwise would subject insurance companies to the risk of punitive damages whenever litigation arises from insurance claims. Insurance companies have the right to dispute a claim in good faith." 681 P.2d at 762. Defendant's decision to investigate plaintiff's claim was justified both because of the misrepresentations in Dennis' application, and because Dennis' death occurred during the contestable claims period of the policy. Because defendant rightfully disputed plaintiff's claim, plaintiff has no bad faith cause of action in this case.
CONCLUSION
For all of the above stated reasons, the Court finds that there is no genuine issue as to any material fact necessary to determine this case, and that defendant William Penn Life Assurance Company of America is entitled to and is hereby granted summary judgment as a matter of law. Fed.R. Civ.P. 56(c).
It is so ordered.
NOTES
[1] Plaintiff's Response Brief, p. 9.
[2] Plaintiff's Response Brief, p. 14.
[3] Defendant's Reply Brief, Exhibits M and N.
[4] Affidavit of Dunford, Defendant's Exhibit B.
[5] Defendant's Exhibit G.
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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/2258811/
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687 A.2d 927 (1996)
Louis J. SCALES, Appellant,
v.
UNITED STATES, Appellee.
No. 95-CF-214.
District of Columbia Court of Appeals.
Argued October 3, 1996.
Decided December 23, 1996.
*929 Jaclyn S. Frankfurt, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant.
Ann K.H. Simon, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee.
Before TERRY, KING and REID, Associate Judges.
KING, Associate Judge:
Louis J. Scales appeals his convictions for armed second degree murder and related weapons charges, contending the trial court committed reversible error in certain rulings involving the only eyewitness to testify at trial, Kenneth Hodge. Specifically, Scales contends that the trial court erred by: (1) admitting into evidence grand jury testimony given by Hodge about his prior identification of the appellant, where the witness had first testified at trial concerning the identification but later in part recanted that testimony; (2) not giving, sua sponte, a limiting instruction immediately after the court allowed the government, on redirect examination, to impeach its own witness (Hodge) with portions of the witness's grand jury testimony; (3) refusing to allow the defense to recross-examine Hodge after he recanted his earlier testimony and was impeached with his grand jury testimony; and (4) denying appellant's request to call Hodge as a defense witness at a pretrial hearing on a motion to suppress identification. Finding no error requiring reversal, we affirm.
I.
Appellant Louis J. Scales was tried before a jury on charges of armed first degree murder, possession of a firearm during a crime of violence, and carrying a pistol without a license,[1] in connection with the August 30, 1993, shooting death of Torey Lawrence. Scales was convicted of armed second degree murder and the weapons charges. A co-defendant, Russell Ross, was acquitted on related charges. The government principally relied upon the testimony of Kenneth Hodge, who was an eyewitness to the shooting which caused Lawrence's death. In addition to Hodge's testimony, the government presented the testimony of investigating police officers concerning Hodge's identification of Scales as the shooter, testimony by other police officers who arrived at the scene of the shooting that the victim said, before he died, that "Reds" shot him, evidence that Scales's nickname was "Reds," and evidence that four months after Lawrence was killed Scales possessed a gun similar to the gun used to kill Lawrence.
Hodge testified at trial on direct examination that he was present when, earlier on the day of the shooting, Scales's co-defendant Ross got into a dispute with Lawrence. Hodge identified Scales in court as the "light-skinned one" who accompanied Ross. Then Hodge described in detail the events occurring later that same day when he saw Scales and Ross return, saw Scales approach Lawrence, and saw Scales shoot Lawrence at close range with a gun he described as looking like a black "Mack." Hodge also testified *930 that after the shooting he left the scene, returning ten to fifteen minutes later while Lawrence was still lying on the ground. Hodge said nothing about the shooting to police until some months later.
Hodge also testified that he selected photographs of Scales and Ross from photo arrays at the United States Attorney's office on March 24, 1994, and told detectives what he saw on the day of the shooting. In response to questions from government counsel at trial, Hodge testified that he told the truth at the U.S. Attorney's office, and that no one suggested to him the identity of the shooter or mentioned any names to him. Hodge also testified that he was interviewed by defense counsel, but he had not told her the truth about the shooting.
On the same day he made the out-of-court photo array identification of Scales, Hodge testified before a grand jury about the shooting of Lawrence and about the identification procedures. At trial, Hodge's direct testimony was consistent with his grand jury testimony. However, his answers on cross-examination were at times inconsistent with his direct testimony, and he indicated he might have been pressured to identify Scales. On redirect, Hodge recanted his identification of Scales, testifying that he lied to the grand jury, that he lied during direct examination, and that he did not see who shot Lawrence. Hodge stated that he changed his testimony because the prosecutor and the detectives had pressured him to give his original testimony.
At this point, government counsel requested and received permission from the court to impeach its own witness with his grand jury testimony. The government read into the record, and questioned Hodge about, two separate segments of his grand jury testimony, consisting of: (1) testimony about an argument between Lawrence and Ross that occurred earlier on the day of the shooting, Hodge's description of the events of the shooting, the gun used by the shooter, and his statement that he did not know the shooter; and (2) Hodge describing his prior identification of "Reds" from the photo array. Defense counsel objected to use of the grand jury testimony on the ground that the government could not claim genuine surprise. The defense did not request an immediate limiting instruction and the court did not give one.
After redirect, the defense asked to recross-examine Hodge but the court denied the request. Hodge was then excused and the court took a brief recess, followed by approximately an hour of testimony from two witnesses and a one hour lunch break. After the lunch break, defense counsel moved for mistrial, citing In re L.D.O., 400 A.2d 1055 (D.C.1979), and contending that the trial court erred in admitting a witness's prior identification when the witness was uncertain of the identification at trial. That motion was denied. The jury later convicted Scales of second degree murder and the weapons charges, and this appeal followed.
II. Admissibility of the Out-of-Court Identification
Although the murder of Torey Lawrence occurred in August of 1993, Hodge did not emerge as a witness until months later. On March 24, 1994, upon being shown a photo array by one of the investigating officers, Hodge selected a photograph of Scales, whom he called "Reds," as the person who shot Lawrence, although he did not know Scales's given name.[2] Later that same day Hodge testified before a grand jury about the murder of Lawrence.
At trial Detective Vacin testified about the photo identification procedures and testified that Hodge selected a photo of Scales as the shooter. On direct examination Hodge described and affirmed his prior identification of "Reds" in the photo array at the U.S. Attorney's office, stating that he did not know that person's given name. He also made an in-court identification of Scales as the person who shot Lawrence. On cross-examination, however, Hodge testified that: (1) he did not know the name or nickname of the shooter, but that he did know Scales and knew Scales's nickname was "Reds," (2) he was pressured or threatened by police to say that "Reds" was the shooter, and (3) in the *931 evening after the shooting he spoke by telephone to Scales and told Scales about the shooting of Lawrence. In response to the government's questions on redirect, Hodge recanted his identification of Scales, testifying that he could not really say the shooter was Scales. Then he stated that he lied to the grand jury, and that he did not see who shot Lawrence.
Scales argues, in light of Hodge's equivocation on cross-examination and his recantation on redirect of his identification of Scales as the shooter, that it was error for the court to allow the government to introduce his prior identification of Scales for any purpose other than impeachment, and that the court erred by not immediately instructing the jury that Hodge's grand jury testimony, which included the prior identification statement, could be considered only with respect to Hodge's credibility. We reject the first contention for the reasons discussed below and deal with the second in Part III.
Scales contends that Hodge's prior identification of Scales was inadmissible as substantive evidence because Hodge destroyed the predicate for its admissibility when he testified on redirect that he lied before the grand jury and that he did not see who shot Lawrence. As Scales correctly observes, we have held that evidence of a prior identification is not properly admissible when the declarant is uncertain of, or recants, the prior identification at trial. See Fletcher v. United States, 524 A.2d 40, 43 (D.C.1987) (witness's repudiation at trial of his prior identification of the defendant rendered the earlier statement inadmissible hearsay); In re L.D.O., supra, 400 A.2d at 1057 (prior identification by witness is rendered unreliable when the witness testifies to significant doubt about the identification);[3]cf. Riley v. United States, 647 A.2d 1165, 1171 n. 13 (D.C.1994) (prior identification exception applies when witness does not repudiate his prior out-of-court identification and is available for cross-examination on the point). However, none of these cases addressed the unusual circumstances presented in this case. In each of our previous cases where we held that it was error to allow testimony concerning the earlier identification, the witness expressed significant doubts about his prior identification, but did not in any way identify the defendant as the perpetrator of the offense. Here, Hodge made an in-court identification of Scales as the shooter, and he both affirmed his prior identification during direct examination and repudiated it during redirect examination.
We are persuaded that Hodge's identification of Scales in direct examination provided the necessary predicate for admission of Hodge's pretrial identification statement, and that this predicate was not fatally undermined by Hodge's later recantation during redirect. We were faced with a similar question in Payne v. United States, 516 A.2d 484 (D.C.1986), where the witness identified the appellants as the robbers on direct examination, but on cross-examination recanted his testimony. On redirect, the government attempted to rehabilitate the witness's testimony given on direct but was not successful. Payne argued that the eyewitness's direct testimony implicating him must be disregarded in its entirety because the witness later recanted. Id. at 492-93. We disagreed:
Contrary to appellants' assertions, [the witness'] recantation on cross-examination did not make his testimony, directly implicating appellants ... incredible as a matter of law. Rather . . . conflicts created by a witness' recantation, like other internal inconsistencies within a witness' testimony, are factual questions for the jury to resolve.. . . [W]here a witness recants, the trier of fact must decide whether to accept as true the witness' original testimony or revised testimony.
Id. at 493. While we recognize that the admissibility of out-of-court identification statements was not at issue in Payne, we think Payne's reasoning applies with equal force to a trial court's determination of *932 whether the necessary predicate has been established to allow a witness's prior identification statement, when the witness at trial both affirms and then recants the identification.
For this reason we conclude that the trial court may accept as credible, for purposes of determining whether the prior identification exception to the hearsay rule applies, the witness's original testimony. We believe the defendant in these situations is adequately protected from the dangers of hearsay evidence by his opportunity to cross-examine the witness about his change in testimony. See Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956-57, 18 L.Ed.2d 1178 (1967); In re L.D.O., supra, 400 A.2d at 1057; Morris v. United States, 398 A.2d 333, 338 (D.C.1978); Clemons v. United States, 133 U.S.App. D.C. 27, 39-40, 408 F.2d 1230, 1242-43 (1968) (en banc). In fact, it was precisely the appellant's opportunity to cross-examine Hodge that eventually resulted in Hodge's recantation on redirect. In addition, although not a requirement for its admissibility, there was corroboration of Hodge's testimony identifying Scales. Detective Vacin testified that Hodge had identified Scales from the photo array, and Hodge never directly recanted his testimony on direct examination that he selected the shooter in the photo array. We held in Murphy v. United States, 670 A.2d 1361, 1366 (D.C. 1996), that such evidence is sufficient to constitute corroboration of an extra-judicial identification. Therefore Detective Vacin's testimony can be taken into account on the question of whether the prior identification evidence was admissible. Accordingly, we hold that the trial court did not err in admitting evidence of Hodge's prior identification of Scales because the predicates for admissibility were sufficiently established when Hodge's trial testimony was subject to cross-examination and both Hodge and Detective Vacin affirmed the identification at trial.
III. Failure to Give Limiting Instruction
Scales contends that he is entitled to reversal because the trial court did not give an immediate limiting instruction after the prosecution, upon a claim of surprise, "impeached" his principal witness with the witness's grand jury testimony. No limiting instruction was requested by the defense[4] and, for that reason, the government argues the plain error standard should apply, which would require the defense to show, among other things, that the error "compromised the fairness or integrity of the entire trial or threatened ... a clear miscarriage of justice.. . ." See United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); Hunter v. United States, 606 A.2d 139, 146 (D.C.1992); Beale v. United States, 465 A.2d 796, 802 (D.C.1983), abrogated on other grounds by Winfield v. United States, 676 A.2d 1, 4 (D.C.1996) (en banc). Scales maintains, however, that the lesser standard of Kotteakos v. United States, 328 U.S. 750, 756-57, 66 S.Ct. 1239, 1243-44, 90 L.Ed. 1557 (1946), applies, which requires reversal unless it can be said, with fair assurance, that the jury verdict was not substantially swayed by the error. Lucas v. United States, 436 A.2d 1282, 1285 (D.C.1981). We need not decide which standard to apply here because, for the reasons stated below, we are satisfied that reversal is not warranted under the less demanding of the two.
The questioning by the prosecutor which introduced so-called "impeaching" evidence occurred under the following circumstances. In August 1993, on a public street in broad daylight, Lawrence was mortally wounded by a man he identified as "Reds" before he died. "Reds" is the nickname of appellant Scales, and the deceased's identification of Reds as his assailant was admitted by the trial judge as a dying declaration, a ruling not challenged here. The government's theory was that Scales shot Lawrence because Lawrence had instigated an altercation with Russell Ross, an associate of Scales, earlier the same day. Scales and Ross left the scene after this incident, but returned later with Scales armed with a semi-automatic pistol which he used to kill Lawrence.
*933 Kenneth Hodge, the witness who was the subject of the "impeachment" in question, was present at both the first encounter between Lawrence and Ross, and the shooting that occurred later. He did not inform the police, however, until nearly seven months later, when, according to the testimony of a police officer, Hodge identified Scales from a photo array, the identification procedure discussed in Part II. above. According to the officer, when Hodge selected Scales's photo, he stated, "[T]hat is the shooter right there. That's Reds." Hodge later appeared before the grand jury where he testified that he had selected the photo of the shooter from the photo array. He repeated that testimony at trial, on direct examination, and he also made an in-court identification of Scales as the man who shot and killed Lawrence. During direct examination, Hodge described the initial encounter between Lawrence and Ross. Hodge testified that Ross then left the scene in a blue automobile with a light-skinned man driving. Later the same car returned to the area and parked. This time Ross drove and the light-skinned man, who was the passenger, exited the vehicle, approached Lawrence and engaged him in a conversation. The light-skinned man then produced a black "Mack" semi-automatic pistol and began firing. Hodge then departed, returning after the police arrived to observe Lawrence on the sidewalk with numerous gunshot wounds. As we have said, he did not speak to the police about the incident until months later.
During cross-examination, Scales's attorney questioned Hodge in a manner suggesting that Hodge was involved with others in the neighborhood where the shooting took place, in a scheme to rob prospective drug buyers. Hodge also testified that a brown station wagon containing four men entered the block just before the shooting. He responded "no," however, to a leading question asking whether he knew if Lawrence had approached the men in the station wagon with a gun in his hand intending to rob them. He also answered "no" to another leading question asking whether one of the men in the station wagon shot Lawrence. He also testified that the police had pressured him to identify Scales when he viewed the array.
On redirect, the prosecutor questioned Hodge regarding his statement that he had been pressured by the police to identify Scales. Hodge repeated the claim implicating not only the police but the prosecutor as well. Moreover, when Hodge was asked whether his previous testimony, on direct and at the grand jury, that Scales was the shooter was true, he responded: "Nah." The prosecutor then claimed surprise and sought to impeach Hodge with his grand jury testimony pursuant to D.C.Code § 14-102.[5] Scales objected solely on the ground that there was no genuine surprise.[6] The trial court overruled the objection, and no further relevant objections were made by the defense during the course of the redirect examination.[7] The prosecutor then read portions of the grand jury testimony into the record.
In the first part of the testimony so read ("the recitation of events segment") Hodge, in summary, said that early on the day in question, he saw a man, whom he did not know (later identified as Ross), sitting in a blue and gray station wagon when Lawrence approached and grabbed him. The car had been driven to the area by a light-skinned man who was away from the vehicle when the disagreement he described took place. The light-skinned man returned to the vehicle and drove the station wagon away, with the other man as his passenger. Later the same station wagon returned with the same *934 two men inside; however, on this occasion, the light-skinned man was the passenger and the other man the driver. The light-skinned man got out of the car armed with a black "Mack" and shot Lawrence a number of times. At no time was the identity of the shooter or the other man mentioned. At trial Hodge was asked whether he had given this testimony before the grand jury and he affirmed that he had, although he said he testified under pressure.
Next the prosecutor turned to the questions Hodge was asked at the grand jury regarding the photo-identification session that had taken place earlier in the day that Hodge testified before the grand jury ("photo-identification segment"). In that testimony Hodge stated he had been shown a group of photographs by a police detective and that he had selected a photo of the light-skinned man, i.e., the man who shot Lawrence. Hodge also testified concerning a second photo array from which he selected a photo of the man who had driven the station wagon into the area the second time. Again, no names were mentioned. No other portions of the grand jury testimony were elicited.
The grand jury testimony, thus presented, can be described as falling into two separate and distinct parts. The recitation of events segment repeats the testimony previously given on direct examination by the witness that one of the two men, not identified by name, had a disagreement with the deceased, that he and the light-skinned man left the area in a blue and gray station wagon, that they returned later in the same vehicle, and that the light-skinned man produced a gun and shot the decedent. This segment of the grand jury testimony was consistent with most of the trial testimony previously given. It was also inconsistent, in one significant way, as discussed below, with the witness's trial testimony.
In the photo-identification segment, the witness related that he had selected a photo of the light-skinned man, the one who had shot the decedent, from a photo array. Dealing with this testimony first, the government argues that the testimony is admissible, as substantive evidence, because it relates to the witness's identification of the assailant. We agree. In Warren v. United States, 436 A.2d 821 (D.C.1981), we considered the admissibility at trial of a witness's testimony given at a pretrial suppression hearing. We held that it was error to admit portions of that testimony, over objection, because the testimony constituted prior consistent testimony. We also held, however, that those portions of the "testimony consisting solely of descriptions or identifications of the complaining witness' assailants are admissible as substantive evidence under the hearsay exception for prior description testimony...." Id. at 837. Similarly, in this case the grand jury testimony relating to the procedure involving Hodge selecting a photo from an array is also admissible as substantive evidence for the same reason. Therefore, for the photo-identification segment of the grand jury testimony, because the testimony could be considered for its truth, no limiting instruction was called for.
As we have said, however, the remaining testimony could not be characterized as identification evidence, admissible as substantive evidence on that ground. The recitation of facts segment was essentially repetitive of Hodge's testimony on direct examination. The bulk of this testimony was not damaging to the defense because it did not directly inculpate the appellant; it simply repeated Hodge's story that he had witnessed an altercation, that the two men left, but later returned, and one of them, armed with a gun, shot the victim. This testimony can more properly be characterized as a prior consistent statement, but there was no objection to the testimony on that ground.[8] Hearsay that comes in without objection to the testimony on that ground can be considered by the trier of facts and "given its full probative value." See Hicks-Bey v. United States, 649 A.2d 569, 576 (D.C.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 251, 133 L.Ed.2d 176 (1995). Moreover, because Scales was not directly implicated by this testimony, it was not harmful to his cause. *935 It follows, therefore, that the failure to give a limiting instruction, even assuming one was required for unobjected-to hearsay, was also harmless. See Jordan v. United States, 633 A.2d 373, 377 (D.C.1993).
The only potentially damaging portion of this testimony relates to the witness's vacillation at trial on the question of whether he saw the shooter. First, on direct examination, he stated that he did indeed see who had shot the decedent; later, on redirect, he said he did not. In the grand jury testimony the witness said he did see the shooter. Therefore, the grand jury testimony contradicted his testimony on redirect. The question, of course, is not whether the jury could properly hear this prior inconsistent statement. It could. See Stewart v. United States, 490 A.2d 619, 625 (D.C.1985) (prior inconsistent statement admissible only for impeachment and not as truth of the matters contained therein). This testimony, under these circumstances, however, was admitted only for a limited purpose and the only issue is whether the trial court's failure to give an immediate limiting instruction sua sponte constitutes reversible error. We conclude that, on these facts, it does not.
We begin our analysis by emphasizing that no such instruction was requested. In a line of cases beginning with Johnson v. United States, 387 A.2d 1084 (D.C.1978) (en banc), we have receded from a rule of near automatic reversal[9] in cases where no limiting instruction was given after the government impeached its own witness.[10] We have concluded that automatic reversal, where counsel did not request the immediate limiting instruction, would "destroy the incentive of defense counsel to point out errors during the trial. . . ." Id. at 1087. Counsel's silence, in the face of trial court conduct later asserted to be error, is significant for two reasons. First, it denies the trial court the opportunity to correct the error. Id. at 1086. Second, a failure to object, particularly where trial counsel was, as here, an experienced litigator, provides an informed and contemporaneous assessment of whether there was any damage due to the trial court's actions. See Hunter v. United States, 606 A.2d 139, 145 (D.C.1992) (sua sponte intervention by judge not necessary when judge could reasonably conclude, in the absence of defense objection, that prosecutor's remarks were not prejudicial); Parks v. United States, 451 A.2d 591, 613 (D.C.1982) (failure of defense to object suggests defense did not perceive prejudice). In short, if able trial counsel, immersed in the flow of the trial, and familiar with its "heart and soul," was not concerned that this aspect of the grand jury testimony might be improperly weighed by the jury, we are hard pressed from this distant vantage point to conclude otherwise. Cf. In re S.G., 581 A.2d 771, 774-75 (D.C.1990).[11]
Moreover, the circumstances here are quite different from the typical case where the government is surprised by the testimony of one of its witnesses. Ordinarily when surprise is declared, the out-of-court statement is not only damaging, but the statement constitutes the only evidence presented by that witness linking the defendant to the offense. See Lofty, supra, 277 A.2d at 100.[12]*936 In those circumstances, to guard against the jury's considering the out-of-court statement as substantive evidence, the need for an immediate cautionary instruction is far more compelling. See Johnson, supra, 387 A.2d at 1087 n. 5. Such a consideration does not apply here. First, this jury heard testimony of the dying declaration of the deceased identifying "Reds" as his assailant, evidence that "Reds" was Scales's nickname, and the testimony linking Scales to a black Mack semi-automatic pistol. Moreover, on direct examination, Hodge testified, unequivocally, that he saw the shooter and he identified Scales in court as that person. Thus, there was substantive evidence before the jury from this very witness on the point at issue. The danger, discussed above, that the jury will give improper weight to the out-of-court testimony unless immediately instructed as to its proper use, is simply not present here as it was in Lofty. Therefore, although there is no question that Hodge's testimony, overall, was crucial, we cannot say, under the circumstances presented here, where the trial court failed to give a limiting instruction sua sponte, when such an instruction was given later in the general charge, that the jury verdict was substantially swayed by that failure. See Lucas, supra, 436 A.2d at 1285.[13]
IV. The Defense Request to call Hodge as a Witness at the Pretrial Suppression Hearing
At the pretrial suppression hearing, Detective Vacin described the photo array procedure, and he testified that Hodge selected a photo of Scales from the array, identifying him as "Reds," the person who shot Lawrence. Defense counsel, seeking to establish that Hodge's out-of-court identification should be suppressed because the photo array was unduly suggestive and was obtained in a coercive environment, cross-examined Detective Vacin in that light. Defense counsel then requested that Hodge be called to testify, proffering that his testimony would differ drastically from that of the detectives. The court denied the request, stating that Hodge had nothing to offer regarding suggestivity, and that the court would not make a final reliability ruling until the appropriate time at trial. The trial court found it had sufficient information to rule that the photo identification procedure was not defective or unduly suggestive, giving detailed facts and reasoning to support its finding.[14]
At a pretrial suppression hearing, the trial court enjoys broad discretion in whether to allow proffered evidence regarding suggestivity, and we will overturn an exercise of that discretion only upon a showing of abuse. Towles v. United States, 428 A.2d 836, 846 (D.C.1981); see also Minor v. United States, 647 A.2d 770, 775 (D.C.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 347, 133 L.Ed.2d 244 (1995). Furthermore, the rules of evidence normally applied in criminal trials do not apply with full force at suppression hearings. Mitchell v. United States, 368 A.2d 514, 518 (D.C.1977); United States v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct. 988, 993-94, 39 L.Ed.2d 242 (1974). Scales contends that because he proffered that Hodge's testimony would differ from that of Detective Vacin and would be relevant to suggestivity and reliability, the trial court committed reversible error by not hearing from Hodge.
Scales's argument fails for several reasons. First, Scales's proffer was insufficient for review by this court: he gave no details of the alleged differences in testimony and did not preview the trial testimony fragments upon which he now relies. See McBride v. United States, 441 A.2d 644, 656 (D.C.1982) (when the court instructs witness not to answer, in order to show error the *937 proponent of the testimony must proffer the testimony expected, or something which clearly indicates it); District of Columbia v. Barriteau, 399 A.2d 563, 569 (D.C.1979) ("[t]o properly preserve excluded testimony for review on appeal, trial counsel must normally make an offer of proof . . . [sufficient] `to lay the foundation for an affirmative showing of error'") (quoting Shlopak v. Davison, 34 A.2d 126, 127 (D.C.1943)). Second, even though Hodge testified on cross-examination and redirect at trial that he was pressured to make the identification, Scales did not seek reconsideration of the pretrial ruling on admissibility. To be sure, in most circumstances the pretrial ruling is the law of the case and cannot ordinarily be revisited at trial; however, when new grounds, including new facts, surface at trial, the defendant may seek to reopen the matter. Rushing v. United States, 381 A.2d 252, 257 (D.C.1977). Scales failed to do so, and he also failed to request that the court make a final reliability determination.[15] Because he did not attempt to reopen the matter, when events at trial suggested that he might have been entitled to do so, the issue has not been preserved. Smith v. United States, 666 A.2d 1216, 1225 (D.C.1995); James v. United States, 580 A.2d 636, 642-43 (D.C.1990).
Finally, even if Scales's proffer was sufficient and the issue was preserved, we conclude that the trial court did not commit reversible error in disallowing Scales's request to call Hodge as a witness at the pretrial hearing. In Minor, supra, 647 A.2d at 775, the trial court denied a defense request to call the identifying witness at a hearing on a motion to suppress the show-up identification. The government had presented only the testimony of another officer who had witnessed the show-up identification. The trial court ruled, on the basis of that testimony, that the identification procedure was not suggestive and the identification was reliable. We held that the trial court did not abuse its discretion in denying the request to call the witness because the contested witness's trial testimony was fully consistent with the other officer's suppression hearing testimony, and because testimony from the contested witness would not have affected the outcome of the motion. Id. Similarly, Hodge's testimony on direct examination was fully consistent with Detective Vacin's suppression hearing testimony. In addition, as we discussed in Part II., Hodge's direct testimony established the necessary predicate for admitting Hodge's prior identification of Scales. Therefore, in the absence of a specific proffer by counsel that Hodge would deny the identification, we have no basis for concluding that Hodge's testimony at the suppression hearing would have affected the outcome of the motion. Under these circumstances, we cannot say that the trial court abused its discretion in refusing to hear testimony from Hodge at the suppression hearing.
V.
Because we conclude that there were no errors committed by the trial court requiring reversal, the judgment of conviction is
Affirmed.
NOTES
[1] D.C.Code § 22-2401 (1989 Repl.), § 22-3202 (1995 Supp.); D.C.Code § 22-3204 (1995 Supp.); D.C.Code § 22-3204 (1995 Supp.).
[2] Hodge also selected a photograph of co-defendant Ross from a separate array.
[3] The government contends that In re L.D.O. and Fletcher are no longer good law either because of later Supreme Court precedent, see United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988), or because of an amendment to D.C.Code § 14-102 (1996 Supp.), which became effective after Scales's trial. See note 5, infra. In light of our resolution of this issue on other grounds, we do not consider either contention.
[4] The trial court gave the standard limiting instruction for prior inconsistent statements as part of its final instructions.
[5] This statute, when this case was tried, permitted impeachment of a party's own witness upon a claim of surprise with the impeaching material admitted for that purpose only, not as substantive evidence. See Lofty v. United States, 277 A.2d 99, 101 (D.C.1971). The statute has since been amended to provide that some impeaching material given under oath can be admitted as substantive evidence. The government argues that the amended statute would have permitted the grand jury testimony used here to be so considered; therefore, no limiting instruction would be necessary. The government urges that we decide this issue on that ground. We decline to do so because we affirm for another reason.
[6] Scales has not renewed any objection on that ground in this appeal.
[7] Counsel objected at only one other point, suggesting that the witness might need his own attorney. That objection was overruled.
[8] As noted above, the only relevant objection made was on the ground that there was no genuine surprise, a contention not made in this appeal.
[9] See, e.g., United States v. McClain, 142 U.S.App. D.C. 213, 218, 440 F.2d 241, 246 (1971) ("whenever evidence is admitted only for a limited purpose, it is plain error, in the absence of manifest waiver, to omit an immediate cautioning instruction"); see also Coleman v. United States, 125 U.S.App. D.C. 246, 248-49, 371 F.2d 343, 345-46 (1966).
[10] See Byers v. United States, 649 A.2d 279, 285 (D.C.1994) ("Although a cautionary instruction `is required when a party, surprised by its own witness, impeaches the witness with a prior inconsistent statement,' the failure to give it does not automatically result in reversal." (quoting Johnson, supra, 387 A.2d at 1087 n. 5)); Stewart, supra, 490 A.2d at 625 (failure to give an immediate limiting instruction does not always constitute plain error); Gordon v. United States, 466 A.2d 1226 (D.C.1983) (reversal is not automatic when the trial court fails to give a Lofty instruction); Lucas, supra, 436 A.2d at 1283-85 (holding that the harmless error rule applies to review of a trial court's failure to give a sua sponte cautionary instruction).
[11] Nor do we think that certain remarks by the prosecutor, in closing argument, can fairly be read as inviting the jury to give improper consideration to the "impeachment" evidence. See Hawkins v. United States, 606 A.2d 753, 761 (D.C.1992).
[12] In Lofty the out-of-court statement was not just the only evidence, offered by the witness, linking the defendant to the crime, it was the only such evidence of any kind from any source. Id. at 100.
[13] We also reject appellant's claim that the trial court erred in not permitting recross-examination. Whether to allow recross-examination is a matter committed to the sound discretion of the trial court. Here, we discern neither an abuse of discretion nor the introduction of new matters in redirect that would invoke the confrontation clause of the Sixth Amendment. Singletary v. United States, 383 A.2d 1064, 1073 (D.C.1978).
[14] The trial court stated that everyone in the photo array looked as young as appellant and had similar complexions and hair styles, and that there was nothing inherently suggestive about the fact that both defendants' photos were placed fifth in stacks of nine photos.
[15] Scales also contends that remand is required because the trial court never made a final reliability determination. We disagree. No reliability determination is required unless the trial court has determined that the eyewitness identification was unduly suggestive. Greenwood v. United States, 659 A.2d 825, 827-28 (D.C.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995); see also Neil v. Biggers, 409 U.S. 188, 196, 198-200, 93 S.Ct. 375, 380-381, 381-383, 34 L.Ed.2d 401 (1972). The trial court reviewed the photo arrays and heard testimony about the photo array procedures; it found that they were not unduly suggestive. These findings were enough, by themselves, to admit the testimony concerning the photo identification; no reliability finding was necessary. Greenwood, supra, 659 A.2d at 828. Although the trial judge went on to make a preliminary reliability finding, and instructed the government to remind him to make a final reliability determination at trial, it cannot be error to omit such final determination when none is required. Id.
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714 F.Supp. 700 (1989)
Robert RITCHIE, Susan Ritchie and Paul Fialkin, Plaintiffs,
v.
CARVEL CORPORATION, Defendant.
No. 87 Civ. 8856(PNL).
United States District Court, S.D. New York.
June 20, 1989.
*701 Herzfeld & Rubin, New York City, for plaintiffs (Peter J. Kurshan, of counsel).
Eric B. Kaviar, Jeffrey A. Klatzkow, Yonkers, N.Y., and Herbert F. Roth, New York City, for defendant.
OPINION AND ORDER
LEVAL, District Judge.
Defendant Carvel Corp. moves to dismiss the complaint for improper venue, contending that this action may be brought only in the Supreme Court of the State of New York, Westchester County. Defendant's motion is granted.
Background
On June 8, 1984 plaintiffs Robert Ritchie and Susan Ritchie entered into a Carvel Retail Manufacturer's License Agreement under which they were licensed to manufacture and sell Carvel products in a Carvel franchise in Mesa, Arizona. Plaintiff Paul Fialkin entered into a similar agreement with Carvel on October 3, 1984 with respect to a Carvel franchise in Phoenix, Arizona. The Ritchies ceased operating their store and abandoned the premises in October 1985. Shortly thereafter, Carvel terminated their license. Fialkin ceased operating his store in January 1986. Carvel terminated his license.
The complaint was filed in January 1987 in the United States District Court for the District of Arizona. It alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, et seq., as well as state law claims of fraud, negligent misrepresentation, breach of contract and breach of fiduciary duty. In February 1987 Carvel moved to dismiss for improper venue, or, in the alternative, to transfer the action to this court. The motion was based on a forum selection clause in the license agreements. Plaintiffs contended that the forum selection clause was void by reason of Carvel's fraudulent inducements.
The Arizona district judge, Robert C. Broomfield, held that the forum selection clause was binding and enforceable and transferred the action to this court pursuant to 28 U.S.C. § 1404(a), "in the interest of justice."
In this court, plaintiffs then filed a second amended complaint which omits RICO allegations. Carvel then made this motion to dismiss based, once again, upon the forum selection clause, which provides that, unless the action is within the exclusive jurisdiction of federal courts, it may be lodged only in the Supreme Court of the State of New York, Westchester County. Plaintiffs cross-move for leave to file a third amended complaint to reallege a RICO claim.
*702 Discussion
Defendant contends that under the forum selection clause of the license agreements, unless the action is within the exclusive jurisdiction of the federal courts, the sole venue is the Supreme Court of the State of New York, Westchester County. This contention is borne out by the license agreement between the parties. Paragraph 28 provides:
As to any legal action that Licensee may bring against Carvel or any officer, director or employee of Carvel either during the term of this Agreement or thereafter where only the federal courts have jurisdiction over the subject matter of such legal action it is agreed and understood that such legal action shall only be brought in the United States District Court for the Southern District of New York and that such court shall be deemed be the court of sole and exclusive venue for the bringing of such action. As to any other legal action that Licensee may bring against Carvel or any officer, director or employee of Carvel, it is understood and agreed that any such action shall only be brought in the Supreme Court of the State of New York, in the County of Westchester and that such Court shall be deemed to be the court of sole and exclusive venue for the bringing such action.
Plaintiffs oppose the motion on three grounds. They contend that: (1) this very motion was denied by Judge Broomfield, and should not be reconsidered by this court; (2) newly discovered evidence shows that the license agreements were procured by fraud, and therefore the forum selection clause should not be enforced; and (3) this motion is moot because plaintiffs have sought, and should be granted, leave to amend the complaint to reallege RICO violations.
1. Judge Broomfield's Decision
Plaintiffs argue that Judge Broomfield ruled on the question of proper venue when he transferred the action to this court.
The circumstances have changed in two respects: First, plaintiffs have voluntarily dropped the admittedly unsupported RICO claim and the complaint no longer contains a federal cause of action. (This change is of limited force as plaintiffs are petitioning to amend the complaint again to re-assert RICO claims.) Second, at the time of the Arizona decision, Carvel was taking the position that federal courts have exclusive jurisdiction over plaintiffs' RICO claim because New York appellate courts had ruled that state courts lacked jurisdiction over RICO claims. See, e.g., Greenview Trading Co. v. Hershman & Leicher, P.C., 108 A.D.2d 468, 489 N.Y.S.2d 502 (1st Dep't 1985). Since that time, however, the New York Court of Appeals in Simpson Electric Corp. v. Leucadia, Inc., 72 N.Y.2d 450, 534 N.Y.S.2d 152, 530 N.E.2d 860 (1988), held that New York's courts have concurrent jurisdiction of RICO claims. The motion is, therefore, not, as plaintiffs claim, identical to that filed in the District Court in Arizona. The controlling factors have changed.
2. Evidence of Fraud
Plaintiffs also argue that the forum selection clause should not be enforced because the license agreements were procured by fraud. Under federal law,[1] contract forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513 (1972); see Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985).[2] Enforcement is unreasonable *703 where the opposing party establishes fraud, undue influence, or overreaching bargaining power with respect to the forum selection clause. See The Bremen v. Zapata Off-Shore Co., 407 U.S. at 12-13, 92 S.Ct. at 1914-15; Bense v. Interstate Battery System of America, Inc., 683 F.2d 718, 721-22 (2d Cir.1982); Karl Koch Erecting Co. v. New York Convention Center Development Corp., 656 F.Supp. 464, 467 (S.D.N.Y.1987), aff'd, 838 F.2d 656 (2d Cir.1988).
A forum selection clause is to be enforced, except where the clause itself is procured by fraud. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2457 n. 14, 41 L.Ed.2d 270 (1974).[3] Plaintiffs do not allege that Carvel made any representations concerning the forum selection clause itself.
Plaintiffs made this same argument before Judge Broomfield, who found that plaintiffs failed to establish any basis for relief from the forum selection clause, including fraud. Plaintiffs freely entered into the license agreements, with awareness of the forum selection clause. In fact, they were represented by counsel. They may not now reargue the issue. The new evidence plaintiffs claim to have discovered in support of their allegations of fraud is insubstantial.
3. Motion to Amend the Complaint
Plaintiffs contend that their cross-motion for leave to amend the complaint to add a RICO claim moots the present motion, because after such amendment this court will once again be the proper forum under the forum selection clause. This argument fails because amendment of the complaint will not give this court exclusive jurisdiction over the action.
Neither the United States Supreme Court nor the Court of Appeals for the Second Circuit has addressed the issue whether federal courts have exclusive jurisdiction over civil RICO claims. Although some federal courts have disagreed, the majority hold that federal jurisdiction over RICO claims is not exclusive. The Courts of Appeals for the Ninth and Fourth Circuits and several district courts have held that state courts have concurrent jurisdiction over civil suits under RICO. Brandenburg v. Seidel, 859 F.2d 1179, 1195 (4th Cir.1988); Lou v. Belzberg, 834 F.2d 730, 737 (9th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1302, 99 L.Ed.2d 512 (1988); Jae-Soo Yang Kim v. Pereira Enterprises, Inc., 694 F.Supp. 200, 202 (E.D.La.1988); Village Improvement Association v. Dow Chemical Co., 655 F.Supp. 311, 313 (E.D. Pa.1987); Karel v. Kroner, 635 F.Supp. 725, 731 (N.D.Ill.1986); Luebke v. Marine National Bank, 567 F.Supp. 1460, 1462 (E.D.Wisc.1983). The Court of Appeals for the Seventh Circuit has "expressed doubt that federal courts have exclusive jurisdiction over RICO claims." Crotty v. Chicago Heights, 857 F.2d 1170, 1172 n. 6 (7th Cir.1988) (citing County of Cook v. Midcon Corp., 773 F.2d 892, 905 n. 4 (7th Cir. 1985)). The Court of Appeals for the Fifth Circuit has similarly implied that it would hold in favor of concurrent jurisdiction. See Dubroff v. Dubroff, 833 F.2d 557, 562 (5th Cir.1987).
On the other hand, the Court of Appeals for the Sixth Circuit and several district courts have held that federal courts have exclusive jurisdiction over civil RICO claims. Morda v. Klein, 865 F.2d 782, 784 (6th Cir.1989); Chivas Products Ltd. v. Owen, 864 F.2d 1280, 1281 (6th Cir.1988); Hampton v. Long, 686 F.Supp. 1202, 1206 *704 (E.D.Tex.1988) ("This court will not foist RICO ... on unwilling Texas courts."); Spence v. Flynt, 647 F.Supp. 1266, 1270 (D.Wyo.1986); Massey v. Oklahoma City, 643 F.Supp. 81, 84 (W.D.Okl.1986).
State courts are presumed to have concurrent jurisdiction with federal courts over claims arising under federal laws. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78, 101 S.Ct. 2870, 2874-75, 69 L.Ed.2d 784 (1981). "This presumption in civil cases arises both out of federal recognition of the states' independent sovereignty and from the states' duty under the Supremacy Clause to recognize federal law as paramount." Chivas Products Ltd. v. Owen, 864 F.2d at 1282. The presumption may be rebutted "[a] by an explicit statutory directive, [b] by unmistakable implication from legislative history, or [c] by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. at 478, 101 S.Ct. at 2875. Applying this standard, I conclude that state courts have concurrent jurisdiction over civil RICO claims.
a. Statutory Directive
First, RICO does not expressly provide for exclusive federal jurisdiction. Section 1964(c) of the statute provides: "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court...." 18 U.S.C. § 1964(c). It does not state that federal courts will have exclusive authority to hear such suits. "It is black letter law ... that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. at 479, 101 S.Ct. at 2875; see Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507-08, 82 S.Ct. 519, 522-23, 7 L.Ed.2d 483 (1962).[4]
b. Legislative History
Nor does RICO's legislative history reveal any intent so to restrict jurisdiction. There is no reference to the question of jurisdiction in any of the committee reports, floor debates or sponsors' memoranda.[5] Rather, "the evidence establishes that [Congress'] attention was focused solely on whether to provide a private right of action." Lou v. Belzberg, 834 F.2d at 736 (citing Cianci v. Superior Court, 40 Cal.3d 903, 912, 221 Cal.Rptr. 575, 579, 710 P.2d 375, 379 (1985)).
The Court of Appeals for the Sixth Circuit, has inferred congressional intent to grant federal courts exclusive jurisdiction from RICO's similarity to Section 4 of the Clayton Act, 15 U.S.C. § 15. Chivas Products Ltd. v. Owen, 864 F.2d at 1283-84; accord County of Cook v. Midcon Corp., 574 F.Supp. 902, 912 (N.D.Ill.1983), aff'd on other grounds, 773 F.2d 892 (7th Cir.1985). It reasons that because the private right of action under the federal antitrust laws has been consistently interpreted as exclusively within the federal courts' jurisdiction,[6] and *705 the language of RICO is modeled on that of the Clayton Act, Congress must have intended the same limitations for RICO as for the Clayton Act.
The three other courts of appeals to consider the argument have rejected this reasoning. See Brandenburg v. Seidel, 859 F.2d at 1193 (the modeling of Section 1964(c) on Section 4 of the Clayton Act does not give rise to an "`unmistakable implication' of congressional intent to confer exclusive jurisdiction"); Lou v. Belzberg, 834 F.2d at 737 ("mere borrowing of statutory language does not imply that Congress also intended to incorporate all the baggage that may be attached to the borrowed language"); County of Cook v. Midcon Corp., 773 F.2d at 905 n. 4 ("We doubt whether the analogy to antitrust law is sufficiently strong to conclude that because jurisdiction over antitrust cases is exclusively federal, RICO jurisdiction necessarily must follow suit."). I reject it as well.
The similarity between the language of Section 1964(c) and Section 4 of the Clayton Act is not a sufficient basis to support the inference of an unstated congressional intent to restrict civil RICO suits to the federal courts. I note furthermore that the jurisdictional language in RICO and the Clayton Act is not significantly different from the jurisdictional language of other statutes, such as Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), which do not confer exclusive jurisdiction in the federal courts. See Charles Dowd Box Co. v. Courtney, 368 U.S. at 506, 82 S.Ct. at 522; see also Lane v. Central Bank, 756 F.2d 814, 817-18 (11th Cir.1985) (private right of action to enforce the anti-tying provisions of the Bank Holding Company Act, 12 U.S.C. § 1975, using virtually identical language to that of Section 1964(c) and described as a "valuable supplement" to the antitrust laws, held to confer concurrent jurisdiction).
Although Congress patterned Section 1964(c) on Section 4 of the Clayton Act, there is no indication that Congress intended that implicit requirements of antitrust actions be impressed on civil RICO actions. Courts have consistently rejected the view that "RICO should be viewed as an extension of antitrust law in all respects." Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir. 1982) (Clayton Act requirement of "competitive injury" should not be extended to RICO), aff'd, 710 F.2d 1361 (en banc), cert. denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Schacht v. Brown, 711 F.2d 1343, 1357-58 (7th Cir.) (notion that objectives of RICO and antitrust laws are identical is not supported by legislative history), cert. denied, 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 698 (1983).
In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), the United States Supreme Court rejected the argument that Section 4's mandate that claimants prove "antitrust injury" in order to obtain damages under the Clayton Act requires that claimants must show independent "racketeering injury" to obtain relief under RICO. Id. at 498-99, 105 S.Ct. at 3285-86. This holding was based, in part, on the fact that Congress did not intend RICO to be identical to the Clayton Act, but mandated that RICO be construed more liberally in order to effectuate its remedial purposes. Id. at 499-500, 105 S.Ct. at 3286-87.
RICO's remedial purposes would be hindered if plaintiffs, who might for a variety of reasons prefer a state forum, were barred from state courts. The requirement that Section 1964 be broadly construed, Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 492 n. 10, 105 S.Ct. at 3282 n. 10, "strongly counsels us not to read the obstacle of exclusive jurisdiction into section 1964(c) on the sole basis of its similarity to section 4 of the Clayton Act." Lou v. Belzberg, 834 F.2d at 737 (quoting Cianci v. Superior Court, 40 Cal.3d at 913, 221 Cal.Rptr. at 579, 710 P.2d at 379); see HMK Corp. v. Walsey, 637 F.Supp. 710, 717 (E.D.Va.1986) (because "RICO differs greatly from federal antitrust, the need for exclusive federal jurisdiction under the antitrust statutes cannot justify a similar result under RICO"), aff'd on other grounds, 828 F.2d 1071 (4th Cir.1987).
*706 I conclude that RICO's legislative history does not create the implication that exclusive jurisdiction was intended, thereby justifying deviation from the presumption of concurrent jurisdiction.
c. Federal Interest in Exclusive Jurisdiction
Finally, I consider whether federal interests in RICO are incompatible with state court jurisdiction. This determination is aided by consideration of "the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. at 483-84, 101 S.Ct. at 2878.
While uniform interpretation of any statute is desirable, differences in interpretations of RICO would neither confuse efforts to conform conduct to law nor threaten disappointment of legitimate expectations, as might result from varying interpretations of the antitrust laws. As to the antitrust laws, which involve the prohibition against certain modes of conducting otherwise lawful businesses, there might be considerable confusion and harm to the legitimate business world if the prohibitory scheme were interpreted in different ways by different court systems. Such danger justifies the exclusive federal jurisdiction. RICO is fundamentally different. RICO does not criminalize otherwise lawful conduct. It merely attaches new consequences to traditionally criminal conduct. Thus, there is little danger that legitimate business interests would be harmed by confusion resulting from conflicting interpretations. There is really no interest that would be served by restricting the enforcement of its provisions to the federal courts. The harm resulting from some inconsistency of results as between different courts is not sufficient to rebut the presumption of concurrent jurisdiction or to overcome the desirability of making this statute enforceable in all jurisdictions. Cf. Nordlicht v. New York Telephone Co., 799 F.2d 859, 864-65 (2d Cir.1986) (deciding that jurisdiction over federal claim involving Communications Act of 1934 was concurrent despite the international character of the claims in question), cert. denied, 479 U.S. 1055, 107 S.Ct. 929, 93 L.Ed.2d 981 (1987).
It has been argued that the exclusively federal nature (expertise of the judges and jurisdiction of the courts) of the majority of predicate acts alleged in civil RICO cases precludes concurrent jurisdiction. See, e.g., Chivas Products Ltd. v. Owen, 864 F.2d at 1285. RICO, however, incorporates both state and federal crimes, as predicate acts. 18 U.S.C. § 1961 (both federal and state criminal laws serve as RICO "predicate acts"); see HMK Corp. v. Walsey, 637 F.Supp. at 717; see also Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 499, 105 S.Ct. at 3286 (RICO "has become a tool for everyday fraud cases"); United States v. Turkette, 452 U.S. 576, 586-87, 101 S.Ct. 2524, 2530, 69 L.Ed.2d 246 (1981) (criminal RICO moves "large substantive areas formerly totally within the police power of the State into the Federal realm"); Chivas Products Ltd. v. Owen, 864 F.2d at 1289 (Krupansky, J., concurring) ("a majority of all RICO cases involve claims similar in nature to state law fraud, theft, or contract claims and, accordingly, there is no meaningful support for the [] position that state courts should be considered incompetent to judge such charges").[7]
The Sixth Circuit also stated that "the procedural apparatus created by §§ 1965-68 seems inconsistent with concurrent state court adjudication of § 1964(c) claims." Chivas Products Ltd. v. Owen, 864 F.2d at 1285. It is true there are procedural provisions of the RICO statute which envision a federal court proceeding. However, these are created for criminal or civil suits prosecuted by the United States Government. See, e.g., 18 U.S.C. §§ 1963(d)(3), 1965(c). Naturally these are heard in federal court. It does not follow that all civil actions *707 brought under Section 1964(c) must be brought in federal court. See Lou v. Belzberg, 834 F.2d at 738 (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. at 489, 105 S.Ct. at 3281, for the proposition that under RICO, "private and governmental actions are entirely distinct").
With respect to the hospitality of state courts to RICO claims, several states have held that their courts have concurrent jurisdiction over civil RICO claims. See, e.g., Rice v. Janovich, 109 Wash.2d 48, 742 P.2d 1230 (1987); Cianci v. Superior Court, 40 Cal.3d 903, 221 Cal.Rptr. 575, 710 P.2d 375 (1985); but see Maplewood Bank & Trust Co. v. Acorn, Inc., 207 N.J.Super. 590, 504 A.2d 819 (1985) (state courts do not have concurrent jurisdiction); Levinson v. American Accident Reinsurance Group, 503 A.2d 632 (Del.Ch.1985) (same). As noted previously, the New York Court of Appeals recently held that it has concurrent jurisdiction over RICO claims. Simpson Electric Corp. v. Leucadia, Inc., 72 N.Y.2d 450, 534 N.Y.S.2d 152, 530 N.E.2d 860 (1988). In any event, the question whether a state court may entertain a RICO suit is a question of federal law, not of state law.
I conclude that the presumption of concurrent jurisdiction is not rebutted by any of the factors articulated in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870. I am convinced that the purposes of Section 1964 are best served by concurrent jurisdiction. Accordingly, plaintiffs' filing of a third amended complaint would not moot this motion.
Conclusion
In accordance with the forum selection clause of the license agreements, this action may be brought only in the Supreme Court of the State of New York, Westchester County. Defendant's motion to dismiss the action is granted.
SO ORDERED.
NOTES
[1] The enforceability of a forum selection clause in such context is a matter of federal law. See Stewart Organization, Inc. v. Ricoh Corp., ___ U.S. ___, 108 S.Ct. 2239, 2242-43, 101 L.Ed.2d 22 (1988) (procedures with respect to venue are governed by federal law). In any event, New York law yields the same result as federal law. See, e.g., Alwinseal, Inc. v. Travelers Indemnity Co., 61 A.D.2d 803, 402 N.Y.S.2d 33 (2d Dep't 1978) (forum selection are enforceable).
[2] Although The Bremen dealt with an international forum selection clause in an admiralty action, "its reasoning applies with much force to federal courts sitting in diversity.... Though state policies should be weighed in the balance, the authority and prerogative of the federal courts to determine the issue, as Congress has directed by § 1404(a), should be exercised so that a valid forum selection clause is given controlling weight in all but the most exceptional cases." Stewart Organization, Inc. v. Ricoh Corp., 108 S.Ct. at 2250 (Kennedy, J., concurring).
[3] Plaintiffs' reliance on Red Bull Associates v. Best Western International, Inc., 862 F.2d 963 (2d Cir.1988), is misplaced. In Red Bull, the court held that a forum selection clause should not be enforced where enforcement would contravene strong public policy. Here, there is no public policy interest contravening the enforcement of the terms agreed by the parties as to where litigation will be heard.
[4] Explicit language creating exclusive federal jurisdiction is illustrated in many federal statutes. See, e.g., Federal Tort Claims Act, 28 U.S. C. § 1346(b) ("the district courts ... shall have exclusive jurisdiction of civil actions"); Patent and Copyright Act, 28 U.S.C. § 1338(a) ("[s]uch jurisdiction shall be exclusive of the courts of the states"); Admiralty Jurisdiction, 28 U.S.C. § 1333 ("[t]he district courts shall have original jurisdiction, exclusive of the courts of the States").
[5] In an interview given 14 years after the passage of the statute, G. Robert Blakey, a consultant who had a major role in the drafting of the statute, apparently stated that "no one even thought of the issue" of concurrent jurisdiction. Courts which have found exclusive jurisdiction attached weight to Professor Blakey's further quoted comment that, "Had anyone brought up the question of state court jurisdiction we would have said no." Flaherty, Two States Lay Claim to RICOInterview with Robert Blakey, Nat'l L.J., May 7, 1984, at 10, col. 4; see Lou v. Belzberg, 834 F.2d at 736 n. 4. To find an intent of Congress at odds with its utterance, based on a long subsequent speculation of a Congressional consultant, seems to be pushing the construction of legislative history far indeed.
[6] The United States Supreme Court has held that the Clayton Act confers exclusive federal jurisdiction. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379-80, 386, 105 S.Ct. 1327, 1331-32, 1335, 84 L.Ed.2d 274 (1985).
[7] The Supreme Court recently rejected an argument that RICO claims are "too complex to be subject to arbitration." Shearson American/Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 2344, 96 L.Ed.2d 185 (1987). The Court decided that there is no conflict between arbitration and RICO's purposes. Id.
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687 A.2d 213 (1997)
Carl RUSSELL, Appellant,
v.
UNITED STATES, Appellee.
No. 93-CF-1510.
District of Columbia Court of Appeals.
Submitted December 5, 1996.
Decided January 9, 1997.
Ferris Ridgely Bond, Washington, DC, appointed by the court, was on the brief for appellant.
Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Elizabeth Trosman, Michael F. Tubach and Heidi L. Rummel, Assistant United States Attorneys, were on the brief for appellee.
Before FERREN and STEADMAN, Associate Judges, and BELSON, Senior Judge.
STEADMAN, Associate Judge:
The only issue in this appeal is whether it is illegal to operate within the District of Columbia a car with Virginia tags that does not have a Virginia inspection sticker on its windshield. It was on this basis that a United States Park Police officer stopped appellant Carl Russell. After discovering that Russell's driver's license was suspended, the officer placed Russell under arrest. A search of the car revealed a loaded pistol and twelve rounds of ammunition.
At appellant's trial on weapons charges, the trial court denied Russell's motion to suppress the gun and ammunition. It specifically rejected Russell's argument that District of Columbia law does not require the display of a Virginia inspection sticker to drive a Virginia registered car in the District, even though such a sticker would be required to lawfully drive within Virginia, and therefore, the initial traffic stop was in violation of the Fourth Amendment. We agree with the trial court.
The Supreme Court recently summarized the familiar governing law in this area in the context of a traffic stop.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects *214 against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.
Whren v. United States, ___ U.S. ___, ___, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted). Of course, probable cause is not required: an investigatory stop is also permissible if the police have a reasonable suspicion of criminal activity. Ornelas v. United States, ___ U.S. ___, ___, 116 S.Ct. 1657, 1660, 134 L.Ed.2d 911 (1996); In re M.E.B., 638 A.2d 1123, 1133 (D.C.1993).
In the case before us, the relevant D.C. Regulation provides that
A vehicle owned by a non-resident and currently registered in another jurisdiction shall display the proper inspection sticker issued for the vehicle in accordance with the requirements of the issuing jurisdiction.
18 DCMR § 602.7 (1995). Because Russell's car had Virginia tags, the "issuing jurisdiction" for § 602.7 purposes was Virginia.
Virginia requires that automobiles registered in the state submit to an annual safety inspection. VA.CODE ANN § 46.2-1157 & 1158 (Michie 1996). If a vehicle passes inspection, an inspection sticker is placed on the windshield. VA.CODE ANN § 46.2-1163 (Michie 1996). That same section of Virginia law also requires that
[the inspection] sticker shall be displayed on the windshield of such vehicle or at such other designated place upon the vehicle at all times when it is operated on the highways in the Commonwealth and until such time as a new inspection period shall be designated and a new inspection sticker issued.
Id.
Russell does not dispute the fact that his windshield did not display a valid Virginia inspection sticker at the time he was stopped. Rather, Russell argues, as he did before the trial court, that under Virginia law he was not required to display an inspection sticker while driving outside Virginia. Russell points out that he was required by Virginia law to display the inspection sticker on his car only "at all times when it is operated on the highways in the Commonwealth," and, consequently, not when operated in the District of Columbia. Thus, Russell urges, he was not in violation of § 602.7 when the Park Police officer stopped him because he "displayed" the sticker "in accordance with the requirements of the issuing jurisdiction" by displaying no sticker at all. Because under this analysis he was not in violation of § 602.7, Russell asserts that the officer lacked reasonable suspicion to stop him; accordingly, his stop was in violation of the Fourth Amendment and the fruit of the subsequent search incident to his arrest must be suppressed.
While Russell's argument is ingenious, we agree with the trial court that it is incorrect. Russell's argument assumes that the phrase "in accordance with the regulations of the issuing jurisdiction" in § 602.7 modifies the verb "display" and encompasses the geographical restriction in the Virginia Code that a vehicle display an inspection sticker only "when it is operated upon the highways in the Commonwealth." We think the far more logical and sensible reading of § 602.7 is that the phrase "in accordance with the regulations of the issuing jurisdiction" principally modifies the immediately preceding verb, "issued," and requires out-of-District motorists to be in compliance with the substantive procedures and requirements relating to a proper inspection sticker imposed by the issuing jurisdiction.
To adopt Russell's crabbed reading would render § 602.7 meaningless with respect to any driver of a vehicle registered in Virginia, a not insignificant number of which drive on the streets and highways of the District of *215 Columbia on any given day. An apparent purpose of § 602.7 is to provide some assurance that cars from other jurisdictions are in safe condition to operate here. We do not think the drafters of § 602.7 intended a reading that would make it inapplicable to such a large number of non-resident motorists. See Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C.1983) (en banc) (noting that in statutory construction absurd results are disfavored); Wright v. United States, 315 A.2d 839, 841 (D.C.1974) (same). That the Virginia law relating to the display of the inspection sticker refers only to the highways of Virginia is simply a recognition of the territorial limits of Virginia sovereignty and the permissible reach of its law. It is District law that made appellant's operation of his vehicle illegal here.[1]
Affirmed.
NOTES
[1] Russell also suggests that D.C.Code § 40-303(a) (1990), which provides a thirty day grace period for new residents to comply with D.C. motor vehicle laws, somehow precludes a finding of reasonable suspicion here. The fact that such a defense might be available to Russell hardly serves to negate reasonable articulable suspicion in the circumstances here.
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527 N.W.2d 178 (1995)
247 Neb. 323
Mertisha KROEGER, Appellant,
v.
FORD MOTOR COMPANY, Appellee.
No. S-93-334.
Supreme Court of Nebraska.
February 3, 1995.
*180 James E. Schaefer, of Gallup & Schaefer, for appellant.
William J. Brennan and Joseph A. Jordano, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., and John M. Thomas, for appellee.
HASTINGS, C.J., CAPORALE, FAHRNBRUCH, WRIGHT, and CONNOLLY, JJ.
CONNOLLY, Justice.
Mertisha Kroeger appeals the directed verdict entered against her by the Douglas County District Court in her product liability action against the appellee, Ford Motor Company (Ford). Kroeger's claim arose out of a one-car accident in which she was seriously injured while driving an automobile manufactured by Ford. Kroeger sued Ford under the theories of strict liability, negligence, breach of express warranty, and breach of implied warranty. At the end of Kroeger's case in chief, Ford made a motion for directed verdict, which the trial court sustained. For the reasons stated below, we affirm the trial court's decision.
I. FACTUAL BACKGROUND
1. THE VEHICLE
Kroeger purchased a new 1986 Ford Taurus automobile on January 8, 1986, from Atchley Ford in Omaha. The Taurus was manufactured by the appellee, Ford. Kroeger began experiencing mechanical problems with the vehicle almost immediately. She took the car back to Atchley on several occasions for repairs. After each repair, Kroeger testified, she was assured by Atchley that the *181 car had been repaired, that nothing was wrong with the car when she brought it in, or that whatever she was complaining of either could not be repaired or constituted a regular characteristic of the Ford Taurus.
After 4 months and several repairs by Atchley mechanics, Kroeger began experiencing problems with the power steering belts. Kroeger complained to the mechanics at Atchley that something was cutting or breaking the power steering belts and that when Kroeger executed a right turn in the vehicle, she would have to pull hard on the steering wheel to get it to come back after the turn. Various mechanics at Atchley adjusted and replaced the power steering belts on several occasions. They also replaced the pulley at least twice and attempted to adjust the pulley and align it with the power steering belts. During this period of time, Atchley mechanics also performed numerous other repairs, including aligning the front end and repairing the brakes, catalytic converter, air conditioner, and dashboard lights.
Despite the repeated trips to Atchley, Kroeger continued to experience problems with her car. In October 1986, when the car had been driven approximately 12,000 miles, Kroeger began taking the vehicle to McFayden Ford for service. During the month of October, McFayden's mechanics performed a number of repairs on Kroeger's Ford Taurus, including checking and adjusting various belts and disassembling the steering wheel to service the cruise control.
On November 18, McFayden's mechanics installed a new power steering rack. One of Kroeger's expert witnesses, Roy Burdick, concluded that whoever replaced the steering rack "hadn't finished his job and sent the car out with what I would say [was] faulty workmanship." Burdick believed, among other things, that the mechanics had reassembled the vehicle improperly using air wrenches instead of torque wrenches. He believed that McFayden's mechanics had failed to tighten various bolts and locknuts, creating a dangerous condition.
In late November, the car began making a "clunking" noise under the hood. Kroeger's husband, Robert Kroeger, opened the hood while his brother-in-law turned the steering wheel. Kroeger's husband saw the engine move from side to side. He contacted McFayden, which sent two mechanics, Keith Kruse and Robert Fredlund, to pick up the vehicle. Kruse testified in his deposition that he heard the clunking noise and saw the unusual movement of the engine. The vehicle was taken back to McFayden, where the mechanics tightened some of the bolts and replaced the power steering belts and the pulley.
2. THE CRASH
After driving the Ford Taurus home from the last repair, Kroeger testified, she refused to drive the vehicle again. However, on January 19, 1987, Kroeger agreed to pick up her mother-in-law and take her to a doctor's appointment at Immanuel hospital. Kroeger used the Ford Taurus on that occasion, and it was during the trip to the hospital that the accident in the instant case occurred.
Kroeger picked up her mother-in-law in Blair, Nebraska, and brought her to Omaha. The crash occurred on 72d Street in Omaha as Kroeger was driving toward the hospital. At the point where the accident occurred and in the surrounding area, 72d Street is a four-lane street, with two lanes containing northbound traffic and two lanes containing southbound traffic. Kroeger was traveling southbound on 72d Street in the west (right) lane. As the vehicle approached the hospital, Kroeger began to move toward the east (left) southbound lane so that she could execute a left turn to enter the hospital parking lot. At the point where Kroeger began to move the vehicle into the left lane and where the front left wheel was in the left lane, the steering wheel whipped out of her hands. Kroeger sensed that she had lost control of the vehicle and pressed the brake pedal to the floor. The brake was ineffective.
An eyewitness to the accident, Loyal Bridges, noticed the Kroeger vehicle as he was traveling northbound in the right-hand lane on 72d Street. Bridges testified that his attention was drawn to the Kroeger vehicle because he noticed that Kroeger was moving her hands erratically. Bridges saw the Kroeger vehicle move toward the west curb on 72d Street. Both tires on the passenger *182 side of the Kroeger vehicle climbed up onto the curb. The Ford Taurus traveled a short distance with the passenger side tires over the curb and then came back onto 72d Street and headed toward Bridges' vehicle. Bridges testified that he brought his automobile to a stop because he was unsure where the Kroeger vehicle was going. The Kroeger vehicle reached the left-hand southbound lane of 72d Street near the median, then turned to the right and went over the embankment on the west side of 72d Street. Bridges testified that he radioed his employer and instructed the people there to call for help.
3. THE TRIAL
Kroeger brought the instant action against Atchley, McFayden, and Ford individually, without alleging an agency relationship between Ford and the other defendants. Prior to trial, Kroeger reached a settlement agreement with Atchley and McFayden. At trial, with Ford as the only remaining defendant, Kroeger presented the testimony of Bridges and two expert witnesses, Burdick and Dr. William Weins. Burdick was of the opinion that some of the repairs performed by Atchley and McFayden were inadequate and constituted potential causes of the accident in the instant case. Dr. Weins was called by Kroeger to testify as to another potential cause of the accidenta phenomenon known as temporary loss of assist (TLA). However, Dr. Weins was not allowed to offer his opinion as to causation because the trial court found that there was insufficient foundation for Dr. Weins' opinion.
In addition to Bridges, Burdick, and Dr. Weins, Kroeger also called a number of mechanics from Atchley and McFayden to testify about the repairs performed on Kroeger's Ford Taurus. Police officers who investigated the accident scene testified as to their observations. Kroeger herself testified regarding the accident and the injuries she sustained.
At the end of Kroeger's case in chief, Ford made a motion for directed verdict, which the trial court granted. Kroeger appeals from that decision.
II. ASSIGNMENTS OF ERROR
Kroeger argues that the trial court erred in (1) not submitting her case to the jury based on Kroeger's own testimony that her Ford Taurus was defective, (2) sustaining Ford's motion in limine and refusing to admit evidence collected by the National Highway Transportation Safety Administration (NHTSA) concerning TLA, (3) failing to admit into evidence TLA complaints verified by Ford, and (4) refusing to allow Dr. Weins to offer an opinion as to causation.
III. STANDARD OF REVIEW
In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion from the evidence. Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994); Rohde v. Farmers Alliance Mut. Ins. Co., 244 Neb. 863, 509 N.W.2d 618 (1994); Wilson v. Misko, 244 Neb. 526, 508 N.W.2d 238 (1993).
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. Terry v. Duff, 246 Neb. 524, 519 N.W.2d 550 (1994); McDermott v. Platte Cty. Ag. Socy., 245 Neb. 698, 515 N.W.2d 121 (1994); Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (1994). The admissibility of evidence is reviewed for abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. Sindelar v. Canada Transport, Inc., 246 *183 Neb. 559, 520 N.W.2d 203 (1994); Kudlacek v. Fiat S.p.A., 244 Neb. 822, 509 N.W.2d 603 (1994).
IV. ANALYSIS
1. DIRECTED VERDICT IMPROPER BASED ON KROEGER'S TESTIMONY
As her first assignment of error, Kroeger contends that the trial court erred in directing a verdict in Ford's favor. Kroeger argues that her testimony and the testimony of other witnesses, without the opinion of Dr. Weins, were enough to raise genuine questions of fact that should have been submitted to the jury. At trial, Kroeger testified that in spite of her efforts to control her vehicle, she was unable to do so because the vehicle's steering wheel was inexplicably ripped from her hands while she was driving down 72d Street. All the other witnesses, except Dr. Weins, testified with regard to the events at the accident scene, the repairs conducted by Atchley and McFayden, and the various mechanical failures which may have caused the instant accident.
Without Dr. Weins' expert opinion, the cause of the failure of the steering system was based entirely upon circumstantial evidence. According to the testimony of Kroeger's expert witness Burdick, a number of the potential causes of this accident could be attributed to the mechanical repair work performed by Atchley and McFayden. However, the record reflects that Kroeger reached a settlement agreement with Atchley and McFayden. It is established law in Nebraska that settlement with an agent constitutes settlement with the principal, no matter what the parties may have intended. McCurry v. School Dist. of Valley, 242 Neb. 504, 496 N.W.2d 433 (1993). Thus, as to any liability which may have been attributed to Atchley or McFayden, Ford has effectively been released by Kroeger.
Circumstantial evidence is not sufficient to sustain a verdict depending solely thereon for support, unless the circumstances proved by the evidence are of such a nature and so related to each other that the conclusion reached by the jury is the only one that can fairly and reasonably be drawn therefrom. Rohde v. Farmers Alliance Mut. Ins. Co., supra. When there is direct evidence sufficient to refute all theories of the cause of damage except the one established solely by circumstantial evidence, there then remains but one inference deducible from the facts under the circumstances, and it is within the province of the trier of fact to make this determination. Id. However, where several inferences are deducible from the facts presented, a plaintiff does not sustain her position by reliance on only the inferences which would entitle her to recover. Anderson v. Farm Bureau Ins. Co., 219 Neb. 1, 360 N.W.2d 488 (1985); Popken v. Farmers Mutual Home Ins. Co., 180 Neb. 250, 142 N.W.2d 309 (1966). A directed verdict is required if more than one conclusion can reasonably be drawn from the circumstantial evidence presented. See Anderson v. Farm Bureau Ins. Co., supra.
Clearly, the record in the instant case reasonably supports more than one conclusion as to the cause of Kroeger's accident. Kroeger presented abundant evidence which tended to prove that the crash may have been caused by Atchley's or McFayden's negligence. As a result of the settlement agreement between Kroeger and Atchley and McFayden, Ford cannot be held liable for the negligence of either Atchley or McFayden. Thus, Kroeger failed to provide direct evidence refuting all the potential causes of the accident for which Ford cannot be held liable. The trial court did not err in refusing to submit Kroeger's case to the jury based on the evidence Kroeger presented.
2. TRIAL COURT'S REFUSAL TO ALLOW EVIDENCE COLLECTED BY THE NHTSA AND TLA COMPLAINTS VERIFIED BY FORD
Kroeger's second and third assignments of error appear to refer to the same piece of evidence: the last three pages of what was offered as exhibit 105. Those three pages contained nine brief summaries of accidents which were allegedly caused by locking or binding in the steering system of 1986 Ford Taurus or Sable automobiles. Kroeger attempted to introduce the accident summaries as part of a "concern analysis report" produced *184 by Ford which identified and addressed the company's concerns over the TLA problem. The trial court admitted into evidence as exhibit 105 the bulk of the concern analysis report, but excluded the accident summaries pursuant to Ford's motion in limine and objection at trial.
Ford contends that the trial court properly excluded the accident summaries because they constituted inadmissible hearsay. In response, Kroeger implicitly concedes that the accident summaries are hearsay, but argues that they were admissible under the hearsay exception in Neb.Rev.Stat. § 27-803(7) (Reissue 1989):
Subject to the provisions of section 27-403, the following are not excluded by the hearsay rule, even though the declarant is available as a witness:
. . . .
(7) Upon reasonable notice to the opposing party prior to trial, records, reports, statements or data compilations made by a public official or agency of facts required to be observed and recorded pursuant to a duty imposed by law, unless the sources of information or the method or circumstances of the investigation are shown by the opposing party to indicate a lack of trustworthiness.
(Emphasis supplied.)
From the record, it is clear that the accident summaries in question were prepared by Ford, not the NHTSA. The fact that the NHTSA requested Ford to compile the accident summaries is of no consequence. Compilations prepared by private entities at the direction of a federal agency do not constitute the "facts required to be observed and recorded pursuant to a duty imposed by law" contemplated by § 27-803(7). Nothing in the accident summaries indicates that representatives of the NHTSA observed anything in compiling the summaries. Rather, it appears that the NHTSA received notice of a problem with certain Ford automobiles and requested Ford to conduct its own investigation and report the results to the NHTSA. The information compiled by Ford does not fall within the hearsay exception in § 27-803(7), and the trial court properly excluded the accident reports.
3. TRIAL COURT'S REFUSAL TO ALLOW DR. WEINS TO OFFER AN OPINION AS TO CAUSATION
In her final assignment of error, Kroeger contends that the trial court erred in refusing to allow Kroeger's expert witness Dr. Weins to render his opinion regarding the cause of Kroeger's accident. The trial court afforded Kroeger several opportunities to lay the proper foundation for Dr. Weins' opinion, including allowing Kroeger to recall Dr. Weins the day after her first unsuccessful attempt to elicit his opinion. However, Kroeger failed to establish sufficient foundation, and the trial court refused to allow Dr. Weins to state his opinion. Had Dr. Weins been allowed to give his opinion, he would have stated that the accident was caused by the TLA defect.
The trial court found that the foundation for Dr. Weins' testimony was inadequate because Dr. Weins attempted to base his opinion on a factual scenario which was substantially different from what occurred during Kroeger's accident. During direct examination, Dr. Weins stated that an important factor in his analysis of the instant case was the effect that TLA would have on a vehicle that struck a curb at the time that the TLA effect manifested itself. Soon after that testimony was elicited, Kroeger's trial counsel asked Dr. Weins to offer an opinion as to the cause of the accident. The trial court sustained Ford's objection as to lack of foundation and noted that nothing in the record reflected that Kroeger had struck a curb.
Later in the trial, Kroeger recalled Dr. Weins in an attempt to lay the proper foundation for Dr. Weins' opinion. During that direct examination, Dr. Weins stated that he had relied on an assortment of testimony and exhibits in arriving at his conclusion. When asked if he could correlate the facts of the accident to the TLA defect, Dr. Weins stated, "Yes, I believe I can." However, Dr. Weins continued to assert his opinion based on the theory that the Kroeger vehicle struck a curb at the time that the TLA defect manifested itself. As support for that factual conclusion, *185 Dr. Weins cited the testimony of eyewitness Bridges.
The flaw in the foundation for Dr. Weins' opinion is that when Kroeger's testimony is compared with Bridges' eyewitness account, Dr. Weins' "TLA-curb" theory becomes inapplicable to the instant case. Kroeger testified that the steering wheel jumped out of her hands as she began to execute a lane change to the left. Nothing in the record supports an inference that Kroeger struck the curb on her right prior to beginning the move to the left lane. In fact, Kroeger testified that she had full control of her vehicle when she began to move toward the left lane. As the vehicle entered the left lane, the steering wheel began to move back and forth uncontrollably. Bridges testified that he saw the Kroeger vehicle move from the road onto the curb in the right lane. That move to the right, given the facts presented by the record in the instant case, occurred after Kroeger had already lost control of the vehicle.
The record does not support a theory based on the premise that the TLA effect coincided with Kroeger's vehicle striking the curb. According to Dr. Weins' testimony, the TLA defect would have caused Kroeger to oversteer to the left (since she was moving the vehicle in that direction), not to the right. Oversteering to the left would clearly not cause a vehicle to jump onto the curb bordering the right-hand lane. The only reasonable reading of the record reveals that Kroeger had already lost control of the vehicle when it ran onto the curb.
A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. McDonald v. Miller, 246 Neb. 144, 518 N.W.2d 80 (1994). The soundness of a trial court's decision regarding the admissibility of expert testimony depends upon the qualifications of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case. Coppi v. West Am. Ins. Co., ante p. 1, 524 N.W.2d 804 (1994). Expert testimony should not be received if it appears that the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion, and where the opinion is based on facts shown not to be true, the opinion lacks probative value. Latek v. K Mart Corp., 224 Neb. 807, 401 N.W.2d 503 (1987); Clearwater Corp. v. City of Lincoln, 202 Neb. 796, 277 N.W.2d 236 (1979). Since there was no basis in fact to support Dr. Weins' opinion, the trial court properly refused to accept it. See Green v. Jerome-Duncan Ford, 195 Mich. App. 493, 491 N.W.2d 243 (1992). See, also, Priest v. McConnell, 219 Neb. 328, 363 N.W.2d 173 (1985).
V. CONCLUSION
Kroeger's circumstantial evidence, without the expert opinion of Dr. Weins, was insufficient to overcome Ford's motion for directed verdict because Kroeger failed to refute with direct evidence the other potential causes of the accident for which Ford could not be held liable. The trial court properly excluded the accident summaries submitted to the NHTSA by Ford because those summaries constituted inadmissible hearsay. Likewise, the trial court did not abuse its discretion in finding that there was insufficient foundation to allow Dr. Weins to state his expert opinion as to the cause of the accident.
AFFIRMED.
WHITE and LANPHIER, JJ., not participating.
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125 Cal. App. 2d 278 (1954)
JACK W. JAMES, Respondent,
v.
KEY SYSTEM TRANSIT LINES (a Corporation), Appellant.
Civ. No. 15895.
California Court of Appeals. First Dist., Div. One.
May 18, 1954.
Donahue, Richards, Rowell & Gallagher and George E. Thomas for Appellant.
Ryan & Ryan and Daniel V. Ryan for Respondent. *280
BRAY, J.
From a plaintiff's judgment for $25,000, on a jury verdict, defendant appeals.
Questions Presented
1. Defendant does not question the sufficiency of the evidence to support the jury's implied finding of defendant's negligence, but contends plaintiff was guilty of contributory negligence as a matter of law.
2. Did the court err in refusing to inform the jury after its retirement that plaintiff's deposition, or a portion of it, could be read? If so, was such error prejudicial?
Facts
For over two and a half years plaintiff had been a policeman of the city of Berkeley, engaged in parking meter maintenance. He drove a three-wheeled motorcycle and at the time of the accident was engaged in checking parking meters. Defendant maintained two sets of interurban tracks along West Shattuck Avenue. Under agreement with the city, defendant was required to pave and keep in repair the portion of the street occupied by the tracks and for 2 feet on each side thereof. In the intersection of West Shattuck Avenue and Addison Street there is a "crossover" and a switchbox which is partly covered by wooden planking and partly by metal plate. Plaintiff's cause of action was based upon the alleged careless and negligent maintenance of the street by defendant in the area immediately adjacent to defendant's tracks "in that they permitted a large hole or depression to remain, and exist for a long period of time, in said street adjacent to said tracks." The evidence showed that the pavement was in a defective condition, that pieces were broken out and some of the pavement raised above and some below the level of the tracks. Plaintiff testified that there were several holes there. Plaintiff was familiar with the crossing, having gone over it at least twice a day during his employment by the city, and knew of its defective condition for that length of time. On this day, having checked the meters on one side of Shattuck, he was required to go to the other side to check the meters there. This required him to cross defendant's tracks at the intersection. He was proceeding at 5 to 7 miles per hour, in low gear, was in the act of shifting to second gear, had turned his head slightly to look for traffic when "there was a terrific snap in my neck ...," the motorcycle "took a sharp jolt," he heard the switchbox cover clanking and had no further recollection *281 until he was at the west curb of Shattuck 10 to 15 feet from the intersection. Plaintiff's neck injury was serious. Defendant contended at the trial, in addition to contending plaintiff was guilty of contributory negligence, that the pavement was not defective as claimed, and that the accident happened at a gap in the switchbox cover concerning which there was no complaint of negligent maintenance. As the sufficiency of the evidence to support the jury's implied adverse findings on the two latter subjects is not challenged, it is unnecessary to detail defendant's evidence in regard thereto.
1. Contributory Negligence.
[1] The contention that plaintiff, as a matter of law, was contributorily negligent, is based upon plaintiff's testimony that he knew for more than two and a half years the condition of the pavement where the accident occurred, and that he steered his motorcycle into the place where the condition existed. This contention overlooks the fact that plaintiff's duties required him to cross at this intersection, that the testimony shows that the pavement adjacent to the tracks against the entire width of Addison Street was in the same condition, and he had no choice except to cross the rough pavement; that in spite of this condition plaintiff had never theretofore experienced any bumps or difficulty in crossing; that he was in the process of making a left-hand turn and looking for traffic, thereby momentarily and necessarily taking his eyes from the pavement, and that he did not deliberately ride into any particular hole or depression. While the evidence might have supported a finding of contributory negligence, it did not compel it. Whether plaintiff, under all the circumstances of the case, was guilty of contributory negligence because of his knowledge of the conditions at the intersection, was a question of fact and not of law. We cannot say that the evidence of contributory negligence meets the test required to prove it as a matter of law. [2] This test is stated in Severin v. Cox, 104 Cal. App. 2d 331, 333-334 [231 P.2d 134], quoting from Anthony v. Hobbie, 25 Cal. 2d 814, 818 [155 P.2d 826]: " 'The rule has been stated in various ways in a legion of cases, that contributory negligence is not established as a matter of law unless the only reasonable hypothesis is that such negligence exists; that reasonable or sensible men could have drawn that conclusion and none other; that where there are different inferences *282 that may be drawn, one for and one against, the one against will be followed; and that before it can be held as a matter of law that contributory negligence exists, the evidence must point unerringly to that conclusion. (Citing many cases.)' "
2. Plaintiff's Deposition.
[3] In impeachment of plaintiff, defendant used a portion of the deposition taken of plaintiff by defendant, reading that portion into evidence. Thereafter defendant offered the whole deposition, and suggested a stipulation that any part of it might later be read to the jury. Plaintiff refused to stipulate that any portion could be read other than that which had already been read. Defendant then stated he would later ask permission to read it into evidence. The deposition was admitted. In argument defendant read to the jury portions of the deposition, apparently additional to those theretofore read. The entire deposition was not read. The jury retired to deliberate at 2:16 p. m. At 3:04 in chambers, the judge informed counsel that the jury had requested a certain exhibit and "to see the deposition" and that he intended to send in all the exhibits but not the deposition. All parties agreed and now agree that it would be improper to give the jury the deposition. (Code Civ. Proc., 612, prohibits it.) Defendant immediately requested that the jury be told that it could have reread the portions already read, if it so desired. Plaintiff objected on the ground that the jury had not asked to have them read. The court refused to instruct the jury as requested. At 3:50 p. m. the judge informed counsel that the jury had asked the bailiff to convey a message to the judge "that they considered the deposition the important thing." Defendant again requested that the jury be informed of its right to return to the courtroom and have read to it such portion of the deposition as had been read into evidence, at least. Plaintiff then objected to such an instruction and stated that if any of the deposition was to be read the whole should be read but objected to any reading whatever as the jury had not asked for a reading. Considerable discussion by court and counsel ensued, defendant insisting that the jury be informed of its right to have, if not the whole deposition, the portion already read, again read. Plaintiff insisted that no instruction be given the jury but that if any of the deposition were read the whole should be read. The court then denied defendant's request. Thereupon defendant further requested that the jury be returned to the courtroom and asked by the court *283 just what it wanted from the deposition. "It is just like having only one section of the testimony read." Plaintiff stated: "That would follow my point, that if the jury should hear the deposition, they should hear the entire deposition with the exception of the objections." Defendant then stated that the jury was entitled to be told of its right to have the whole of the deposition read, less any objectionable matter. Plaintiff again objected to any instruction being given. Thereupon the court instructed the bailiff to inform the jury that the law prohibits the taking of a deposition to the jury room. In its original instructions to the jury the court did not inform the jury of its right to return to court for testimony and instructions, which right is provided in section 614, Code of Civil Procedure. At 4:40 p. m. the jury returned to the courtroom with a 10 to 2 verdict in favor of plaintiff.
It is clear from the action of the jury that it wanted to know something that was in the deposition, and that it did not know how to get the information. It first asked for the deposition itself. On being informed that it could not be taken to the jury room the jury informed the judge that in its mind it considered the deposition "the important thing." This message obviously would not have been sent if the jury did not feel it needed at least some portion of the deposition to clear up confusion over some part of its contents. It was the duty of the judge to have the jury brought into the courtroom, to ascertain what the jury wanted from the deposition, or, at the very least, to inform it that it had a right to have at least a portion of the deposition read. If on returning to the courtroom the jury asked for more than it was entitled to have read, the judge could, of course, limit it to that to which it was entitled. But to refuse to inform it of its rights in this respect, when the judge was, in effect, informed that the jury was in difficulty in some way about the deposition, clearly prevented a fair trial, unless the matters in the deposition were inconsequential. While the jury's action did not constitute in so many words a request for a reading of some portion of the transcript, such action can reasonably be interpreted only as such a request, and as held in Kerner v. Surface Transportation Corp., 266 A.D. 356 [42 N.Y.S.2d 296], a court's refusal to comply with the jury's request in this respect constitutes error. McAvoy v. Helms Bakeries, 43 Cal. App. 2d 587 [111 P.2d 431], upon which plaintiff relies, is not in point. There the reviewing court found that *284 the trial judge had instructed the jury that if it wanted any portions of the instructions reread at any time, to so inform the bailiff, and that no request therefor in any form had been made.
In his brief plaintiff stated that shortly prior to the trial, the members of this jury together with all other members of the panel were given general instructions including an instruction embodying the contents of section 612, Code of Civil Procedure, and on oral argument offered to augment the record to show that fact. We denied the request primarily because such fact would make the court's refusal here no less error. This brings us to the question of the effect of the error.
[4] Concerning the condition of the street at the scene of the accident plaintiff testified that there were "Pieces broken out, some of it raised above the level of the track, some below, very rough." "... it had just been chewed up, broken out, and it was a drop of, oh, I'd say three to four inches ... from below the level of the rail." "Some of the pavement was missing that chunks had broken out." "... there was no pavement there. That is, it had been broken out ... pieces of pavement ground up, chewed up." His motorcycle "bounced--I mean, dropped down in that depression in the pavement between the two tracks." He "received a jolt as ... [he] came to the rail ... The east rail of the crossover." The difference between the level of the rail and the pavement was "I'd say three inches." He testified when asked if the hole there (meaning where he felt the jolt) was any deeper than any place else, that there were several along the track that were just as bad; that they were not holes one could number, nor was it just one hole, "just uneven, down and up." Nothing there was flush with the track. He may have told the referee of the Industrial Accident Commission at a hearing that he was crossing "the switch at the location of the switchbox." In his deposition he stated that the pavement was broken out and soft above the level of the rail at least 2 inches and soft below and where the pavement was gone "it is a pretty deep hole."
He testified that the front wheel of the motorcycle was "wrenched," "Jerked. A violent twist." In his deposition when asked if that wheel turned at all he said "no." There he also stated that the motorcycle got "plenty of bounce" and stated that he evidently then lost control of it.
The above matters are the only ones in the deposition which *285 were read to the jury. It is conceded that some other portion or portions were read by defendant in argument. For this reason and because defendant claims that the jury was entitled to have the whole deposition, less objectionable matter, read to it if it so desired (a matter which we deem it unnecessary to determine) we have studied the entire deposition. Neither in the foregoing extracts from the deposition nor in any other part of it do we find any substantial contradiction with plaintiff's testimony at the trial nor anything affecting his credibility. Nor do we find anything which in any reasonable probability would have caused any of the jurors to vote differently than they did. We are forced to the conclusion that the error has not resulted in a miscarriage of justice. (See Const., art. VI, 4 1/2.)
The judgment is affirmed.
Peters, P. J., and Wood (Fred B.), J., concurred.
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176 Kan. 263 (1954)
270 P.2d 240
LOUIS POTUCEK, Appellee,
v.
H.H. BLAIR, Appellant.
No. 39,321
Supreme Court of Kansas.
Opinion filed May 8, 1954.
Verne M. Laing, of Wichita, argued the cause, and Lester L. Morris, Ferd E. Evans, Jr., and Ralph R. Brock, all of Wichita, were with him on the briefs for the appellant.
Harold Goodwin, of Wichita, argued the cause, and W.D. Jochems, J. Wirth Sargent, Emmet A. Blaes, Roetzel Jochems, Robert G. Braden, and Guy L. Goodwin, all of Wichita, and John Potucek, of Wellington, were with him on the briefs for the appellee.
The opinion of the court was delivered by
WEDELL, J.:
Plaintiff sought specific performance of an oral contract for a joint adventure in oil and gas operations and for an accounting.
Defendant appeals only from the order overruling his demurrer to the amended petition. In view of his various contentions the pertinent portions of the amended petition are appended hereto for reference and made a part hereof.
The demurrer was based on the grounds (a) several causes of action were improperly joined; and (b) the amended petition did not state facts sufficient to constitute a cause of action.
We shall refer to the amended petition as the petition.
Relative to the first ground it is urged two separate, distinct and incompatible agreements were attempted to be alleged, the first being that of September, 1946, and the other that of December 15, 1949. We find nothing inherently incompatible between what is alleged to have transpired on those occasions. We think a fair interpretation of the entire petition is that it constitutes a narrative of the conduct of the parties and events over the designated period of approximately five years. That it must be so construed is particularly *265 true where, as here, there has been full and complete performance of the alleged understandings by appellee and apparently also by appellant until he repudiated the alleged agreements.
Appellant argues the petition does not directly state he agreed to appellee's proposal in 1949 and hence there was no mutuality of contract. The allegations of agreement were sufficient when challenged by demurrer. (See ¶ 10 & ¶ 11 of petition.) Moreover, absence of inceptive mutuality constitutes no defense to the enforcement of an executed contract. (Heckard v. Park, 164 Kan. 216, 188 P.2d 926.)
It is claimed the petition is not drawn on any definite theory; that it is more consistent with a claim for salary under an employment contract than with the theory of joint adventure. We do not think it constitutes a claim on an employment contract. (Grannell v. Wakefield, 172 Kan. 685, 242 P.2d 1075.) When fully considered it discloses an effort to state a cause of action for relief on the theory of joint adventure.
Appellant, however, asserts the facts alleged do not constitute a joint adventure. We shall not repeat the allegations of the petition but refer the reader thereto. The evidence on the trial may prove insufficient to establish that relationship but the allegations of the petition when challenged by demurrer were sufficient. (Shoemake v. Davis, 146 Kan. 909, 73 P.2d 1043; Flitch v. Boyle, 147 Kan. 600, 78 P.2d 9; Potts v. Lux, 161 Kan. 217, 166 P.2d 694; Grannell v. Wakefield, 169 Kan. 183, 217 P.2d 1059; Grannell v. Wakefield, 172 Kan. 685, 242 P.2d 1075; Beech Aircraft Corporation v. Ross, 155 F.2d 615.) In the second Grannell case we held:
"A single definition of a partnership or a joint adventure which is accurate, comprehensive and exclusive for all purposes is extremely difficult. The existence of their essential elements, including the power of joint control, may be determined from the over-all facts, including an oral agreement, the conduct of the parties and the peculiar circumstances of each particular case. (Syl. ¶ 11.)
"The requirement that joint adventurers shall have a joint interest in property, where there is property to be held as a part of the venture, is satisfied if one of them holds an equitable interest therein while the other holds the legal title. But it is possible for one of them to have a sufficient equitable interest in an executed joint adventure, not based on joint ownership of property, to entitle him to an accounting of the profits." (Syl. ¶ 8.)
In Crawford v. Forrester, 108 Kan. 222, 194 P. 635, the court said:
"It is perfectly clear that we have here a consummated contract, acted on *266 and partially carried out by both parties. It was of no consequence that preparation of formal evidence of the contract was postponed, or that the particular status of the venture at the time the writing was to be signed could not be known. The subject matter of the contract acquisition of a block of leases, development, sale of some leases, retention of others, disposition of proceeds of sale, and division of interest in leases retained was perfectly definite." (p. 223.)
See, also, the Beech Aircraft Corporation case on sufficiency of definiteness of contract.
Appellant contends the oral agreement is void under the statute of frauds. We do not think so. The contract did not deal with the sale of real estate but with the personal relations of the coadventurers with respect to the properties involved and was not affected by the statute of frauds. (Duncan v. Johnson, 89 Kan. 21, 130 P. 655; Crawford v. Forrester, supra, p. 223.) Although oil and gas leases as between a leasor and lessee are within the statute of frauds because they involve real estate that statute does not apply to personal relations and obligations created by an agreement of partners or coadventurers to deal in such instruments between themselves and to divide the profits resulting from the venture. (Bird v. Wilcox, 104 Kan. 799, 180 P. 774; Goodrich v. Wilson, 106 Kan. 452, 454, 188 P. 225.)
Appellant asserts if the oral contract be held valid as to oil and gas leases and leasehold estates to be acquired after the commencement of the joint adventure it must be held invalid as to such interests in and to which he held the entire title prior to the agreement. It has been held otherwise. (Crawford v. Forrester, supra; Shoemake v. Davis, supra; Griffin v. Reilly, [Tex. Civ. App.] 275 S.W. 242; Motter v. Smyth, 77 F.2d 77, 79.)
In the Shoemake case we cited the Motter case, which latter case cited our Crawford case and we quoted from the Motter case as follows:
"`It is not necessary to "joint adventure" that parties furnish capital or services in equal amount, and fact that one contributes property previously acquired does not destroy validity of arrangement.' (Headnote 2.)" (p. 913.) (Italics supplied.)
Appellant admits appellee also seeks recovery of his share of the proceeds or profits from lease operations. It is not contended such part of the cause of action is barred by the statute of frauds. If appellee is entitled to any relief the demurrer was properly overruled.
*267 The demurrer further admits appellant has fully performed under the contract. Appellant concedes the established rule that full performance takes a case out of the statute of frauds and that the remedy of specific performance lies if the party seeking performance cannot be compensated in money. He asserts, however, the petition does not disclose monetary relief is impossible. It may not be utterly impossible, but would that relief be certain and, if certain, is it adequate, complete and efficient? Appellee was without knowledge of the amount appellant had received for the separate leasehold properties he had sold. (See petition ¶ 16.) Knowledge of such amounts and of the amounts appellant had invested in the development of various properties, which appellant was entitled to deduct before appellee's interest could be determined, was in the possession of the appellant. Appellee sought and was entitled to an accounting of all matters involved in order to have the actual net value of his share in the respective properties determined. At least until appellant makes such accounting appellee's knowledge of the net value of his interest in the properties will remain uncertain and doubtful. Even if appellee by some other means might conceivably acquire accurate information concerning the net value of some of such properties and brought separate actions to recover his interest in those properties, it would result in a multiplicity of actions. In Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P.2d 914, it was held:
"In order to prevent a decree for the specific performance of a contract on the ground a remedy at law exists the latter remedy must be as plain, adquate, complete and efficient as the remedy of specific performance and not circuitous or doubtful." (Syl. ¶ 6.) (Italics supplied.)
It may be doubtful whether a judgment for the net value of appellee's interest, if presently known by appellee, would be collectible without further delays and uncertainty. Moreover, such a judgment if collectible might be highly detrimental to appellee in comparison with an equitable division of the properties. It well may be the motivating purpose of appellee's participation in this sort of joint adventure was to acquire properties of this character, or an interest therein, to which he could with great advantage apply his time, energy and special ability. It reasonably may be inferred from the nature of the transaction alleged that this was one of the things for which he may have bargained. We know of no sound reason why, under such circumstances, a court of equity cannot, *268 and should not, make the award payable in kind in order to make the relief granted as certain, adequate and efficient as possible. (Botsford v. Van Riper, 33 Nev. 156, 110 P. 705.)
Is appellant correct in contending the oral agreement lacks consideration? We cannot think so. The facts alleged are tantamount to mutual promises. They constitute a valid consideration. It also is here alleged the contract was fully performed by appellee. Surely the acceptance by appellant of appellee's services for a period of years constitutes a valid consideration. Such services were as vital to the success of the venture as appellant's contributions of the physical properties or other capital. (Shoemake v. Davis, supra.) The fact a party has received only a nominal salary, in comparison with his interest in a venture, will be taken into account in determining the intention of the parties. (Kasishke v. Baker, 146 F.2d 113.) That, too, is a consideration. In view of all the circumstances there was ample consideration for the contract.
In view of the agreement appellee's interest attached, at the time the oral arrangements were made, to all leasehold interests appellant then owned and to all others when they were procured. (Crawford v. Forrester, supra.) His interest also attached at that time to the profits when earned. Only his right to receive returns was postponed until the conditions agreed upon were fulfilled. (Kasishke v. Baker, supra.)
A court of equity will not deny specific performance of an oral contract on the ground of indefiniteness if the terms thereof, together with the conduct of the parties in the full performance thereof, disclose the manifest intentions of the parties.
Appellant argues the action is barred. The contention is grounded on the assertion the cause of action, if any, accrued in 1946 when the first alleged agreement was entered into. The contention overlooks what previously was said herein relative to the arrangements as a whole; that the parties operated pursuant thereto; that appellee had fully performed thereunder and first learned of appellant's breach of the contract on or about September 4, 1951. The instant action was filed May 29, 1952. The relationship was a fiduciary one, based on mutual confidence and trust. The cause of action did not accrue before appellant repudiated the trust and the action was timely filed. (Flitch v. Boyle, 147 Kan. 600, 602, 78 P.2d 9; Staab v. Staab, 160 Kan. 417, 163 P.2d 418; In re Estate of Dieter, 172 Kan. 359, 367, 239 P.2d 954.) The action was not barred by laches. (See anno. 13 A.L.R. 2d 765.)
*269 In reaching the foregoing conclusions we have not overlooked appellant's numerous citation of authorities in support of his views. It should be conceded there is not complete uniformity in the decisions of the various courts on the subject of joint adventures or on the subject of specific performance generally, or in cases of this particular character. Nor are we unmindful of the fact that appellant's answer and the evidence may materially affect the merits of the action. We have not ignored the motions appellant leveled at the petitions. The motions and rulings thereon were not of a character which requires stricter construction of the petition than we have given it.
Considering all the allegations of the last petition which was challenged by demurrer we think we would not be justified in reversing the ruling of the trial court.
The order overruling the demurrer is affirmed.
AMENDED PETITION
In the first portion of the amended petition appellee, in substance, alleged:
Plaintiff had been engaged for more than fifteen years in the business of managing the offices of independent oil producers and operators (setting forth the various activities in which he had been thus engaged); defendant became well acquainted with plaintiff and was familiar with his ability as such a manager from 1935 to 1944, during which period the plaintiff was employed by Hartman-Blair Oil Company and Hartman-Blair Incorporated, corporations in which the defendant was interested; plaintiff's employment with the Hartman-Blair interests ceased about January 1, 1945, after his employers made a sale of part of their properties and a division of others; following such actions the defendant, H.H. Blair, became engaged individually in the business of acquiring oil and gas leases and properties, drilling oil and gas wells and in the operation thereof.
The amended petition further alleged:
"5. The defendant, Blair, after his separation from Hartman-Blair Oil Company and Hartman-Blair Incorporated became engaged as an individual in the business of acquiring oil and gas leases and properties, drilling oil and gas wells and operating oil and gas producing leases.
"6. Between July 15, 1946, and September 1, 1946, plaintiff and *270 defendant had various conversations, the exact dates of which plaintiff is unable to state, until on or about the latter date when the plaintiff became associated with the defendant in the business of operating, acquiring and developing oil and gas properties with the oral understanding and agreement that the plaintiff was to have an interest in all of the oil and gas properties to be thereafter acquired by them, and that such interest was to amount to not less than a one-eighth interest nor more than a one-fourth interest in such properties.
"7. The amount of such interest was to be determined and agreed upon at a later date, but that said properties were to be acquired and held in the name of the defendant and the income derived therefrom retained by defendant until such time as he had been reimbursed for all monies advanced by him for the acquisition and development of said properties. It was agreed that plaintiff would have no interest in the drilling rigs or equipment. It was further orally agreed that the plaintiff and the defendant would later reduce their agreement to writing and that the written agreement would specify the exact interest to be owned by each of them in such properties, and would further provide that after the defendant had been reimbursed for all monies advanced by him for acquisition and development of said oil and gas properties, the defendant would execute conveyances conveying the agreed interest in such properties to the plaintiff; or that if determined advisable by both parties the profits and monies resulting from the operation of the properties would be reinvested in other properties for the expansion and further development of the business, in which event plaintiff would have the same agreed interest and be entitled to like conveyances of such interest in all other properties so acquired.
"8. At the beginning of the joint venture between the plaintiff and the defendant, as above related, it was mutually agreed that the plaintiff should draw a salary which it was contemplated should be sufficient to meet his current living expenses. As an initial salary, it was mutually agreed that Three Hundred and Seventy-five Dollars ($375.00) per month was to be paid to plaintiff to meet such a requirement. The said sum was less than plaintiff had previously been drawing and was less than plaintiff could have received from other independent oil operators at that time.
"9. The foregoing arrangement as to salary continued until December, 1949, when plaintiff notified defendant that for some time *271 he had been unable to meet his current living expenses on the monthly salary he had been receiving, and that plaintiff had been forced to advance considerable funds of his own in order to meet such current living expenses. Thereupon defendant gave plaintiff a check for Two Thousand Dollars ($2,000.00) on December 1, 1949, and a check for Five Thousand Dollars ($5,000.00) On December 15, 1949, to apply on plaintiff's account and plaintiff agreed to receive said amounts as full adjustment of his salary account. Thereafter, it was mutually agreed that plaintiff was to receive Seven Hundred Dollars ($700.00) as monthly salary in order to meet his current living expenses.
"10. On December 15, 1949, and at a time when the plaintiff and defendant were discussing the salary adjustments mentioned in the preceding paragraph, the defendant asked the plaintiff what he thought would be a fair interest as plaintiff's share of the business. The plaintiff stated to the defendant that in his opinion he should own a one-eighth interest in all oil and gas properties then held in the name of the defendant whether acquired before or after September, 1946, and a like interest in all oil and gas properties acquired thereafter which stood of record in the name of the defendant. Plaintiff further stated that he should own a one-eighth interest in all of the oil and gas business then being conducted under the name of the defendant, except for defendant's drilling rigs, and that he should be entitled to receive a conveyance to such one-eighth interest as to each oil and gas lease whenever the defendant was repaid from production for monies spent by him in the acquisition and development of such property; or in the event of a sale, the defendant should first be reimbursed for the monies expended by him before there was to be a distribution of such one-eighth interest to the plaintiff.
"11. On the same date, December 15, 1949, the defendant stated to the plaintiff that the terms of the agreement and the one-eighth interest as set forth in the preceding paragraph were satisfactory to defendant and that henceforth the plaintiff would be considered to be the owner of an undivided one-eighth interest in all of the oil and gas leases either acquired by the defendant before September, 1946, or by the parties as aforesaid after September, 1946, or to be thereafter acquired by the mutual efforts of the parties, but that the properties would be held in the name of the defendant and that conveyances would be made to the plaintiff of his undivided one-eighth *272 interest only after the acquisition and development expense of the properties had been paid out as aforesaid, unless it was decided to reinvest the royalties, profit, income and runs from the wells in other properties in which event plaintiff would be entitled to the same one-eighth interest in properties so acquired, and like conveyances of such interest in the properties so acquired. Defendant also stated on December 15, 1949, that he would have a written contract drawn in accordance with the oral agreement as set forth in paragraphs 10 and 11 hereof.
"12. The joint venture of the parties as herein set forth was extremely profitable through the joint efforts of the parties. In 1946, oil runs from the properties held in the name of the defendant amounted to approximately Six Thousand Seven Hundred Dollars ($6,700.00) per month, whereas in 1949 the oil runs were greatly increased and finally attained a rate of Thirty-five Thousand Dollars ($35,000.00) per month through the efforts of the plaintiff and the defendant working together in the business, as herein set forth.
"13. The plaintiff devoted all of his time to the management and handling of the joint venture conducted as herein set forth.
"14. The contract for the aforesaid venture was not reduced to writing nor were any assignments or conveyances of interest made to the plaintiff. From January, 1951, until about July 1, 1951, plaintiff and defendant had many conferences relative to reducing their oral contract to writing the advisability of making some conveyances of interest of the plaintiff, and the method of reporting income from the properties subject to the joint venture. That on these occasions defendant repeatedly stated to the plaintiff he would have his attorney draw up a written agreement embodying the terms of the oral agreement between plaintiff and defendant as hereinbefore set forth in paragraphs 10 and 11, but defendant failed to have such written contract drawn and submitted to plaintiff. At no time during this period did defendant ever deny to the plaintiff that the plaintiff was the owner of an undivided one-eighth interest in all of the producing leases, oil and gas leases, and oil and gas properties then held or thereafter acquired in the name of H.H. Blair, defendant herein.
"15. For some months prior to September 4, 1951, defendant was negotiating for the sale of properties in which the plaintiff had an interest as aforesaid. The first notice this plaintiff received that the defendant denied the oral contract between them and the joint venture into which they had entered as hereinbefore set forth, *273 was on or about the 4th day of September, 1951, when plaintiff received a letter from defendant's attorney denying that the plaintiff was the owner of any interest in the oil and gas properties then held in the name of the defendant.
"16. On or about the 13th day of October, 1951, the defendant sold a portion of the oil properties in which plaintiff owned an undivided one-eighth interest acquired in the manner heretofore alleged. That prior to making said sale defendant had consulted with plaintiff on numerous occasions, the exact dates plaintiff is unable to state, relative to the terms of the proposed sale and the parties to which the sale was to be made. Plaintiff does not know the exact amount of money received by the defendant from such sale, but is informed and therefore alleges the fact to be that the sale was made for an amount in excess of One Million Dollars ($1,000,000.00); that plaintiff is informed and believes and therefore alleges that the properties so sold by defendant were all properties upon which defendant had, prior to said sale, been fully reimbursed for all monies advanced by him for acquisition and development.
"17. On the 9th day of November, 1951, after the aforesaid sale was completed, defendant served upon plaintiff a `notice of termination of employment.' The defendant did not tender plaintiff any portion of the proceeds of the completed sale, nor was any tender made of any portion of the oil and gas leases still held of record in the name of the defendant not subject to the aforesaid sale. Defendant denied and continues to deny that plaintiff has any interest either in the proceeds of the aforesaid sale or in any properties still held in the name of the defendant, although the properties so sold and held were acquired in defendant's name for the benefit of both parties under the joint venture aforesaid.
"WHEREFORE, by reason of the foregoing allegations, plaintiff prays that:
"(a) The relationship between plaintiff and defendant as alleged be determined to be a joint venture in which plaintiff is entitled to:
"(1) One-eighth of the net profits from the aforesaid sale of the properties;
"(2) One-eighth interest in the oil and gas leases retained by defendant but acquired as an asset of the joint venture;
"(3) One-eighth of the net profits of all producing properties held or acquired during the joint venture where said profits were not reinvested in the business.
"(b) A full and complete accounting be had to determine plaintiff's *274 true interest in income of every kind received by defendant from the oil and gas business from and after September, 1946.
"(c) A full and complete accounting on any sales of oil and gas properties executed after September, 1946, by defendant.
"And for such further relief to which plaintiff may be entitled, and his costs herein."
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392 S.E.2d 770 (1990)
99 N.C. App. 327
In the Matter of the ESTATE OF Alonzo Henry HEFFNER, Testator.
No. 8927SC818.
Court of Appeals of North Carolina.
July 3, 1990.
Mullen, Holland, Cooper, Morrow, Wilder & Sumner P.A. by Nancy Borders Paschall and Graham C. Mullen, Gastonia, for movant-appellant.
Wade W. Mitchem, Gastonia, for appellee.
JOHNSON, Judge.
Alonzo H. Heffner executed a certain certificate of deposit in the amount of $54,215.81 *771 at a branch office of North Carolina National Bank (the "Bank") on 3 November 1986. Under Title I on the certificate was typed "ALONZO H. HEFFNER." Under Title II was typed "BIRDIE HEFFENER [sic]." Above a space for signatures, a box marked "Joint Depositors with Survivorship" was marked with a typed "x." The only signature on the certificate was that of Alonzo Heffner. Above his signature appeared these words: "The undersigned Depositor(s) has read and agrees to be bound by the provisions set forth on this and the reverse side of this Certificate." The reverse side refers to G.S. § 41-2.1.
After Alonzo Heffner died on 19 October 1987, the Bank issued a certificate of deposit to Bertie Heffner for one-half of the balance of the original certificate of deposit executed by Alonzo Heffner. It issued a second certificate of deposit to the estate of Alonzo Heffner for the other half of the balance.
By this appeal, the movant-executor contends that the trial court erred in holding that Bertie Heffner, as surviving spouse of Alonzo Heffner, is the legal owner of the entire original certificate of deposit executed by Alonzo Heffner in the amount of $54,215.81. We agree with the executor.
Before addressing movant's argument, we note that the nonmovant-appellee has attempted in her brief to raise a question for our review as to whether the matter before us is justiciable. She has failed, however, to properly present this question as required by Rule 28(c) of the N.C.Rules of Appellate Procedure. We therefore decline to address it.
The right of survivorship has been statutorily abolished where it follows as a legal incident to an existing joint tenancy. G.S. § 41-2; Vettori v. Fay, 262 N.C. 481, 137 S.E.2d 810 (1964). Parties who wish to create a right of survivorship applicable to joint bank accounts must comply with the requirements of G.S. § 41-2.1(a):
A deposit account may be established with a banking institution in the names of two or more persons, payable to either or the survivor or survivors, with incidents as provided by subsection (b) of this section, when both or all parties have signed a written agreement, either on the signature card or by separate instrument, expressly providing for the right of survivorship.
Under the facts of this case, we must therefore determine whether a written agreement not signed by the party asserting rights as a survivor is sufficient to satisfy the statutory requirements. We must conclude that it is not sufficient. The plain language clearly requires that both parties sign the written agreement. This Court has also, in considering the adequacy of written agreements purporting to create survivorship rights, recognized the necessity of meeting all the requirements of G.S. § 41-2.1(a). In O'Brien v. O'Brien, 45 N.C.App. 610, 263 S.E.2d 817 (1980), both parties had signed the signature card, but the block indicating an intention to create a right of survivorship had not been checked. This writing was found to be insufficient to create rights of survivorship. The O'Brien Court then examined the certificate of deposit itself which was not signed by either party. The Court determined that the certificate, being unsigned by the parties, did not constitute a signed written agreement as required by G.S. § 41-2.1(a). The necessity of meeting all the statutory requirements was again recognized by this Court in Threatte v. Threatte, 59 N.C.App. 292, 296 S.E.2d 521 (1982), cert. withdrawn as improvidently granted, 308 N.C. 384, 302 S.E.2d 226 (1983).
In the instant case, Bertie I. Heffner did not sign the certificate of deposit, which is the only writing purporting to serve as a contract showing survivorship. Since this writing does not meet the signing requirement contemplated by G.S. § 41-2.1(a), we are compelled by that statute and our prior interpretations of it to hold that the writing at issue is ineffective to create a right of survivorship.
We also find that the trial court's conclusion of law that testator intended to create right of survivorship in the certificate of deposit not controlling. The signing requirement of G.S. § 41-2.1(a) is unambiguous, *772 and the parties failed to express their intent to create a right of survivorship in accord with the statute. We note parenthetically that the General Assembly has enacted a new statute regarding creation of right of survivorship in joint bank accounts, G.S. § 53-146.1, which, being effective 1 July 1989, is not applicable to the case at bar. We mention this statute, however, to observe that it retains the critical requirement that the parties execute a signed statement of their intent to create right of survivorship.
To allow subjective determination of the parties' intent to govern rather than the strict requirements of the statute would have the effect of creating uncertainty and increased litigation both for depositors and for banking institutions called upon to pay out funds from joint accounts.
Reversed and remanded.
Judges ARNOLD and ORR concur.
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260 Ga. 341 (1990)
392 S.E.2d 855
CLOVER CABLE OF OHIO, INC.
v.
HEYWOOD et al.
BURNUP & SIMS TELCOM, INC.
v.
CLOVER CABLE OF OHIO, INC. et al.
S90A0011, S90A0013.
Supreme Court of Georgia.
Decided July 5, 1990.
Reconsideration Denied July 26, 1990.
Hurt, Richardson, Garner, Todd & Cadenhead, M. Michael Egan, Jr., for Clover Cable of Ohio, Inc.
Booth, Wade & Campbell, Brian J. Morrissey, Gary W. Bross, Philip L. Westee, Paxton & Seasongood, Earl Maiman, for Heywood *346 and Burnup & Sims Telcom, Inc.
FLETCHER, Justice.
Clover Cable of Ohio, Inc., a foreign corporation, is asserting contractual, quasi-contractual, tort, and equitable claims against other foreign corporations and a nonresident individual. Plaintiff predicates its claims on the allegation that under an oral agreement, plaintiff acted as a sub-subcontractor on a construction project. The trial court ruled that plaintiff's complaint is subject to dismissal under a forum-barring clause in the Nonresident Contractors Act, Ga. L. 1978, p. 309, § 2 at 738 (codified at OCGA § 48-13-37), in that plaintiff did not comply with the registration and bonding requirements of the Act and granted summary judgment to defendants. OCGA § 48-13-37 provides:
No contractor who fails to register with the [State Revenue] [C]ommissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.
The primary question for decision is whether a dismissal under OCGA § 48-13-37 is with or without prejudice. In a trilogy of decisions, Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481 (379 SE2d 6) (1989); Adams v. PPT, Inc., 191 Ga. App. 729 (2) (382 SE2d 732) (1989); Rehco Corp. v. California Pizza Kitchen, 192 Ga. App. 92 (383 SE2d 643) (1989), the Court of Appeals has held that such a dismissal is without prejudice. For reasons which follow, we agree.
In March of 1986, U. S. Telcom, Inc., a long distance telephone carrier, entered into a contract with Burnup & Sims Telcom, Inc., under which Burnup became U. S. Telcom's general contractor for the construction of a fiber-optic telecommunications line. On March 18, 1986, Burnup in turn entered into a unit-price subcontract with Heywood Associates under which Heywood Associates became the subcontractor responsible for excavation work and the installation of an underground conduit through which the telecommunications line runs. Clover alleges that it entered into an oral joint-venture agreement with Heywood Associates under which Clover and Heywood Associates were to split any net profits under the subcontract. Pursuant to this alleged agreement Clover provided construction equipment, employees, and capital for the subcontracting work.
Clover alleges that, with the knowledge of supervisory personnel of Burnup, Clover's identity as a sub-subcontractor was camouflaged *342 because of a provision in the Burnup/Heywood subcontract prohibiting the employment of sub-subcontractors, and that Al Rodgers, who is president of Clover, signed the subcontract as vice-president of Heywood so as to note Clover's participation. At the time Clover and Heywood Associates entered into the oral agreement, controversies existed between Clover and John Heywood with regard to the receipt of funds under another joint-venture agreement. Clover contends that John Heywood, never intending to split profits with Clover, fraudulently induced Clover to enter into the present joint venture as a vehicle to procure cash and equipment from Clover in satisfaction of the other monies Clover allegedly owed Heywood.
By letter dated May 13, 1986, Clover sought to inform Burnup that Clover was a partner with Heywood Associates and to request that all payments under the subcontract be jointly payable to Clover and Heywood Associates. One week later Clover provided Burnup with documentary evidence tending to show that Clover had provided capital, equipment, and employees to Heywood Associates for Heywood's performance of its subcontract with Burnup. After Burnup received these letters, John Heywood, at Burnup's request, executed a sworn affidavit stating that Clover was not a party to the Burnup/ Heywood subcontract and that there were no unsatisfied mechanic's or materialmen's liens on the project.
In its complaint Clover has sought a recovery against Heywood Associates for breach of contract, or, in the alternative, quantum meruit. Clover has asserted claims against John Heywood for fraud in the inducement of the oral agreement, as well as fraud and misrepresentation in statements made in the sworn affidavit. Clover contends that after it gave Burnup notice of its participation in the subcontract, Clover became entitled to a recovery in quantum meruit against Burnup. Clover also asserts that an equitable lien in Clover's favor was impressed upon contract balances in Burnup's hands, that Burnup became contractually bound to Clover as an obligor of the Heywood/Clover partnership, and that Burnup's refusal to remit contract balances to Clover and Heywood jointly was tortious.
The trial court dismissed the tort and equitable-lien claims asserted by Clover against Burnup, and, based upon the fact that Clover failed to comply with the registration and bonding requirements of the Nonresident Contractors Act, the trial court granted summary judgment in favor of each of the defendants as to all of Clover's other claims. In Case No. S90A0011, Clover appeals, arguing that its claims are neither barred by the Act nor subject to dismissal by the trial court. In Case No. S90A0013, Burnup cross-appeals the trial court's failure to dismiss all of Clover's claims against Burnup, and Burnup argues that portions of an affidavit relied upon by Clover were inadmissible. Held:
*343 1. Under the broad language contained in OCGA § 48-13-30, construction of a telecommunications line fits within the definition of contracting activities under the Act. See Mullis v. Southern Co. Services, 250 Ga. 90 (4) (296 SE2d 579) (1982).
Furthermore, under what Clover refers to as the undisputed factual allegations in its complaint, Clover is a contractor under the Act and not merely a supplier of equipment. Cf. American &c. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 (2) (320 SE2d 857) (1984).
2. (a) A nonresident contractor desiring to engage in the business of contracting in this State must register with the State Revenue Commissioner "for each contract when the total contract price or compensation to be received amounts to more than $10,000.00. . . ." OCGA § 48-13-31. The failure of the parties to reduce such a contract to writing does not exempt the contract from these requirements.
(b) Before entering into the performance of the contract, a contractor must execute a bond in an amount equal to 10% of the contract price or compensation to be received, OCGA § 48-13-32 (c) (1); when this is impracticable, a blanket or master bond is to be executed. OCGA § 48-13-32 (c) (2). The Act thus contemplates that a unit-price subcontract will be registered and bonded.
3. Under OCGA § 48-13-37, a party's failure to register a general contract, a subcontract, or a sub-subcontract prohibits the maintenance of an action to recover payment for performance on such contract in the courts of this State. Cf. Sherman Stubbs &c., Inc. v. American Institute of Marketing Systems, 117 Ga. App. 829 (1) (162 SE2d 240) (1968). We hold, however, that a dismissal of a complaint under OCGA § 48-13-37 should be without prejudice.
The purpose of the Act is to ensure the collection of taxes accruing to the State and its political subdivisions as a result of the nonresident contractor's contracting activities in Georgia.
Thus, the primary purpose for promulgating the Nonresident Contractors Act was that of revenue collection enhancement, and not for the specific protection of the public at large from allegedly unqualified out-of-state contractors.
Taco Bell, 190 Ga. App. at 482. Consequently, the permanent forfeiture of the nonresident contractor's claim against another private party because of the contractor's failure to register and bond the parties' contract is a draconian penalty which the courts incline against. Rehco, 192 Ga. App. at 94.
In order to effectuate the purpose of the Act, however, OCGA § 48-13-32 (b) does provide that, "[t]he execution and filing of the bond . . . shall be a condition precedent to commencing work on any contract *344 in this state." For this reason, although the Court of Appeals has held that a dismissal under OCGA § 48-13-37 should be without prejudice, the Court of Appeals has nonetheless questioned whether a substantial compliance with the Act can be accomplished by "late registration, late bond posting and payment of all taxes and revenues due and owing the State." Taco Bell, 190 Ga. App. at 483.
Whether a contract can be registered after its performance is an administrative question resolved in OCGA § 48-13-32 (c) (2) (C), which requires the contractor, on or before March 1st in each year, to report and register all contracts of $10,000 or more completed during the previous calendar year. Although this Code section may presuppose registration of the contract prior to its performance as well as afterward, it nonetheless shows that the statutory scheme does contemplate post-performance registration. Therefore, we hold that late registration and payment of all taxes and revenues due the State and its political subdivisions constitute substantial compliance with the requirements of the Act, thus removing the bar to maintenance of an action on the contract. Under these circumstances, as held in the cases Taco Bell, supra, exemplifies, the appropriate action for the trial court is to enter an involuntary dismissal without prejudice, OCGA § 9-11-41 (b), rather than to grant a motion for summary judgment which is an adjudication on the merits. Taco Bell, 190 Ga. App. at 483.
The trial court thus erred in granting the defendants' motions for summary judgment on this ground. To the extent that George C. Carroll Constr. Co. v. Langford Constr. Co., 182 Ga. App. 258 (355 SE2d 756) (1987) supports the trial court's grant of the defendant's motion for summary judgment because of the plaintiff's failure to register and bond the contract as the Act requires, it is disapproved.
4. Clover's equitable-lien claim against Burnup is unsustainable under the facts of this case. When a party entitled to a statutory lien has been prevented from perfecting such lien by the acts of the adverse party, it has been held that such party is entitled to an "equitable lien for the improvements made" on a quantum meruit theory. Shubert v. Speir, 201 Ga. 20, 21 (3) (38 SE2d 835) (1946); Jones v. Ely, 95 Ga. App. 4, 5 (4) (96 SE2d 536) (1957). Where, however, as here, the plaintiff's failure to perfect its rights as lienholder is not attributable to the party against whom the lien is sought to be enforced, the plaintiff is not entitled to equitable relief against such party. P. P. G. Indus. v. Hayes Constr. Co., 162 Ga. App. 151 (1) (290 SE2d 347) (1982). Accord Merritt v. Unkefer, 223 S2d 723, 724 (Fla. 1969); Snead Constr. Corp. v. First Fed. &c. Assn., 342 S2d 517 (Fla. App. 1977).
5. Citing Nellis & Co. v. Green & Stallworth, 36 Ga. App. 684 (2) (137 S.E. 843) (1927), and Rooks v. Stanaland, 33 Ga. App. 8 (1) (124 *345 SE 904) (1924), Clover argues that after its submission of documentary evidence to Burnup, Burnup came under a contractual duty to remit contract balances to Heywood and Clover jointly, notwithstanding the fact that Burnup was under a contractual obligation to remit such monies solely to Heywood. We disagree.
The cases Clover cites presuppose the existence of a contractual relationship between a third party and a partnership. There was no contractual relationship between Clover and Burnup, nor was there any other such relationship giving rise to duties imposed by law independently of a contractual relationship. See generally Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123 (253 SE2d 775) (1979).
6. Similarly without merit is Clover's argument that it has a tort claim against Burnup for conversion and trover. In order to maintain a trover action for the conversion of property, the plaintiff must be the true owner of the property with title thereto. Miller & Miller v. Wilson, 98 Ga. 567, 569 (25 S.E. 578) (1896); Ocean Steamship Co. v. Southern States Naval Stores Co., 145 Ga. 798 (3) (89 S.E. 838) (1916). By giving Burnup notice of its putative claim against Heywood, Clover did not thereby establish title to, or a proprietary interest in, any res in the hands of Burnup.
7. OCGA § 48-13-37 bars Clover's quantum meruit claims. Gorrell v. Fowler, 248 Ga. 801, 802 (2) (286 SE2d 13) (1982).
8. OCGA § 48-13-37 likewise bars Clover's tort claims against John Heywood and Heywood Associates. Clover's attempt to differentiate these claims from its contractual claims is unavailing. In asserting all such claims, Clover seeks "to recover payment for performance on the contract," within the meaning of OCGA § 48-13-37. Consequently, the trial court should have dismissed these claims without prejudice.
9. Under our holdings in this opinion, Burnup was entitled to summary judgment with respect to the claims asserted by Clover against Burnup, thus making Burnup's cross-appeal moot.
Judgment in Case No. S90A0011 affirmed in part and reversed in part. Appeal in Case No. S90A0013 dismissed as moot. All the Justices concur.
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260 Ga. 258 (1990)
392 S.E.2d 527
JOLLY
v.
THE STATE.
S90A0352.
Supreme Court of Georgia.
Decided June 21, 1990.
*260 Lori Spielberger, Jonathan Goldberg, for appellant.
Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, Michael J. Bowers, Attorney General, Richard C. Litwin, for appellee.
SMITH, Presiding Justice.
The appellant, James Willie Jolly, was found guilty of the felony murder of Frederick Lavon Bettis and was sentenced to life imprisonment. We affirm.[1]
After the appellant and the victim became involved in an argument, the appellant left the scene of the argument and told the victim that he would return. The appellant went to his home, obtained his *259 30-30 Winchester rifle, and returned to the scene of the argument. The appellant's roommate observed the argument and unsuccessfully attempted to prevent the appellant from returning. Another argument began and the victim walked behind his car toward the trunk. The appellant got out of his car with the rifle, shouted an obscenity at the victim, shot him, and fled the scene. The medical examiner testified that the victim died as the result of a gunshot wound to the back of his left shoulder.
The appellant did not testify at trial, but his statement to the police was read into evidence. He stated he shot the victim because his friend had told him that the victim was going to kill him. He stated that he left the scene because he was afraid.
The jury found the appellant guilty of felony murder with the underlying felony of aggravated assault.
1. We find that a rational trier of fact could have found the appellant guilty of felony murder. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. The appellant's argument that the jury charge did not specifically instruct the jury that justification is a defense to aggravated assault is similar to arguments in both Alexander v. State, 259 Ga. 440 (383 SE2d 877) (1989), and Jolley v. State, 254 Ga. 624, 628 (331 SE2d 516) (1985). As stated in Jolley, at 628:
We find ... that a fair reading of the trial court's charge clearly indicates that the court charged that [the defendant's] defense of self-defense could apply to the underlying felony.
3. The indictment for malice murder which alleged that the appellant caused the death of the victim "by shooting him with a rifle, contrary to the law of said state...." included facts sufficient to put the appellant on notice that he was being charged with the felony of aggravated assault and that the aggravated assault could be the underlying felony for a felony murder conviction. Middlebrooks v. State, 253 Ga. 707 (324 SE2d 192) (1985).
4. The trial court's charge on flight was similar to the charge found not to be unconstitutionally burden-shifting in Terrell v. State, 258 Ga. 722, 724 (373 SE2d 751) (1988). We find no error.
5. The trial court did not err in instructing the jury that if it found the appellant not guilty of malice murder and not guilty of felony murder it would then be authorized to consider whether or not the appellant was guilty of voluntary manslaughter. Hill v. State, 259 Ga. 655, 656-57 (386 SE2d 133) (1989).
Judgment affirmed. All the Justices concur.
NOTES
[1] The crime was committed on October 14, 1988. The appellant was indicted for murder on January 10, 1989. A Fulton County jury returned a guilty verdict on April 11, 1989. A motion for new trial was filed on May 5, 1989 and denied on October 6, 1989. A notice of appeal was filed on October 16, 1989 and the case was docketed in this Court on December 13, 1989. The case was submitted by brief on January 26, 1990.
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649 So. 2d 422 (1995)
Rena NIVEN
v.
BOSTON OLD COLONY INSURANCE COMPANY, et al.
No. 94-C-3067.
Supreme Court of Louisiana.
February 9, 1995.
Denied.
CALOGERO, C.J., not on panel.
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38 Cal.Rptr.3d 373 (2005)
135 Cal.App.4th 1392
CITY OF ARCADIA et al., Plaintiffs and Appellants,
v.
STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Appellants.
No. D043877.
Court of Appeal, Fourth District, Division One.
January 26, 2006.
*377 Rutan & Tucker, LLP, Richard Montevideo and Terence Gallagher, Costa Mesa, for Plaintiffs and Appellants.
Downey Brand LLP, Melissa A. Thorme, Sacramento; Lewis, Brisbois, Bisgaard, & Smith LLP, and B. Richard Marsh, Los Angeles, for County Sanitation Districts of Los Angeles County as Amici Curiae on behalf of Plaintiffs and Appellants.
Demetriou, Del Guercio, Springer & Francis, LLP, Stephen A. Del Guercio, Michael A. Francis and Brian D. Langa, Los Angeles, for California Contract Cities Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Richards, Watson & Gershon, and John J. Harris, Los Angeles, for The League of California Cities as Amicus Curiae on behalf of Plaintiffs and Appellants.
Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Marilyn H. Levin and *378 Gregory J. Newmark, Deputy Attorneys General, for Defendants and Appellants.
Law Office of Michael R. Lozeau, Michael R. Lozeau, San Francisco; and Dana P. Palmer for Santa Monica Baykeeper, Inc., Heal the Bay, Inc., and Natural Resources Defense Council, Inc., as Amici Curiae on behalf of Defendants and Appellants.
McCONNELL, P.J.
This case concerns the serious environmental problem of litter discharged from municipal storm drains into the Los Angeles River, and efforts of the California Regional Water Quality Control Board, Los Angeles Region (Regional Board) and the State Water Resources Control Board (State Board)[1] to ameliorate the problem through the adoption and approval of a planning document setting a target of zero trash discharge within a multi-year implementation period.
The Water Boards appeal a judgment partially granting a petition for writ of mandate brought by the City of Arcadia and 21 other cities (Cities),[2] who agree trash pollution must be remedied but oppose the target of zero trash as unattainable and inordinately expensive. The Water Boards challenge the court's findings that an assimilative capacity study is a required element of its action; a cost/benefit analysis and consideration of economic factors are required under state law and are not met; the zero trash target is inapplicable to the Los Angeles River Estuary (Estuary) because it does not appear on the state's list of impaired waters; and, the Water Boards failed to comply with the California Environmental Quality Act (CEQA) by not preparing an Environmental Impact report (EIR) or its functional equivalent.
The Water Boards also contend the court erred by granting the Cities declaratory relief on their claim the Trash total maximum daily load (TMDL) does not apply to "nonwaters," meaning areas that do not drain into navigable waters such as the Los Angeles River or tributaries, as the parties agreed during this proceeding that the Trash TMDL applies only to navigable waters.
The Cities also appeal, contending the trial court erred by not invalidating the Trash TMDL on the additional grounds the Water Boards failed to provide for deemed compliance with the target of zero trash through certain methods; failed to implement load allocations for nonpoint sources of trash pollution; failed to adhere to the data collection and analysis required by federal and state law; relied on nonexistent, illegal and irrational uses to be made of the Los Angeles River; and, violated the Administrative Procedures Act (APA).
We conclude the Cities' appeal lacks merit. As to the Water Boards' appeal, we conclude the court properly invalidated the planning document on the ground of noncompliance with CEQA, and we affirm the judgment insofar as it is based on that ground. We reverse the judgment to the extent it is based on other grounds. Further, we hold the court erred by granting declaratory relief on the nonwaters issue as there was no controversy when the court ruled.
*379 BACKGROUND INFORMATION
I
Statutory and Regulatory Scheme
The "quality of our nation's waters is governed by a `complex statutory and regulatory scheme . . . that implicates both federal and state administrative responsibilities.'" (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619, 26 Cal.Rptr.3d 304, 108 P.3d 862 (City of Burbank).) An overview of applicable law is required to place the facts here in context.
A
Federal Law
In 1972 Congress enacted amendments to the Federal Water Pollution Control Act (Pub.L. No. 92-500 (Oct. 18, 1972) 86 Stat. 816; 33 U.S.C. § 1251 et seq.), which, as amended in 1977, is commonly known as the Clean Water Act. (City of Burbank, supra, 35 Cal.4th at pp. 619-620, 26 Cal.Rptr.3d 304, 108 P.3d 862.) Its stated goal is "to restore and maintain the chemical, physical and biological integrity of the Nation's waters" by eliminating the discharge of pollutants into navigable waters. (33 U.S.C. § 1251(a).)
The Clean Water Act places "primary reliance for developing water quality standards on the states." (Scott v. Hammond (7th Cir.1984) 741 F.2d 992, 994.) It requires each state to develop such standards and review them at least once every three years for required modifications. (33 U.S.C. § 1313(a), (c)(1).) The standards must include designated uses such as recreation, navigation or the propagation of fish, shellfish and wildlife; water quality criteria sufficient to protect the designated uses, and an anti-degradation policy. (40 C.F.R. §§ 131.6, 131.10-131.12 (2003).) The water quality criteria "can be expressed in narrative form or in a numeric form, e.g., specific pollutant concentrations." (Florida Public Interest Research Group Citizen Lobby, Inc. v. EPA (11th Cir.2004) 386 F.3d 1070, 1073.) "Narrative criteria are broad statements of desirable water quality goals in a water quality plan. For example, `no toxic pollutants in toxic amounts' would be a narrative description." (City of Burbank, supra, 35 Cal.4th at p. 622, fn. 4, 26 Cal.Rptr.3d 304, 108 P.3d 862.)
The Clean Water Act focuses on two possible sources of pollution: point sources and nonpoint sources. "Point source" means "any discernable, confined and discrete conveyance" such as a pipe, ditch, channel, tunnel, or conduit. (33 U.S.C. § 1362(14).) The Clean Water Act does not define nonpoint source pollution, but it has been described as "`"nothing more [than] a [water] pollution problem not involving a discharge from a point source."'" (Defenders of Wildlife v. EPA (10th Cir.2005) 415 F.3d 1121, 1123-1124.)[3]
"Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System [NPDES] permit process. Under this approach, compliance rests on technology-based *380 controls that limit the discharge of pollution from any point source into certain waters unless that discharge complies with the [Clean Water] Act's specific requirements." (San Francisco BayKeeper v. Whitman (2002) 297 F.3d 877, 880; 33 U.S.C. § 1311(b)(1)(A).) "`Nonpoint sources, because of their very nature, are not regulated under the NPDES [program]. Instead, Congress addressed nonpoint sources of pollution in a separate portion of the [Clean Water] Act which encourages states to develop areawide waste treatment management plans.'" (Pronsolino v. Marcus (N.D.Cal.2000) 91 F.Supp.2d 1337, 1348, citing 33 U.S.C. § 1288; see also 33 U.S.C. § 1329.)
"When the NPDES system fails to adequately clean up certain rivers, streams or smaller water segments, the [Clean Water] Act requires use of a water-quality based approach. States are required to identify such waters . . . [and] rank [them] in order of priority, and based on that ranking, calculate levels of permissible pollution called `total maximum daily loads' or `TMDLs.'" (San Francisco BayKeeper v. Whitman, supra, 297 F.3d at p. 880; 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b) (2003).) "This list of substandard waters is known as the `303(d) list' (section 303 of the Clean Water Act having been codified as [title 33 United States Code] section 1313)." (City of Arcadia v. EPA (9th Cir.2005) 411 F.3d 1103, 1105 (City of Arcadia II).)
"A TMDL defines the specified maximum amount of a pollutant which can be discharged or `loaded' into the waters at issue from all combined sources." (Dioxin/Organochlorine Center v. Clarke (9th Cir.1995) 57 F.3d 1517, 1520.) "A TMDL must be `established at a level necessary to implement the applicable water quality standards . . . .' [Citation.] A TMDL assigns a waste load allocation . . . to each point source, which is that portion of the TMDL's total pollutant load, which is allocated to a point source for which an NPDES permit is required. [Citation.] Once a TMDL is developed, effluent limitations in NPDES permits must be consistent with the [waste load allocations] in the TMDL." (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1095-1096, 1 Cal.Rptr.3d 76; Dioxin/Organochlorine Center v. Clarke, at p. 1520.)[4] A TMDL requires a "margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." (33 U.S.C. § 1313(d)(1)(C).)
The EPA may allow states to adopt and administer NPDES permit programs (Pronsolino v. Marcus, supra, 91 F.Supp.2d at p. 1347, fn. 10), and it has authorized California to administer such a program. (54 Fed.Reg. 40664 (Oct. 3, 1989).)
B
State Law
California implements the Clean Water Act through the Porter-Cologne Act (Wat.Code, § 13000 et seq.), which was promulgated in 1969. Under the Porter-Cologne Act, nine regional boards regulate the quality of waters within their regions under the purview of the State Board. (Wat.Code, §§ 13000, 13100, 13200, 13241, 13242.)
*381 Regional boards must formulate and adopt water quality control plans, commonly called basin plans, which designate the beneficial uses to be protected, water quality objectives and a program to meet the objectives. (Wat.Code, §§ 13050, subd. (j), 13240.) "`Water quality objectives' means the limits or levels of water quality constituents or characteristics which are established for the reasonable protection of beneficial uses of water or the prevention of nuisance within a specific area." (Id., § 13050, subd. (h).)
The EPA must approve or disapprove a state's TMDL within 30 days of its submission. (33 U.S.C. § 1313(d)(2).) If the EPA disapproves a state's submission, it must establish its own TMDL within 30 days of the disapproval. (Ibid.)
II
Trash TMDL
The Los Angeles River is a 51-mile flood control channel, largely concrete-lined, which runs through the City of Los Angeles and surrounding municipalities in Los Angeles County and terminates at the Pacific Ocean. In 1990 the Regional Board issued an NPDES storm water permit to the Los Angeles County Department of Public Works as the principal permittee and 84 cities as copermittees, to address various chemical pollutants discharged into the region's water bodies (Municipal NPDES Permit).
In 1994 the Regional Board adopted a revised water quality control plan, or basin plan (1994 Basin Plan), which includes narrative water quality objectives. It provides that "`[w]aters shall not contain floating materials, including solids, liquids, foams, and scum, in concentrations that cause nuisance or adversely affect beneficial uses,'" and "`[w]aters shall not contain suspended or settleable material in concentrations that cause nuisance or adversely affect beneficial uses.'" (Italics omitted.) Beneficial uses of the Los Angeles River and surrounds include wildlife and marine habitat, including habitat for endangered species, and recreational activities such as fishing, walking, hiking, jogging, bicycling, horseback riding, bird watching and photography.
In 1996 and 1998 the Regional Board identified certain reaches of the Los Angeles River on the state's 303(d) list as being impaired by trash, primarily through storm water runoff in thousands of municipal storm drains.[5] On September 19, 2001, the Regional Board adopted a resolution to amend its 1994 Basin Plan to incorporate a TMDL for trash in the Los Angeles River (Trash TMDL). Despite many objections from affected municipalities, the Trash TMDL sets a numeric target of zero trash as "even a single piece of trash can be detrimental, and no level of trash is acceptable in waters of the state."[6] "The numeric target is staff's interpretation of the narrative water quality objective [in *382 the 1994 Basin Plan], including an implicit margin of safety."
The reduction of trash is to be phased over a 14-year period, including an optional two-year baseline monitoring period. In lieu of baseline monitoring, cities may accept a default baseline allocation of "640 gallons of uncompressed trash per square mile per year," a value based on data the City of Calabasas provided. The Trash TMDL provides for a "review of the current target [of zero trash] . . . once a reduction of 50% has been achieved and sustained," "based on the findings of future studies regarding the threshold levels needed for protecting beneficial uses."
Under the Trash TMDL, cities may use a variety of compliance methods, including "[e]nd-of-pipe full capture structural controls," "partial capture control systems" and "[i]nstitutional controls." Cities using a full-capture system meeting certain criteria will be deemed in compliance with the zero target if the systems are properly maintained and maintenance records are available for the Regional Board's inspection.
On December 21, 2001, the Regional Board issued an order under Water Code section 13267 to the County of Los Angeles and copermittees under the Municipal NPDES Permit to submit baseline monitoring plans by February 1, 2002, and to monitor trash in the Los Angeles River between January 2002 and December 2003, with a final report due February 2004.[7] The Regional Board intends to use resulting data to "refine" the default baseline waste load allocations in the Trash TMDL.
In February and July 2002, the State Board and the Office of Administrative Law, respectively, approved the Trash TMDL. In August 2002 the EPA approved it and announced it supersedes an interim TMDL for trash the EPA adopted in March 2002 as a result of a consent decree in litigation between environmental groups and the EPA. (City of Arcadia I, supra, 265 F.Supp.2d 1142, 1147.)[8]
III
Procedural History
The Cities are within the Regional Board's jurisdiction and permittees under the 2001 Municipal NPDES Permit. In July 2002 the Cities filed a petition for writ of mandate and complaint for declaratory and injunctive relief against the Water Boards. They filed the action in the Los Angeles County Superior Court, but the parties stipulated to its transfer to the San Diego County Superior Court.
The second amended petition (petition) alleges numerous grounds on which the Trash TMDL violates the Clean Water Act or the Porter-Cologne Act, and the court adjudicated some issues in favor of each party. It found the Water Boards improperly (1) failed to conduct an analysis of the Los Angeles River's assimilative capacity; (2) failed to conduct a cost/benefit analysis *383 or consider economic factors under Water Code sections 13267 and 13241; (3) purported to apply the Trash TMDL to the Estuary even though it is not listed on the state's 1998 303(d) list as impaired; and (4) failed to prepare a required EIR or its functional equivalent under CEQA. The court issued a writ of mandate commanding the Water Boards to set aside the amendment to the 1994 Basin Plan and the Trash TMDL to the extent it was based on the above findings and to not take any further steps to implement it. The court denied the Water Boards' motion to vacate the judgment or grant a new trial, and judgment was entered on December 24, 2003.
The Cities later moved for an order that the prohibitory terms of the writ of mandate and judgment not be stayed on appeal. (Code Civ. Proc., § 1110b.) The court granted the motion, and further ordered that "to preserve the status quo and prevent injustice to [the Cities], the . . . implementation schedule and compliance dates, and all milestones contained in the [Trash TMDL] shall be tolled effective December 24, 2003, through and until a final determination has been rendered on the pending appeal." The Water Boards appealed that order, and in accordance with the parties' stipulation we consolidated it with the other appeals.
DISCUSSION
WATER BOARDS' APPEAL
I
Standard of Review
The Water Boards contend a deferential standard of review applies to our review of their action under Code of Civil Procedure section 1085 and the Cities claim an independent standard applies under Code of Civil Procedure section 1094.5. Code of Civil Procedure section 1094.5, the administrative mandamus statute, applies when "the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal." (Code Civ. Proc., § 1094.5, subd. (a).) "Acts of an administrative agency that are quasi-legislative in nature, e.g., establishment of regulations to carry out a statutory policy or direction, are not reviewable by administrative mandamus." (8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 268, pp. 1067-1068.) Rather, review of a quasi-legislative action is limited to traditional mandamus. (Id. at p. 1068.)
The trial court correctly found this proceeding is for traditional mandamus because the Regional Board's adoption and the State Water Board's approval of the Trash TMDL was quasi-legislative. Under Code of Civil Procedure section 1085, "`"review is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support,"' . . . [and][t]he petitioner has the burden of proof to show that the decision is unreasonable or invalid as a matter of law. [Citation.] We review the record de novo except where the trial court made foundational factual findings, which are binding on appeal if supported by substantial evidence." (Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, 814, 13 Cal.Rptr.3d 259.)
The Cities' reliance on Water Code section 13330 is misplaced. It provides that "[a]ny party aggrieved by a final decision or order of a regional board for which the state board denies review may obtain review of the decision or order of the regional *384 board in the superior court (id., § 13330, subd. (b), italics added), and "[e]xcept as otherwise provided herein, Section 1094.5 of the Code of Civil Procedure shall govern proceedings for which petitions are filed pursuant to this section" (id., § 13330, subd. (d)). Given the language italicized above, Water Code section 13330 necessarily applies to an administrative appeal of a quasi-judicial action under Code of Civil Procedure section 1094.5. Here, an appeal to the State Board was unnecessary because the Trash TMDL was ineffective without its approval. (Wat.Code, § 13245.) Indeed, the State Board notified the Cities in March 2001 that it "lacks statutory authority to accept petitions for review of water quality control plan (basin plan) amendments adopted" by regional boards.
As to CEQA issues, the parties agree an abuse of discretion standard applies. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1199, 24 Cal.Rptr.3d 543.) Abuse of discretion "is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Pub. Resources Code, § 21168.5.) "Our task on appeal is `the same as the trial court's.' [Citation.] Thus, we conduct our review independent of the trial court's findings." (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602, fn. 3, 35 Cal.Rptr.2d 470.)
II
Assimilative Capacity Study
The trial court invalidated the Trash TMDL based in part on the Cities' argument an "assimilative capacity study" is a required element of a TMDL and none was performed here. In its statement of decision, the court explained "[i]t is unreasonable to conclude that the beneficial uses of the [Los Angeles] River could not be maintained with some `target' other than zero. Of course, it is possible the River would not support a greater target, however, without a study it is yet undetermined."
The Water Boards contend the trial court erred by substituting its own judgment for that of the Water Boards on the issue of whether the adoption of the Trash TMDL should have been preceded by a scientific study of the assimilative capacity of the Los Angeles River. They assert the matter was best suited for their determination rather than the court's and the evidence adequately supports their decision. We agree with the Water Boards.
During the notice and comment period, the Regional Board received numerous complaints that a zero Trash TMDL is infeasible, or at least unwarranted without a scientific assimilative capacity study, or load capacity study, showing a zero limit is the only means of protecting beneficial uses. For instance, the City of Los Angeles worried that "[i]f there's one gum wrapper in the [Los Angeles] River, you can get sued."
The Regional Board responded to one complaint as follows: "For more typical pollutants, the loading parameters are flow and pollutant concentration. For this pollutant [trash], flow does not serve to dilute the pollutant, but merely serves as a transport mechanism. Therefore, the typical loading calculation does not apply to trash." The Regional Board took the position that since littering is unlawful, a target of zero trash in the Los Angeles River is the only defensible position. It also explained that its staff "found no study to document that there is an acceptable level of trash that will cause no harm to aquatic life," and absent such a study it was compelled to adopt a zero target.
*385 At a Regional Board hearing, Dr. Mark Gold, executive director of Heal the Bay, testified he was unaware of any assimilative capacity study having been performed anywhere on trash. He explained, "Basically it's a physical object. It's trash. It's not something that breaks down and becomes part of the environment in many, many cases. And so honestly, it probably won't reach any sort of threshold of being a scientific study of any value."
At a State Board hearing Dave Smith, an EPA team leader working with the Regional Board on the trash issue, testified "it would be difficult to design [an assimilative capacity] study and come up with firm answers." He also explained that both the Regional Board and the State Board "have conducted pretty diligent efforts to find research studies, reports, that look at the affects of trash on the aquatic environment," and neither they nor the EPA could find any literature to support a target of more than zero trash.
Alex Helperin, of the Natural Resources Defense Council, testified at a Regional Board hearing that "[e]ven small quantities [of trash] can maim and kill wildlife, [which] becomes entangled in it or ingest[s] it. [Trash] [c]an obstruct and repel boaters and contract recreators and compromise the aesthetic quality that's essential to the recognized aspect of non-contact recreation beneficial use for the Los Angeles River."
The administrative record includes numerous photographs of copious amounts of trash deposited in the Los Angeles River watershed through storm water drains. Dennis Dickerson, the Executive Officer of the Regional Board, testified he took photographs of trash in the Long Beach area shortly after storms, and among them are photographs of "water birds foraging among the trash." One photograph is of a bird with a cigarette butt in its mouth and another is of a fish trapped in a plastic six-ring can holder.
In arguing an assimilative capacity study is required before adopting a TMDL, the Cities rely principally on an EPA document issued January 7, 2000, entitled "Guidance for Developing TMDLs in California" (2000 EPA Guidance). It states: "The TMDL document must describe the relationship between numeric target(s) and identified pollutant sources, and estimate total assimilative capacity (loading capacity) of the water[]body for the pollutant of concern . . . . [¶] The loading capacity is the critical quantitative link between the applicable water quality standards (as interpreted through numeric targets) and the TMDL. Thus, a maximum allowable pollutant load must be estimated to address the site-specific nature of the impairment. . . . [¶] The loading capacity section must discuss the methods and data used to estimate loading capacity. A range of methods can be used . . . ." (Emphasis omitted.)
The 2000 EPA Guidance, however, contains the following disclaimer: "[I]t does not impose legally-binding requirements on the EPA, the State of California, or the regulated community, and may not apply to a particular situation based upon the circumstances. EPA and State decision makers retain the discretion to adopt approaches on a case-by-case basis that differ from this guidance where appropriate and consistent with the requirements of section 303(d) [of the Clean Water Act] and EPA's regulations."
Smith, of the EPA, testified at a Regional Board hearing that he wrote the 2000 EPA Guidance and the Trash TMDL "fully complies with the Clean Water Act, its regulations and [the 2000 EPA Guidance]." Smith explained the "TMDL process specifically contemplates making decisions under uncertainty," and "[i]t does so by providing that a margin of safety has to be *386 incorporated in every TMDL to account for the uncertainty in the analysis." Smith said states are required "to move forward to make TMDL decisions based on available information and data, not to wait again and again and again for better information to come forward." Generally, "`considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer.'" (United States v. Mead Corp. (2001) 533 U.S. 218, 227-228, 121 S.Ct. 2164, 150 L.Ed.2d 292.)
In Natural Resources Defense Council v. Muszynski (2d Cir.2001) 268 F.3d 91 (Muszynski), the plaintiff asked the court to invalidate a TMDL the EPA approved to control phosphorus pollution in drinking water, on the ground a margin of safety of only 10 percent was insufficient to account for uncertainty regarding the effects of phosphorus on water quality. The plaintiff argued "that no scientific or mathematical basis prescribed this percentage as opposed to any other." (Id. at p. 102.) The EPA countered that "because `there is no "standard" or guideline for choosing a specific margin of safety, best professional judgment and the available information are used in setting [it].'" (Ibid.) The Muszynski court agreed with the EPA, explaining: "While the [margin of safety] may . . . be set with an uncomfortable degree of discretion, requiring that EPA [or authorized regional board] show a rigorous scientific methodology dictates one course of action as opposed to another and would effectively prevent the agency from acting in situations where action is required in the face of a clear public health or environmental danger but the magnitude of that danger cannot be effectively quantified. `[A]s long as Congress delegates power to an agency to regulate on the borders of the unknown, courts cannot interfere with reasonable interpretations of equivocal evidence.' [Citation.] . . . [S]imply to reject EPA's efforts to implement the [Clean Water Act] because it must respond to real water quality problems without the guidance of a rigorously precise methodology would essentially nullify the exercise of agency discretion in the form of `best professional judgment.'" (Muszynski, supra, 268 F.3d at pp. 102-103, italics added.)
Further, in Muszynski, supra, 268 F.3d 91, 103, the court noted "that approval of the Phase I [margin of safety] was based, in part, on the limited information available. The EPA approval contemplates revision of the [margin of safety] as more information becomes available: `As additional reservoir data and loading data become available, Phase I model assumptions are being reexamined under Phase II.'"
We conclude federal law does not require the Regional Board to conduct an assimilative capacity study before adopting the Trash TMDL. Moreover, the evidence amply shows that because of the nature of trash, including Styrofoam containers and other materials that are undiluted by water, in contrast to chemical pollutants, and the dangers to wildlife of even small amounts of trash, an assimilative capacity study would be difficult to conduct and of little value at the outset. For instance, given the ill effects of trash in a water body it is unlikely such a study would determine the Los Angeles River may be loaded with a certain percentage of trash without affecting beneficial uses, particularly since a TMDL must include a margin of safety that "takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality." (33 U.S.C. § 1313(d)(1)(C).) In any event, the Trash TMDL requires the Regional Board to reconsider the zero trash target after a 50 percent reduction of trash is achieved, and no party suggests a trash reduction of at least 50 percent is unwarranted or unattainable. Because of *387 this escape hatch, compliance with a zero trash target may never actually be mandated. The Water Boards' decision not to conduct or require an assimilative capacity study is within their expertise, not the court's, and we defer to them on the issue.
III
Cost/Benefit Analysis and Economic Considerations
The Water Boards next contend the court erred by finding the Trash TMDL is invalid because they violated state law by not conducting a cost/benefit analysis (Wat.Code, § 13267) or considering economic factors (id. at § 13241) before adopting and approving it.
A
Water Code Section 13267
A regional board is authorized to investigate the quality of waters in its region (Wat.Code, § 13267, subd. (a)), and when it requires a polluter to furnish "technical or monitoring program reports," the "burden, including costs, of these reports shall bear a reasonable relationship to the need for the report[s] and the benefits to be obtained from the reports." (Wat.Code, § 13267, subd. (b)(1).) The court found the Regional Board adopted the Trash TMDL under the authority of Water Code section 13267, as the document mentions the statute several times and "expressly requires monitoring plans and submission of data to establish baselines for trash discharges."
The Water Boards persuasively contend Water Code section 13267 is inapplicable, and references to that statute in the Trash TMDL are to contemplated future orders. For instance, the Trash TMDL states "[b]aseline monitoring will be required via [Water Code] Section 13267," and the submission of baseline monitoring plans will be due "30 days after receipt of the Executive Officer's request as authorized by [Water Code] Section 13267." It also states that "future storm water permits will be modified to incorporate the Waste Load Allocations and to address monitoring and implementation of this [Trash] TMDL."
Further, the Trash TMDL states "the permittee [under the Municipal NPDES permit] will submit a monitoring plan with the proposed monitoring sites and at least two alternative monitoring locations for each site. The plan must include maps of the drainage and storm drain data for each proposed and alternate monitoring location. The monitoring plan(s) will be submitted to the Regional Board within 30 days after receipt of the Executive Officer's letter requesting such a plan. Such a request is authorized pursuant to [Water Code] [s]ection 13267. . . . The Regional Board's Executive Officer will have full authority to review the monitoring plan(s), to modify the plan, to select among the alternate monitoring sites, and to approve or disapprove the plan(s)."
Additionally, the Water Boards submit that the December 21, 2001, order the Regional Board issued under Water Code section 13267 to the County of Los Angeles and copermittees under the Municipal NPDES permit regarding baseline monitoring and reporting would have been "useless and unnecessary" had the Trash TMDL itself required monitoring and reporting, and since there was no appeal of the December 21 order to the State Board within 30 days (Wat.Code, § 13320, subd. (a)) the cost/benefit analysis issue is not subject to appellate review. We note that the December 21 order, but not the Trash TMDL, warns that under Water Code section 13268 the "failure to conduct the required monitoring and/or to provide the required information in a timely manner *388 may result in civil liability imposed by the Regional Board in an amount not to exceed. . . $1000."
"Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so we look first to the words of the statute, giving them their usual and ordinary meaning." (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d 708.) We agree that by its plain terms Water Code section 13267 is inapplicable at the TMDL stage, and thus the court erred by invalidating the Trash TMDL on this ground. The monitoring and reports are required by the December 21, 2001 order, not the Trash TMDL, and the reduction of trash will be implemented by other NPDES permits. "TMDLs are primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans." (Pronsolino v. Nastri (9th Cir.2002) 291 F.3d 1123, 1129.) "A TMDL does not, by itself, prohibit any conduct or require any actions. Instead, each TMDL represents a goal that may be implemented by adjusting pollutant discharge requirements in individual NPDES permits or establishing nonpoint source controls." (City of Arcadia I, supra, 265 F.Supp.2d at p. 1144.) A "TMDL forms the basis for further administrative actions that may require or prohibit conduct with respect to particularized pollutant discharges and water[]bodies." (Id. at p. 1145.)
B
Water Code Section 13241
Water Code section 13241 provides that "[e]ach regional board shall establish such water quality objectives in water quality control plans as in its judgment will ensure the reasonable protection of beneficial uses and the prevention of nuisance." In establishing water quality objectives a regional board is required to consider several factors, including "[e]conomic considerations." (Wat.Code, § 13241, subd. (d).)
The Water Boards contend Water Code section 13241 is inapplicable because the Trash TMDL does not establish water quality objectives, but merely implements, under Water Code section 13242, the existing narrative water quality objectives in the 1994 Basin Plan. It provides that waters shall not contain floating materials, including solids, or suspended or settleable materials in concentrations that adversely affect beneficial uses. The Cities counter that the Trash TMDL effectively establishes new water quality objectives, because when the 1994 Basin Plan was adopted a TMDL for trash was not contemplated and thus economic considerations of such a TMDL were not considered. Further, the Trash TMDL imposes for the first time a numeric limit for trash and significantly increases the costs of compliance.
We need not, however, decide whether the Trash TMDL adopts new or revised water quality objectives within the meaning of Water Code section 13241, because even if the statute is applicable, the Water Boards sufficiently complied with it.[9] Water Code section 13241, subdivision (d) does not define "economic considerations" or specify a particular manner of compliance, and thus, as the Water Boards assert, the matter is within a regional *389 board's discretion. It appears there is no reported opinion analyzing the "economic considerations" phrase of this statute. In City of Burbank, supra, 35 Cal.4th at page 625, 26 Cal.Rptr.3d 304, 108 P.3d 862, the court, without discussion, concluded that in adopting Water Code section 13241 the Legislature intended "that a regional board consider the cost of compliance [with numeric pollutant restrictions] when setting effluent limitations in a wastewater discharge permit." (Italics added.)
The Trash TMDL discusses the costs of gathering and disposing of trash at the mouth of the Los Angeles River watershed during the rainy seasons between 1995 and 1999. It also states: "Cleaning up the river, its tributaries and the beaches is a costly endeavor. The Los Angeles County Department of Public Works contracts out the cleaning of over 75,000 catchments (catch basins) for a total cost of slightly over $1 million per year, billed to 42 municipalities. . . . [¶] Over 4,000 tons of trash are collected from Los Angeles County beaches annually, at a cost of $3.6 million to Santa Monica Bay communities in fiscal years 1988-1989 alone. In 1994 the annual cost to clean the 31 miles of beaches (19 beaches) along Los Angeles County was $4,157,388."
The Trash TMDL also discusses the costs of various types of compliance measures, and explains the "cost of implementing this TMDL will range widely, depending on the method that the Permittees select to meet the Waste Load Allocations. Arguably, enforcement of existing litter ordinances could be used to achieve the final Waste Load Allocations at minimal or no additional cost. The most costly approach in the short-term is the installation of full-capture structural treatment devices on all discharges into the river. However, in the long term this approach would result in lower labor costs and may be less expensive than some other approaches."
The Trash TMDL defines catch basin inserts as "the least expensive structural treatment device in the short term," at a cost of approximately $800 each. It cautions, however, that because catch basin inserts "are not a full capture method, they must be monitored frequently and must be used in conjunction with frequent street sweeping." The Trash TMDL estimates that if the approximately 150,000 catch basins throughout the watershed were retrofitted with inserts, capital costs would be $120 million over 10 years, maintenance and operation costs would be $330 million over 10 years, and maintenance and operation costs after full implementation would be $60 million per year.
Further, the Trash TMDL discusses the full capture vortex separation system (VSS), which "diverts the incoming flow of storm[]water and pollutants into a pollutant separation and containment chamber. Solids within the separation chamber are kept in continuous motion, and are prevented from blocking the screen so that water can pass through the screen and flow downstream. This is a permanent device that can be retrofitted for oil separation as well. Studies have shown that VSS [units] remove virtually all of the trash contained in treated water. The cost of installing a VSS is assumed to be high, so limited funds will place a cap on the number of units which can be installed during any single fiscal year."
The Trash TMDL estimates the retrofitting of the entire Los Angeles River watershed with low capacity VSS units would be $945 million in capital costs and $813 million in operation and maintenance costs over 10 years, and $148 million in annual operation and maintenance costs after full implementation. The installation of large capacity VSS units would run approximately *390 $332 million in capital costs and $41 million in operation and maintenance costs over 10 years, and $7.4 million per year in operation and maintenance costs after full implementation. The yearly cost of servicing one VSS unit is estimated to be $2,000. The Trash TMDL explains that "outfitting a large drainage with a number of large VSS [units] may be less costly than using a larger number of small VSS [units]. Maintenance costs decrease dramatically as the size of the system increases." The Trash TMDL also contains a cost comparison of catch basin inserts and low capacity and large capacity VSS units.
Additionally, the Trash TMDL estimates the costs for end-of-pipe nets at between $10,000 and $80,000, depending on the length of the pipe network. It explains that "`[r]elease nets' are a relatively economical way to monitor trash loads from municipal drainage systems. However, in general they can only be used to monitor or intercept trash at the end of a pipe and are considered to be partial capture systems, as nets are usually sized at a 1/2" to 1" mesh."
The Cities assert that "a `consideration' of economics should have included a discussion of the economic impacts associated with the vortex separation systems. Alternatively, the Water Boards could have analyzed other methods of compliance, such as a series of [best management practices], including increased street sweeping, catch basin inserts, release nets, or some other combination of [best management practices] that should have been evaluated for purposes of allowing the municipalities to be in deemed compliance with the zero [Trash] TMDL." (Italics added.) As stated, though, the Trash TMDL does include the estimated costs of several types of compliance methods and a cost comparison of capital costs and costs of operation and maintenance. The Cities cite no authority for the proposition that a consideration of economic factors under Water Code section 13241 must include an analysis of every conceivable compliance method or combinations thereof or the fiscal impacts on permittees.
Given the lack of any definition for "economic considerations" as used in Water Code section 13241, and our deference to the Water Boards' expertise, we conclude the Trash TMDL's discussion of compliance costs is adequate and does not fulfill the arbitrary or capricious standard. Accordingly, the Trash TMDL is not invalid on this ground.[10]
IV
Los Angeles River Estuary
Additionally, the Water Boards challenge the court's finding they abused their discretion by attempting to include the Estuary in the Trash TMDL, as the Estuary is not on the state's 1998 303(d) list of impaired waters. The Water Boards contend a water body's formal listing on the state's 303(d) list is not a prerequisite to formulating a TMDL for it. Rather, an agency may simultaneously submit to the EPA the identification of a *391 water body as impaired and a corresponding TMDL.
The Clean Water Act provides: "Each state shall identify those waters within its boundaries for which the effluent limitations . . . are not stringent enough to implement any water quality standards applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters." (33 U.S.C. § 1313(d)(1)(A).) Further, it provides that "[e]ach state shall establish for the waters identified in paragraph (1)(A) of this subsection, and in accordance with the priority ranking, the total maximum daily load . . . ." (Id. at § 1313(d)(1)(C).) These provisions do not prohibit a regional board from identifying a water body and establishing a TMDL for it at essentially the same time, or indicate that formal designation on a state's 303(d) list is a prerequisite to a TMDL.
Further, 33 United States Code section 1313(d)(2) provides: "Each State shall submit to the [EPA] Administrator from time to time, . . . for his [or her] approval the waters identified and the loads established under paragraphs (1)(A) [and] . . . (1)(C) . . . of this subsection. The [EPA] Administrator shall either approve or disapprove such identification and load not later than thirty days after the date of submission." (Italics added.) This clarifies that a regional board may simultaneously identify an impaired water body and establish a TMDL for it.
In San Francisco BayKeeper v. Whitman, supra, 297 F.3d 877, 884-885, the court held an agency has no duty to submit a TMDL at the same time it identifies an impaired water body, noting the development of a TMDL "to correct the pollution is obviously a more intensive and time-consuming project than simply identifying the polluted waters, as the EPA has indicated." (Id. at p. 885.) The Water Boards assert the case does not deprive an agency from exercising its discretion to simultaneously submit to the EPA the identification of an impaired water body and a TMDL for it. Given the plain language of 33 United States Code section 1313(d)(2), we agree. Moreover, "[s]tates remain at the front line in combating pollution" (City of Arcadia II, supra, 411 F.3d at p. 1106), and "[s]o long as the [s]tate does not attempt to adopt more lenient pollution control measures than those already in place under the [Clean Water] Act, [it] does not prohibit state action." (Id. at p. 1107.)
Alternatively, the Cities complain the Regional Board did not sufficiently identify the Estuary as being impaired and included in the Trash TMDL until after its adoption and approval by the State Board and Office of Administrative Law and the completion of all public hearings. On July 29, 2002, the Regional Board sent the EPA a memorandum "to provide clarification on specific aspects" of the Trash TMDL. It stated that a "TMDL was established for the reaches of the Los Angeles River, tributaries and lakes listed on the [state's] 1998 303(d) list," and "[i]n addition, a TMDL was established for the Los Angeles River [E]stuary in the City of Long Beach. As described on page 12, paragraph 2 of the [staff] report, staff found that the impairment in the [E]stuary due to trash is `even more acute in Long Beach where debris flushed down by the upper reaches collects.' [¶] The impairment in the [E]stuary was well documented during TMDL development," and it "would have been included in the 1998 303(d) list if the attached photographic evidence had been available at the time of the listing."
The Trash TMDL lists the reaches of the Los Angeles River "that are impaired by trash, and listed on the [state's] 303(d) *392 list." The list does not include the Estuary. The Water Boards assert that even so, it was always obvious the Estuary is impaired and included in the Trash TMDL. The Trash TMDL states it is "for the Los Angeles River Watershed," and "watershed" is defined as "a region or area bounded peripherally by a divide and draining ultimately to a particular watercourse or body of water." (Merriam-Webster's Collegiate Dict. (10th ed.1996) p. 1336.) "Estuary" is defined as "a water passage where the tide meets a river current," especially "an arm of the sea at the lower end of a river." (Id. at p. 397.)
The Trash TMDL describes the watershed as beginning at the "western end of the San Fernando Valley to the Queensway Bay and Pacific Ocean at Long Beach," and it also states the watershed continues from "Willow Street all the way through the [E]stuary." An amici curiae brief by Santa Monica BayKeeper, Inc., Heal the Bay, Inc., and Natural Resources Defense Council, Inc. (collectively BayKeeper), asserts Queensway Bay is the site of the Estuary, and no party has challenged the assertion. Further, the Trash TMDL lists and discusses the beneficial uses of the Estuary, including habitat for many species of birds, some endangered, and fish. It also states beneficial uses "are impaired by large accumulations of suspended and settled debris throughout the river system," and in particular "estuarine habitat" is impaired. Further, the administrative record contains several pictures of trash deposited in the Estuary during high flows, depicting "the variety of ways through which trash . . . becomes an integral part of wildlife, affecting all plant and animal communities in the process."
The Trash TMDL's identification of the Estuary as impaired could have been clearer, but we conclude it was sufficient to put all affected parties on notice, and does not meet the arbitrary and capricious standard. Further, although the identification of impaired water bodies requires a priority ranking (33 U.S.C. § 1313(d)(2)), and the Trash TMDL does not prioritize the Estuary's need for a TMDL, we agree with amici BayKeeper that any error in the Water Boards' procedure was not prejudicial because the Trash TMDL shows amelioration of the trash problem in the entire Los Angeles River watershed is highly important, and it is unlikely the Water Boards would single out the Estuary for lower priority or that inclusion of the Estuary would disturb their existing priorities.
V
CEQA
The Water Boards challenge the sufficiency of the evidence to support the trial court's finding the amendment adding the Trash TMDL to the 1994 Basin Plan does not comport with CEQA. The court found the Regional Board's environmental checklist was deficient and there is sufficient evidence of a fair argument that the project may have a significant effect on the environment, thus necessitating an EIR or its functional equivalent. We conclude the court was correct.
A
General Legal Principles
"CEQA compels government first to identify the environmental effects of projects, and then to mitigate those adverse effects through the imposition of feasible mitigation measures or through the selection of feasible alternatives." (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1233, 32 Cal.Rptr.2d 19, 876 P.2d 505.) CEQA mandates that public agencies refrain from approving projects with significant environmental effects if there *393 are feasible alternatives or mitigation measures that can substantially lessen or avoid those effects. (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134, 65 Cal.Rptr.2d 580, 939 P.2d 1280.)
CEQA is implemented through initial studies, negative declarations and EIR's. (Sierra Club v. State Bd. of Forestry, supra, 7 Cal.4th at p. 1229, 32 Cal.Rptr.2d 19, 876 P.2d 505.) "CEQA requires a governmental agency [to] prepare an [EIR] whenever it considers approval of a proposed project that `may have a significant effect on the environment.'" (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas, supra, 29 Cal.App.4th at p. 1601, 35 Cal.Rptr.2d 470.) "If there is no substantial evidence a project `may have a significant effect on the environment' or the initial study identifies potential significant effects, but provides for mitigation revisions which make such effects insignificant, a public agency must adopt a negative declaration to such effect and, as a result, no EIR is required. [Citations.] However, the Supreme Court has recognized that CEQA requires the preparation of an EIR `whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.' [Citations.] Thus, if substantial evidence in the record supports a `fair argument' significant impacts or effects may occur, an EIR is required and a negative declaration cannot be certified." (Id. at pp. 1601-1602, 35 Cal.Rptr.2d 470.)
"`Significant effect on the environment' means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. An economic or social change by itself shall not be considered a significant effect on the environment. A social or economic change related to a physical change may be considered in determining whether the physical change is significant." (Cal.Code Regs., tit. 14, § 15382.)
B
Certified Regulatory Program
"State regulatory programs that meet certain environmental standards and are certified by the Secretary of the California Resources Agency are exempt from CEQA's requirements for preparation of EIRs, negative declarations, and initial studies. [Citations.] Environmental review documents prepared by certified programs may be used instead of environmental documents that CEQA would otherwise require. [Citations.] Certified regulatory programs remain subject, however, to other CEQA requirements." (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2005) § 21.2, p. 1076; Pub. Resources Code, § 21080.5.) Documents prepared by certified programs are considered the "functional equivalent" of documents CEQA would otherwise require. (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 113, 65 Cal.Rptr.2d 580, 939 P.2d 1280; 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 21.10, p. 1086 ["the documentation required of a certified program essentially duplicates" that required for an EIR or negative declaration].)
An "agency seeking certification must adopt regulations requiring that final action on the proposed activity include written responses to significant environmental points raised during the decisionmaking process. [Citation.] The agency must also implement guidelines for evaluating the proposed activity consistently with the *394 environmental protection purposes of the regulatory program. [Citation.] The document generated pursuant to the agency's regulatory program must include alternatives to the proposed project and mitigation measures to minimize significant adverse environmental effects [citation], and be made available for review by other public agencies and the public [citation]." (Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 127, 65 Cal.Rptr.2d 580, 939 P.2d 1280.)
The guidelines for implementation of CEQA (CEQA Guidelines) (Cal.Code Regs., tit. 14, § 15000 et seq.) do not directly apply to a certified regulatory program's environmental document. (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 21.10, p. 1086.) However, "[w]hen conducting its environmental review and preparing its documentation, a certified regulatory program is subject to the broad policy goals and substantive standards of CEQA." (Ibid.)
In a certified program, an environmental document used as a substitute for an EIR must include "[a]lternatives to the activity and mitigation measures to avoid or reduce any significant or potentially significant effects that the project might have on the environment," and a document used as a substitute negative declaration must include a "statement that the agency's review of the project would not have any significant or potentially significant effects on the environment and therefore no alternatives or mitigation measures are proposed to avoid or reduce any significant effects on the environment. This statement shall be supported by a checklist or other documentation to show the possible effects that the agency examined in reaching this conclusion." (Cal.Code Regs., tit. 14, § 15252, subd. (a).)
The basin planning process of the State Board and regional boards is a certified regulatory program (Cal.Code Regs., tit. 14, § 15251, subd. (g)), and the regulations implementing the program appear in the California Code of Regulations, title 23, sections 3775 to 3782. A regional board's submission of a plan for State Board approval must be accompanied by a brief description of the proposed activity, a completed environmental checklist prescribed by the State Board, and a written report addressing reasonable alternatives to the proposed activity and mitigation measures to minimize any significant adverse environmental impacts. (Id., § 3777, subd. (a).)
C
Environmental Documentation
The Regional Board's environmental documentation in lieu of documents CEQA ordinarily requires consists of a checklist and the Trash TMDL. The checklist asked a series of questions regarding whether implementation of the Trash TMDL would cause environmental impacts, to which the Regional Board responded "yes," "maybe" or "no." "Yes" or "maybe" answers required an explanation. The checklist described beneficial impacts pertaining to plant and animal life, water quality and recreation. The checklist denied the project would have any environmental impact on land, including soil displacement, air, noise, natural resources or traffic, and thus it included no discussion of those factors. The checklist concluded "the proposed Basin Plan amendment [adding the Trash TMDL] could not have a significant effect on the environment."
The Regional Board obviously intended its documentation to be the functional equivalent of a negative declaration. Nonetheless, on appeal the Water Boards claim for the first time that the Regional *395 Board's environmental review process is tiered, and its documentation meets the requirements of a first tier EIR under Public Resources Code section 21159. They assert the court's criticism of the checklist is baseless "because it ignores the concept of tiered environmental review and specific provisions for pollution control performance standards."
"`Tiering' refers `to the coverage of general matters in broader EIRs (such as on general plans or policy statements) with subsequent narrower EIRs or ultimately site-specific EIRs incorporating by reference the general discussions and concentrating solely on the issues specific to the EIR subsequently prepared. Tiering is appropriate when the sequence of EIRs is: [¶] . . . [f]rom a general plan, policy, or program EIR to a . . . site-specific EIR.'" (Natural Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, 285, 126 Cal.Rptr.2d 615.) "[C]ourts have allowed first tier EIR's to defer detailed analysis to subsequent project EIR's." (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 532, 98 Cal.Rptr.2d 334.)
Public Resources Code section 21159, which allows expedited environmental review for mandated projects, provides that an agency "shall perform, at the time of the adoption of a rule or regulation requiring the installation of pollution control equipment, or a performance standard or treatment requirement, an environmental analysis of the reasonably foreseeable methods of compliance. . . . The environmental analysis shall, at a minimum, include, all of the following: [¶] (1) An analysis of the reasonably foreseeable environmental impacts of the methods of compliance. [¶] (2) An analysis of reasonably foreseeable mitigation measures. [¶] (3) An analysis of reasonably foreseeable alternative means of compliance with the rule or regulation." (Pub. Resources Code, § 21159, subd. (a).) The Water Boards submit they complied with the statute, and the "tier two environmental review is the responsibility of the local agencies who will determine how they intend to comply with the performance standards" of the Trash TMDL.
Issues not presented to the trial court are ordinarily waived on appeal. (Royster v. Montanez (1982) 134 Cal.App.3d 362, 367, 184 Cal.Rptr. 560.) In any event, we conclude the checklist and Trash TMDL are insufficient as either the functional equivalent of a negative declaration[11] or a tiered EIR. Moreover, an EIR is required since the Trash TMDL itself presents substantial evidence of a fair argument that significant environmental impacts may occur. "Because a negative declaration ends environmental review, the fair argument test provides a low threshold for requiring an EIR." (Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 399, 10 Cal.Rptr.3d 451.)
*396 The Trash TMDL discusses various compliance methods or combinations thereof that permittees may employ, including the installation of catch basin inserts and VSS units. The Trash TMDL estimates that if the catch basin method is used exclusively, approximately 150,000 catch basins throughout the watershed would require retrofitting at a cost of approximately $120 million. It explains, however, that the "ideal way to capture trash deposited into a storm[]drain system would be to install a VSS unit. This device diverts the incoming flow of storm[]water and pollutants into a pollution separation and containment chamber." Only VSS units or similar full-capture devices will be deemed fully compliant with the zero trash target. The Trash TMDL estimates the cost of installing low capacity VSS units would be $945 million and the cost of installing large capacity VSS units would be $332 million.
The checklist and the Trash TMDL, however, ignore the temporary impacts of the construction of these pollution controls, which logically may result in soils disruptions and displacements, an increase in noise levels and changes in traffic circulation. Further, the Trash TMDL explains that since catch basin inserts "are not a full capture method, they must be monitored frequently and must be used in conjunction with frequent street sweeping." The checklist and the Trash TMDL also ignore the effects of increased street sweeping on air quality, and possible impacts caused by maintenance of catch basin inserts, VSS units and other compliance methods.
Indeed, the County of Los Angeles wrote to the Regional Board that "cleanout of structural controls, such as [catch basin inserts] and VSSs, naturally will increase existing noise levels due to vehicle and vacuuming noises." The City of Los Angeles advised that the Trash TMDL would result in increased maintenance vehicle traffic and "substantial air emissions or deterioration of ambient air quality," increased noise, increased use of natural resources and adverse impacts on existing transportation systems.
The Water Boards contend those comments are merely "unsubstantiated opinion and speculation by biased project opponents." Substantial evidence is not "[a]rgument, speculation, unsubstantiated opinion or narrative [or] evidence which is clearly inaccurate or erroneous." (Pub. Resources Code, § 21082.2, subd. (c).) However, letters and testimony from government officials with personal knowledge of the anticipated effects of a project on their communities "certainly supports a fair argument that the project may have a significant environmental impact." (City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 542, 230 Cal.Rptr. 867.) Again, however, the Trash TMDL itself satisfies the fair argument criterion.
Even if the Water Boards had relied on Public Resources Code section 21159 at the trial court, the environmental documents do not meet its minimum requirements. Neither the checklist nor the Trash TMDL includes an analysis of the reasonably foreseeable impacts of construction and maintenance of pollution control devices or mitigation measures, and in fact the Water Boards develop no argument as to how they ostensibly complied with the statute. While we agree a tiered environmental analysis is appropriate here, the Regional Board did not prepare a first level EIR or its functional equivalent. We reject the Water Boards' argument the Regional Board did all it could because there "is no way to examine project level impacts that are entirely dependent upon the speculative possibilities of how subsequent *397 decision[]makers may choose to comply" with the Trash TMDL. Tier two, project-specific EIR's would be more detailed under Public Resources Code section 21159.2, but the Trash TMDL sets forth various compliance methods, the general impacts of which are reasonably foreseeable but not discussed.
As a matter of policy, in CEQA cases a public agency must explain the reasons for its actions to afford the public and other agencies a meaningful opportunity to participate in the environmental review process, and to hold it accountable for its actions. (Federation of Hillside & Canyon Assns. v. City of Los Angeles, supra, 126 Cal.App.4th 1180, 1198, 24 Cal.Rptr.3d 543.) The Water Boards' CEQA documentation is inadequate, and remand is necessary for the preparation of an EIR or tiered EIR, or functional equivalent, as substantial evidence raises a fair argument the Trash TMDL may have significant impacts on the environment. The court correctly invalidated the Trash TMDL on CEQA grounds.[12]
VI
Declaratory Relief
In its statement of decision, the trial court explained the Cities "contend [the Water Boards] improperly attempted to control the watershed including the `entire 584 square miles' of incorporated and unincorporated areas of the County [of Los Angeles], and nowhere in the [Trash] TMDL or the [1994] Basin Plan Amendment did [they] assert that the numeric Waste Load Allocations . . . are to apply to the entire 584 square miles of watershed." The court, however, explained the Water Boards "concede the [Trash] TMDL only applies to navigable waters by asserting [they] didn't intend to control non-navigable waters," and it found "the parties are in agreement that the trash load allocations apply to the portion of the subject watershed as defined on pages 3575 and 3584 of the Administrative Record [pages of the Trash TMDL] and the Waste Load Allocations do not apply to non-waters."
The statement of decision nonetheless states the court granted the Cities' "relief as requested" as to "regulation of non-waters." In their third cause of action, the Cities sought a judicial declaration that the amendment to the 1994 Basin Plan and the Trash TMDL are invalid because they violate federal and state law. The judgment declared unenforceable a July 29, 2002, letter from the Regional Board to the EPA that stated the "Waste Load Allocations apply to the entire urbanized portion of the watershed . . . . The urbanized portion of the watershed was calculated to encompass 584 square miles of the total watershed."
"The fundamental basis of declaratory relief is the existence of an actual, present controversy." (5 Witkin, Cal. Procedure, supra, Pleadings, § 817, p. 273.) Because the parties agreed during this proceeding there was no present controversy, the judgment should not have included declaratory relief on the nonwaters issue.
CITIES' APPEAL
I
Concepts of "Maximum Extent Practicable" and "Best Management Practices"
The Cities contend a zero target for trash in the Los Angeles River is unattainable, *398 and thus the Trash TMDL violates the law by not deeming compliance through the federal "maximum extent practicable" and "best management practices" standards, which are less stringent than the numeric target of zero. The Cities rely on 33 United States Code section 1342(p)(3)(B)(iii), under which an NPDES permit for a municipal discharge into a storm drain "shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the [EPA] Administrator or the State determines appropriate for the control of such pollutants." (Italics added.)[13] "Best management practices" are generally pollution control measures set forth in NPDES permits. (BIA, supra, 124 Cal.App.4th at p. 877, 22 Cal.Rptr.3d 128.)
The Cities assert that "as the [r]ecord reflects, compliance with the `zero' [Trash] TMDL . . . is impossible," and the Water Boards "themselves recognize that `zero' is an impossible standard to meet." Contrary to the Cities' suggestion, the Water Boards made no implied finding or concession of impossibility. Rather, the record shows that members of the Water Boards questioned whether a zero trash target is actually attainable. A zero limit on trash within the meaning of the Trash TMDL is attainable because there are methods of deemed compliance with the limit. The record does not show the limit is unattainable, and the burden was on the Cities as opponents of the Trash TMDL to establish impossibility. Further, the impossibility issue is not germane at this juncture, as the matter is at the planning stage with an interim goal of a 50 percent reduction in trash, a goal everyone agrees is necessary and achievable.
In any event, the trial court found 33 United States Code section 1342(p)(3)(B)(iii) inapplicable to the adoption of a TMDL. The court also found state and federal laws authorize regional boards to "use water quality, and not be limited to practicability as the guiding principle for developing limits [in a TMDL] on pollution." Further, the court noted the Cities presented no authority for their proposition the Regional Board is required to adopt a storm water TMDL that is achievable.
We agree with the court's assessment. The statute applicable to establishing a TMDL, 33 United States Code section 1313(d)(1)(C), does not suggest that practicality is a consideration. To the contrary, a regional board is required to establish a TMDL "at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety." (33 U.S.C. § 1313(d)(1)(C).) The NPDES permit provision, 33 United States Code 1342(p)(3)(B), is inapplicable because, again, we are only considering the propriety of the Trash TMDL, a precursor to NPDES permits implementing it. Under the Trash TMDL, the numeric target will be reconsidered after several years when a reduction in trash of 50 percent is achieved, and thus it is presently unknown whether compliance with a trash limit of zero will ever actually be mandated.
To bolster their position the Cities rely on 33 United States Code section *399 1329(a)(1)(C)). It provides, however, that in a state's assessment report for a nonpoint source management program, the state must "describe[] the process, including intergovernmental coordination and public participation, for identifying best management practices and measures to control each category and subcategory of nonpoint sources and, where appropriate, particular nonpoint sources identified under subparagraph (B) and to reduce, to the maximum extent practicable, the level of pollution resulting from such category, subcategory, or source." (Ibid.) In BIA, supra, 124 Cal.App.4th at page 887, 22 Cal.Rptr.3d 128, we rejected the argument the statute shows Congress intended to apply a maximum extent practicable standard to point source discharges as well as nonpoint discharges. The Cities say they disagree with BIA, but they develop no argument revealing any flaw in the opinion. "[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived." (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448, 37 Cal.Rptr.2d 126.)
The Cities' reliance on Defenders of Wildlife v. Browner (9th Cir.1999) 191 F.3d 1159, for the proposition that municipalities, unlike private companies, may not be required to strictly comply with numeric discharge limits is likewise misplaced. Defenders of Wildlife v. Browner involves a challenge to an NPDES permit, not the adoption of a TMDL. Further, the court there rejected the argument that "the EPA [or authorized regional or state board] may not, under the [Clean Water Act], require strict compliance with state water-quality standards, through numerical limits or otherwise." (Id. at p. 1166.) The court explained: "Although Congress did not require municipal storm-sewer discharges to comply strictly with [numerical effluent limitations], [section] 1342(p)(3)(B)(iii) [of United States Code, title 33] states that `[p]ermits for discharges from municipal storm sewers . . . shall require . . . such other provisions as the [EPA] Administrator . . . determines appropriate for the control of such pollutants.' (Emphasis added.) That provision gives the EPA discretion to determine what pollution controls are appropriate. . . . [¶] Under that discretionary provision, the EPA has the authority to determine that ensuring strict compliance with state water-quality standards is necessary to control pollutants. The EPA also has the authority to require less than strict compliance with state water-quality standards. . . . Under 33 United States Code section 1342(p)(3)(B)(iii), the EPA's choice to include either management practices or numeric limitations in the permits was within its discretion." (Id. at pp. 1166-1167.)
In BIA, this court similarly held that 33 United States Code section 1342(p)(3)(B)(iii) does not divest a regional board's discretion to impose an NPDES permit condition requiring compliance with state water quality standards more stringent than the maximum extent practicable standard. (BIA, supra, 124 Cal.App.4th at pp. 871, 882-885, 22 Cal.Rptr.3d 128; see also Wat.Code, § 13377 [waste discharge requirements shall meet federal standards and may also include "more stringent effluent standards or limitations necessary to implement water quality control plans, or for the protection of beneficial uses, or to prevent nuisance"].) Thus, even if the analysis in Defenders of Wildlife v. Browner or BIA arguably has any application to a TMDL, the opinions do not help the Cities.
Additionally, the Cities' reliance on a November 2002 EPA memorandum on establishing TMDLs and issuing NPDES *400 permits is misplaced, as it post-dates the Regional Board's adoption of the Trash TMDL and its approval by the State Board and the EPA. Further, the memorandum states it is not binding, and "indeed, there may be other approaches that would be appropriate in particular situations. When EPA makes a TMDL or permitting decision, it will make each decision on a case-by-case basis and will be guided by applicable requirements of the [Clean Water Act] and implementing regulations, taking into account comments and information presented at that time by interested persons regarding the appropriateness of applying these recommendations to the particular situation."
II
Nonpoint Sources of Pollution
The Cities contend the court should have invalidated the Trash TMDL on additional grounds, including the Water Boards' failure to identify load allocations and implementation measures for nonpoint sources of trash discharge. The Cities assert the Water Boards are required to adopt implementation measures "for the homeless and aerial sources of trash, [and] also for the other nonpoint sources of trash consisting of State and federal facilities, and other facilities not yet subject to NPDES Permits." The Cities submit that the Clean Water Act does not allow the Water Boards "to effectively impose the burden of the load allocation from all nonpoint sources solely on municipalities."
The Cities further claim the Water Boards acted arbitrarily and capriciously by imposing a trash target of zero on municipalities, but imposing a "`de minimus' requirement on non-point source discharges." The Cities cite the July 29, 2002, letter from the Regional Board to the EPA, clarifying that it identified nonpoint sources of trash pollution "as wind blown trash and direct deposit of trash into the water," but "as the non-point sources were determined to be de-minimus, we did not believe it necessary to outline a reduction schedule for non-point sources." Contrary to the Cities' position, the Regional Board did not adopt a "de minimus" load allocation for nonpoint sources. Rather, as the trial court found, the Regional Board found the trash pollution from nonpoint sources is de minimus compared to trash pollution from point sources. The TMDL states the "major source of trash in the [Los Angeles River] results from litter, which is intentionally or accidentally discarded in the watershed drainage areas."
In arguing the Trash TMDL is required to include a specific load allocation for nonpoint sources of pollution, the Cities rely on the 2000 EPA Guidance, which provides: "Load allocations for nonpoint sources may be expressed as specific allocations for specific discharges or as `gross allotments' to nonpoint source discharger categories. Separate nonpoint source allocations should be established for background loadings. Allocations may be based on a variety of technical, economic, and political factors. The methodology used to set allocations should be discussed in detail." (Italics added.)
The 2000 EPA Guidance, however, states it does not impose legally binding requirements. Further, the load allocation for nonpoint sources is implicitly zero for trash. Federal regulations define a TMDL as the sum of waste load allocations for point sources, load allocations for nonpoint sources and natural backgrounds. (40 C.F.R. § 130.2(i) (2003).) Since "a TMDL defines the specified maximum amount of a pollutant which can be discharged into a body of water from all sources combined" (American Wildlands v. Browner (10th Cir.2001) 260 F.3d 1192, *401 1194), and the Trash TMDL specifies a zero numeric target for trash in Los Angeles River, load allocations are necessarily zero as well as waste load allocations.
Additionally, the Cities cite no authority for the proposition the Water Boards are required to identify an implementation program for nonpoint pollution sources. Again, "[w]here a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, 86 Cal.Rptr. 906, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3, 98 Cal.Rptr. 217, 490 P.2d 537; People v. Sierra (1995) 37 Cal.App.4th 1690, 1693, fn. 2, 44 Cal.Rptr.2d 575.)
In any event, although the Clean Water Act focuses on both point and nonpoint sources of pollution, it is settled that the measure "does not require states to take regulatory action to limit the amount of non-point water pollution introduced into its waterways. While the [Clean Water Act] requires states to designate water standards and identify bodies of water that fail to meet these standards, `"nothing in the [Clean Water Act] demands that a state adopt a regulatory system for nonpoint sources."'" (Defenders of Wildlife v. EPA, supra, 415 F.3d at pp. 1124-1125, citing American Wildlands v. Browner, supra, 260 F.3d 1192, 1197 ["In the [Clean Water] Act, Congress has chosen not to give the EPA the authority to regulate nonpoint source pollution"]; Appalachian Power Co. v. Train (4th Cir.1976) 545 F.2d 1351, 1373 ["Congress consciously distinguished between point source and nonpoint source discharges, giving EPA authority under the [Clean Water] Act to regulate only the former"]; City of Arcadia I, supra, 265 F.Supp.2d at p. 1145 ["For nonpoint sources, limitations on loadings are not subject to a federal nonpoint source permitting program, and therefore any nonpoint source reductions can be enforced . . . only to the extent that a state institutes such reductions as regulatory requirements pursuant to state authority"].) "Nonpoint sources, because of their very nature, are not regulated under the NPDES [program]. Instead, Congress addressed nonpoint sources of pollution in a separate portion of the [Clean Water] Act which encourages states to develop areawide waste treatment management plans." (Pronsolino v. Marcus, supra, 91 F.Supp.2d at p. 1348, citing 33 U.S.C. § 1288; see also 33 U.S.C. § 1329.)
We conclude the court correctly ruled on this issue.
III
Uses To Be Made of Watershed
The Cities next contend the Trash TMDL is invalid because the Water Boards "improperly relied on nonexistent, illegal and irrational `uses to be made' of the [Los Angeles] River." (Emphasis omitted.) The Cities complain that the Trash TMDL states a purported beneficial use of one of numerous reaches of the river on the state's 303(d) list is "recreation and bathing, in particular by homeless people who seek shelter there," and the State Board chairman questioned the legality of such uses. The Cities also assert there is no evidence to support the Trash TMDL's finding that swimming is an actual use of the river in any location.
The Cities rely on section 303(d)(1)(A) of the Clean Water Act (33 U.S.C. § 1313(d)(1)(A)), which provides that in identifying impaired waters for its 303(d) list, states "shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters." (Italics added.) *402 The Cities assert "an `illegal' use cannot be a `use to be made' for the water body."
Additionally, the Cities cite Water Code section 13241, which requires regional boards to establish water quality objectives in water quality control plans by considering a variety of factors, including "[p]ast, present, and probable future beneficial uses of water." (Wat.Code, § 13241, subd. (a).) They assert the "Water Boards acted contrary to law by basing the [Trash] TMDL on any uses of the [Los Angeles] River other than the actual `uses to be made' of the River." (Emphasis omitted.)
The Cities, however, make no showing of prejudice. Swimming and bathing by the homeless are only two among numerous other beneficial uses that the Cities do not challenge, and there is no suggestion the numeric target of zero trash in the Los Angeles River would have been less stringent without consideration of the factors the Cities raise.
IV
Scientific Methodology
Further, the Cities contend the Trash TMDL is invalid on the additional ground that before adopting and approving it the Water Boards failed to comply with the requisite data collection and analysis. The Cities rely on a federal regulation providing that "[s]tates must establish appropriate monitoring methods and procedures (including biological monitoring) necessary to compile and analyze data on the quality of waters of the United States and, to the extent practicable, ground-waters." (40 C.F.R. § 130.4(a) (2003).) "The State's water monitoring program shall include collection and analysis of physical, chemical and biological data and quality assurance and control programs to assure scientifically valid data" in developing, among other things, TMDLs. (Id. at § 130.4(b).)
The trial court rejected the Cities' position, finding they failed to establish the Water Boards' scientific data is inadequate or scientifically invalid. The court explained the Water Boards "have not failed to conduct ongoing studies, as they say, how else would [they] know the River is impaired by trash[?] And the Record reveals studies relied upon by the Boards."
This argument is a variation on the assimilative capacity study issue, and we similarly reject it. As the Water Boards point out, "trash is different than other pollutants. . . . The complex modeling and analytical effort that may be necessary for typical pollutants that may be present in extremely low concentrations have no relevance to calculating a trash TMDL." Further, the Trash TMDL does discuss sources of trash in the Los Angeles River. It states the "City of Los Angeles conducted an Enhanced Catch Basin Cleaning Project in compliance with a consent decree between the [EPA], the State of California, and the City of Los Angeles. The project goals were to determine debris loading rates, characterize the debris, and find an optimal cleaning schedule through enhancing basin cleaning. The project evaluated trash loading at two drainage basins[.]" It goes on to discuss the amounts and types of trash collected in the drainage basins between March 1992 and December 1994. The Cities cite no authority for the notion the Water Boards may not rely on data collected by another entity.
The Trash TMDL also states "[s]everal studies conclude that urban runoff is the dominant source of trash. The large amounts of trash conveyed by the urban storm water to the Los Angeles River is evidenced by the amount of . . . trash that accumulates at the base of storm drains."
*403 Alternatively, the Cities contend a TMDL is not suitable for trash calculation. They rely on 33 United States Code section 1313(d)(1)(C), which provides: "Each State shall establish for [impaired] waters . . . the total maximum daily load, for those pollutants which the [EPA] Administrator identifies . . . as suitable for such calculation. Such load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety." (Italics added.)
The Cities also cite a 1978 EPA regulation that states a TMDL is "suitable for . . . calculation" only under "proper technical conditions." (43 Fed.Reg. 60662, 60665 (Dec. 28, 1978) (italics omitted).) "Proper technical conditions" require "the availability of the analytical methods, modeling techniques and data base necessary to develop a technically defensible TMDL." (Id. at p. 60662.) The Cities assert the proper technical conditions do not exist, referring to the Trash TMDL's comment that "[e]xtensive research has not been done on trash generation or the precise relationship between rainfall and its deposition in waterways."
The Cities ignore the EPA's determination that a TMDL may be calculated for trash as a pollutant. It approved the Regional Board's Trash TMDL, and had previously approved a trash TMDL for the East Fork of the San Gabriel River. (See Cal.Code Regs., tit. 23, § 3933.) Thus, the Cities' view that the 1978 EPA regulation prohibits a TMDL for trash is unfounded. TMDL's for trash are relatively new, and there is no evidence that in 1978 the EPA contemplated their establishment.
We find irrelevant the Cities' discussion of the EPA's proposed July 2000 TMDL "rule," as their federal register citation is not a regulation and merely concerns the 2003 withdrawal of a rule that never took effect. (68 Fed.Reg. 13608, 13609 (Mar. 19, 2003) ["The July 2000 rule was controversial from the outset"].) In August 2001 the EPA delayed implementation of the July 2000 rule for further consideration, noting that some local government officials argued "some pollutants are not suitable for TMDL calculation." (66 Fed.Reg. 41817, 41819 (Aug. 9, 2001).) Nothing is said, however, about whether a trash TMDL is unsuitable for calculation, and again, the EPA has approved such TMDLs. The withdrawal of the proposed July 2000 rule left the existing rule regarding the establishment of a TMDL in place. (33 U.S.C. § 1313(d)(1)(C).)
V
APA Requirements
Lastly, the Cities contend the trial court erred by finding the Water Boards did not violate the APA. They assert the July 29, 2002, "clarification memorandum" from the Regional Board to the EPA makes substantive changes to the Trash TMDL regulation the inclusion of the Estuary in the Trash TMDL and designating an allocation of zero for nonpoint pollution sources violates the notice and hearing provisions of the APA. The Cities also contend the Trash TMDL and the clarification memorandum "establish[] a regulation in violation of the APA's elements of `clarity,' `consistency,' and `necessity,' as defined in [Government] Code section 11349."
The APA (Gov.Code, §§ 11340 et seq., 11370) "establishes the procedures by which state agencies may adopt regulations. The agency must give the public notice of its proposed regulatory action [citations]; issue a complete text of the proposed regulation with a statement of the reasons for it [citation]; give interested parties an opportunity to comment on *404 the proposed regulation [citation]; respond in writing to public comments [citations]; and forward a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law [citation], which reviews the regulation for consistency with the law, clarity, and necessity [citations]." (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568, 59 Cal.Rptr.2d 186, 927 P.2d 296.) "One purpose of the APA is to ensure that those persons or entities whom a regulation will affect have a voice in its creation [citation], as well as notice of the law's requirements so that they can conform their conduct accordingly [citation]." (Id. at pp. 568-569, 59 Cal.Rptr.2d 186, 927 P.2d 296.)
The APA does not apply to "the adoption or revision of state policy for water quality control" unless the agency adopts a "policy, plan, or guideline, or any revision thereof." (Gov.Code, § 11353, subds.(a), (b)(1).) The Water Boards contend that while the Trash TMDL and amendment adding it to the 1994 Basin Plan are policies or plans covered by the APA, the clarification memorandum is not because it does not revise the terms of the Trash TMDL.
We are not required to reach the issue, because assuming the APA is applicable the Cities' position lacks merit. As to the Estuary, we have determined the Trash TMDL sufficiently notified affected parties of its inclusion in the document as an impaired water body. Further, we have determined the load allocation for nonpoint sources of trash pollution is also necessarily zero, and the Trash TMDL is not required to include implementation measures for nonpoint sources. Accordingly, the clarification memorandum is not germane.[14]
DISPOSITION
The judgment is affirmed insofar as it is based on the Trash TMDL's violation of CEQA, and on a rejection of each of the issues the Cities raised in their appeal. The judgment is reversed insofar as it is based on the Trash TMDL's lack of an assimilative capacity study, inclusion of the Estuary as an impaired water body, and a cost/benefit analysis under Water Code section 13267 or the consideration of economic factors under Water Code section 13241, and also insofar as it grants declaratory relief regarding the purported inclusion of non-navigable waters in the Trash TMDL.
The court's postjudgment order staying the Trash TMDL's implementation schedule is affirmed. The parties are to bear their own costs on appeal.
WE CONCUR: McINTYRE and IRION, JJ.
NOTES
[1] We refer to these entities together as the Water Boards.
[2] In addition to Arcadia the Cities include Baldwin Park, Bellflower, Cerritos, Commerce, Diamond Bar, Downey, Irwindale, Lawndale, Monrovia, Montebello, Monterey Park, Pico Rivera, Rosemead, San Gabriel, Santa Fe Springs, Sierra Madre, Signal Hill, South Pasadena, Vernon, West Covina and Whittier.
[3] According to the Environmental Protection Act (EPA), nonpoint source pollution is caused by rainfall or snowmelt moving over and through the ground, and includes excess fertilizers, herbicides, and insecticides from agricultural lands and residential areas; oil, grease and toxic chemicals from urban runoff and energy production; sediment from improperly managed construction sites, crop and forest land and eroding stream banks; salt from irrigation practices and acid drainage from abandoned mines, and bacteria and nutrients from livestock, pet wastes and faulty septic systems. (http://www.epa.gov/owow/nps/qa.html.)
[4] The Clean Water Act "does not define total maximum daily load. EPA's regulations break it into a `waste[]load allocation' for point sources and a `load allocation' for nonpoint sources." (Pronsolino v. Marcus, supra, 91 F.Supp.2d at p. 1344, fn. 8; 40 C.F.R. § 130.2(g)-(i).)
[5] The Regional Board defines "trash" as "man-made litter" within the meaning of Government Code section 68055.1, subdivision (g), which provides: "`Litter' means all improperly discarded waste material, including, but not limited to, convenience food, beverage, and other produce packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state, but not including the properly discarded waste of the primary processing of agriculture, mining, logging, sawmilling, or manufacturing."
[6] The Regional Board adopted a Trash TMDL in January 2001, which also had a target of zero trash. It reconsidered the matter on September 19, 2001, "to provide clarifying language and greater flexibility in implementing the [Trash] TMDL."
[7] In City of Arcadia v. EPA (N.D.Cal.2003) 265 F.Supp.2d 1142, 1156 (City of Arcadia I), the court noted the Los Angeles County Department of Public Works has assumed responsibility for the baseline monitoring burden for all municipalities to which the Trash TMDL applies. The Trash TMDL states that "[e]ach of the permittees and co-permittees are responsible for monitoring land uses within their jurisdiction," but "monitoring responsibilities may be delegated to a third-party monitoring entity such as the [Department of Public Works]."
[8] In City of Arcadia I, supra, 265 F.Supp.2d at page 1153, the City of Arcadia and other cities unsuccessfully challenged the EPA's approval of the Trash TMDL on the ground it was unauthorized to do so after adopting its own TMDL. In City of Arcadia II, supra, 411 F.3d at pages 1106-1107, the court affirmed the lower court's dismissal of the case.
[9] For the same reason, we are not required to reach the Water Boards' assertion that to any extent the California Supreme Court's recent opinion in City of Burbank, supra, 35 Cal.4th 613, 26 Cal.Rptr.3d 304, 108 P.3d 862, applies to a TMDL, it precludes them from considering economic factors in establishing the Trash TMDL.
[10] The Cities also assert that under federal law an economic analysis is a prerequisite to the adoption of a TMDL. They rely on 40 Code of Federal Regulations, part 130.6(c)(4), but it pertains to nonpoint sources of pollution that need not be addressed in a TMDL, as discussed further below. The portion of the regulation covering TMDLs does not mention economics (id., § 130.6(c)(1)). Parts 130.6(5) and (6) of 40 Code of Federal Regulations discuss economics, but in the context of the area wide planning process under section 208(b)(2) of the Clean Water Act (33 U.S.C. § 1288(b)(2)), which is inapplicable here. According to the Water Boards, the Southern California Association of Governments is the designated area wide planning agency.
[11] A negative declaration may not be based on a "`bare bones'" approach in a checklist. (Snarled Traffic Obstructs Progress v. City and County of San Francisco (1999) 74 Cal.App.4th 793, 797, fn. 2, 88 Cal.Rptr.2d 455, and cases cited therein.) A "certified program's statement of no significant impact must be supported by documentation showing the potential environmental impacts that the agency examined in reaching its conclusions," and "[t]his documentation would be similar to an initial study." (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 21.11, pp. 1088-1089, italics added.) Because we conclude an EIR is required, we need not expand on how the checklist and Trash TMDL fail to satisfy negative declaration requirements or their functional equivalent.
[12] The Water Boards also contend the trial court erred by staying the implementation schedule for the Trash TMDL pending this appeal. The matter is moot given our holding on the CEQA issue.
[13] The Clean Water Act and applicable regulations do not define the maximum extend practicable standard. (Building Industry Assn. of San Diego County v. State Water Resources Control Bd. (2004) 124 Cal.App.4th 866, 889, 22 Cal.Rptr.3d 128 (BIA).) In BIA, the NPDES permit at issue defined the standard as "a highly flexible concept that depends on balancing numerous factors." (Ibid.)
[14] We deny the Water Boards' June 16, 2005, request for judicial notice.
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364 F.Supp. 614 (1973)
Harry GIBSON et al., Plaintiffs,
v.
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant.
Civ. A. No. 37900.
United States District Court, E. D. Michigan, S. D.
October 10, 1973.
*615 Allan Neef, Darden, Neef & Heitsch, Harry Gibson, Robert Houston, Lloyd E. Powell, Detroit, Mich., for plaintiffs.
Robert C. Winter, Clark, Klein, Winter, Parsons & Prewitt, Detroit, Mich., for defendant.
MEMORANDUM OPINION
FEIKENS, District Judge.
Plaintiffs are homeowners who have mortgages thereon with the defendant, First Federal Savings and Loan Association (hereinafter referred to as First Federal). These mortgages are insured by the Federal Housing Authority. Pursuant to the mortgage instruments, plaintiffs pay to defendant a monthly escrow amount for taxes and insurance premiums.
As to the escrow funds, plaintiffs claim that First Federal is in violation of federal regulations and the common law in two general respects:[1] (1) First Federal commingles the escrow funds it receives from plaintiffs with its general funds, invests these funds and pays no interest to the plaintiffs; (2) First Federal requires larger monthly escrow amounts than is necessary to pay taxes and insurance premiums when these become due. Plaintiffs seek an injunction, an accounting for interest, and return of excess escrow amounts.
Before the court now is the defendant's motion for summary judgment.
Before proceeding to the determination of this motion the court held a thorough evidentiary hearing. The parties were permitted fully to set forth their respective factual positions to illuminate the issues now before the court for determination.
I
With respect to the plaintiffs' first claim, the court grants defendant's motion.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. First Federal agrees that it commingles the escrow funds with its general funds and that it does not pay interest to plaintiffs. Thus there is no issue as to a material fact under this claim.
The question is whether First Federal is required by law to segregate the escrow funds and to pay interest on them. The court concludes that it is not so required.
A.
As noted in this court's earlier opinion,[2] First Federal is organized under the Home Owners' Loan Act of 1933, 12 U.S.C. § 1461, et seq., and is regulated by the Federal Home Loan Bank Board, 12 U.S.C. § 1464. A regulation of this Board allows First Federal to collect the monthly escrow amount. 12 C.F.R. § 546.6-11 provides:
"A federal association may require that an equivalent of one-twelfth of the estimated annual taxes, assessments, insurance premiums and other charges on real estate security be paid in advance . . . to enable the association to pay such charges as they become due from the funds so received. . . ."
Further, since plaintiffs' mortgages are insured by the Federal Housing Authority, First Federal is obliged to follow *616 the regulations of the Department of Housing and Urban Development regarding the mortgage provisions in plaintiffs' mortgages. One such regulation requires First Federal to collect the monthly escrow amount. 24 C.F.R. § 203.23(a).
Plaintiffs do not contest the authority of First Federal to collect the monthly escrow amount. Plaintiffs do contend that certain federal regulations and the common law require First Federal to segregate the escrow funds and to pay interest on them.
Plaintiffs cite in support H.U.D. regulation 24 C.F.R. § 203.7(a), which provides:
"Approval of a mortgage may be withdrawn at any time by notice from the Commissioner, by reason of
* * * * * *
"(2) The failure of a nonsupervised mortgagee to segregate all escrow funds received from the mortgagors on account of ground rents, taxes, assessments, and insurance premiums, and to deposit such funds to a special account or accounts with a financial institution whose accounts are insured by the Federal Deposit Insurance Corporation or by the Federal Savings and Loan Insurance Corporation;
"(3) The use of escrow funds for any purpose other than that for which they were received; . . ."
Plaintiffs contend that subsection (2) of this regulation requires First Federal to segregate its escrow funds. The court disagrees. Plainly the regulation applies only to "nonsupervised mortgagees." The term "supervised institution" is defined in 24 C.F.R. § 203.4(b):
"A mortgagee approved as a supervised institution shall meet these requirements:
"(1) The mortgagee shall be subject to the inspection and supervision of a governmental agency which is required by law to make periodic examinations of the mortgagee's books and accounts . . ."
Plainly, First Federal is "supervised" and thus not required by 24 C.F.R. § 203.7(a)(2) to segregate.[3] There is no regulation requiring First Federal to segregate.[4]
Plaintiffs further contend that subsection (3) of 24 C.F.R. § 203.7(a), quoted above, prohibits use of the escrow funds for investment purposes by First Federal. But the regulation does not expressly prohibit this practice. Rather, it prohibits application of the funds for purposes different from that for which they were received. Plaintiffs do not dispute that First Federal pays the taxes and insurance premiums with the escrow funds and that any excess it collects over the amount actually paid out for taxes and insurance is credited for future payments of these items. Thus, the escrow funds are used exclusively for the purpose for which they were received.[5]
B.
Plaintiffs also contend that the escrow funds are held in trust by First Federal, and that the common law therefore requires First Federal to segregate the funds and to pay interest on them. This court considers itself without jurisdiction to hear that claim for relief. As noted, jurisdiction to hear this case is founded upon 28 U.S.C. § 1337. This *617 section confers jurisdiction over civil actions arising under federal statutes "regulating commerce. . . ." No federal regulation requires First Federal to pay interest.[6] Clearly, plaintiffs' claim for relief under a trust theory is outside the jurisdiction conferred upon the court by Section 1337. Thus, without prejudice to the plaintiffs' right to pursue the trust theory elsewhere, the court denies relief on this theory.
II
The motion as it relates to plaintiffs' second claim is denied. There is a genuine issue of material fact as to this claim.
As noted, First Federal is permitted by a regulation of the Federal Home Loan Bank Board, 12 C.F.R. § 545.6-11, and required by regulation of H.U.D., 24 C.F.R. § 203.23(a), to collect one-twelfth of the estimated annual taxes and insurance premiums per month in order to pay them, as they become due, from the escrow funds.
Plaintiffs' mortgages include the following provision:
"Third: That, in order more fully to protect the security of this mortgage, the Mortgagor . . . in addition to the monthly installments of principal and interest . . ., will pay to the Mortgagee the following sums:
* * * * * *
(b) A sum equal to . . . the premiums that will next become due on policies of fire and hazard insurance covering the mortgaged property, plus taxes and assessments, next due on the mortgaged property (all as estimated by the mortgage) less all sums already paid therefor divided by the number of months to elapse before one month prior to the dates when such will become delinquent, such sums to be held by the Mortgagee in trust to pay said (charges)."
Plaintiffs contend that this method of calculating the monthly escrow amount does not comply with the method allowed First Federal under 12 C.F.R. § 545.6-11, or required under 24 C.F.R. § 203.23(a). These regulations clearly allow First Federal to "estimate" the annual amounts due on insurance and taxes. However, exact estimation is impossible since the amounts owed on these items change from year to year. Thus, the court reads the regulation not to require exact estimation but rather a reasonable estimation based on past experience. Plaintiffs contend that lower monthly escrow amounts would be required if First Federal planned to take advantage of certain installment payment options. It is enough to note now that what constitutes a reasonable estimate is a question of both law and fact. Thus, the question of whether First Federal is in violation of federal regulations also involves questions of fact. Defendant's motion as it relates to plaintiffs' second claim is denied.
An appropriate order may be presented.
NOTES
[1] A prior opinion reported at 347 F.Supp. 560 (E.D.Mich.1972), affirmed jurisdiction in this matter, based on 28 U.S.C. § 1337.
[2] 347 F.Supp. 560 (E.D.Mich.1972).
[3] In light of this interpretation of the regulation, it is unnecessary to consider the defendant's contention that the regulation deals only with the relationship between the institution and H.U.D., and thus does not confer any substantive rights of segregation to plaintiffs.
[4] It is interesting that nonsupervised institutions are required to segregate. 24 C.F.R. § 203.4(c)(2). However, no parallel requirement for supervised institutions has been found in the regulations.
[5] A violation of this regulation may occur if the mortgagee uses the escrow fund to pay off principal or interest accounts. No such contention is raised herein however. Also, an additional difficulty with this argument is raised in footnote 3, supra.
[6] Note that the regulations by implication permit or perhaps require mortgagees to earn interest on the escrow funds. Unsupervised institutions are required to deposit the funds into an insured financial institution, 24 C.F.R. § 203.4(c)(2) and § 203.7(a)(2). Further, as noted, supervised institutions are not required to segregate. This means that escrow funds may be invested along with other general deposit funds.
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37 Cal.Rptr.3d 759 (2006)
135 Cal.App.4th 827
BIOSENSE WEBSTER, INC., Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Deana Dowell et al., Real Parties in Interest.
No. B184852.
Court of Appeal, Second District, Division Two.
January 17, 2006.
*760 Alschuler Grossman Stein & Kahan, Mark A. Neubauer and Rebecca Edelson, Santa Monica, for Petitioner.
No appearance for Respondent.
Feldman Gale, James A. Gale, Miami, FL, Todd M. Malynn, Los Angeles, and Michael J. Weber, Huntington Beach, for Real Parties in Interest.
DOI TODD, Acting P.J.
In these original proceedings, petitioner Biosense Webster, Inc. (Biosense) challenges a temporary restraining order (TRO) prohibiting it from commencing or taking any action to enforce any noncompetition agreement or restrictive covenant against three of its former employees in any court other than the Los Angeles County Superior Court or federal court in the State of California. We conclude that the TRO was improperly granted under both Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697, 128 Cal.Rptr.2d 172, 59 P.3d 231 (Advanced Bionics) to the extent it enjoined sister-state actions, and United States Supreme Court precedent to the extent it enjoined federal actions outside California. We therefore grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Biosense, a California corporation with its principal place of business in California, manufactures and sells electrophysiology (EP) catheters and anatomical mapping devices. In 1999, Claudio Plaza was hired by Biosense and was eventually promoted to senior engineer developing EP catheters. In 2003 and 2004, Deana Dowell and *761 Steven Chapman, respectively, were hired by Biosense as professional education specialists, educating physicians and their staff about the company's three-dimensional anatomical mapping system. Plaza and Dowell are lifelong residents of California, and Chapman has resided in California for more than 15 years.
Upon accepting employment, Dowell and Chapman signed an "Employee Secrecy, Non-Competition and Non-Solicitation Agreement" (Agreement).[1] The Agreement contained a covenant not to compete, providing that for 18 months after termination of employment the employees would "not render services, directly or indirectly, to any CONFLICTING ORGANIZATION" in which such services "could enhance the use or marketability of a CONFLICTING PRODUCT by application of CONFIDENTIAL INFORMATION" which the employees had access to during their employment. A conflicting product was defined as any product, process, technology, machine, invention or service which resembles or competes with one upon which the employee worked or of which the employee was knowledgeable as a result of employment. A conflicting organization was defined as a person or organization engaged or about to become engaged in research, development, production, marketing or selling of a conflicting product. The Agreement also provided that employees would "not disclose, use, disseminate, lecture upon or publish CONFIDENTIAL INFORMATION" while employed and for 18 months after employment. The Agreement included a choice of law provision: "This Agreement shall be interpreted according to the laws of the State of New Jersey without regard to the conflict of law rules thereof. I agree that any action relating to or arising out of this Agreement may be brought in the courts of the State of New Jersey or, if subject matter jurisdiction exists, in the United States District Court for the District of New Jersey. I consent to personal jurisdiction and venue in both such courts...."[2]
In April and July 2005, Chapman and Dowell, respectively, accepted positions in California with a competitor of Biosense, St. Jude Medical S.C., Inc., doing business as United States Division (USD). In June 2005, Plaza accepted a position in California with Pacesetter, Inc. doing business as St. Jude Medical Cardiac Rhythm Management (Pacesetter). USD is a Minnesota corporation with a principal place of business in California, and Pacesetter is a Delaware corporation which also has a principal place of business in California.[3] USD and Pacesetter are subsidiaries of St. Jude Medical, Inc. (St. Jude), a Minnesota corporation with headquarters in Minnesota.
The Cease and Desist Letter
By letter dated July 1, 2005, Biosense demanded that St. Jude cease its "unlawful raiding" of Biosense's employees, including Dowell, Chapman and Plaza. The letter stated that the former employees had covenants not to compete which precluded their employment with St. Jude and their use of Biosense's confidential and trade *762 secret information about its business and personnel. The letter stated that to the extent St. Jude "cooperates in and benefits from" the former employees' breaches of their obligations to Biosense, it was exposing itself to tort liability, including claims for interference with contract, unfair competition and misappropriation of trade secrets. Biosense demanded that St. Jude provide "adequate assurances" that there would be no further raiding of its employees and agree that the named employees be transferred to positions not requiring their use of Biosense's confidential information. The letter further stated: "Receipt of the above assurances will hopefully help us to work towards a resolution of this matter regarding the employees without the need for any litigation. St. Jude Medical needs to understand, however, that Biosense Webster will pursue all rights and remedies it deems appropriate (including litigation) if this matter is not resolved to its satisfaction in the immediate future." The letter concluded: "We look forward to hearing from you within two weeks of the date of this letter in the hope that we can resolve this matter expeditiously and efficiently for all parties involved."
St. Jude received the letter on July 11, 2005, and on that day responded that it would need additional time to review the matter. On July 27, 2005, St. Jude faxed a letter to Biosense stating that as a result of Biosense's "threats" of litigation, St. Jude had considered it necessary to initiate litigation in California. St. Jude enclosed copies of (1) a complaint filed the previous day by real parties against Biosense for declaratory relief[4] and unfair competition under Business and Professions Code sections 16600[5] and 17200,[6] and (2) a TRO and order to show cause (OSC) re preliminary injunction that real parties had obtained ex parte on the morning of July 27, 2005, without providing advance notice to Biosense.
The TRO and OSC
The ex parte application for the TRO and OSC stated that "exigent circumstances" excused advance notice to Biosense because Biosense had "evidenced a clear intent to evade California's public policy against restraints of trade and California's unfair competition law governing its employment contracts by instituting litigation in a remote forum." Real parties submitted copies of TROs previously issued by the respondent court in three unrelated cases granting the same relief real parties were seeking. Real parties also presented the declarations of Dowell, Chapman and Plaza, who each stated that he or she left Biosense and joined St. Jude's subsidiaries for career advancement. They also stated they were not told by anyone at Biosense, either in their exit interviews or at any other time, that they could not work for USD or Pacesetter or *763 that doing so was a breach of any obligation owed to Biosense.
The trial court granted the TRO enjoining Biosense and its agents from "[c]ommencing or taking any action other than in this court, the Superior Court of the State of California for the County of Los Angeles," to enforce any noncompetition agreement with Dowell, Chapman and Plaza, or to enforce any "restrictive covenant" in any agreement with Dowell, Chapman and Plaza "on the ground that they, or one or more of them, have in their possession or had `access' to any trade secret, confidential or proprietary information belonging to Biosense or on any other ground." The court noted during the ex parte hearing that Biosense would "have a right to sue here in the federal court in L.A., and I don't intend to enjoin that, but I'm not going to change it to an order to that effect at this point." The court also issued the OSC, setting it for hearing on August 15, 2005.
The Writ Petition
On August 4, 2005, Biosense filed a petition for writ of mandate and/or prohibition in this court, seeking an immediate stay of all trial court proceedings. Biosense asserted three grounds for relief: (1) the TRO was issued ex parte without notice to Biosense in violation of its constitutional and statutory rights to notice; (2) the TRO violated the basic principles of comity and judicial restraint announced in Advanced Bionics; and (3) real parties came to court seeking equity with unclean hands. The following day, the trial court granted the parties' request to continue the OSC hearing to August 31, 2005, and ordered the TRO to remain in effect until that date.
On August 19, 2005, this court issued an order staying the hearing on the OSC. The order stated that it appeared the trial court had erred in issuing the TRO and setting the OSC hearing because "(1) the prospect that petitioners would institute litigation against real parties in interest does not constitute great or irreparable injury, immediate danger, or any other statutory basis for issuing a temporary restraining order without notice (Code Civ. Proc., § 527, subd. (c); Cal. Rules of Court, rule 379(g)); (2) the temporary restraining order is overbroad, restraining litigation in any and all federal courts; and (3) principles of judicial restraint and comity prohibit antisuit injunctive relief to restrain litigation in another state." The order gave notice under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180, 203 Cal.Rptr. 626, 681 P.2d 893 (Palma) that this court was considering issuing a writ of mandate in the first instance unless the trial court vacated the TRO and OSC. In the event the trial court did not do so by August 26, 2005, the parties were directed to submit further briefing to this court.[7]
Subsequent Trial Court Proceedings
On or about August 17, 2005, Biosense filed opposition to the OSC. On August 24, 2005, real parties filed an ex parte application requesting the opportunity to file briefing in response to this court's Palma notice, and requesting the trial court to correct the TRO nunc pro tunc to permit the filing of an action in federal court in California, and to "clarify" the TRO to reflect certain findings. Biosense received notice of the ex parte application and appeared at the hearing, which lasted approximately 45 minutes. The court denied the application with respect to the requests for further briefing and for a clarification of findings, but granted the request to correct the TRO nunc pro tunc to permit *764 the filing of an action in "any federal court in the State of California."[8]
DISCUSSION
A. Standard of Review
"`The law is well settled that the decision to grant [a restraining order] rests in the sound discretion of the trial court.' (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69, 196 Cal.Rptr. 715, 672 P.2d 121....) `A trial court will be found to have abused its discretion only when it has "`exceeded the bounds of reason or contravened the uncontradicted evidence.'"' (Ibid.) `Further, the burden rests with the party challenging the [trial court's order] to make a clear showing of an abuse of discretion.' (Ibid.)" (Church of Christ in Hollywood v. Superior Court (2002) 99 Cal.App.4th 1244, 1251, 121 Cal.Rptr.2d 810.) "Mandate lies to control judicial discretion when that discretion has been abused." (State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432, 304 P.2d 13; see also Robbins v. Superior Court (1985) 38 Cal.3d 199, 205, 211 Cal.Rptr. 398, 695 P.2d 695 ["Although mandamus does not generally lie to control the exercise of judicial discretion, the writ will issue `where, under the facts, that discretion can be exercised in only one way'"].)
B. Mootness
Real parties argue that in light of the trial court proceedings subsequent to the filing of the writ petition, the "writ petition directed to a TRO without notice is moot." Following our Palma notice, Biosense received notice of real parties' August 24, 2005 ex parte application for correction of the TRO. At the outset of the 45-minute hearing, Biosense pointed out to the respondent court that it had filed a "lengthy" opposition to the OSC. The court stated that it had read the opposition and invited Biosense to "stress anything that you wish to stress." Biosense then proceeded to argue that the TRO should be vacated. The trial court rejected Biosense's arguments and continued the TRO in force, corrected nunc pro tunc to permit the filing of an action in federal court in the State of California.
Because Biosense was given a full and fair opportunity to be heard on the merits of the TRO, we find that the issue of whether the TRO was improperly granted in the absence of notice is now moot. (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10, 244 Cal.Rptr. 581 [reviewing courts will decide only actual controversies and not questions that have become moot by subsequent acts or events].) However, because the writ petition raises challenges to the issuance of the TRO, which are separate and apart from the issue of notice, we find that the writ petition itself is not moot. "[T]he general rule governing mootness becomes subject to the case-recognized qualification that an appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination." (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717.)
C. Sister-State Actions
We agree with Biosense that the TRO is "irreconcilable" with our Supreme Court's decision in Advanced Bionics, supra, 29 Cal.4th 697, 700, 128 Cal.Rptr.2d 172, 59 P.3d 231, which held that a TRO enjoining a party in a California action from taking *765 any action in a Minnesota proceeding involving the same dispute over a covenant not to compete was improper under principles of judicial restraint and comity.
In Advanced Bionics, supra, Medtronic, Inc. (Medtronic), a Minnesota corporation with headquarters in Minnesota, hired Mark Stultz in Minnesota. Stultz signed an employee agreement containing a covenant not to compete and a Minnesota choice-of-law provision. (29 Cal.4th at pp. 700-701, 128 Cal.Rptr.2d 172, 59 P.3d 231.) Five years later, Stultz resigned from Medtronic and went to California to work for a competitor, Advanced Bionics Corporation (Advanced Bionics), a Delaware corporation with headquarters in California. (Id. at p. 701, 128 Cal.Rptr.2d 172, 59 P.3d 231.) That same day, in Los Angeles County Superior Court, Stultz and Advanced Bionics sued Medtronic for declaratory relief and unfair competition. They notified Medtronic that they intended to apply for a TRO enjoining Medtronic from taking any action in any other court to enforce its noncompetition agreement. (Ibid.) Medtronic removed the action to federal court and sued Stultz and Advanced Bionics in Minnesota state court. (Id. at pp. 701-702, 128 Cal.Rptr.2d 172, 59 P.3d 231.) After the matter was remanded, the Minnesota court issued a TRO, and ultimately a preliminary injunction, precluding Advanced Bionics from hiring Stultz in any competitive role and barring both parties from taking any action or obtaining any order from any court that would interfere with the Minnesota court's determination of whether it should determine the claims in the Minnesota lawsuit. (Id. at p. 702, 128 Cal.Rptr.2d 172, 59 P.3d 231.) Meanwhile, Stultz and Advanced Bionics obtained a TRO in the California action prohibiting Medtronic from taking any further steps in the Minnesota action. (Ibid.) Thereafter, the Minnesota court directed Stultz and Advanced Bionics to move to vacate the TRO obtained in the California action, but that court refused to do so. (Id. at p. 703, 128 Cal.Rptr.2d 172, 59 P.3d 231.) Medtronic appealed from the TRO, and the Court of Appeal held that it was properly issued. (Ibid.) The Supreme Court reversed. (Id. at p. 708, 128 Cal.Rptr.2d 172, 59 P.3d 231.)
Acknowledging that it was a case of first impression, the Supreme Court recognized that while California courts have the power to issue a TRO or antisuit injunction restraining proceedings in a sister state, "[t]he significant principles of judicial restraint and comity inform that we should use that power sparingly."[9] (Advanced Bionics, supra, 29 Cal.4th at p. 705, 128 Cal.Rptr.2d 172, 59 P.3d 231.) The court noted that "the use of injunctive relief `to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge, albeit an indirect one, to the dignity and authority of that tribunal.'" (Ibid.) The court also noted that "potentially *766 conflicting judgments naturally result from parallel proceedings but do not provide a reason for issuing a TRO." (Id. at p. 708, 128 Cal.Rptr.2d 172, 59 P.3d 231.) The court concluded that "enjoining proceedings in another state requires an exceptional circumstance that outweighs the threat to judicial restraint and comity principles." (Id. at p. 708, 128 Cal.Rptr.2d 172, 59 P.3d 231.) The court specifically rejected the argument that California's strong public policy against noncompetition agreements provided the exceptional circumstance warranting the TRO: "We agree that California has a strong interest in protecting its employees from noncompetition agreements under [Business and Professions Code] section 16600. But even assuming a California court might reasonably conclude that the contractual provision at issue here is void in this state, this policy interest does not, under these facts, justify issuance of a TRO against the parties in the Minnesota court proceedings." (Id. at pp. 706-707, 128 Cal.Rptr.2d 172, 59 P.3d 231.) The court made clear that the Minnesota action did not divest California of jurisdiction and that Advanced Bionics remained free to litigate the California action. (Ibid.)
Real parties argue that Advanced Bionics is distinguishable because here there was no other lawsuit pending when the TRO was issued. They claim that "the comity principles so crucial to the formulation of the court's `exceptional circumstance' test have little if any relevance where there is no proceeding pending in another forum." We disagree. Judicial restraint and comity concerns are present whether a court is restraining a litigant from filing suit in a foreign court or from proceeding with an action already pending in another forum. (See, e.g., Mahan v. Gunther (1996) 278 Ill.App.3d 1108, 1116-1117, 215 Ill.Dec. 625, 630, 663 N.E.2d 1139, 1144 ["While a court of equity has the power to restrain persons within its jurisdiction from instituting or proceeding with foreign actions, the exercise of such power is a matter of great delicacy and is to be invoked with great restraint in order to avoid distressing conflicts and reciprocal interference with jurisdiction"]; Three Sisters Petroleum, Inc. v. Langley (2002) 348 Ark. 167, 178, 72 S.W.3d 95, 103 ["The principle of comity requires that courts exercise the power to enjoin foreign suits sparingly.... This is particularly true where suit has already been brought in the foreign court"]; Gau Shan Co., Ltd. v. Bankers Trust Co. (6th Cir. 1992) 956 F.2d 1349, 1358 [holding that international comity precluded issuance of an antisuit injunction prohibiting the filing of a lawsuit in Hong Kong]; Berkshire Furniture Co., Inc. v. Glattstein (W.D.Ky. 1995) 921 F.Supp. 1559, 1561 [declining to issue injunction restraining prospective litigation in Malaysia under principles of comity].) The fact that there is no lawsuit pending in another state at the time an antisuit injunctive order is issued is merely a distinction without a difference that does not serve to render the principles announced in Advanced Bionics inapplicable. Instead, a court should focus on whether there is an "exceptional circumstance" to justify restraining out-of-state litigation and not on the procedural status of the foreign litigation. Any other approach would automatically deny a sister state the right to exercise its proper jurisdiction and would ignore the possibility that the sister state's law may ultimately apply to the dispute. As the court noted in Gau Shan Co., Ltd. v. Bankers Trust Co., supra, 956 F.2d at page 1355, an antisuit injunction conveys the message that "the issuing court has so little confidence in the foreign court's ability to adjudicate a given dispute fairly and efficiently that it is unwilling even to allow the possibility."
*767 Real parties argue that even if Advanced Bionics is applicable, the "exceptional circumstance" test is satisfied here. In support, real parties rely on the concurring opinions of Justice Moreno and former Justice Brown. In his concurring opinion, Justice Moreno reviewed sister state as well as federal decisions addressing the issuance of antisuit injunctions and concluded that California courts should adopt a "restrictive approach," pursuant to which an antisuit injunction should only issue where necessary to protect the jurisdiction of the enjoining court or to prevent the litigant's evasion of the important public policies of the forum. (Advanced Bionics, supra, 29 Cal.4th at p. 714, 128 Cal.Rptr.2d 172, 59 P.3d 231.) Real parties argue that because all the parties here are California residents, any attempt by Biosense to sue its former employees in a jurisdiction outside California is nothing but an evasion of the important public policies of Business and Professions Code section 16600. But the majority in Advanced Bionics did not explicitly rely on the criteria set forth by Justice Moreno in determining that the TRO was improperly issued.[10]
Moreover, Biosense never definitively declared that it intended to sue the former employees in another jurisdiction nor disclosed why it might wish to proceed against them in another jurisdiction. Its cease and desist letter primarily threatened litigation against St. Jude, but did not mention any particular forum. At the August 24, 2005 ex parte hearing, counsel for Biosense suggested that Biosense might wish to proceed in Minnesota against St. Jude for contractual interference, an action Biosense believed would violate the TRO. On appeal, Biosense's reply brief states that besides California "there are multiple other jurisdiction[s] with ties and interests." The apparent reason a litigant "chooses to file suit in a foreign jurisdiction is, of course, relevant to the question of whether important public policies are offended." (Gau Shan Co., Ltd. v. Bankers Trust Co., supra, 956 F.2d at p. 1358.) Thus, even if it were appropriate for us to engage in the type of analysis urged by real parties, at this early stage of the proceedings, and upon the record before us, such an analysis would be purely speculative.
We also note that the majority in Advanced Bionics did not engage in the choice-of-law analysis suggested by Justice Brown in her concurring opinion. Indeed, the majority expressly declined to reach the choice-of-law issue. (Advanced Bionics, supra, 29 Cal.4th at p. 708, fn. 6, 128 Cal.Rptr.2d 172, 59 P.3d 231.) A choice of law analysis "is simply not a good `fit' with the injunction context." (Stonington Partners v. Lernout & Hauspie Speech (3rd Cir. 2002) 310 F.3d 118, 130.) This is particularly true where another forum has not been selected.
In sum, we conclude that the Advanced Bionics exceptional circumstance test is applicable whether a TRO or antisuit injunction seeks to restrain pending litigation or the filing of an action in a foreign court. At this stage of the proceedings, no exceptional circumstance has been demonstrated that outweighs the threat to principles of judicial restraint and comity. The trial court therefore abused its discretion in issuing the TRO.
D. Federal Actions
We also agree that the TRO is improper to the extent it restrains the *768 filing or prosecution of any action in federal court outside of California. In a trilogy of cases, the United States Supreme Court has made clear that state courts are without power to enjoin the commencement or prosecution of in personam actions in federal court. In Donovan v. City of Dallas (1964) 377 U.S. 408, 412-413, 84 S.Ct. 1579, 12 L.Ed.2d 409, the Court noted "the old and well-established judicially declared rule" that "state courts are completely without power to restrain federal-court proceedings in in personam actions." In General Atomic Co. v. Felter (1977) 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199 (General Atomic), the Court found that a state court's antisuit injunction directly conflicted with Donovan and the Supremacy Clause of the United States Constitution. (General Atomic, supra, 434 U.S. at p. 15, 98 S.Ct. 76.) The Court noted that the holding in Donovan "was premised on the fact that the right to litigate in federal court is granted by Congress and, consequently, `cannot be taken away by the State.'" (Id. at p. 16, 98 S.Ct. 76.) The Court expressly rejected the argument that Donovan only precluded state courts from enjoining pending federal litigation but permitted state-court injunctions against the filing of additional suits in federal court. The Court stated: "It is therefore clear from Donovan that the rights conferred by Congress to bring in personam actions in federal courts are not subject to abridgment by state-court injunctions, regardless of whether the federal litigation is pending or prospective." (General Atomic, supra, 434 U.S. at p. 17, 98 S.Ct. 76.) In General Atomic Co. v. Felter (1978) 436 U.S. 493, 497, 98 S.Ct. 1939, 56 L.Ed.2d 480, the Court reaffirmed that a state court was "without power under the United States Constitution to interfere" with efforts by a litigant to obtain arbitration in federal forums since a party "has an absolute right to present its claims to federal forums." Accordingly, the TRO at issue here is also void to the extent that it precludes the filing of an action in any federal forum.[11]
DISPOSITION
Let a writ of mandate issue, directing the respondent court to vacate its TRO. The stay of the hearing on the OSC is dissolved. Petitioner to recover its costs.
We concur: ASHMANN-GERST and CHAVEZ, JJ.
NOTES
[1] Plaza recalls signing documents as a condition of employment, but does not recall which version of a noncompetition agreement, if any, he may have signed.
[2] Biosense is a subsidiary of Johnson & Johnson Company, a New Jersey corporation with headquarters in New Jersey.
[3] Together with Dowell, Chapman and Plaza, USD and Pacesetter constitute the real parties in interest.
[4] The complaint sought a declaratory judgment that: the "restraints of trade" in the Agreement, including covenants not to compete and the choice of law provisions, were void; Dowell, Chapman and Plaza could work in their chosen professions; real parties had not violated any contractual, statutory or common law duties to Biosense; and Biosense "may not evade California's sovereign authority to regulate trade in California by imposing choice-of-law or forum selection clauses in its employee agreements."
[5] Business and Professions Code section 16600 provides in pertinent part that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."
[6] Business and Professions Code section 17200 defines "unfair competition" to include "any unlawful, unfair or fraudulent business act or practice...."
[7] Upon receipt of further briefing, we set the matter for oral argument.
[8] We grant real parties' request to take judicial notice of the subsequent pleadings and proceedings in the trial court. We deny the request to take judicial notice of an unpublished order of the Supreme Court in Advanced Bionics.
[9] The court defined "comity" as follows: "Comity is based on the belief `"`that the laws of a state have no force, proprio vigore, beyond its territorial limits, but the laws of one state are frequently permitted by the courtesy of another to operate in the latter for the promotion of justice, where neither that state nor its citizens will suffer any inconvenience from the application of the foreign law. This courtesy, or comity, is established, not only from motives of respect for the laws and institutions of the foreign countries, but from considerations of mutual utility and advantage.'" ... "The mere fact that state action may have repercussions beyond state lines is of no judicial significance so long as the action is not within that domain which the Constitution forbids."'" (Advanced Bionics, supra, 29 Cal.4th at p. 707, 128 Cal.Rptr.2d 172, 59 P.3d 231.) In his concurring opinion, Justice Moreno noted that courts have described comity as a "`complex and elusive concept.'" (Id. at p. 710, 128 Cal.Rptr.2d 172, 59 P.3d 231.)
[10] In her concurring opinion, Justice Brown ventured that the majority's opinion "gives insufficient guidance to lower courts." (Advanced Bionics, supra, 29 Cal.4th at p. 708, 128 Cal.Rptr.2d 172, 59 P.3d 231.)
[11] In light of our conclusion, we need not address Biosense's unclean hands argument.
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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/2258913/
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37 Cal.Rptr.3d 710 (2006)
135 Cal.App.4th 756
In re Breonne TATE, On Habeas Corpus.
No. F047529.
Court of Appeal, Fifth District.
January 12, 2006.
*711 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Assistant Attorney General, Stephen P. Acquisto and R. Michael Llewellyn, Deputy Attorneys General, for Appellant California Department of Corrections.
Heather MacKay, under appointment by the Court of Appeal, for Respondent Breonne Tate.
OPINION
GOMES, J.
The Department of Corrections (Department) appeals the lower court's granting a writ of habeas corpus to inmate, Breonne Tate. During Tate's incarceration on a four-year six-month prison term for a violent felony, Tate was convicted of a nonviolent in-prison offense and sentenced to a fully consecutive two-year term. Because the four-year six-month term was for a violent felony, the Department applied Penal Code section 2933.1's[1] limitation on credits to the terms on both convictions. The trial court partially granted Tate's petition for writ, finding the statute's limitation applied only to the four-year six-month term attributable to the violent felony. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2001, Tate was convicted in Los Angeles County of attempted robbery, with a finding that he personally used a firearm (§§ 211, 664, 12022.5, subd. (a)(1)). Tate was sentenced to four years and six months in state prison. The finding that Tate personally used a firearm in committing the attempted robbery makes the crime a "violent felony" within the meaning of section 667.5, subdivision (c)(9). This in turn triggers the application of section 2933.1, subdivision (a)[2], which limits the accrual of worktime credit to 15 percent of the inmate's sentence. In contrast, section 2933 provides that an inmate who is not subject to statutory limitations on the accrual of worktime credit may earn up to 50 percent, or one day of credit for each day the inmate participates in a work, training, or education program. (§ 2933; In re Reeves (2005) 35 Cal.4th 765, 768, 28 Cal.Rptr.3d 4, 110 P.3d 1218 (Reeves).)
On October 6, 2003, while serving his prison term for the attempted robbery conviction, Tate pled guilty in Tuolumne County, pursuant to a negotiated plea reflected in a minute order, to possession of a weapon in prison (§ 4502). The court sentenced Tate to state prison for "the lower term of two (2) years at 50% pursuant to the negotiated plea." As section 4502 requires the sentence imposed for in-prison possession of a weapon be served consecutively, the court ordered the term to run consecutive to the term he was serving on the Los Angeles County conviction. *712 Section 1170.1, subdivision (c)[3] specifies that a consecutive sentence for an in-prison offense "shall commence from the time the person would otherwise have been released from prison." The effect of this provision is that the sentence for the in-prison offense must be fully consecutive to the term already being served, rather than being reduced to one-third the middle term pursuant to the usual determinate sentencing rule. (People v. McCart (1982) 32 Cal.3d 338, 343, 185 Cal.Rptr. 284, 649 P.2d 926.)
The Department calculates an earliest possible release date (EPRD) for each inmate. (§ 2932, subd. (e); Cal.Code Regs., tit. 15, § 3043, subd. (c)(5); Cal. Dept. of Corrections, Operations Manual (2000) § 73030.8.13.) To do so, it starts with the date of sentencing, adds the total prison term imposed, and subtracts any presentence credit awarded. This establishes a maximum release date. From this date, the Department subtracts worktime credits the inmate has earned or is expected to earn in his current credit-earning status, adds back any worktime credits that have been denied or lost through disciplinary actions, and subtracts any denied or lost credits that have been restored. The result is the EPRD, with the proviso that it cannot exceed the maximum release date calculated from the total prison term less presentence credits. (Cal. Dept. of Corrections, Operations Manual, supra, § 73030.8.13.) The EPRD is predictive, in that it is subject to change. Therefore, such things as a change in the inmate's credit-earning status, the denial or loss of credit through disciplinary action, the restoration of previously denied or lost credits, or a subsequently imposed consecutive prison term will change the calculation. The Department recalculates the EPRD upon any such change and at six-month intervals. (§ 2932, subd. (e); Cal.Code Regs., tit. 15, § 3043, subd. (c)(5)(B).)
After Tate's Tuolumne County conviction, the Department calculated his EPRD as August 4, 2007 by applying the 15 percent limitation of section 2933.1(a) to his two-year sentence on that conviction. Through Department administrative procedures, Tate unsuccessfully sought to have his release date adjusted to October 10, 2006 to reflect a 50 percent credit on the Tuolumne County conviction. Tate then filed a petition for writ of habeas corpus in Tuolumne County Superior Court, seeking specific performance of the plea bargain. Tate asserted the plea bargain had been breached because the Department "is not giving petitioner Goodtime/Worktime entitlement under Penal Code § 2933. Rather, [the Department] is only giving petitioner 15% reduction of his term credits, instead of the 1/2 Worktime credits bargained for in [the Tuolumne County conviction]." The trial court issued an order to show cause, and the Department filed a return, asserting that because Tate had been convicted of a violent felony, it properly applied a 15 percent credit earning rate to the Tuolumne County conviction in accordance with section 2933.1. In his denial to the return, Tate requested that if the court could not order the Department to grant him half time credit, he should be allowed to withdraw his guilty plea, since it was entered based on the understanding he would receive 50 percent credit.[4]
*713 Following a hearing on the petition, the trial court issued a written order granting the petition in part, directing the Department "to calculate [Tate's] worktime credits on the sentence to be served in [the Tuolumne County conviction] pursuant to Penal Code § 2933." The court reasoned: "The credit limitation of 15% argued by the Department of Corrections is not supported by the plain language of Penal Code § 2933.1. That statutory language limits the 15% worktime credits to the sentence imposed on the conviction of the violent felony. The statute does not address limitations on worktime credits for those persons who have previously been convicted of a violent felony, but who are now convicted of a nonviolent offense that was separately charged and proved."
DISCUSSION
The Department contends the court erred when it ordered the Department to calculate Tate's worktime credits on his Tuolumne County conviction pursuant to section 2933, which allows a prisoner to earn worktime credit at a rate of 50 percent. (§ 2933, subd. (a).) The Department asserts the 15 percent worktime credit limitation of section 2933.1 applies to both of Tate's convictions. The Department, relying on Reeves, supra, 35 Cal.4th at p. 775, 28 Cal.Rptr.3d 4, 110 P.3d 1218, reasons that because the two convictions resulted in consecutive sentences, the two sentences are merged into a single aggregate term to which section 2933.1(a) applies.
The issue presented here is whether section 2933.1(a) restricts Tate's ability to earn worktime credit against a consecutive sentence for a nonviolent in-prison offense. By the terms of section 2933.1(a), the 15 percent worktime credit limitation applies to "any person who is convicted of a [violent] felony offense ..." (§ 2933.1(a).)[5] Our Supreme Court recently addressed the meaning of this phrase in the context of whether section 2933.1(a) restricts an inmate's ability to earn worktime credits against a concurrent sentence for a nonviolent offense in Reeves, supra, 35 Cal.4th at p. 775, 28 Cal.Rptr.3d 4, 110 P.3d 1218.
In Reeves, the defendant was convicted within one month of both a violent offense (assault with a deadly weapon other than a firearm), which triggered the 15 percent credit limitation of section 2933.1(a), and a nonviolent offense (possessing a controlled *714 substance for sale). He was sentenced to concurrent terms in state prison of five years plus an enhancement on the violent offense and 10 years plus enhancements on the nonviolent offense. (Reeves, supra, 35 Cal.4th at pp. 768-769, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The Department calculated his release date based on its understanding that section 2933.1(a) applied fully to both of the defendant's sentences so he would accrue only 15 percent worktime credit for the entire duration of his prison commitment, even after completing the five-year sentence for the violent felony. (Id. at p. 769, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The defendant challenged the Department's decision in a petition for habeas corpus, which the trial court granted, reasoning that section 2933.1(a) had no effect on his sentence for the nonviolent offense. The appellate court affirmed. (Id. at pp. 769-770, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Supreme Court viewed the issue of whether 2933.1(a) applied to the defendant's concurrent sentence as turning on the meaning of the phrase in section 2933.1(a), "any person who is convicted of a [violent] felony offense...." (Reeves, supra, 35 Cal.4th at p. 770, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The court concluded the language is ambiguous, at least as applied to the facts of the case, noting the legislative history did not provide any guidance as to the application of credits to concurrent sentences. (Id. at pp. 770-771, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) In searching for a reasonable construction of the statute, the court determined the phrase could not refer to a point of historical fact, thereby disqualifying for all time any person who had ever been convicted of a violent offense from earning more than 15 percent worktime credit. (Id. at p. 771, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Court also rejected the interpretations offered by the People and the defendant. The People argued section 2933.1(a) applies to offenders rather than offenses, and therefore applies to a designated offender's entire period of confinement provided the offender at some point during that period serves time for a violent offense. The Court agreed with this interpretation in some respects but not in others. With respect to consecutive terms, the Court explained: "We may confidently assume that an offender serving a sentence that combines consecutive terms for violent and nonviolent offenses is subject to the credit restriction imposed by section 2933.1(a) for the entire sentence. Under the Determinate Sentencing Act (§ 1170 et seq.), multiple consecutive determinate terms must be combined into a single, `aggregate term of imprisonment for all [such] convictions' (§ 1170.1, subd. (a)) that merges all terms to be served consecutively and complies with the rules for calculating aggregate terms (e.g. one-third the base term for subordinate terms and specific enhancements applicable to subordinate terms (ibid.)), whether or not the consecutive terms arose from the same or different proceedings (ibid.; see also § 669, Cal. Rules of Court, rule 4.452). To suggest that a prisoner serving an aggregate term serves the component terms and enhancements in any particular sequence would be a meaningless abstraction. For this reason, when an aggregate term includes time for a violent offense, at any point during that term the prisoner literally `is convicted of a [violent] felony offense' (§ 2933.1(a)) and actually is serving time for that offense. Accordingly, a restriction on credits applicable to `any person who is convicted of a [violent] felony offense' (ibid.) logically applies throughout the aggregate term." (Id. at pp. 772-773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Court explained that this logic does not apply to concurrent terms because although "[a] court that decides to run terms *715 consecutively must create a new, `aggregate term of imprisonment' (§ 1170.1, subd. (a)) into which all the consecutive terms merge, [] no principle of California law merges concurrent terms into a single aggregate term." (Reeves, supra, 35 Cal.4th at p. 773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The Court noted section 1170.1, which contains the statutory mandate and authority for creating aggregate consecutive terms, says nothing about concurrent terms, and a later sentencing court may not change a prior sentencing court's discretionary decision to make a particular term concurrent. (Reeves, supra, 35 Cal.4th at p. 773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The Court further noted that since the defendant had already served the term for the violent offense that caused section 2933.1(a) to apply, the statement he "`is convicted of a [violent] felony offense'" (ibid.) is true only as a matter of historical fact, explaining that "[t]oday, his conviction for the violent offense gives the Department no claim to his physical custody; but for the time remaining on the separate, concurrent term for the nonviolent offense, he would be entitled to release." (Reeves, supra, 35 Cal.4th at p. 777, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The Court concluded that given the statute's ambiguity, the People's interpretation was not entirely fair or reasonable. (Id. at p. 777, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Court also rejected the defendant's interpretation of section 2933.1(a), i.e. that it has no effect on his concurrent sentence for the nonviolent offense, thereby resulting in the accrual of credit at two different rates 15 percent on the term for the violent offense and 50 percent on the term for the nonviolent offense. (Reeves, supra, 35 Cal.4th at p. 778, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) The Court noted this interpretation created tension with the statutory language because during any period of time when the defendant is serving time in prison for both the violent and nonviolent offense, he "most certainly `is convicted of a [violent] offense' (§ 2933.1(a), italics added) in every relevant sense. Thus, to permit him to accrue worktime credit during such a period of imprisonment at the rate of 50 percent for any purpose literally conflicts with the language of section 2933.1(a)." (Reeves, supra, 35 Cal.4th at pp. 778-779, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
The Court concluded: "An interpretation of section 2933.1(a) exists that is faithful to its language and to what we know of the Legislature's purpose, produces fair and reasonable results, and can be readily understood and applied. Lacking definitive guidance in the language or history of the statute, our aim must be to identify such an interpretation. [Citation.] As mentioned at the outset, we interpret the section as follows: Section 2933.1(a) limits to 15 percent the rate at which a prisoner convicted of and serving time for a violent offense may earn worktime credit, regardless of any other offenses for which such a prisoner is simultaneously serving a sentence. On the other hand, section 2933.1(a) has no application to a prisoner who is not actually serving a sentence for a violent offense; such a prisoner may earn credit at a rate unaffected by the section." (Reeves, supra, 35 Cal.4th at pp. 779-780, 28 Cal.Rptr.3d 4, 110 P.3d 1218, fns. omitted.)
As Tate points out, the Supreme Court's decision in Reeves does not directly address how section 2933.1(a) should apply in the instant case because, unlike the defendant in Reeves, Tate was convicted of first a violent offense, to which Tate admits the 15 percent credit limitation of section 2933.1(a) applies, and then later convicted of a nonviolent in-prison offense, which the court was required to sentence consecutively. (§ 4502, subd. (a).) Relying on language *716 in Reeves regarding the application of section 2933.1(a) to consecutive sentences, the Department argues the mere fact these are consecutive sentences compels the conclusion the 15 percent limitation of section 2933.1(a) applies to the entire sentence. We disagree.
As explained above, the Reeves court held that section 2933.1(a) does not apply to a prisoner who is not actually serving a sentence for a violent offense. (Reeves, supra, 35 Cal.4th at p. 780, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) In so holding, the Court distinguished between consecutive sentences and concurrent sentences. The Court concluded the credit limitation of section 2933.1(a) applies throughout the aggregate term of consecutive sentences imposed under section 1170.1, subdivision (a)[6], reasoning that since such sentences are merged into a single aggregate term of imprisonment for all convictions, as long as one conviction is for a violent felony offense, the prisoner literally "is convicted of a [violent] felony offense" (§ 2933.1(a)) and is actually serving time for that offense. (Reeves, supra, 35 Cal.4th at pp. 772-773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) In contrast, concurrent terms are not merged into a single aggregate term, so they do not constitute a single, unified term of confinement for purposes of worktime credit. (Id. at p. 773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) Accordingly, once a prisoner subjected to concurrent sentences for violent and nonviolent offenses has served his sentence for the violent offense, he no longer "is convicted of a [violent] felony offense" (§ 2933.1(a)) and section 2933.1(a) does not apply to any time remaining on the separate, concurrent term for the nonviolent offense. (Id. at pp. 773, 780, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
As Tate points out, consecutive sentences for in-prison offenses are treated differently than consecutive sentences imposed only under section 1170.1(a). Consecutive sentencing of in-prison offenses is governed by section 1170.1(c), which provides, as pertinent here, that "[i]n the case of any person convicted of one or more felonies committed while the person is confined in a state prison ... and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison."[7]
It is well settled that under section 1170.1(c), a term for an in-prison offense, or multiple in-prison offenses, begins to run at the end of the prison term imposed for the original out-of-prison offenses. (See People v. Langston (2004) 33 Cal.4th 1237, 1242, 17 Cal.Rptr.3d 596, 95 P.3d 865; People v. McCart, supra, 32 Cal.3d at pp. 340, 343, 185 Cal.Rptr. 284, 649 P.2d 926.) As one appellate court explained, in-prison offenses "are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer *717 than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon `the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.' [Citations.]" (People v. White (1988) 202 Cal.App.3d 862, 869-870, 249 Cal.Rptr. 165; see also People v. Reed (1993) 17 Cal.App.4th 302, 305, 21 Cal.Rptr.2d 425.) Thus, "the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed `on the outside.' Instead, the defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under section 1170.1(a) plus the new aggregate term imposed under section 1170.1(c). (People v. McCart, supra, 32 Cal.3d at p. 340 [185 Cal.Rptr. 284, 649 P.2d 926].) The latter term starts to run at the end of the prison term imposed for the defendant's original `outside' offense. (Ibid.)." (People v. White, supra, 202 Cal.App.3d at p. 870, 249 Cal.Rptr. 165; see also People v. Langston, supra, 33 Cal.4th at p. 1242, 17 Cal.Rptr.3d 596, 95 P.3d 865 ["... new crimes committed while in prison are treated as separate offenses and begin a new aggregate term. [Citations.]"].)
Thus, Tate's consecutive sentence for his nonviolent in-prison offense is not merged or aggregated with his original term for the violent out-of-prison offense. Instead, the two terms are treated as separate terms, with the term for the in-prison offense beginning only when Tate completes the term for his out-of-prison offense. Since the two terms are separate, they do not present the same concerns the Supreme Court raised with respect to consecutive sentences imposed solely under section 1170.1(a), i.e. that it would be a "meaningless abstraction" to suggest a prisoner serving an aggregate term serves the component terms and enhancements in any particular sequence. (Reeves, supra, 35 Cal.4th at p. 773, 28 Cal.Rptr.3d 4, 110 P.3d 1218.) Although as the Supreme Court explained in Reeves section 2933.1(a) applies to a prisoner's entire sentence, it only does so to the extent the prisoner is serving time for a violent offense. (Reeves, supra, 35 Cal.4th at p. 780, fn. 18, 28 Cal.Rptr.3d 4, 110 P.3d 1218.)
In this case, once Tate completed his sentence for the violent out-of-prison offense, he was no longer subject to imprisonment for a violent offense and consequently no longer a "person who is convicted of a [violent] felony offense" (§ 2933.1(a)). Like the defendant in Reeves, Tate's conviction for the violent offense gives the Department no claim to his physical custody; he would be entitled to release but for the time remaining on the separate term for the nonviolent offense. Accordingly, the Department erred when it calculated Tate's EPRD by applying section 2933.1(a) to his Tuolumne County conviction, as that conviction is eligible for worktime credits pursuant to section 2933. Therefore, the trial court's order was correct to the extent it ordered the Department to apply section 2933 to Tate's Tuolumne County conviction.
DISPOSITION
The trial court's order partially granting the writ of habeas corpus is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., and WISEMAN, J.
NOTES
[1] All further section references are to the Penal Code.
[2] Hereafter section 2933.1(a).
[3] Hereafter section 1170.1(c).
[4] The record is unclear regarding the plea bargain's terms with respect to 50 percent worktime credits. We have not been provided with the reporter's transcript of the plea hearing. To the extent the bargain was intended to guarantee Tate the receipt of a particular amount of post-sentence worktime credit, rather than merely inform him of the worktime credit his conviction would be eligible for, we question the validity of the plea bargain. Since neither party raises the issue, however, and we conclude his Tuolumne County conviction is in fact eligible for 50 percent credit pursuant to section 2933, we do not resolve the issue.
[5] Section 2933.1 provides in full: "(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.[¶] (b) The 15-percent limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law. However, nothing in subdivision (a) shall affect the requirement of any statute that the defendant serve a specified period of time prior to minimum parole eligibility, nor shall any offender otherwise statutorily ineligible for credit be eligible for credit pursuant to this section. [¶] (c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a). [¶] (d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative."
[6] Hereafter section 1170.1(a).
[7] Section 1170.1, subdivision (c) provides in its entirety: "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than one offense in the same or different proceedings."
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364 F.Supp. 948 (1973)
Hattie T. WESTMORELAND, Plaintiff,
v.
Melvin LAIRD, Secretary of Defense of the United States, et al., Defendants.
Civ. No. 965.
United States District Court, E. D. North Carolina, Fayetteville Division.
January 2, 1973.
*949 Thomas F. Loflin, III, Loflin, Anderson & Loflin, Durham, N. C., for plaintiff.
Warren H. Coolidge, U. S. Atty., Raleigh, N. C., for defendants.
MEMORANDUM OPINION AND ORDER
DUPREE, District Judge.
This is a civil action for wrongful discharge from employment brought by the plaintiff, a federal employee,[1] against various officers of the United States in their official capacities. The plaintiff asserts two claims for relief. In the first she alleges that her discharge (1) was based solely on racial motives in *950 furtherance of defendant's "discriminatory personnel policy informally maintained", and (2) was effected "contrary to the regulations governing the Army-Air Force Exchange Service" in violation of her constitutional right to due process of law. The court's jurisdiction over this claim is founded upon 28 U.S. C. §§ 1346(a) (2) and 1361. In her second claim plaintiff alleges that she represents a class, namely black women, and challenges the discriminatory personnel and hiring practices followed by the defendants in the Warehouse Division of the Ft. Bragg-Pope Air Force Base Army-Air Force Exchange Service. Jurisdiction over this claim is founded upon 28 U.S.C. §§ 1331 and 1361; and plaintiff seeks declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
The case is before the court on motions by both parties for summary judgment, it being agreed that there is no dispute as to the facts surrounding the plaintiff's discharge from employment. Since the resolution of the case depends in part upon a determination of whether or not the defendants complied with their own regulations governing discharge of employees, a brief statement of these facts is necessary.
Plaintiff was employed as an Hourly Pay Plan employee of the Carolina Area Support Center (CASC) Army-Air Force Exchange Service (AAFES), in the Warehouse Division at Ft. Bragg, North Carolina. On Wednesday, August 21, 1968, she approached her immediate supervisor, S. R. Smith, Assistant Manager of the Warehouse, and advised him that she would not be at work on either of the next two days. Mr. Smith, realizing that plaintiff was to start a week's annual leave on Monday, August 26, 1968; that leave had been scheduled for all Warehouse employees approximately three months in advance; and that the workload required plaintiff's presence at all times until her official leave should begin, and explaining these facts to her, informed plaintiff that if she did not report for work as required, he would recommend her discharge. She did report for work on Thursday, August 22, 1968, but was absent on Friday, August 23, 1968, without authority or permission from her supervisor. True to his promise, Smith recommended that plaintiff be discharged.
By letter dated August 28, 1968, Julian Price, Chief, CASC, AAFES, informed plaintiff that she was being separated from her employment effective August 23, 1968, the reason for the separation being "`insubordination' resulting in failure to report to work as so instructed by your immediate supervisor on 21 August 1968." The letter also advised plaintiff that she had 21 days from the date of the letter to answer and that the Personnel Office would assist her, if she so desired.
Thereafter, by letter dated September 9, 1968, plaintiff appealed her discharge from employment and a grievance hearing was convened on October 15, 1968. After hearing all the testimony and reading all the statements pertaining to the case, the Grievance Committee found plaintiff guilty of insubordination by a 3-0 vote, and by a 2 to 1 vote found that the action taken was justified and separation was in order. Upon appeal to the Chief, AAFES, this decision was affirmed.
Thereafter it was determined that under the then existing regulations the Chief, AAFES, was not the appropriate appellate authority, and a subsequent grievance hearing was held on April 23, 1970. Once again, the Committee found plaintiff guilty of insubordination and recommended her discharge. This action was upheld upon appeal to the Chief, AAFES, who, under new regulations,[*] had become the appropriate appellate authority. Plaintiff's separation for cause was affirmed on June 26, 1970. She was not barred from future employment with the CASC, *951 AAFES, and was subsequently re-employed by that organization.
I. FIRST CLAIM FOR RELIEF
Plaintiff's allegation that her discharge was based solely on racial motives in order to perpetuate "a discriminatory personnel policy informally maintained", has required a careful study of a most voluminous record including documentary exhibits. With the exception of plaintiff's own allegations and suspicions concerning the motivation for her discharge, the record is totally devoid of any evidence suggesting that plaintiff's discharge was racially motivated. This claim must be rejected out of hand.
Plaintiff's allegations that appropriate Army-Air Force regulations governing discharge from employment were ignored in her case, thus depriving her of procedural due process of law, have proved more troublesome. Counsel have stipulated the applicable regulations to be as follows: (1) Army Regulation 60-21/Air Force Regulation 147-15 paragraph 48 and paragraph 90, effective April 30, 1968, (2) Army Regulation 60-21/Air Force Regulation 147-15, paragraph 95 and paragraph 105, effective April 30, 1968, (3) Army Regulation 60-21/Air Force Regulation 147-15, paragraph 3-32, effective March 6, 1969. These have been carefully reviewed.
An administrative regulation promulgated within the authority granted by statute has the force of law and will be given full effect by the courts[2], and a violation of a valid administrative regulation, even by the authority promulgating same, constitutes in legal effect a violation of the statute.[3]
Although not specifically alleged in the complaint, plaintiff's brief suggests that defendants here violated their own regulations by failing to conduct an investigation of the complaint against plaintiff before she was dismissed as allegedly required by paragraph 48(f)(3).[4] But absolute and literal compliance with all pertinent regulations is not always essential to the validity of federal agency action.[5] A dismissal from federal employment is a matter of agency discretion, and to be upheld, all that is required is that there be substantial compliance with required procedural steps. Brown v. Zuckert, 349 F.2d 461 (7th Cir. 1965). Where, as here, the facts are really not in dispute (plaintiff simply stayed out of work after having been told not to) there was little if anything left to investigate.
The same is true of the remaining contentions of plaintiff with respect to the failure of defendants to follow the regulations. A careful reading of these regulations against the background of the undisputed evidence in the case reveals these contentions to be without merit.
Plaintiff also urges that all of plaintiff's prior performance ratings indicated very satisfactory work and that the action taken by defendants was unduly harsh. However, it is not a prerequisite to the discharge of an employee that he or she first be given an unsatisfactory performance rating; and an agency is not precluded from dismissing *952 an employee where it has given a prior satisfactory performance rating. Angrisani v. United States, 172 Ct.Cl. 439 (1965). And although the court might agree that certain mitigating circumstances called for less drastic action it is without jurisdiction to change the punishment as long as it is within the range of permissible punishments allowed by the regulations. Embrey v. Hampton, 470 F.2d 146 (4th Cir. 1972). (Decided July 3, 1972).
For these reasons, the plaintiff cannot prevail on her first claim for relief.
II. SECOND CLAIM FOR RELIEF
Plaintiff's allegation that defendants unlawfully discriminated against black women as a class in the Warehouse Division of the Ft. Bragg-Pope Air Force Base Exchange, apparently finds some statistical support in the evidence, but in the court's view the record, including interrogatories, affidavits and exhibits, does not establish a prima facie case of employment discrimination that would enable plaintiff to overcome defendants' motion for summary judgment.[6] The record is lacking in sufficient evidence of (1) the number of job openings in the division in question over a finite period, (2) the sex and/or race of all job applicants, if any, to that division over the same finite period, (3) the education, work experience or other job qualifications of persons applying to that division over the same period, and (4) the availability or unavailability of persons applying to the division in question at times when job openings arose therein.
Thus, the plaintiff's second claim for relief must be denied; and defendants' motion for summary judgment must be allowed.
NOTES
[1] See Holcombe v. United States, 176 F. Supp. 297, 299-300 (E.D.Va.1959), aff'd, 277 F.2d 143 (4th Cir. 1960). While the Fourth Circuit's Opinion in this case never specifically states that an Exchange employee is a federal employee, this is believed to be the correct interpretation of the opinion. The District Court opinion had specifically found that such an employee is a federal employee.
[*] Army Regulation 60-21/Air Force Regulation 147-15, paragraph 3-29, effective April 30, 1970.
[2] See United States v. Short, 240 F.2d 292 (9th Cir. 1956); Atwood's Transport Lines, Inc., v. United States et al., 211 F.Supp. 168 (D.C.D.C.1962), and Matczak v. Secretary of Health, Education and Welfare, 299 F.Supp. 409 (E.D.N.Y.1969).
[3] See Jeffries v. Olesen, 121 F.Supp. 463 (S.D.Cal.1954), and United States v. Heffner, 420 F.2d 809 (4th Cir. 1969).
[4] This regulation reads as follows:
"The charges against an employee will be submitted to the personnel manager, or the person delegated responsibility for personnel functions, who will investigate them thoroughly and recommend to the exchange officer approval or disapproval of proposed discharge, giving all supporting facts disclosed by the investigation."
[5] See Chiaverini v. United States, 157 Ct.Cl. 371 (1962); Hadlock v. United States, 159 Ct.Cl. 52 (1962); Huling v. United States, 401 F.2d 998, 185 Ct.Cl. 407 (1968), and Gordon v. Bright, 306 F.Supp. 252 (W.D. Okl.1968), aff'd, 419 F.2d 835 (10th Cir.)
[6] See Graniteville Co. v. Equal Employment Opportunity Comm., 438 F.2d 32 (4th Cir. 1971) and Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1382 (4th Cir. 1972). Compare United States v. Jacksonville Terminal Co., 451 F.2d 418, 441 (5th Cir. 1971) (statistics insufficient to establish a prima facie case of discrimination) with Vogler v. McCarty, Inc., 294 F.Supp. 368 (E.D.La.1968), aff'd, 407 F.2d 1047 (5th Cir.) and Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970) (statistics establish a prima facie case of discrimination).
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37 Cal.Rptr.3d 426 (2005)
135 Cal.App.4th 152
In re Gilbert FUENTES on Habeas Corpus.
No. D045848.
Court of Appeal, Fourth District, Division One.
December 27, 2005.
*427 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Frances T. Grunder, Senior Assistant Attorney General, Michelle Des Jardins, Heather Bushman, Collette C. Cavalier, Julie L. Garland and Nicholas N. Paul, Deputy Attorneys General, for Appellant.
Steven J. Carroll, Public Defender, and Matthew Braner, Deputy Public Defender, for Respondent.
McCONNELL, P.J.
The Board of Prison Terms (Board) appeals from the superior court order vacating the decision denying Gilbert Fuentes a parole release date. We conclude the trial court erroneously granted relief and therefore we reverse.
FACTS
The Commitment Offense
On September 20, 1986, Fuentes met Richard Luken at a friend's house. Luken, who had been recently released from prison, showed off a knife his sister had given to him. Luken accompanied Fuentes to a convenience store. Meanwhile, Kevin Schatzke and Kenneth Redmond, two sailors returning from a night of drinking at a nearby club, stopped at the same convenience store to buy a six-pack of beer. They left the store shortly after Fuentes and Luken.
According to Schatzke, he and Redmond walked past Fuentes and Luken who then stopped. Fuentes and Luken started walking again. Schatzke heard the two men coming up fast behind him. He and Redmond turned to confront them. Schatzke swung at Luken, hitting him. Neither Fuentes nor Luken said anything before the confrontation. Schatzke testified he fought briefly with Luken while Redmond fought with Fuentes. Fuentes was able to pull free from Redmond, pulled a knife and stabbed Redmond. Redmond was stabbed once in the face and once in the chest. He later died of the wounds.
Fuentes testified while he and Luken were walking in front of Redmond and Schatzke, who were laughing and talking, Luken was angry and said "he didn't go for that shit." Luken wondered out loud if the "punks" had any money. Fuentes told him he had lots of money because he had recently separated from the Navy and cashed a $1,600 check. Luken responded it was not his money.
Fuentes and Luken passed by their friend's house but Fuentes continued to walk with Luken. Fuentes was not sure *428 what Luken wanted to do, maybe start a fight or maybe try to take some money from someone. Fuentes hoped Luken was just heading toward a local bar. Luken said, "Let's go back." They turned and were walking past Schatzke and Redmond when Luken exchanged loud words with Redmond and then punched him. Fuentes and Schatzke watched as the two other men fought. When Schatzke jumped on Luken's back, Fuentes kicked him off Luken because Fuentes "figured if they were going to fight it was going to be a fair fight, it was going to be a one on one fight." Redmond and Luken stood up. There was more yelling. Luken pulled a knife and stabbed Redmond in the face. Fuentes ran to his friend's house and told the friend Luken was in a fight and covered with blood.
A woman at the friend's house testified she saw Fuentes return, set something that looked like a knife on the couch with his jacket and said Luken had been in a fight. She did not recall seeing any blood on the knife or Fuentes's clothing. Another person in the house testified Luken had a knife with him when he returned with Fuentes and that Luken told him someone had jumped them.
A neighbor who heard loud voices, looked out his window and saw the fight. Initially, he thought Fuentes had stabbed the victim but later he believed Luken had committed the stabbing.
Luken's sister testified Luken and Fuentes came to her apartment the next morning. Fuentes had blood on his pants and was not wearing a shirt. Luken told her Fuentes had tried to roll a guy who turned on him and fought. Luken said he had stabbed the victim but later Fuentes told the sister he had been the one who stabbed the victim and reenacted the crime, including creeping up behind the victim. This conflicted with Schatzke's testimony that Lukens and Fuentes had run up from behind.
Fuentes left San Diego. He was arrested 11 months later. He told the police that Luken had said he wanted to "roll" the two men. Fuentes claimed his only involvement was kicking Schatzke and making sure the fight stayed fair.
The jury found Fuentes guilty of first degree felony murder based on an attempted robbery. (Pen.Code, § 187.) The jury made a not true finding on the allegation Fuentes had personally used a knife. (Id., § 12022, subd. (b).) He was sentenced to a prison term of 25 years to life. His minimum eligible date for parole was April 9, 2004.
Criminal History
Fuentes had a few traffic tickets. In June 1984, while on active duty in the Navy, he was arrested for receiving stolen property and drug paraphernalia but he was not prosecuted. His division officer in the Navy warned him to stay away from people who used drugs. In February 1986, he was arrested for possession of a controlled substance but was not prosecuted. He was court martialed, fined and demoted by the Navy. In December 1986, Fuentes was again arrested for possession of a controlled substance. Following his arrest, Fuentes was absent without leave for the Navy for 19 days because he was ashamed he had disappointed his superior officer. Eventually, Fuentes was court martialed, demoted and fined, and he received a bad conduct discharge from the Navy.
Incarceration
Fuentes's prison term began in January 1989.
While incarcerated, Fuentes was once disciplined in 1989 for manufacturing alcohol. *429 On one occasion in 1995 he had been late in returning from a "recall on the yard."
He had participated in Narcotics Anonymous continuously since 1997. He had been both the vice chairman and sergeant at arms at the Narcotics Anonymous group. When asked at the parole hearing whether he was working on any of the steps, he responded he had "actually worked them over several times" but was not currently working on any step. Additionally, while in prison, Fuentes had completed both the basic and advanced Alternatives to Violence workshops, taken an intensive journaling class, taken three college classes, was taking a college level history class, and had signed up for an anger management class.
Fuentes worked as a stationary engineer in the kitchen maintenance shop and had received good reports, stating he was a very good worker, dependable, prompt, and a self-starter.
Psychological Evaluation
The psychological report, dated January 13, 2003, listed several factors in support of a finding Fuentes's chances of recidivism were low. The psychologist assessed Fuentes's level of dangerousness within the controlled setting of the prison as being "low and definitely below[]average." His level of dangerousness if released to the community was also seen as low if Fuentes was able to remain clean and sober, which the psychologist believed was "very likely" given Fuentes's support system and parole plans.
Parole Hearing
The parole hearing was held in March 2003.
Fuentes submitted several letters from relatives and family friends in support of granting parole. These letters, inter alia, indicated his parents had offered a place to stay and he had more than one offer of employment.
A deputy district attorney from San Diego opposed parole, arguing "the commitment offense was a crime of great violence, cruelty, and callousness to human life," Fuentes failed to help the victim or turn himself in after the crime, he had a long-term drug use going back to age 14, the victim's wife was five months pregnant at the time and Redmond's son never had the opportunity to meet his father.
During the hearing, Fuentes expressed his love for the Navy and his shame in disappointing his superior officer. He wished he had "made the right decisions," noting he could have retired that year with 20 years' service if he had remained with the Navy. He expressed remorse for being involved in the death of the victim. In describing the crime, Fuentes told the Board that as he and Luken had walked by the friend's house, he said, "Let's go in." Luken responded, "No, I'm going to go check these dudes out" and Fuentes kept walking with him, "a mistake." Luken and Fuentes walked toward Redmond and Schatzke and confronted them, with Luken striking the first blow at Redmond. Fuentes intervened when Schatzke jumped on Luken's back, kicking him off. Fuentes looked over and saw Luken stab Redmond. He was ashamed of what he had done and ashamed for his family and the Navy.
The Board's Decision
The Board concluded Fuentes was "not suitable for parole and would pose an unreasonable risk of danger to society or a threat to public safety if released from prison" because "the offense was carried out in an especially cruel manner," the victim was "abused in that he was stabbed in the face and stabbed in the chest," the *430 manner of the offense demonstrated a "lack of respect for another human," and "[t]he motive for the crime was inexplicable" or "[a]t the very least, it was very trivial."
The Board noted Fuentes had no history of violence and "a minimal criminal history." The Board, however, also noted Fuentes had "failed to profit from the [N]avy's attempt to correct his prior criminality," that is, his substance abuse"[t]he [N]avy gave him the opportunity to refrain and gave him the opportunity to remain in the [N]avy. And [Fuentes] blew it, ... and went out and used additional drugs," resulting in a court martial and being discharged from the Navy.
The Board also recognized Fuentes had a stable social history (with the exception of his drug use), his level of dangerousness, both inside and outside of prison, was reduced, he had some parole plans, and he possessed marketable job skills. The Board recommended Fuentes "intensify his level of involvement in self-help" and other positive programs. The Board concluded Fuentes had not made sufficient progress and still posed some measure of threat to society if released.
Superior Court
Fuentes filed a petition for a writ of habeas corpus.
In its order to show cause, the court noted the "Board did not expressly find that the commitment offense was particularly egregious," but "[i]nstead ... found that `the offense was carried out in an especially cruel manner, ... [and] in a manner that shows disregard for another human being," citing the fact the victim was stabbed in the chest and face and the motive was inexplicable or very trivial. The court noted this language was derived from the California Code of Regulations, title 15, (Regulations), section 2402, subdivision (c)(1), which lists factors tending to show unsuitability for parole based on the commitment offense was committed in an "especially heinous, atrocious or cruel manner." The court observed, "Robberies are violent offenses and involve great risk of injury to its victims and the Court is unable to conceive of any robbery whose motivation would not be inexplicable or trivial in relation to the offense," and (2) the stabbings had been committed by Luken, not Fuentes. The court noted the Board had referred to Fuentes's "minimal criminal history" in support of its decision to find him unsuitable for parole but failed to recognize lack of any significant history of violent crime is a factor favoring parole. The court found nothing in the record to support the Board's finding that Fuentes needed to intensify his involvement in self-help programs before he could be safely released on parole. The court in the order to show cause concluded:
"[T]he Board's unsupported use of the regulatory language suggests an attempt to justify an arbitrary decision to deny parole rather than the reasoned consideration of the factors set forth in Section 2402 to which [Fuentes] is entitled. As the factors relied upon by the Board to establish unsuitability for parole do not appear to be supported by any evidence, the Board's determination that the positive aspects of [Fuentes]'s behavior do not outweigh those cited by it in denying parole is also called into question."
The court granted Fuentes's petition. The court noted that the Board had found Luken, not Fuentes, had stabbed the victim[1] and therefore parole could not be *431 based on facts relating to Luken's acts in stabbing the victim, but on Fuentes's acts. The court found there was no evidence to support the Board's conclusion the commitment offense justified denying parole. The court also found the Board had erred in considering Fuentes's criminal history as supporting a finding of unsuitability since the Regulations provide a prisoner's lack of any significant history of violent crime, as was the case here, is a factor favoring parole.
We issued a stay on March 4, 2005.
DISCUSSION
Relevant Law
The Board has very broad discretion to identify and weigh the factors relevant to predicting "by subjective analysis whether the inmate will be able to live in society without committing additional antisocial acts." (In re Rosenkrantz (2002) 29 Cal.4th 616, 655, 128 Cal.Rptr.2d 104, 59 P.3d 174 (Rosenkrantz).) "When a decision by the Board denying parole is challenged, `the court may inquire only whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.' [Citation.] `Only a modicum of evidence is required.'" (In re DeLuna (2005) 126 Cal.App.4th 585, 591, 24 Cal.Rptr.3d 643; Rosenkrantz, supra, at pp. 658, 677, 128 Cal.Rptr.2d 104, 59 P.3d 174.) "If the decision's consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law." (Rosenkrantz, at p. 658, 128 Cal.Rptr.2d 104, 59 P.3d 174.)
In Rosenkrantz, the Supreme Court recognized the nature of the commitment offense alone may be a sufficient basis for denying a parole application. (Rosenkrantz, supra, 29 Cal.4th at p. 682, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The court, quoting In re Ramirez (2001) 94 Cal.App.4th 549, 570, 114 Cal.Rptr.2d 381, stated, "`a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.'" (Rosenkrantz, supra, at p. 683, 128 Cal.Rptr.2d 104, 59 P.3d 174.) The Rosenkrantz court also stated, "In some circumstances, a denial of parole based upon the nature of the offense alone might rise to the level of a due process violationfor example where no circumstances of the offense reasonably could be considered more aggravated or violent than the minimum necessary to sustain a conviction for that offense." (Ibid.)
In In re Dannenberg (2005) 34 Cal.4th 1061, 23 Cal.Rptr.3d 417, 104 P.3d 783, the Supreme Court clarified the applicable standard. The Supreme Court rejected the analysis of the Court of Appeal holding "that once an indeterminate life prisoner reaches minimum parole eligibility, the Board must set a fixed date for parole release, pursuant to the principle of `uniform terms' for crimes of similar gravity, and with due regard for the statutory minimum term for the inmate's offense, unless it finds the prisoner's crime `particularly egregious' in comparison to other offenses of the same class." (Id. at p. 1070, 23 Cal.Rptr.3d 417, 104 P.3d 783, italics omitted.) The Supreme Court held *432 "the Board, exercising its traditional broad discretion, may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner's crime individually. While the Board must point to factors beyond the minimum elements of the crime for which the inmate was committed, it need engage in no further comparative analysis before concluding that the particular facts of the offense make it unsafe, at that time, to fix a date for the prisoner's release." (Id. at p. 1071, 23 Cal.Rptr.3d 417, 104 P.3d 783, italics omitted.) The court recognized that an inmate cannot "be imprisoned beyond a period that is constitutionally proportionate to the commitment offense or offenses," however noted "that limitation will rarely apply to those serious offenses and offenders currently subject by statute to life-maximum imprisonment." (Ibid., italics omitted.) The court concluded "[i]ts potential application in occasional individual cases does not require the [Board], under the current statutory scheme, to set fixed release dates for all life prisoners except those whose crimes are most `egregious' compared to others of the same class. Instead, the Board may decline to do so in an individual case if it concludes, on relevant grounds with support in the evidence, that the grant of a parole date is premature for reasons of public safety." (Ibid.)
Regulations, section 2402, subdivision (c)(1) sets out factors that may be considered in determining whether the commitment offense was committed in an "especially heinous, atrocious or cruel manner ...:
"(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
"(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
"(C) The victim was abused, defiled or mutilated during or after the offense.
"(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.
"(E) The motive for the crime is inexplicable or very trivial in relation to the offense."
Analysis
The trial court concluded the Board had no factual basis to support its conclusion the commitment offense and Fuentes's criminal history justified denying parole. We disagree.
The trial court, in its order to show cause, criticized the Board's failure to describe the commitment offense as particularly "egregious." Instead, the Board described the commitment offense as being "carried out in an especially cruel manner, ... [and] in a manner that shows disregard for another human being." The trial court observed this language derived from Regulations, section 2402, subdivision (c)(1). The trial court believed the Board used the statutory language in "an attempt to justify an arbitrary decision to deny parole," rather than engaging in a "reasoned consideration" of the relevant factors. To the extent the court placed any weight on the Board's use of the phrase "cruel manner" rather than the word "egregious," the court erred; both have similar meanings and may be used interchangeably. Nor do we find any significance to the Board's use of any other language contained in the regulation to describe its findings about the commitment offense.
We find some merit to the court's criticism of the Board's reliance on the fact the victim was stabbed in the face since, as the trial court pointed out, the Board had concluded *433 Luken, not Fuentes, committed the stabbing. Nonetheless, the fact remains that this robbery involved multiple stabbings, Fuentes knew Luken was armed with a knife and did nothing to intervene or assist the victim. Instead, Fuentes kept the victim's companion from intervening and fled after the stabbing.
The trial court, in its order to show cause, criticized the Board's reliance on a finding Fuentes's motive for participating in the crime was "inexplicable" or "very trivial." In rejecting this reason, the trial court explained: "Robberies are violent offenses and involve great risk of injury to its victims," and it was "unable to conceive of any robbery whose motivation would not be inexplicable or trivial in relation to the offense." We find the trial court's analysis perplexing.
Robberies are typically motivated by a desire to obtain money or property, a motive that appears far from inexplicable or trivial to the robber who believes he or she needs the money or property. Even law abiding citizens can understand this motive and, given a dire enough need, for example, for medicine for a sick child, might be willing to engage in a robbery. Further, while robberies are violent offenses, requiring the application of force or fear against the victim, most robberies do not result in physical harm or death to the victim nor do most robbers plan to physically harm their victims. Nor do robbers generally believe they will be caught. Thus, in the mind of the robber, the desire for the money or property may easily outweigh the risks related to the offense.
Here, Fuentes himself could not explain why he committed the crime, other than noting he had been young and immature and made "poor decisions." He had been paid that day or the day before and had plenty of money. Luken was not a close friend; Fuentes had met Luken only that day. Redmond and Schatzke were strangers with whom neither Fuentes nor Luken had had any prior interaction. Fuentes easily could have avoided any confrontation by going into his friend's house instead of continuing to walk with Luken. Fuentes's participation was thoughtless. His motive was inexplicable or trivial. The Regulations specifically recognize an inexplicable or trivial motive for committing the offense tends to show the commitment offense was committed in an "especially heinous, atrocious or cruel manner." (Regs., § 2402, subd. (c)(1)(E).)
The trial court also criticized the Board's reliance on Fuentes's criminal history, noting a prisoner's lack of any significant history of violent crime is a factor favoring parole. (Regs., § 2402, subd. (d)(6).) The trial court mischaracterized the Board's concern. The Board recognized Fuentes had no record of previous violence and his criminal history was "minimal." However, the Board also observed Fuentes had had several "brushes with the law" that included receiving stolen property and drug possession where he was arrested but not prosecuted.
After his first arrest for drug possession, Fuentes had been given a second chance by the Navy but nonetheless continued to engage in criminal conduct. As the Board noted, "The [N]avy gave him the opportunity to refrain [from abusing drugs] and gave him the opportunity to remain in the [N]avy. And [Fuentes] blew it ... and used additional drugs," resulting ultimately in his discharge from the Navy. There was also evidence before the Board indicating Fuentes had taken drugs on the day of the murder, after he had already received his second court martial and papers indicating the Navy was seeking to discharge him. It is evident the Board's concern was not that Fuentes's criminal history was violent or extensive but that it *434 showed Fuentes had been given opportunities to reform his conduct, to deal with his substance abuse, to remain in the Navy, and he had not availed himself of those opportunities but had instead engaged in further criminal conduct. The repetitive and recidivist nature of his conducthis failure to heed wake-up calls and the opportunities he was givenwas a legitimate factor for the Board to weigh in favor of a denial of parole.
We find there was some evidence, based on the nature of the commitment offense and Fuentes's prior criminality, to support the Board's denial of parole.
DISPOSITION
The order is reversed. The stay issued on March 4, 2005, is vacated when the opinion is final as to this court.
WE CONCUR: BENKE and AARON, JJ.
NOTES
[1] The Board, in describing the facts of the commitment offense, stated: "Two individuals walking home from a party or whatever they [were] doing there. And they decided to stop at a [convenience] store. And they were encountered by the prisoner and his crime partner. An altercation ensued, and his crime partner pulled out a knife and stabbed Mr. Redmond...."
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364 F.Supp. 330 (1973)
Robert E. HANSON and Mary D. Kice, Plaintiffs,
v.
UNIFIED SCHOOL DISTRICT NO. 500, WYANDOTTE COUNTY, KANSAS, et al., Defendants.
Civ. A. No. KC-3512.
United States District Court, D. Kansas.
September 5, 1973.
*331 Ward D. Martin, of Crane, Martin, Claussen & Hamilton, Topeka, Kan., for plaintiffs.
Willard L. Phillips, of McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendants.
MEMORANDUM AND ORDER
O'CONNOR, District Judge.
Plaintiff Robert E. Hanson, a resident of Independence, Missouri, and plaintiff Mary D. Kice, a resident of Johnson County, Kansas, are teachers employed by the defendant Unified School District No. 500. On March 30, 1972, they brought this action pursuant to 42 U.S. C. § 1983, alleging that a regulation of the defendant school district deprives them of their constitutional rights under the Fourteenth Amendment. The regulation provides:
"No. 4116.1(1) Residence within Wyandotte County shall be required of all certificated employees unless written authorization for such residence elsewhere is secured from the superintendent of schools or his designated agent."
"No. 4116.1A(1) Request for permission to reside outside Wyandotte County shall be made in written form and submitted to the assistant superintendent for personnel and should include such information as might be pertinent to consideration of the request."
"No. 4116.1A(2) Exceptions to the policy may be granted only when it is not contrary to the effective performance of duties on the part of such employee."
Each plaintiff holds a valid teacher's certificate from the State of Kansas.
The challenged regulation is one of long standing which defendants have enforced by sending out notices each year. The plaintiffs allege that, although the superintendent or his designated agent has in the past granted them waivers, plaintiffs have now been notified that they must establish residence in Wyandotte County, Kansas, prior to March 1, 1973, if they wish to continue teaching in the defendant school district in the 1973-74 school year. (Enforcement of the regulation is voluntarily being held in abeyance pending the outcome of this suit.) Plaintiffs contend that the attempt to coerce them to move to Wyandotte County violates their constitutional rights to live and work where they choose and to travel freely, as protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment:
"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
We shall consider only the equal protection argument since we think it is dispositive of the case.
Under the Tenth Amendment to the Constitution, education is one of the powers reserved to the states, subject to the "protective perimeters of the rest of the Constitution." Shanley v. Northeast Ind. Sch. Dist., Bexar County, Tex., 462 F.2d 960, 967 (5th Cir., 1972). Local school boards act as arms of the state in formulating and implementing educational policies. When such policies are *332 alleged to constitute state action infringing upon constitutional rights, they may come under judicial scrutiny. Thus public school teacherssuch as these plaintiffs whose contracts are allegedly not being renewed because of the exercise of their constitutional rights have a remedy in the Civil Rights Act, 42 U.S.C. § 1983. Robbins v. Board of Ed. of Argo Community High School Dist. 217, Cook County, Ill., 313 F.Supp. 642 (D.C.Ill. 1970).
When called upon to decide whether a law or regulation violates the Equal Protection Clause of the Fourteenth Amendment, a court looks in essence to three things: the character of the classification in question; the individual interest affected by the classification; and the government interest asserted in support of the classification. Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L.Ed.2d 274 (1971). The challenged classification in the case at hand is based solely upon residency: residents of other than Wyandotte County are discriminated against in seeking employment in the defendant school district. The case law dealing with simple residency requirements is relatively sparse, although this kind of classification bears a resemblance to durational residency requirements considered by the Supreme Court in Dunn v. Blumstein, supra, and to citizenship requirements discussed in Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973).
Plaintiffs contend that this classification based upon residency infringes their rights to travel freely and to live and work where they choose. We cannot agree that a simple residency requirement impinges upon the right to travel, inasmuch as all residents of Wyandotte County, both new and old, are treated the same: all are eligible for employment as teachers. In other words, we do not have here a durational residency requirement which discriminates against those who have exercised their right to travel. Cf. Dunn v. Blumstein, supra.
The right to live where one chooses has long been recognized as one of the liberties protected from arbitrary governmental action by the Fourteenth Amendment. Allgeyer v. Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 41 L.Ed. 832 (1897). It has been said that this right may be abridged only "under circumstances of direct emergency and peril." Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).
Similarly, the right to work in one's chosen profession is embodied in the Fourteenth Amendment's concept of liberty. "It requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure." Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915).
In effect, the school board's regulation requires the plaintiffs to choose between their rights to live and to work where they desire. They may either live outside Wyandotte County or they may teach in the school district within the county. They may not, however, do both. Cf. Dunn v. Blumstein, supra, 405 U.S. at 342, 92 S.Ct. 995.
In support of the regulation, the school district asserts that residency requirements are "neither new, novel or unique." Indeed, such requirements for public office or employment extend to the highest offices in the land and date from the earliest history of our republic. The apparent justification for the present requirement is twofold: (1) that there is no "right" to public employment; and (2) that the public employer should have broad discretion to establish qualifications for its employees related to effective job performance.
The notion that a governmental benefit, such as employment, may be made to turn upon whether it is characterized as a "right" or as a "privilege" is no longer valid. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d *333 534 (1971). Whether or not there is an abstract "right" to public employment, the government cannot pass a law providing that "no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work." United Public Workers v. Mitchell, 330 U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1946); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L. Ed. 216 (1952); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1960). To allow the government to deny a person public employment because of the exercise of his constitutionally-protected interests would allow the government to "`produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible." Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972); Lontine v. Van Cleave, 483 F.2d 966 (10th Cir., 1973). In the instant case, we must reject the argument that the school district, the governmental body here involved, may require the plaintiffs to live in Wyandotte County merely because they have no "right" to public employment. By the same token, we do not believe that plaintiffs, by virtue of simply signing their contracts, can be said to have "voluntarily waived" the exercise of their constitutional rights to live and to work where they choose. Insofar as O'Melia v. Sweetwater County School District No. 1, 497 P. 2d 540 (Wyo.1972), a case cited by defendants, supports this contention it erroneously assumes that government may thus produce a result which it could not command directly. Speiser v. Randall, supra.
In conjunction with the "right-privilege" argument, defendant school district relies upon the "public interest" doctrine. The doctrine is rooted in the concepts of privileges and of the desirability of confining the use of public resources of the state to the advancement and profit of the members of the state. People v. Crane, 214 N.Y. 154, 161, 108 N.E. 427, 429 (1915), aff'd 239 U.S. 195, 36 S.Ct. 85, 60 L.Ed. 218 (1915); see Sugarman v. Dougall, supra, 634 U.S. at 644, 93 S.Ct. 2842. In the current context, defendant school district asserts that the doctrine means tax revenues of the school district should be expended only for salaries of teachers who reside within Wyandotte County. This overlooks the fact that there are other school districts within Wyandotte County with separate tax bases. Also, because of recent massive infusions of state funds, Kansas local revenues have become of decreasing importance in the financial support of Kansas schools. Most importantly, in balancing the opposing interests here involved, it is clear that the possible contribution of these plaintiffs to the school district's tax base is infinitesimal when compared to the interference with plaintiffs' rights. Donnelly v. City of Manchester, 111 N.H. 50, 274 A. 2d 789, 792 (1971); cf. Smith v. Losee, 485 F.2d 334 (10th Cir., 1973) at 14-15.
We have no doubt that it is in the best interest of the school districtindeed, of everyone concernedthat public school employment depend upon effective performance. Cf. United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). Thus the stated purpose of the residency requirement of the defendant school district is a legitimate, even laudable, one. Nevertheless, regulations intended to assure effective performance, but based upon classifications, must meet an "exacting standard of precision." Dunn v. Blumstein, supra, 405 U.S. at 360, 92 S.Ct. 995. The classifications here are much too crude by any standard and have not been "tailored" to meet their avowed purpose. The defendant school district offers no proof that residents of Wyandotte County are more effective teachers than non-residents, and defendants would doubtless be hard pressed to demonstrate that a Johnson County resident is not as well-qualified to teach as a Wyandotte County resident. *334 Teachers are certified by the state and, therefore, are presumably qualified to teach anywhere in the state. Moreover, the challenged regulation ignores the fact that even within Wyandotte County there are many people who do not reside in the defendant school district;[*] for example, residents of the Bonner Springs school district, which is in the westernmost part of Wyandotte County, are eligible to teach in the defendant school district even though they may live a greater distance than a Johnson County or even a Missouri resident.
We recognize, of course, that there are many public positions where residency or citizenship may properly be required. Defendants assert that there are 38 statutes of the State of Kansas, for example, which apply residency or citizenship requirements to public office or employment. It has been held that the Tenth Amendment reserves to the states the power to prescribe the qualifications of its officers and employees. Boyd v. Thayer, 143 U.S. 135, 12 S.Ct. 375, 36 L.Ed. 103 (1892); Sugarman v. Dougall, supra. Such power inheres in the state by virtue of its obligation "to preserve the basic conception of a political community." Dunn v. Blumstein, supra, 405 U.S. at 344, 92 S.Ct. at 1004. Thus a state may set qualifications for "persons holding state elective or important non-elective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government." Sugarman v. Dougall, supra, 634 U.S. at 647, 93 S.Ct. at 2850. As Judge Lumbard said in his concurring opinion at the trial court level in the Sugarman case, there is "where citizenship [or residency] bears some rational relationship to the special demands of the particular position." 339 F.Supp. 906, at 911 (D. C.).
We have no reason to disagree with the line of cases cited by defendants in which police officers have been required to live where they work. School teachers and policemen can hardly be placed in the same category. As the court said in Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971): "The job of a policeman does have `natural distinguishing characteristics' from all other city employees. There is a special relationship between the community policed and a policeman." (at 97-98.) Hence, even though the Supreme Court dismissed the Detroit case on appeal for want of a substantial federal question, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227, we do not find this compelling authority for upholding the residency requirement here.
The court concludes that the residency requirement of the defendant school district violates the Fourteenth Amendment's equal protection guarantee, because the classification of residents versus non-residents of Wyandotte County is essentially arbitrary and does not rest upon any reasonable basis. Donnelly v. City of Manchester, supra; see Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). In view of this result, we need not reach the question of whether fundamental rights are here involved which might trigger the stricter compelling-state-interest test. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Under either test, the residency requirement of the defendant school district exceeds the limit which the Equal Protection Clause places on government by classification. We emphasize, however, that this conclusion does not mean that a state may not in an "appropriately defined class of positions" require residency as a qualification for employment. Sugarman v. Dougall, supra, 634 U.S. at 647, 93 S.Ct. 2851, 37 L.Ed.2d 910.
*335 This memorandum and order shall constitute the Findings of Fact and Conclusions of Law required by Rule 52(a) of the Federal Rules of Civil Procedure.
It is ordered that defendants be enjoined from enforcing the residency requirement in question against the plaintiffs.
NOTES
[*] Of course, boundaries between school districts, counties, or other political subdivisions in the metropolitan Kansas City area are virtually imperceptible.
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714 F.Supp. 426 (1989)
Richard J. TOOMEY, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. CV-F-88-424 REC.
United States District Court, E.D. California.
May 18, 1989.
Marlin Costello, Fresno, Cal., for plaintiff.
Mark Cullers, Asst. U.S. Atty., Fresno, Cal., for defendant.
DECISION AND ORDER RE MOTION FOR SUMMARY JUDGMENT
COYLE, District Judge.
On May 15, 1989 the court heard defendant's Motion for Summary Judgment. *427 Upon due consideration of the written and oral arguments of the parties, the court now enters its order granting the motion as set forth herein.
The United States moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on the ground that there is no genuine issue of material fact. They claim that California Civil Code § 846 applies to them as the owner of real property used for recreational purposes by others, and that they have fulfilled their duty of due care as to the premises' safety.
I. Statement of Facts.
On October 16, 1985 plaintiff was riding his motorcycle on public lands surrounding the Desert Tortoise Natural Area ("DTNA") located in Kern County. The area consists primarily of desert and low scrub vegetation. While the DTNA was formally closed to vehicles in 1980 under the Desert Conservation Area Plan, the public lands surrounding the DTNA are designated as "limited use" areas, i.e., vehicles are allowed only on existing routes of travel unless otherwise posted. Cross-country and off-trail travel is not permitted.
The DTNA is enclosed by approximately 31 miles of protective fencing which was constructed in 1977 and 1978. The fence is of woven, green steel wire and four-inch wooden posts. The posts are positioned 16.5 feet apart, and there is a 10-12 inch space at the bottom of the fence to permit the natural movement of desert tortoise and other wildlife. Defendant contends that the fence is marked with "Natural Area/Vehicle Closure" signs at 1/16th mile intervals, and that signs warning off-road vehicles to stay on designated trails are posted at major access routes into the area.
At approximately 3:00 p.m., plaintiff ran into the fence surrounding the DTNA on his motorcycle at a speed of about 45 miles per hour. At the time of his accident, he was not traveling on one of the roads designated for vehicle use. Plaintiff suffered a broken clavicle, broken ribs, a broken shoulder blade and bruises. Plaintiff claims that the fence was negligently constructed and maintained, and that defendant breached its duty to warn those in plaintiff's situation of the presence of the fence.
II. Federal Tort Claims Act/California Civil Code § 846.
Plaintiff seeks recovery against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-2680. The FTCA makes the United States liable for negligence in the same manner and to the same extent as a private individual in similar circumstances. Phillips v. United States, 590 F.2d 297 (9th Cir.1979). Therefore the tort liability of the United States, if any, is to be determined according to the laws of California. Simpson v. United States, 652 F.2d 831 (9th Cir.1981); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
The United States argues that California Civil Code § 846 applies to them as the owner of the property in question. This section applies to property used for recreational purposes, and provides that the owner owes no duty of due care to keep the premises safe for entry or use by others for such purposes or to give any warning of hazardous conditions, subject to the exceptions specified. Those exceptions include situations where consideration has been given for permission to enter the property, where there has been an express invitation to enter, or where there has been a showing of willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.
In the present case, no consideration or fee was paid by plaintiff for the use of this property. In addition, there was no express invitation to enter. Therefore, the only possible basis for imposing liability under the facts of this case would be a showing of willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity. Under California law, "willful or wanton misconduct is intentional wrongful misconduct, done either with a knowledge that serious injury to another will probably result, or with a *428 wanton and reckless disregard of the possible results." O'Shea v. Claude C. Wood Co., 97 Cal.App.3d 903, 159 Cal.Rptr. 125 (1979); Morgan v. Southern Pacific Transportation Company, 37 Cal.App.3d 1006, 112 Cal.Rptr. 695 (1974). In Morgan, the court identified three essential elements which must be present before a negligent act may be considered willful misconduct: 1) actual or constructive knowledge of the peril to be apprehended, 2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger and 3) conscious failure to act to avoid the peril.
Plaintiff's only argument in opposition to this motion is that § 846 has been held not to immunize California public entities that own property. Delta Farms Reclamation District v. Superior Court, 33 Cal.3d 699, 190 Cal.Rptr. 494, 660 P.2d 1168 (1983). The Delta case disapproved of a line of cases which had held § 846 applicable in government entity cases, specifically overruling the case of English v. Marin Municipal Water District, 66 Cal.App.3d 725, 136 Cal.Rptr. 224 (1977), in which liability was denied a plaintiff who rode a motorcycle over a precipice. Thus, plaintiff argues, § 846 does not apply and the standard of ordinary negligence must govern instead of the willful or wanton misconduct standard imposed by the code section.
While § 846 immunity was held inapplicable to California public entity property owners in Delta Farms, the FTCA makes the United States liable only to the extent that a private individual would be under like circumstances. Phillips. Congress expressly stated that the federal government's liability is to be determined by the private person standard. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). The federal statute takes precedence over the state code section. Therefore the immunity created by § 846, which is still available to private persons, is also applicable to the federal government because it is liable only as a private individual would be under like circumstances. Ewell v. United States, 776 F.2d 246 (10th Cir.1985) (applying Utah recreational statute); Hegg v. United States, 817 F.2d 1328 (8th Cir.1987) (applying and upholding district court's interpretation of Iowa recreational statute). Thus, the relevant determination is whether the government's actions amounted to willful misconduct.
Prior to plaintiff's accident there had been no reported accidents involving the fencing surrounding the DTNA, and no complaints had been filed regarding the construction, maintenance or failure to warn of the fence's presence. Therefore, defendant did not have actual or constructive knowledge of any danger or probable injury. And while the Complaint alleges that "[t]here are no warning signs either upon the fence or in the immediate vicinity of the fence or at regular intervals along the fence", plaintiff admitted during oral argument that the signs which defendant contends are present do indeed exist. Thus, defendant did act to avoid potential injury and, consequently, did not willfully or maliciously fail to guard or warn against a potentially dangerous condition. There is no genuine issue of material fact and, as such, defendant is not liable under California Civil Code § 846 and the FTCA.
ACCORDINGLY, IT IS ORDERED that defendant's Motion for Summary Judgment is granted.
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687 A.2d 915 (1997)
PNC BANK, DELAWARE, Plaintiff Below, Appellant,
v.
Alice P. HUDSON and William H. Hudson, Defendants Below, Appellees.
No. 312, 1996.
Supreme Court of Delaware.
Submitted: January 14, 1997.
Decided: January 30, 1997.
Rehearing Denied February 12, 1997.
Jeffrey S. Welch and David A. White (argued), Murphy, Welch & Spadaro, Wilmington, for Appellant.
John H. Cordrey, Cordrey & Clark, Georgetown, for Appellees.
Before WALSH, HOLLAND, and BERGER, Justices.
PER CURIAM.
In this appeal from the Superior Court, we consider a question of first impression: whether the twenty day time period for requesting a trial de novo under Superior Court Civil Rule 16.1(h)(1), following an arbitrator's *916 decision, is subject to enlargement. We conclude that the period is not a jurisdictional barrier but is subject to enlargement under Superior Court Civil Rule 6(b). Accordingly, we affirm.
I
The Superior Court proceedings began as a debt action on a promissory note. The plaintiff-appellant, PNC Bank, Delaware ("PNC"), filed suit against defendants William H. Hudson and Alice P. Hudson ("the Hudsons") and Thomas P. Powell ("Powell") for the unpaid balance on a series of promissory notes executed by the defendants in connection with the operation of a business operated by Alice Clothes Tree, Inc. The Hudsons and Powell, through separate counsel, filed answers which, in effect, denied the PNC claim. In accordance with Super.Ct.Civ.R. 16.1 the matter was referred for mandatory arbitration.
All parties appeared before the arbitrator on September 29, 1995. On October 6, 1995, the arbitrator filed with the Prothonotary two separate arbitrator's orders. In one order, the arbitrator found in favor of PNC and against the Hudsons in the amount of $80,697.95. In the other order, the arbitrator found in favor of Powell and against PNC. The arbitrator certified that he had mailed copies of the orders to "all parties and/or counsel in this action."
At this point the factual assertions of the parties, as reflected in affidavits and representations before the Superior Court, diverge. Hudsons' counsel claims that after receiving notice of the arbitrator's order he engaged in settlement negotiations with, and made informal document requests of, counsel for PNC, with a tacit understanding that the Hudsons' time for seeking a trial de novo was extended. PNC's counsel agreed that settlement negotiations had taken place but disputed the existence of any agreement to extend the de novo filing date. In any event, the twenty day period for requesting a trial de novo expired on October 26, 1995. Six days later, PNC filed a motion, noticed for presentation on November 9, 1995, requesting the entry of judgment on the arbitrator's order as permitted under Super.Ct.Civ.R. 16.1(g)(1). The following day, November 1, 1995, the Hudsons filed a demand for trial de novo.
On the date noticed for the presentation of PNC's request for entry of judgment, the Superior Court considered the opposing positions of the parties with PNC seeking the entry of judgment and the Hudsons requesting trial de novo. After briefing, the Superior Court ruled that the twenty day period under Rule 16.1(h)(1) was not jurisdictional. Analogizing it to Super.Ct.Civ.Rule 60(b), the court held that Hudsons' counsel was "unfairly surprised" by PNC's counsel's refusal to grant an extension of time and the resulting failure to make a timely request for a trial de novo constituted "excusable neglect." The court denied entry of judgment and permitted filing of the de novo trial request. This appeal followed.
II
PNC contends that the Superior Court lacked authority to permit the filing, out of time, of the Hudsons' demand for trial de novo because the twenty day period under Rule 16(h)(1) is jurisdictional. The Superior Court rejected that argument and we also find it unpersuasive.
The timely filing of a document may constitute a jurisdictional threshold where the filing is a prerequisite to the court's authority to hear the matter before it. Thus, the power of an appellate court to exercise jurisdiction rests upon the perfecting of an appeal within the time period fixed by statute. Fisher v. Biggs, Del.Supr., 284 A.2d 117 (1971). Unless the untimely filing is attributable to the actions of court-related personnel, Riggs v. Riggs, Del.Supr., 539 A.2d 163 (1988), not even excusable neglect on the part of a litigant will permit the appellate court to exercise jurisdiction. Eller v. State, Del.Supr., 531 A.2d 951 (1987). In this respect, the filing of a timely notice of appeal is akin to compliance with the statute of limitations in the initiating of an action at the trial level.
In this case, the Superior Court acquired jurisdiction of PNC's claim upon the filing of the complaint. Upon the filing of answers, *917 the controversy was joined and the matter subject to disposition under the rules of that court. One of the rules governing further proceedings in the Superior Court is Rule 16.1, which mandates arbitration in certain designated cases. The arbitration process takes place under the supervision of the Superior Court and subject to the application of certain of the court's civil rules. See Rule 16.1(e) and (f)(5). Upon completion of the arbitration process, the matter is continued for additional action by the Superior Court, dependent upon the options elected by the parties. Rule 16.1(h)(1), which is the focus of this appeal, permits either party to seek a trial de novo through "written demand" within twenty days. If no such request is made, Rule 16.1(i) authorizes a judge "upon motion" to enter the arbitrator's order as judgment of the Superior Court. As the rule makes clear, the entry of judgment is not a pro forma or ministerial act but one requiring judicial intervention upon notice to the opposing party.
PNC argues that the language of Rule 16.1(h)(1) which provides that "[a] demand for a trial de novo shall be the sole remedy of any party in a case subject to this Rule" creates a jurisdictional barrier to the Superior Court's ability to entertain any further proceedings in this matter in the absence of a timely demand for a trial de novo. In our view this is an unwarranted and overly expansive construction of that provision of the rule. We believe the purpose of the "sole remedy" language is to establish that any further adversarial proceedings which occur after entry of the arbitrator's order shall be limited to a trial de novo, as distinct from some lesser standard of judicial review, such as interlocutory review of procedural rulings of the arbitrator "in a case subject to this Rule." Rule 16.1(h)(1).
The arbitration process in the Superior Court is not established by statute but by court rule. Rule 16.1, like other procedural rules, is subject to the modification of time limitations under Super.Ct.Civ.R. 6 which permits enlargement by the court of an act required by rule "to be done at or within a specified time." Rule 6(b). Subject to certain specific exceptions, enlargement is permitted both within and after the expiration of the time period. In the latter event, the time may be extended upon a showing of excusable neglect. Although the Superior Court assessed the conduct of Hudsons' counsel under the standard of excusable neglect set forth in Rule 60(b), the concept has a similar meaning under Rule 6(b). See 2 Moore's Federal Practice ¶ 6.08. The determination of excusable neglect under Rule 6(b) is a discretionary finding implicating considerations of fairness with the liberal granting of extensions to the end that disputes be resolved on their merits.
We view the Superior Court's refusal to enter judgment and the resulting acceptance of an untimely motion for de novo review in this case as the functional equivalent of the granting of a motion, under Rule 6(b), to enlarge the twenty day time period imposed by Rule 16.1(h)(1). Since the court has such discretionary power and there being no showing that the court abused its discretion, we find no basis to disturb the Superior Court's ruling. Accordingly, the judgment is AFFIRMED.
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714 F.Supp. 727 (1989)
Larry FELDMAN, Plaintiff,
v.
U.S. SPRINT COMMUNICATIONS CO., Defendant.
Civ. A. No. 88-2287 (SSB).
United States District Court, D. New Jersey.
June 7, 1989.
Kaufman, Frank, Naness, Schneider & Rosenweig, P.C. by Robert G. Lipp, Melville, N.Y., for plaintiff.
Hannoch Weisman, P.C. by Mark D. Schorr, Trenton, N.J., for defendant.
OPINION
BROTMAN, District Judge.
Plaintiff was a major account representative for defendant and earned most of his salary on commission. He has brought this action seeking compensation for defendant's alleged breach of various compensation plans. Presently before the court are defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment. For the reasons set forth below, the court will grant in part and deny in part each of the motions.
I. FACTS AND PROCEDURE
Larry Feldman ("plaintiff" or "Feldman") was an employee of US Telecom, *728 Inc., in July 1986 when that company merged with GTE Communications Services, Inc., to form US Sprint ("defendant" or "Sprint"), a partnership. Plaintiff had been a major account representative for US Telcom, Inc., since May 1985, and after the merger Sprint retained plaintiff as a major account representative. In that position Feldman sold Sprint's telecommunications products to major telecommunications users and received a commission on those sales as the bulk of his compensation. When plaintiff began working for Sprint in July 1986, his earnings were determined by Sprint's 1986 Sales Compensation Plan ("the 1986 Plan"). Beginning January 1, 1987, his earnings were determined by Sprint's 1987 Sales Compensation Plan ("the 1987 Plan"). In addition, in November 1986 Sprint implemented an Interim Commission Support plan ("ICS") to insure a minimum level of compensation in light of billing difficulties affecting measurement of commissions under the 1986 and 1987 Plans.
Under the 1986 Plan Feldman earned a base salary plus a percentage of his customers' total usage billed on the second invoice after the sale. Feldman's monthly sales quota was $7,000; if he exceeded it, he received thirty-two percent of the revenues billed for the second month of use, and if he did not, he received twenty-eight percent of the revenues billed for the measuring month. The 1986 Plan capped monthly commission earnings at $40,000. In addition, the 1986 Plan provided, "Participants who terminate employment with US SPRINT will receive base salary through their date of termination, and any commissions earned on complete orders submitted through the date of termination." The 1986 Plan also specified that "US SPRINT has the right to change the Plan in any manner whatsoever at any time."
The terms of the 1987 Plan were substantially similar to those of the 1986 Plan. In addition to a base salary, a major account representative earned
commissions based on the aggregate amount of second invoiced revenue from their sales, at the rate of:
Less than $7000 28%
$7000 and above 32%
Those commissions were to be paid as follows:
Earned commissions will normally be paid with the last payroll check in the month following the second invoiced revenue measurement. The maximum amount of commission that will be paid to any participant in this plan, in any month, is capped at $40,000.
The 1987 Plan further provided that "[t]erminated participants of The Plan (voluntary or involuntary) will be eligible for commissions paid, and commissions earned during their month of termination." The general provisions of the 1987 Plan included the following:
US Sprint reserves the right to modify, or terminate this plan at any time ... Any modification(s) of this plan, and/or institution of a new commission plan shall be effective on such date as shall be stated in such modification(s), and/or new commission plan, whether or not the affected participant has received prior notification thereof.
In late 1986 Sprint experienced difficulties with its billing system and was unable to generate timely invoices. Because the 1986 Plan was keyed to revenue received by Sprint from a customer's second invoice, Sprint was unable accurately and timely to calculate sales commissions for its employees. To "ensure an even flow of commission earnings while [Sprint] continue[s] to iron out existing back office operational bugs in the Order Entry and Billing systems," Sprint instituted ICS in November 1986. ICS operated simultaneously with the 1986 Plan and later with the 1987 Plan by providing an alternative method for calculating commissions:
The basis for the Interim Commission Support system is an estimated "Revenue Factor" (Attachment A) that each of your orders should generate, in their second billing month. A total Commissionable Revenue (arrived at by multiplying the number of products sold times the revenue factor) will be used to calculate *729 minimum earned commissions. This minimum will be compared against actual commissions earned, based on actual revenue billed that month. You will be paid the higher of the Interim system, or the actual. This commission calculation and comparison will be made each month, and you will always receive the larger commission amount.
Under the Sprint commission plans, a major account representative would receive a commission approximately four months after a sale. If the billing system were fully functional and the product could be installed without delay, the representative would make a sale in month 0, Sprint would install the product in month 1, the customer would receive its first invoice in month 2 and its second invoice in month 3, and the commission would be paid in month 4. Under ICS, the representative would receive either the estimated commission or actual commission in month 4. However, the ICS plan also recognized that
There may be some instances that require adjustments to the commissions paid under the Interim Commission Support system. These will be handled in basically the same method that is used today. You have the responsibility to justify those adjustments, supply the supporting information, and get this signed off through your sales management organization. Then your Division Administrative Manager can send it back to the Sales Comp Group, and get it adjusted in the next paycheck.
The initial explanation of the interim plan did not indicate a cap on possible commissions under ICS different than the cap in place under the other compensation plans. However, in a memorandum dated December 15, 1987, Sprint informed its employees of an ICS cap on commission earnings of $10,000. The memorandum indicated, "These policies have been in effect since the beginning of the ICS system and the current Plan."
Feldman was a highly effective salesman for Sprint; he led the company in his sales figures, and in October 1986 he exceeded his quota by 1831 percent. He learned about the $10,000 ICS cap in mid-January 1987 after he returned from a European vacation. See Feldman Deposition at 73. Throughout the winter and spring of 1987 plaintiff became increasingly unhappy with Sprint, and on May 1, 1987, he resigned. Feldman claims that in contemplation of his resignation he met with Sprint's Director of Sales, David Bendeckovic, to discuss payment of commissions after his resignation. Plaintiff claims that Bendeckovic told him he would be paid based on the actual revenue in the second invoice, even if the billings occurred after his resignation. Feldman Affidavit ¶ 19. However, Sprint never paid plaintiff the difference between the estimated commissions and the actual commissions on products that produced a second invoice after plaintiff's resignation.
Plaintiff filed this lawsuit in Suffolk County, New York, Supreme Court in December 1987, the defendant removed the case to the United States District Court for the Eastern District of New York, and that court transferred the case to this court pursuant to 28 U.S.C. § 1404(a). Plaintiff filed an amended complaint in this court in July 1988. In September 1988 the court denied defendant's motion to dismiss counts II, V, and VI of the amended complaint and granted defendant's motion to dismiss count III for failure to state a cognizable claim. Defendant has now moved for summary judgment on counts I (breach of contract), II (unjust enrichment), IV (New Jersey wage and hour law claim), V (fraud), and VI (gross negligence). Plaintiff has cross-moved for partial summary judgment. Neither party now challenges the applicability of New Jersey law.
II. DISCUSSION
The standard for granting summary judgment is a stringent one, but it is not insurmountable. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding *730 whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, even if the movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.
A. Plaintiff's Contract Claim
Sprint characterizes this action as primarily one sounding in contract, and it does not deny that the various compensation plans define the relationship between it and Feldman. Sprint contends that "[t]he essential question on this motion is simply whether plaintiff can establish that there is a genuine issue of material fact in connection with his contention that US Sprint did not pay him pursuant to the compensation scheme in force at the time he voluntarily left the company." Defendant's Supporting Brief at 8. Feldman claims that the compensation plans entitle him to additional commission payments after he left Sprint's employ where those payments could not properly be calculated during his month of termination. Sprint claims that the plans entitle Feldman to commission payments earned or paid during the month of his termination and not to commissions earned or paid thereafter.
The focus of this dispute involves those sales on which Sprint paid Feldman a commission under ICS butbecause Sprint sent the second invoice after his terminationnever compared the ICS commission with that under the 1986 or 1987 Plan. Because Sprint capped the monthly commission earnable under ICS at $10,000 while the cap under the 1986 and 1987 Plans was $40,000, Feldman faced a substantial commission shortfall if his earnings were to be measured only by ICS. Sprint argues that the comparison between ICS and 1986 or 1987 Plan commissions was to be made on a monthly basis and not on a product-by-product basis. Under Sprint's reading of the compensation plans, commissions were to be paid in the fourth month after a sale based on either the ICS estimated commission or the actual second invoice to the customer. In addition, Sprint relies on language in the compensation plans allowing it to modify the compensation scheme at any time without notifying its employees. It claims that modification of the plans by adding the ICS and capping ICS commissions curtailed Feldman's rights under the 1986 and 1987 Plans.
The court finds Sprint's arguments unpersuasive. At best, the compensation plans are ambiguous as to the interaction between ICS and the 1986 and 1987 Plans. Sprint argues that ICS was an income maintenance plan and therefore had a substantially lower cap on earnings than the 1986 and 1987 Plans, and then it argues that where the second-month invoice could not be sent until after the ICS commission was paid there would be no comparison between the estimated and actual commissions. *731 The court finds those assertions inconsistent. If ICS was indeed designed to carry over Sprint employees until a second-month invoice could be generated, then there ultimately had to be some comparison between estimated and actual commissions. Indeed, the ICS plan itself contemplated that "[t]here may be some instances that require adjustments to the commissions paid under the Interim Commission Support system." Although Sprint may have intended to compare actual and estimated revenue on a monthly basis rather than on a product-by-product basis, it did not clearly so indicate in the language of the compensation plans.
Although the compensation plans do contemplate certain adjustments in commissions paid under ICS to reflect the actual commission earned, they do not require that such an adjustment be made in every instance. The attachments distributed with the description of the ICS plan indicate that in general commission payments were to be made in the fourth month after a sale based either on actual commission or on an alternative estimated commission. Only in certain unspecified instances would a postpayment adjustment be necessary. Although the various plans do not set forth when such an adjustment would be appropriate, the court finds that Sprint must make such a comparison where it is necessary to avoid a substantial deviation from an employee's expected earnings under the 1986 and 1987 Plans.
There is an implied covenant of good faith in every contract pursuant to which neither party shall do anything that will destroy or injure the right of the other party to receive the fruits of the contract. Onderdonk v. Presbyterian Homes, 85 N.J. 171, 182, 425 A.2d 1057 (1981); Association Group Life, Inc. v. Catholic War Veterans of the United States, 61 N.J. 150, 153, 293 A.2d 382 (1972) (per curiam); Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130, 207 A.2d 522 (1965); Kislak Co. v. Geldzahler, 210 N.J.Super. 255, 263, 509 A.2d 320 (Law Div.1985). See generally E. Farnsworth, Contracts § 7.17, at 526-28 (1982). This duty of good faith proscribes certain undesirable conduct and in some instances requires affirmative action. See id. at 527. Reading into the compensation plans a duty of good faith and fair dealing, the court finds that Sprint is obliged not to interfere with the mechanism through which its employees earn their commission. It could not, for example, intentionally delay installation or billing to avoid paying commission. Similarly, where Sprint unintentionally cannot produce timely invoices and therefore creates an income maintenance plan to assist its employees, it cannot use that plan to deny the employees the commissions they have actually earned and should have been paid but for its failure to send invoices.
By its own description, Sprint's ICS plan is a supplement to rather than a modification of the otherwise existing compensation plans. Consequently, nothing in the ICS can work to undermine any expectancy an employee has under either the 1986 or 1987 Plan. If the court were to read the combined compensation plans to allow Sprint to benefit by delaying billing and therefore limiting employees to $10,000 estimated commission for a given month rather than $40,000 actual commission, it would allow Sprint to benefit unjustly by its inability to generate timely invoices. Sprint insists that the compensation plans must be read together, and reading them together indicates that Sprint must make future adjustments based on actual billings where not to do so would violate its implied covenant of good faith.
The court reads the compensation plans to require Sprint to compare sales on a product-by-product basis. Consequently, the plaintiff earned the disputed commissions before he resigned and he is entitled to the difference between the estimated ICS payments already made and the amounts he actually earned based on the 1986 and 1987 Plans. The court will therefore deny defendant's motion for summary judgment on count I and will grant plaintiff's cross-motion on that count on the question of liability. However, there remains a material factual question as to the amount due to Feldman: he must establish the amount to which he is entitled based *732 upon second invoices generated after he left Sprint for products he sold prior to his departure.
B. Plaintiff's Other Claims
(1) Wage and Hour Law Claim
Plaintiff claims he is entitled summary judgment on his claim under New Jersey's wage and hour law, N.J.Stat.Ann. § 34:11-4.3, because there is no factual issue in dispute and because the statute requires Sprint to pay him the disputed commissions. The statute provides in part,
[W]henever an employee quits, resigns, or leaves employment for any reason, the employer shall pay the employee all wages due not later than the regular payday for the pay period during which the employee's termination, suspension or cessation of employment (whether temporary or permanent) took place, as established in accordance with section 2 of this act; or, in the case of employees compensated in part or in full by an incentive system, a reasonable approximation of all wages due, until the exact amounts due can be computed....
N.J.Stat.Ann. § 34:11-4.3 (1988) (footnote omitted). Sprint's response to Feldman's wage and hour law claim is that it is a statutory version of his breach of contract count. The court agrees. To the extent that Sprint has breached its obligations under the various compensation plans it has also violated its statutory duty under the wage and hour law. For the same reasons the court denied defendant's motion for summary judgment and granted plaintiff's cross-motion for summary judgment on the contract claim, it must deny defendant's summary judgment motion and grant plaintiff's cross-motion for summary judgment on this claim. As with the contract claim, there remains a material question of fact as to damages.
(2) Unjust Enrichment
Count II of plaintiff's complaint alleges unjust enrichment. However, such a remedy is unavailable in this case because there is an express agreement setting forth the measure of the plaintiff's compensation and the plaintiff has not breached his obligations under the agreement. See Callano v. Oakwood Park Homes, 91 N.J.Super. 105, 108-09, 219 A.2d 332 (App.Div.1966); see also E. Farnsworth, supra, § 12.20, at 913 ("Restitution will be denied if the injured party has fully performed, and all that remains is for the party in breach to pay a definite sum in money as the price of that performance.") The court will therefore grant defendant's motion for summary judgment on count II.
(3) Fraud
Count V of plaintiff's complaint alleges fraud. Sprint seeks dismissal of plaintiff's fraud claim on two grounds: (1) the allegedly fraudulent statements were made in the fulfillment of the contract rather than the inducement, and therefore are not actionable; and (2) plaintiff has failed to allege detrimental reliance. In support of the first ground Sprint cites Anderson v. Modica, 4 N.J. 383, 73 A.2d 49 (1950), wherein the Supreme Court of New Jersey held that to be actionable "fraud must be in the original contract or transaction and not in the nonfulfillment of the contract." Id. at 392, 73 A.2d 49. But unlike Modica, the contract at issue in this case is a continuing one, which Sprint could modify at any time. In essence, each time a Sprint employee sells a product he or she enters into the equivalent of a new agreement with Sprint, the terms of which are defined by the then-existing compensation plan. Consequently, Sprint could have fraudulently induced the plaintiff to sell more products and therefore enter into the equivalent of successive new agreements with Sprint. In addition, the second ground for Sprint's objection to plaintiff's fraud count is without basis. It is clear from plaintiff's complaint that he continued to sell Sprint products in reliance on representations about the compensation he would receive. The court, therefore, will deny defendant's motion for summary judgment on count V.
(4) Gross Negligence
Plaintiff boldly asserts in count VI of his complaint that Sprint committed *733 gross negligence because, inter alia, it failed properly to oversee the order entry system, it delayed installation of products, it failed to purchase sufficient access to telephone lines to handle plaintiff's sales, it failed to supervise installation crews, and it failed to generate customer invoices until after plaintiff resigned. However, plaintiff fails to cite a single case supporting a theory of recovery sounding in negligence. The court holds that there can be no recovery for the alleged negligence because there is no duty owed to plaintiff other than that arising out of the contract that the defendant allegedly breached. See Coyle v. Englander's, 199 N.J.Super. 212, 226, 488 A.2d 1083 (App.Div.1985). The court must therefore grant defendant's motion for summary judgment on count VI.
III. CONCLUSION
The essence of this dispute requires the court to interpret the various Sprint compensation plans in effect while Sprint employed the plaintiff as a major account representative. The court reads those plans to require the defendant to pay the plaintiff the actual commission he earned on products sold based on actual second invoices, regardless of whether those invoices were generated prior or subsequent to plaintiff's departure from the company. The court cannot, however, summarily resolve the question of damages because factual issues remain in dispute about the amount of money owed to Feldman. In addition, the court will apply its ruling on plaintiff's contract claim to his New Jersey wage and hour law claim; the court will deny defendant's motion for summary judgment on plaintiff's fraud claim; and the court will dismiss plaintiff's unjust enrichment and gross negligence claims.
An appropriate order will be entered.
This matter having come before the court on defendant's motion for summary judgment and plaintiff's cross-motion for summary judgment; and
The court having considered the submissions of the parties; and
For the reasons set forth in the court's opinion filed this date;
IT IS on this 7th day of June, 1989, hereby
ORDERED that defendant's motion for summary judgment is GRANTED IN PART AND DENIED IN PART and that counts II and VI of plaintiff's amended complaint are DISMISSED; and it is
FURTHER ORDERED that plaintiff's cross-motion for summary judgment is GRANTED as to liability on counts I and IV.
No costs.
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714 F.Supp. 252 (1988)
Jane Barlow BLOUNT, Plaintiff,
v.
Tamara BARTHOLOMEW, Third Party Defendant.
Civ. A. No. 85-220.
United States District Court, E.D. Kentucky, Lexington Division.
April 15, 1988.
John G. Atchison, Jr., Gess, Mattingly, Saunier & Atchison, Lexington, Ky., for Jane Barlow Blount.
R. Burl McCoy, McCoy, Baker & Newcomer, Lexington, Ky., for Tamara Bartholomew.
MEMORANDUM OPINION
SCOTT REED, District Judge.
This litigation involves two conflicting claims to the proceeds of a life insurance policy. This matter is before the court on the motion of third party defendant Tamara Bartholomew for partial summary judgment and on the motion of plaintiff and Rule 14 defendant Jane Barlow Blount for summary judgment. These motions *253 have been fully briefed and are ripe for a decision.
The aforementioned parties are in dispute over their alleged entitlement to the proceeds of a life insurance policy from Fidelity Union Life Insurance Company purchased by William B. Blount, Jr., on February 15, 1981, while he was residing in Utah. Although this controversy now only concerns Ms. Blount and Ms. Bartholomew, the record reflects that at one point in this litigation, Fidelity Union Life Insurance Company (hereinafter "Fidelity Union") was a party defendant herein. Blount initiated this action against Fidelity Union on the grounds that she was the sole beneficiary of the proceeds of a life insurance policy sold by Fidelity Union to her brother, William B. Blount, Jr.
Subsequently, defendant Fidelity Union moved to join Tamara Bartholomew as an indispensable party to this action, pursuant to FRCivP 19, and to file a third party complaint against her. The basis for this action by Fidelity Union against Bartholomew was that she, too, claimed to be a beneficiary of a portion of the proceeds of the Fidelity Union Life Insurance policy on the life of William B. Blount, Jr.
On July 23, 1985, the court granted this motion of Fidelity Union and ordered its amended third party complaint to be filed. This complaint was in the nature of an interpleader under the provisions of Title 28 United States Code, § 1335. Fidelity Union requested that it be allowed to pay the life insurance proceeds into the Registry of the court and that it be dismissed as a party to this action. Fidelity Union stated that the value of the life insurance policy on William B. Blount, Jr., on his date of death, February 25, 1985, was $48,825.00; however, these proceeds were subject to a promissory note payable to Fidelity Union by the insured in the amount of $479.90; therefore, the total proceeds payable at the date of death were $48,345.10.
On December 20, 1985, the court ordered that Fidelity Union's tendered payment of $51,239.33 (representing the life insurance proceeds of $48,345.10 plus interest) be deposited into the Registry of the court in a money market account at Second National Bank and Trust Company, Lexington, Kentucky, pending further orders of the court. On July 23, 1986, the court dismissed Fidelity Union as a party defendant herein and ordered that Fidelity Union be relieved from any further liability with respect to the claims of plaintiff and third party defendant.
The record indicates that the reason for the interpleader action by Fidelity Union was a conflict between its record of the policy's named beneficiaries prior to the insured's death and the claim filed by plaintiff subsequent to the insured's death. Fidelity Union's records indicated that the named beneficiaries and their designated interests were as follows: Jane Blount, sister one-half interest; Tamara Bartholomew, fiancee one-half interest.
However, on or about May 6, 1985, plaintiff Jane Blount filed a claim with Fidelity Union for the proceeds of the life insurance policy stating that she was the sole beneficiary of these proceeds.
Thus, the court is called upon to determine whether both plaintiff and third party defendant are each entitled to one-half of these life insurance proceeds or whether the plaintiff alone is entitled to the entire proceeds as the sole beneficiary of the life insurance policy.
DISCUSSION
Upon a review of the pleadings, the deposition of Steven Marquardt, Fidelity Union's agent, and the fully-briefed motion of Bartholomew for partial summary judgment and the motion of Blount for summary judgment, it seems that on February 15, 1981, William B. Blount, Jr., purchased the life insurance policy from Fidelity Union. At this time, the insured was living in Utah and was apparently engaged to Tamara Bartholomew. At the time the policy was issued, Mr. Blount named his then fiancee, Tamara Bartholomew, as the primary beneficiary, with his sister, Jane Blount, as the contingent beneficiary.
On March 2, 1981, when agent Marquardt met with the insured to deliver the *254 policy to him, Mr. Blount advised Marquardt that instead of the previous beneficiary designation, he now wanted the insurance proceeds to be divided equally between his fiancee Tamara and his sister Jane.
In response to this request, agent Marquardt provided the insured with a change-of-beneficiary form which the insured executed at some point in time between March 2, 1981 and April 6, 1981, when this change-of-beneficiary form was recorded in Fidelity Union's corporate office in Dallas, Texas.
Nearly one year after the insured purchased this life insurance policy, he and Tamara Bartholomew broke their engagement and terminated their relationship. He returned to Lexington, Kentucky, in early 1982, where he resided until his death on February 25, 1985.
During a conversation with agent Marquardt in March of 1984, the insured advised Marquardt that he again wanted to change the beneficiary of this policy. In response to this request, Marquardt mailed a change-of-beneficiary form to the insured. Marquardt testified that before he mailed this form, he filled in the policy number and the insured's name and address; he also signed this form as a witness.
It appears that the insured filled out this change-of-beneficiary form, naming his sister, Jane Blount, as the primary beneficiary and his parents, William and Shirley Blount, as contingent beneficiaries.
Although the insured executed this change-of-beneficiary form, he apparently did not send this completed and executed form to either his agent (Marquardt) or Fidelity Union's home office in Dallas, Texas.
The insured died on February 25, 1985. In going through the insured's papers subsequent to this death, his father, William B. Blount, Sr., found the Fidelity Union Life insurance policy and the change-of-beneficiary form that Marquardt had mailed to the insured in March of 1984.
Based on the answers of Fidelity Union to plaintiff's interrogatories, it seems that after the insured's father, William B. Blount, Sr., found the insurance policy and change-of-beneficiary form, these documents were placed in the hands of plaintiff's attorney, who forwarded the change-of-beneficiary form to Fidelity Union with a letter dated March 14, 1985. The change-of-beneficiary form was received by Fidelity Union on March 21, 1985 and duly recorded before any proceeds had been paid on this policy.
This action was spawned by the discovery of the change-of-beneficiary form naming Jane Blount as the sole beneficiary. There is no doubt but that Jane Blount is entitled to at least one-half of the life insurance proceeds; however, she contends that based on Kentucky law, which she submits should be applied to this action, she is the sole beneficiary and thus entitled to all of the proceeds. On the other hand, Tamara Bartholomew urges that under the law of Utah, which she argues should be applied to this situation, the insured failed to effect a change-of-beneficiary to make Jane Blount his sole beneficiary; therefore, she remains the beneficiary of one-half of the proceeds of his life insurance policy, pursuant to the change-of-beneficiary form that was received by Fidelity Union's home office on April 6, 1981. Therefore, the court must determine if Kentucky law controls.
CHOICE OF LAW
In Tamara Bartholomew's motion for partial summary judgment, she takes the position that the statutory and case law of Utah are controlling here and dictate that no change-of-beneficiary was effected; therefore, she is beneficiary of one-half of the insurance proceeds. She relies on Utah Code § 31-19-26 for the proposition that the insured's actions were ineffective to change his beneficiaries. Utah Code § 31-19-26 provides, as follows:
31-19-26. Insurance contract Modification of. No modification of any insurance contract shall be effective unless in writing executed by the insurer and if it contains conditions limiting or reducing *255 benefits or protection otherwise applicable such writing shall also be executed by the insured.
In conjunction with this statute, Ms. Bartholomew also states the well-settled rule in Kentucky that in deciding a choice of law question, Kentucky courts will apply the law of the state that has the most significant relationship to the transaction and the parties to the transaction. Lewis v. American Family Insurance Group, 555 S.W.2d 579, 581 (Ky.Supreme 1977).
With this premise in mind, Bartholomew relies on Uckerman v. Lincoln National Life Insurance Co., 588 P.2d 142 (Utah 1978), as further support for her position that under Utah law, the insured failed to meet the requisite formalities necessary to change his beneficiaries from Tamara Bartholomew and Jane Blount, as co-beneficiaries to Jane Blount as sole beneficiary.
The Uckerman court was confronted with a situation where the insured had placed in his wallet a document that stated that he "would like" his estranged wife "to be taken off my beneficiaries." The Uckerman court held that the insured's actions were insufficient to effect a change in beneficiaries under a group life insurance policy that had been issued on decedent's life through his employer.
Without reaching that issue, the Uckerman court intimated that the decedent's writing might be deemed testamentary; however, even if it were so interpreted, the court noted that insurance proceeds are non-testamentary in nature; therefore, they cannot be devised by will. The court stated, "The only way a beneficiary can be changed or eliminated is as provided in the contract of insurance or as mandated by Section 31-19-26 of the Utah Code." 588 P.2d at 144. Consequently, the Uckerman court held that any attempt to change the designation was void.
To counter Bartholomew's motion for partial summary judgment, plaintiff contends that this court must apply Kentucky's approach to resolving this choice of law question. Klaxon v. Stentor Electric Manufacturing Company, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
Plaintiff properly points out that Kentucky follows the majority rule of "grouping of contacts" or "interest analysis" in resolving conflicts of law questions. The evolution of Kentucky's view on conflicts of law questions and application of the "interest analysis" approach can be traced to Wessling v. Paris, 417 S.W.2d 259 (Ky. 1967); Arnett v. Thompson, 433 S.W.2d 109 (Ky.1968); and Foster v. Leggett, 484 S.W.2d 827 (Ky.1972).
In Harris Corp. v. Comair, Inc., 712 F.2d 1069 (6th Cir.1983), the Sixth Circuit noted that the Kentucky Supreme Court has extended the doctrine contained in the Wessling, Arnett & Foster trilogy of cases, as follows:
Indeed, the Kentucky Supreme Court has recently gone much further and held that Kentucky law will apply to a contract issue if there are sufficient contacts and no overwhelming interests to the contrary, even if the parties have voluntarily agreed to apply the law of a different state. Breeding v. Massachusetts Indemnity and Life Insurance Company, 633 S.W.2d 717 (Ky.1982). Thus, it is apparent that Kentucky applies its own law unless there are overwhelming interests to the contrary.
Harris Corp. v. Comair, Inc., 712 F.2d at 1071.
In Harris Corporation, supra, the Sixth Circuit recognized that Kentucky now follows the "interest analysis" approach, and
Under this approach the court hearing the case must apply the law of the jurisdiction which, "because of its relationship or contract with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation." Breeding, 633 S.W.2d at 719.
Id. at 1072.
Thus, this court must now apply the "interest analysis" to arrive at the appropriate choice of law applicable herein.
INTEREST ANALYSIS
In evaluating what interest Utah would have in regard to the insured and *256 the policy itself, the following contacts with Utah are present:
1. The insured purchased the policy in Utah, while he was living there in 1981 from a Fidelity Union agent whose office was located in Utah.
2. The policy was delivered to the insured in 1981 in Utah.
3. In 1981, one of the named beneficiaries, Tamara Bartholomew, was then the insured's financee and ostensibly a Utah resident.
In evaluating the interest Kentucky may have in this scenario, the court notes the following Kentucky contacts:
1. The insured moved from Utah to Kentucky in early 1982, where he resided until his death on February 25, 1985.
2. In March of 1984, agent Marquardt telephoned the insured in Kentucky, at which time the insured informed agent Marquardt that he wanted to change the beneficiaries.
3. Agent Marquardt mailed the insured a change-of-beneficiary form to his address in Kentucky.
4. The insured completed the change-of-beneficiary form in Kentucky, indicating his choice of beneficiaries.
5. The insured executed the change-of-beneficiary form in Kentucky and placed it with his insurance policy, which he kept in Kentucky.
6. The insured died in Kentucky, as a Kentucky resident, on February 25, 1985.
In light of the foregoing respective interests of Utah and Kentucky to this insurance policy and the insured, the court is of the opinion that the interests of Utah are too remote to be controlling. The fact that the insurance policy was purchased by the insured and delivered to him in Utah in 1981, while he was living there is not that significant.
Even less significant is the fact that in 1981, the insured named his then fiancee, Tamara Bartholomew, a Utah resident, as one of the beneficiaries. This fact is immaterial because Tamara Bartholomew was not a party to the insurance contract. The parties to this contract were Fidelity Union and the insured. Utah could have no interest in protecting the rights of a putative beneficiary who may be changed at anytime at the pleasure of the insured and who has no vested rights as a beneficiary unless said beneficiary is still a designated beneficiary at the time of the insured's death.
On the other hand, the contacts the insured had with Kentucky prior to his death give Kentucky a greater interest in this action. For one, the insured resided in Kentucky for approximately three years prior to his death. Obviously, Kentucky has a real interest in protecting the rights of its citizens.
Secondly, the agent contacted the insured in Kentucky; the change-of-beneficiary was mailed to him in Kentucky; and the insured completed this form and executed it in Kentucky.
Finally, as in Breeding, the event which triggered the rights and duties of the parties under the insurance contract (i.e., the insured's death) arose in Kentucky.
Consequently, in weighing the respective interests of Utah and Kentucky, the court can only conclude that Kentucky has the greater interest in the outcome of this action; therefore, the choice of law applicable herein should be the substantive law of Kentucky.
APPLICABLE KENTUCKY LAW
Therefore, the court must now review the relevant substantive law in Kentucky to determine the rights of the parties herein.
Plaintiff points the court to Vaughn v. Baker, 438 S.W.2d 517 (Ky.App.1969) wherein Kentucky's highest court held that substantial compliance with the life insurance policy's requirements for change of beneficiaries is sufficient to effect a change of beneficiaries.
The factual background of Vaughn v. Baker, supra, was that the insured decided he wanted to change beneficiaries. His agent advised him that to change beneficiaries "it would be necessary to send the *257 policies to the company." 438 S.W.2d at 518.
Upon that advice, the insured delivered the two insurance policies to his agent's office, which was located in the agent's home. The agent was not there at the time, so the insured spoke with the agent's wife and explained to her why he was there. He gave her all the particulars (i.e., name, age, address and relationship to the insured) about the person he then desired to be the beneficiary of these policies. The agent's wife wrote all of this information down and told the insured that her husband would contact him about his change-of-beneficiary.
Twice during the next two weeks, the agent went to the insured's home to have him execute a change-of-beneficiary form; however, the insured was not at home either time. Ultimately, the insured died before he had executed the change-of-beneficiary form.
The policies provided that a change-in-beneficiary "will not be binding upon the Company unless made in writing and filed at the Home Office."
The Vaughn court framed the issued before it as whether the insured has made a genuine, bona fide attempt of a substantial nature to have the beneficiary changed, and whether he makes his informal request in writing or orally has no real significance in resolving the issue. 438 S.W.2d at 519.
In recognizing that Kentucky follows the rule of "substantial compliance", the Vaughn court elaborated as follows:
Kentucky is in the substantial-compliance group of authorities but it appears that our court has been more liberal than most, with the possible exception of Marshall v. Marshall, Ky., 399 S.W.2d 487. There the insured did not do all he could have done, but he did everything that he thought and believed was required of him. This court said that was sufficient under the circumstances. Previously, in Pikeville National Bank & Trust Company v. Shirley, 281 Ky. 158, 135 S.W.2d 431, we had acknowledged that our view of what constitutes substantial compliance in these cases has been "very liberal," as indicated by numerous decisions cited therein. There an attempted change of beneficiary was held effective although the insured had merely written a letter to the company and had not submitted an application on the company's form nor sent in the policy for endorsement, both of which were required by the terms of the policy to effect a change of beneficiary. It is true that in the Shirley case the insured was rendered incapable, by his suicide before receipt of an application form mailed him by the company, of making out an application on the company's form, but there was nothing to have prevented his sending the policy to the company for endorsement. So the court's holding did not require that the insured have done "all that he could do."
The Vaughn court held that the person the insured intended to be his new beneficiary was entitled to the proceeds of the life insurance policies. The appellate court noted, as follows:
... The failure of Grigg to submit a signed application for a change-of-beneficiary thus seems to have been attributable to the agent's lack of diligence rather than to any conscious noncompliance on Grigg's part.
Vaughn v. Baker, 438 S.W.2d at 519-520.
The Vaughn court further held, as follows:
... It is sufficient to say that there was evidence to warrant a finding that Grigg thought he had accomplished the desired change, this being significant only as it might relate to the question of whether he thought he had done everything he needed to do to effect the change. So we could not hold that the trial court made an erroneous finding of fact.
It is our conclusion that the trial court correctly adjudged that there had been an effective change-of-beneficiary.
Id. at 520.
Plaintiff also relies on Wickham v. The Prudential Insurance Company of America, 366 So.2d 951 (La.App.1979), which in *258 pertinent part, is nearly on all fours with the facts of the action sub judice. In Wickham, the owner of a life insurance policy and his present wife, who was the newly designated beneficiary, were Louisiana residents, and the change-of-beneficiary form was executed in Louisiana. The former beneficiary, the insured's previous wife, was a resident of Mississippi, where the life insurance policy had been issued and delivered to the insured.
The Wickham court held that based on these facts, under the "interest analysis" theory of Louisiana law, Louisiana had a greater interest than Mississippi; therefore, the court chose to apply the law of Louisiana, which followed a rule of strict construction of insurance contracts. It seems that because this contract of insurance provided that a change-of-beneficiary would not be effective until the actual policy itself was endorsed by the insurer, the Wickham court, in applying Louisiana law, held that the insured's previous wife in Mississippi was entitled to the proceeds of his life insurance policy. Even though the insured had executed a change-of-beneficiary form and sent it to the insurer, thereby putting the insurer on notice of his desire to change his beneficiary, the Wickham court concluded that in following Louisiana's rule of strict construction, to effectively change beneficiaries, the insured was also required to send the insurance policy itself to the insurer for endorsement to record the newly designated beneficiary. It seems that because the insured failed to send the life insurance policy to the insurer, the Wickham court was bound to hold that, as a matter of Louisiana law, the insured had failed to change his beneficiary.
In relation to what action by the insured constitutes "substantial compliance" with the policy provisions specifying how a change of beneficiary is to be effectuated, plaintiff points the court to Aetna Life Insurance Company v. Parker, 130 F.Supp. 97 (E.D.Mich.1955).
In Parker, about one year before the insured's death, it seems he attempted to designate his sister as a co-beneficiary with his wife. The insured made this change on the face of the policy itself; underneath the typewritten name of his wife, the insured printed by hand with a green color lead pencil the name of his sister and then he printed the word "Sign," followed by his signature.
The Parker court noted that the group policy provision pertaining to a change of beneficiary provided as follows:
"an employee, whether or not employment shall have terminated, may designate a beneficiary, or change his designation of beneficiary, from time to time by written request filed at the employment office of the Employer or at the Home Office of the Insurance Company. Such designation or change shall take effect as of the date of the execution of such request, whether or not the employee be living at the time of such filing, but without prejudice to the Insurance Company on account of payments made by it before receipt of such request at its Home Office."
Id. at 98.
Even though the insured's request was not filed with his employer or the insurance company as dictated by the policy, until after the insured's death, in view of the provision that a change of beneficiary would take effect as of the date of execution of the request, whether or not the insured was living at the time of the filing with the insurance company, the Parker court held that the insured had sufficiently complied with the terms of this insurance policy to effectively change his beneficiary from his wife only to both his wife and his sister as co-beneficiaries.
In passing, the Parker court noted that the receipt of the request by the insurer prior to the death of the insured was not a requirement of the policy. Furthermore, "That it would not come to the insurer's attention until after the insured's death was expressly immaterial." 130 F.Supp. at 100.
CHANGE OF BENEFICIARY
The insurance policy in the present action before this court contains a provision *259 advising an insured how to change beneficiaries, which is found in Part 3, "Beneficiaries and Proceeds," on page U-6, and states as follows:
The beneficiaries may be changed by the owner at any time during the insured's life. To change a beneficiary, a written request must be made to our home office. We may require the policy to record the change. The request will take effect when signed, subject to any action we take before receiving it. (emphasis supplied).
In analyzing this provision, it seems that the insured can change beneficiaries at any time before his death by making a written request to Fidelity Union's home office. This section clearly states that the change-of-beneficiary request will take effect when signed by the insured; however, it seems that Fidelity Union is protected from double liability or multiple exposure to claims by numerous beneficiaries if prior to receiving the change-of-beneficiaries form, Fidelity Union pays out proceeds to beneficiaries the insured no longer wished to designate as beneficiaries.
In answering the interrogatories propounded to it by plaintiff, Fidelity Union stated that the insured was not required to deliver the insurance policy to Fidelity Union to record a change of beneficiaries in its records.
An examination of the actions of the insured indicates the following sequence of events:
1. In March of 1984 he communicated his desire to change beneficiaries to agent Marquardt during a telephone conversation with Marquardt. Since Marquardt was an agent for Fidelity Union, this oral communication by the insured to Marquardt was sufficient to put Fidelity Union on notice that he wanted to change beneficiaries.
2. In response to this conversation, Marquardt sent the insured a change-of-beneficiary form, which the insured subsequently completed and executed.
3. Instead of returning this form to either agent Marquardt or Fidelity Union's home office in Dallas, Texas, the insured placed this change-of-beneficiary form with the insurance policy.
4. Subsequent to the insured's death, his father, William B. Blount, Sr., discovered the insurance policy and the change-of-beneficiary form, which was mailed to and received by the Fidelity Union nearly one month after the insured's death.
DECISION
In synthesizing the primary authority of Vaughn v. Baker, supra, and the views expressed in the secondary, but persuasive authorities of Wickham v. The Prudential Insurance Company of America, supra, and Parker v. Aetna Life Insurance Company, supra, with the facts of the instant action, the court is compelled to conclude that even though the insured did not do all that he could have done to effect a change of beneficiary, as in Marshall v. Marshall, 399 S.W.2d 487 (Ky.1966) and Pikeville National Bank and Trust Company v. Shirley, 135 S.W.2d 431 (Ky.1939), based on the substantive law of Kentucky, as set out in Vaughn v. Baker, supra, as a matter of law, the insured had substantially complied with the requirements of the Fidelity Union insurance policy to effectively change his beneficiaries from Tamara Bartholomew and Jane Blount, as co-beneficiaries, to Jane Blount, as the sole beneficiary.
Fidelity Union did not require the insured to send the insurance policy to the home office for endorsement of the change of beneficiary. Furthermore, Fidelity Union did not specify that it must receive the change-of-beneficiary form prior to the insured's death.
Fidelity Union required the insured to make a written request to its home office. The insured went so far as to complete and execute this written request. The policy plainly states that the change-of-beneficiary request "will take effect when signed." However, the insured merely omitted to return this form to Fidelity Union.
As in Marshall v. Marshall, supra, and Pikeville National Bank and Trust Company v. Shirley, supra, the insured in this action did not do all that he could have *260 done to fully comply with the provisions in his insurance policy telling him how to change beneficiaries. However, it appears that William B. Blount, Jr. came closer to complying with the policy provisions than the respective insureds in Marshall v. Marshall, supra, and Pikeville National Bank and Trust Company, supra. The insureds in these two foregoing cases were held to have substantially complied with the policies in order to effect a change-of-beneficiary; therefore, a fortiori, the court must hold that William B. Blount, Jr., the insured herein, has substantially complied with the Fidelity Union policy in his attempt to change his beneficiaries. Based on the fact that the change-of-beneficiary form was found with the insurance policy, it appears that the insured thought he had done everything that was required of him to change his beneficiaries. Marshall v. Marshall, supra.
Consequently, the court concludes that plaintiff Jane Blount is the sole beneficiary of this life insurance policy. Therefore, the motion of third party defendant Tamara Bartholomew for partial summary judgment will be denied and the motion of plaintiff Jane B. Blount for summary judgment will be granted.
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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/2258831/
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38 Cal.Rptr.3d 316 (2006)
135 Cal.App.4th 1281
David J. DUNN, as Trustee, etc., Plaintiff and Appellant,
v.
COUNTY OF SANTA BARBARA, Defendant and Respondent.
No. B175149.
Court of Appeal, Second District, Division Six.
January 25, 2006.
*319 Hatch & Parent, Diane M. Matsinger; Bornholdt, Peron & Pratt and Kenneth C. Bornholdt, San Luis Obispo, for Appellant.
Stephen Shane Stark, County Counsel, Alan L. Seltzer, Chief Assistant County Counsel, Kelly A. Casillas, Deputy County Counsel, for Respondent.
PERREN, J.
The owner of a six-acre parcel in Summerland filed an application to subdivide that property, which is zoned for a single-family residence, into two 3-acre parcels. As presently configured, two residences could conceivably be developed on the parcel. The County of Santa Barbara determined, however, that the property was subject to development restrictions pursuant to state laws and local regulations enacted for the protection of wetlands and environmentally sensitive habitat areas. After identifying two artificially created wetlands totaling approximately one-fifth of an acre, the County concluded that only one residence could be built on the property, and accordingly denied the subdivision application. Appellant David J. Dunn, as trustee of a family trust that owns the subject property, thereafter filed a petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5), combined with a complaint alleging, among other things, that the County's regulations had taken his property without compensation in violation of the takings clause of the Fifth Amendment of the United States Constitution.
Dunn subsequently moved for summary adjudication of his writ petition pursuant to Code of Civil Procedure section 437c, subdivision (f), and alternatively moved for judgment pursuant to Code of Civil Procedure section 1094, on the grounds that the County had not proceeded in the manner required by law and that the County's decision was not supported by the evidence (Code Civ. Proc., § 1094.5, subd. (b)). The trial court denied Dunn's motion for summary adjudication of the petition on procedural grounds, denied the motion for judgment, and accordingly denied the writ petition. The court also granted the County's motion for judgment on the pleadings as to the complaint, concluding that Dunn could not state a claim for a physical taking, that his regulatory takings claims were not ripe for adjudication, nor were the remaining causes of action derived from the takings claims.
We agree with the trial court that the summary adjudication procedure was improperly invoked. Where, as here, an administrative mandamus proceeding purportedly presents no triable issue of fact or is based solely on the administrative record, the proper procedure is a motion for judgment on the writ pursuant to Code of Civil Procedure section 1094. We also *320 concur in the trial court's conclusion that the County proceeded in the manner required by law as contemplated by Code of Civil Procedure section 1094.5, subdivision (b). The challenged regulations pursuant to which that decision was made are consistent with the Coastal Act's stated goal to "[p]rotect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and artificial resources." (Pub. Resources Code[1], § 30001.5, subd. (a).) Moreover, substantial evidence supports all of the findings essential to the County's decision.
We agree with Dunn, however, that his regulatory takings claims are ripe for adjudication because the County issued what amounts to a final decision that it lacks discretion to grant any subdivision of his property, and the permissible use of the property the development of one single-family residence is known to a reasonable degree of certainty. Accordingly, we reverse the judgment in favor of the County on those claims, as well as the constitutional and civil rights claims that were deemed not ripe on the same ground. In all other respects, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 31, 1995, Dunn (as trustee of the Dunn Family Trust) submitted an application to subdivide his 6.05-acre parcel of property into two separate lots of 3.025 acres. The property, which is located on a sea cliff on Padaro Lane in the unincorporated area of Summerland, is zoned for single-family residential use with a minimum parcel size of three acres. The original parcel, one of four lots created by a 1986 parcel map, had two potential building envelopes located on each side of an active earthquake fault that diagonally bisects the property. The two building sites were intended to identify alternative sites for one building, and not necessarily to facilitate further subdivision.
Because the property is located within the coastal zone, it is under the jurisdiction of the California Coastal Commission (Commission) and is subject to the provisions of the California Coastal Act (§ 30121), as well as the County's Local Coastal Plan (LCP). In applying for the subdivision, Dunn submitted a biological report prepared by LSA, Inc. (LSA), which indicated the presence of "a small, isolated and artificial/degraded wetland" of approximately 0.16 acres (Area A). (Fn. omitted.) The report concluded that Area A qualified as a wetland "because it has wetland hydrology, hydrophytic vegetation, and hydric soils as those terms are generally and broadly understood."[2] LSA subsequently supplemented its report to address another small area of approximately 0.005 acres which also had wetland features (Area B).
In reviewing Dunn's application, the County retained Padre Associates to independently evaluate the property. That evaluation also identified Areas A and B as wetlands, and concluded that those areas were of significant existing and potential value to wetland plant and animal species. The County also concluded the wetlands were entitled to protection as environmentally sensitive habitat areas (ESHA) under the LCP.
*321 The County determined that required building setbacks applicable to the property included a 100-foot "buffer" from the boundaries of the wetlands, 75 feet from the coastal bluff, and 100 feet from the proposed septic system to the edge of the arroyo. The environmental impact report (EIR) prepared pursuant to the application subsequently noted that "[t]he project site wetlands are entirely located on Parcel 1, with 0.16 acres within the designated building envelope. Although 0.02 acres would remain following full development within the building envelope, alteration of topography and soils associated with grading would likely result in the loss of wetlands in this area."
In reliance on the EIR's conclusions, the County Planning Commission denied Dunn's application. The County Board of Supervisors subsequently denied Dunn's appeal on the ground that it could not make the findings required to grant the application in that approval of the proposed lot split would be inconsistent with various regulations, including the LCP (which was certified by the Commission) and the Summerland Community Plan.
After the board of supervisors denied Dunn's appeal, he filed a petition for a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5, along with a complaint for damages alleging violations of constitutional and civil rights and causes of action for regulatory and physical takings of his property. The writ petition alleged that the County had abused its discretion by failing to proceed in the manner required by law (Code Civ. Proc., § 1094.5, subd. (b)), and by issuing findings that were not supported by the evidence (ibid.). By stipulation, the administrative mandamus proceedings were bifurcated and heard first.
On July 19, 2002, Dunn filed a self-styled "motion for summary adjudication of issues or, alternatively, motion for judgment on peremptory writ of mandate/mandamus." The summary adjudication procedure was invoked pursuant to Code of Civil Procedure section 437c, subdivision (f)(1). The motion for judgment was brought under Code of Civil Procedure section 1094 "on the basis that the writ filed presents no triable issue of fact and is based solely on the Administrative Record...."
On July 18, 2003, the trial court filed its statement of decision denying Dunn's writ petition and his motion for summary adjudication. The court found that Dunn had failed to meet his initial burden of proof on his summary adjudication motion, and that substantial evidence supported the County's findings and its decision to deny Dunn's application for a subdivision of his property. The County thereafter moved for judgment on the pleadings on the causes of action alleged in Dunn's complaint for damages. The County contended, among other things, that Dunn's constitutional claims failed as a matter of law in light of the court's denial of the writ petition, that Dunn had failed to state a claim for a physical taking, and that his claim for a regulatory taking was not ripe for review because he had not yet sought a final determination from the County regarding the extent of development that will be allowed on his property. The court granted the County's motion on January 30, 2004, finding that "since there can be no possible physical taking of property under the facts alleged in the complaint, and ... all remaining causes of action are not ripe for adjudication, the motion must be granted."
DISCUSSION
I. Administrative Mandamus
A. Standard of Review
"Because this matter came to the trial court on a petition for a writ of mandate *322 under Code of Civil Procedure section 1094.5, that court was required to determine whether substantial evidence supported the [County's] findings and whether those findings supported its decision. [Citation.] Our role is identical to that of the trial court. [Citations.] In determining whether substantial evidence supports the [County's] decision, we look to the `whole' administrative record and consider all relevant evidence, including that evidence which detracts from the decision. Although this task involves some weighing to fairly estimate the worth of the evidence, that limited weighing does not constitute independent review where the court substitutes its own findings and inferences for that of the [County]. Rather, it is for the [County] to weigh the preponderance of conflicting evidence, as we may reverse its decision only if, based on the evidence before it, a reasonable person could not have reached the conclusion reached by it. [Citations.]" (Kirkorowicz v. California Coastal Com. (2000) 83 Cal.App.4th 980, 986, 100 Cal.Rptr.2d 124.)
In this appeal, we are also asked to review the County's interpretation of the Coastal Act, as manifested in the regulations contained in the County's LCP. Although the interpretation of a statute's legal meaning and effect are "questions lying within the constitutional domain of the courts" (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 11, 78 Cal.Rptr.2d 1, 960 P.2d 1031), we generally defer to an agency's interpretation where the agency "possess[es] special familiarity with satellite legal and regulatory issues" (ibid.; see also Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 504, 83 Cal.Rptr.2d 850). Therefore, while we exercise our independent judgment in reviewing the County's interpretation of the Coastal Act, we exercise that judgment "`... "... giving deference to the determination of the agency appropriate to the circumstances of the agency action." [Citation.]'" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 219, 130 Cal.Rptr.2d 564.) "To summarize, we review the [County's] factual determinations for substantial evidence. [Citation.] We independently review the [County's] interpretation of [the Coastal Act], according that interpretation due deference. [Citation.]" (Id., at p. 220, 130 Cal.Rptr.2d 564.) The County's interpretation in this regard, as manifested in the LCP, is entitled to great weight because the LCP was certified by the Commission. (Bolsa Chica, supra, at p. 513, 83 Cal.Rptr.2d 850.)
Dunn contends that the substantial evidence standard of review does not apply to his appeal because all of his assignments of error involve questions of law on undisputed facts. (See, e.g., Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 794, 134 Cal.Rptr.2d 179.) According to Dunn, we are therefore compelled to disregard the administrative record in favor of the purportedly undisputed material "facts" identified in the separate statement he filed in support of his motion for summary adjudication.
We are not persuaded. As we explain, virtually all of Dunn's challenges of the County's decision to deny his subdivision application directly implicate factual disputes that were decided against him in the administrative proceedings. To the extent Dunn challenges the County's interpretation of the Coastal Act as provided in its regulations, he either mischaracterizes the County's interpretation, or fails to credit case law demonstrating that those interpretations are consistent with the statute's purpose.
B. Summary Adjudication
In the trial court, Dunn filed a motion for summary adjudication of his *323 writ petition pursuant to Code of Civil Procedure section 437c, subdivision (f). Motions for summary adjudication are procedurally identical to motions for summary judgment (437c, subd. (f)(2)), and our review of rulings on those motions is de novo (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, 33 Cal.Rptr.3d 713). Summary adjudication is warranted only if the motion completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., 437c, subd. (f)(1).) The motion shall be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence...." (Id., at subd. (c).) The papers filed in support of the motion "shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed." (Id., at subd. (b)(1).)
In support of his motion, Dunn filed a separate statement identifying 155 purportedly undisputed "facts" that he contended were dispositive of both the writ petition and his constitutional claims, most of which challenged the sufficiency of the evidence supporting the County's findings. The County opposed the motion on the ground that all of the findings necessary to its decision were supported by substantial evidence in the administrative record. The County specifically argued "that the facts in the record show at least a disputed issue that protected wetlands are present on the property, and so summary adjudication ... cannot be granted to Plaintiff." In its separate statement, the County objected to many of Dunn's assigned facts as improper conclusions of law, admitted others, and identified 11 additional facts and submitted "that there is at least a triable issue of fact as to each, as shown by the evidence in the record cited, which evidence also constitutes substantial evidence in the record to support the Board findings for denial[.]"
The trial court denied Dunn's motion, explaining that "[t]o the extent [Dunn's] motion was intended just to be a motion for summary adjudication, it was largely improper. The `issues' identified by the motion ... largely did not dispose of any cause of action, defense, damage claim, or duty issue.... The identified issues were, rather, components of [Dunn's] larger claim of entitlement to judgment on [his] petition for writ of mandate [pursuant to section 1094], which could have been (and was) sought without the use of any filing under CCP § 437c. [¶] Further, in finding that there existed substantial evidence to support the County's findings, the Court has necessarily found the existence of a triable issue of material fact as to whether Areas A and B were legally protected wetlands.... [¶] The Court is not bound to determine the existence of triable issues of material fact solely by reference to that evidence identified by [the County] in its response to the separate statement. The Court also notes that additional triable issues may exist, but are not specifically identified because the basis for denial of the motion is [Dunn's] failure to meet his burden of proof." (Italics added.)
Although we are not bound by the trial court's reasoning in reviewing the denial of Dunn's motion for summary adjudication (Hartline v. Kaiser Foundation Hospitals, supra, 132 Cal.App.4th at p. 465, 33 Cal.Rptr.3d 713), we find the *324 court's reasoning persuasive. The trial court had the discretion to consider evidence not referenced in Dunn's separate statement (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1478, 33 Cal.Rptr.3d 111), and we discern no basis for concluding that the court did not properly exercise that discretion in denying Dunn's motion. "'"`[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.' [Citations.]"'" (Leep v. American Ship Management, LLC (2005) 126 Cal.App.4th 1028, 1039, 24 Cal.Rptr.3d 463.)
Dunn nevertheless contends that in reviewing the denial of his summary adjudication motion, we must limit our review of the record to that evidence identified in his separate statement which the County either did not dispute, or to which objections were made and sustained. He also argues that we are compelled to accept that evidence as undisputed to the extent the County failed to expressly dispute it in its separate statement. In response, the County asserts that summary adjudication was procedurally inappropriate in this case because the material facts were disputed in the administrative proceedings, and the court's role in reviewing those findings is limited to determining whether they were supported by substantial evidence in the administrative record. Dunn replies that the County waived any right to challenge the motion on procedural grounds by formally opposing it, and that any such challenge should fail because there is no express limitation on the application of the summary adjudication procedure to administrative mandamus proceedings.
We do not disagree with the proposition that summary adjudication or summary judgment may be granted in mandamus proceedings where evidence outside of the administrative record disposes of the petition as a matter of law. (See, e.g., Stanton v. Dumke (1966) 64 Cal.2d 199, 207, 49 Cal.Rptr. 380, 411 P.2d 108 [summary judgment granted in administrative mandamus proceeding on showing that the petition was moot]; California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66 Cal.App.4th 1302, 1309, 78 Cal.Rptr.2d 591 [summary judgment granted in favor of defendant City in mandamus proceeding challenging gun control ordinance on grounds of preemption, equal protection, and due process].) We also recognize that there is no express limitation on its use in administrative mandamus proceedings. Its use in this context is, nevertheless, limited by practical considerations.
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) That purpose is effected by providing for the admission of dispositive evidence, in the form of "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (Code Civ. Proc., 437c, subd. (b)(1).) Where, as here, the court is called upon to evaluate the sufficiency of the evidence to support an agency's decision, review is generally limited to the evidence contained in the administrative record. (Kirkorowicz v. California Coastal Com., supra, 83 Cal.App.4th at p. 986, 100 Cal.Rptr.2d 124.) Because the court's review is limited to the evidence which is already before the court, and the court must review all of that evidence, the summary adjudication procedure contemplated by Code of Civil Procedure *325 section 437c is effectively unavailable for claims that an agency's decision is not supported by the evidence.
Dunn also challenges the County's decision on the ground that the County failed to proceed "in the manner required by law" as contemplated by Code of Civil Procedure section 1094.5, subdivision (b). He correctly notes that courts are not confined by the substantial evidence standard of review when reviewing questions of law on undisputed facts. (See, e.g., Lomeli v. Department of Corrections, supra, 108 Cal.App.4th at p. 794, 134 Cal.Rptr.2d 179.) An agency's application of a legal standard to particular disputed facts, however, presents a "mixed" question that is subject to review as a question of fact. (Holmes v. Kizer (1992) 11 Cal.App.4th 395, 400-401, 13 Cal.Rptr.2d 746; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Administrative Proceedings, § 113, p. 1158.) As we will explain, the facts underlying Dunn's claims are undisputed. Moreover, Dunn does not purport to base any of his claims on evidence outside of the administrative record.
Under the circumstances, the motion for judgment provided by Code of Civil Procedure section 1094 is the proper, and exclusive, procedural means for seeking a streamlined review of an agency's decision. That statute provides in pertinent part that "[i]f a petition for a writ of mandate ... presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ." Dunn moved for judgment pursuant to this section in the alternative. As will be shown, the trial court properly denied judgment on that ground because the County's decision to deny his application for a subdivision of his property is supported by substantial evidence in the administrative record, and there is no indication that the County failed to proceed in the manner required by law in making that decision.
C. Wetlands Designation
Wetlands are defined in the Coastal Act as "lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens." (30121.) In applying that definition, the County, under regulations certified by the Commission, uses the "Cowardin" system of classification. "For purposes of this classification, wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes[3]; (2) the substrate[4] is predominantly undrained hydric soil; and (3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year." (Interpretive Guideline, p. 79, appen. D, italics added; see also Kirkorowicz v. California Coastal Com., supra, 83 Cal.App.4th at p.988, 100 Cal.Rptr.2d 124.) In evaluating whether property is entitled to protection as a wetland under the Coastal Act, "`"[t]he courts are enjoined to construe the statute liberally in light of its beneficient purposes. [Citation.] The highest priority must be given to environmental consideration in interpreting the statute [citation]."' [Citation.]" *326 (Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 506, 83 Cal.Rptr.2d 850.)
In challenging the County's decision on the ground that it failed to proceed "in the manner required by law," Dunn primarily contends the County misinterpreted its regulations and the Coastal Act by designating areas on his property as wetlands even though those areas "do not function and have no value" as wetlands. Notwithstanding his attempt to frame this contention as presenting a question of law on undisputed facts, his arguments necessarily implicate the evidence the County relied on in reaching that decision. Moreover, Dunn's characterization of that evidence is one-sided.[5] For example, Dunn's assertion that the subject areas "do not function and have no value" as wetlands which is actually a legal conclusion, not a fact is contradicted by the opinions of every expert who evaluated the property. Indeed, Dunn's own biological consultant recognized that Areas A and B possessed all three of the Cowardin wetland attributes. This evidence also directly undermines Dunn's claim that the County "mechanically" applied its regulations to designate the subject areas as wetlands based on the existence of only one Cowardin factor. In any event, the presence of one Cowardin factor may be sufficient to warrant wetland designation. (Interpretive Guideline, p. 79, appen. D [wetland classification applies where land has "one or more" of the three Cowardin attributes]; see also Kirkorowicz v. California Coastal Com., supra, 83 Cal.App.4th at p. 990, 100 Cal.Rptr.2d 124 ["evidence that hydrophytes exist on a property to a degree permitting jurisdictional wetland determination renders unnecessary any additional evidence of wetland hydrology or hydric soils"].)
Contrary to Dunn's contention, the County does not "mechanically" apply the designation when only one of the Cowardin factors is present. The LCP provides that "[i]n order to ensure that wetland protection standards are applied equitably to affected property owners, wetlands which have only one of the defining three characteristics, especially those defined only by seasonal ponding, require careful review to ensure that highly disturbed areas with artificially compacted soils which do not have true wetland characteristics are not mistakenly identified as wetlands."[6]
Notwithstanding the undisputed evidence that the subject areas on Dunn's property possess all three of the Cowardin wetland factors, Dunn contends there must be some other evidence that those areas "function" and "have value" as wetlands. But that contention begs the question whether such evidence exists, and a review of the record demonstrates that it does. For example, one of the biologists who surveyed the property noted that "[w]ildlife species, particularly native birds and mammals[,] are likely to take advantage of the seasonally ponded water contained in the freshwater marsh that occupies a portion of proposed Parcel 1. The wetland is of sufficient size to support breeding populations of Pacific chorus frog and Western toad. Wetland bird species are expected to use the pool for foraging on a seasonal basis, and the site's proximity to the coast and the western arroyo *327 enhances the wetland's functional value to area wildlife. The arroyo along the western portion of the project site provides a conduit for wildlife movement which may also visit the onsite pond while foraging." Another survey indicated that the property contains 22 wetland indicator species that are considered valuable to wetland ecosystems. Pacific tree frogs, killdeer, and spotted sandpiper, all of which are areas, were observed on the property, which was deemed of sufficient size to support their breeding populations.
In spite of this undisputed evidence of the wetlands' function and value, Dunn contends that only wetlands of a higher quality than those on his property are entitled to protection. That argument has already been rejected: "[T]he Coastal Act by its definition of wetland (30121) does not distinguish between wetlands according to their quality." Indeed, section 30233 limits development in all wetlands without reference to their quality." (Kirkorowicz v. California Coastal Com., supra, 83 Cal.App.4th at p.994, 100 Cal.Rptr.2d 124.) The logic inherent in this conclusion is that "the failure to protect the low-quality wetlands would encourage developers to find threats and hazards to all wetlands located in economically inconvenient locations." (Id., at p. 995, 100 Cal.Rptr.2d 124.) Because substantial evidence in the record supports the County's findings that Areas A and B on Dunn's property are legally protected wetlands, and the County did not misinterpret its own regulations or state law in making those findings, Dunn was not entitled to issuance of the writ on the grounds that the County's decision was deficient in either regard.[7]
D. ESHA Designation
Under the Coastal Act, an ESHA is "any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments." (30107.5.) ESHAs "shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas." (30240, subd. (a).) The County's LCP, which includes wetlands in its definition of the types of habitats that qualify as ESHAs, also lists criteria including "[u]nique, rare, or fragile communities which should be preserved to ensure their survival in the future" and "[a]reas that are important because of their biological productivity such as wetlands . . . ."
Dunn challenges the County's finding that the wetlands on his property are ESHAs. First, he claims the County "admitted" those areas were not ESHAs by failing to specifically dispute the facts he identified as dispositive of that issue in his separate statement. As we have already *328 explained, the County had no duty to dispute any of those facts because Dunn failed to meet his initial burden on the motion. Dunn also fails to acknowledge that the County did dispute that claim in the additional facts it submitted in opposing the motion. He also contends the County erred in "automatically" designating the wetlands as ESHAs, notwithstanding that the LCP, which was approved by the Commission, expressly treats all wetlands as ESHAs.
We have already referred to the evidence demonstrating that the particular wetlands at issue here play a valuable role in the ecosystem. In addition to that evidence, the EIR prepared in connection with Dunn's application also noted that a biologist who evaluated the site in 1998 "indicates the wetland provides habitat value for bird species, and [he] observed killdeer and spotted sandpiper feeding. . . . [B]lack phoebe frequently use[] a fence post located in the center of the wetland as a foraging perch, based on an accumulation of scat." The County's LCP also explains that all wetlands are entitled to independent protection as ESHAs because "they are extremely fertile and productive environments. They act as nurseries for many aquatic species and serve as feeding and nesting areas for many waterfowl including rare and endangered species." The Commission also generally defines wetlands as ESHAs, and its guidelines recognize that "`[o]f all the environmentally sensitive habitat areas mentioned specifically in the Coastal Act, wetlands and estuaries are afforded the most stringent protection. . . .'" (Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 515, 83 Cal.Rptr.2d 850.)
Nothing in Dunn's briefs demonstrates that the wetlands on his property are not entitled to this heightened protection. His argument that the quality of the wetlands somehow diminishes their importance as ESHAs has already been rejected: "[U]nder the statutory scheme, ESHA's, whether they are pristine and growing or fouled and threatened, receive uniform treatment and protection. [Citation.]" (Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 508, 83 Cal.Rptr.2d 850.) Although Dunn contends that viability may play a legitimate role in determining whether a particular habitat qualifies as an ESHA (ibid.),[8] there is substantial evidence of viability here. To the extent Dunn complains that the County's regulations are more restrictive than the Commission's in determining ESHA status, the County has the discretion to be more restrictive to the extent its regulations are consistent with legislative intent. (Conway v. City of Imperial *329 Beach (1997) 52 Cal.App.4th 78, 87, 60 Cal.Rptr.2d 402.)[9]
E. Mitigation
Dunn next contends the County erred in failing to consider mitigation as an alternative to denying his subdivision application. This claim is premised on section 21159.26[10] of the California Environmental Quality Act (CEQA), which does not apply here because the County did not certify the EIR pursuant to section 21080, subdivision (b)(5). To the extent Dunn otherwise argues that mitigation should have been considered, the Coastal Act plainly provides that residential development is not permitted in wetlands under any circumstances. (30233, subd. (a); Bolsa Chica Land Trust v. Superior Court, supra, 71 Cal.App.4th at p. 511, 83 Cal.Rptr.2d 850.)
F. Buffer
Dunn also contends the County erred in imposing a 100-foot setback, or "buffer," around the wetlands on his property. The buffer was imposed pursuant to LCP Policy 9-9, which provides that "[a] buffer strip, a minimum of 100 feet in width, shall be maintained in natural condition along the periphery of all wetlands. No permanent structures shall be permitted within the wetland or buffer area except structures of a minor nature, i.e., fences, or structures necessary to support [light recreational uses]." Dunn argues that this policy applies only to wetlands that are also ESHAs. We have concluded, however, that substantial evidence supports the County's finding that the wetlands on Dunn's property are ESHAs as well.
To the extent Dunn contends that the LCP does not expressly refer to a "uniform buffer" or the prohibition of any building within the buffer, a logical reading indicates that both conclusions are appropriate. The fact that there are preexisting structures within the buffer is irrelevant. Moreover, Dunn ignores the trial court's conclusion, which we adopt, that he failed to demonstrate that a lesser buffer would have been adequate to protect the wetlands.
G. Findings Regarding Proposed Septic System
Dunn's final contention in challenging the denial of his writ petition is that substantial evidence does not support the County's finding that the proposed septic system to be installed on proposed parcel 1 would violate 100-foot setbacks mandated by the Regional Water Quality Board. Dunn's reason for raising this issue is unclear, because the trial court agreed with him on this point. To the extent he intended to otherwise challenge the application of a 100-foot setback around the wetlands, we have already concluded that substantial evidence supports the imposition *330 of that setback pursuant to the County's LCP Policy 9-9.
II. Motion for Judgment on the Pleadings
The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer: We treat the pleadings as admitting all of the material facts properly pleaded, but not any contentions, deductions or conclusions of fact or law contained therein. We may also consider matters subject to judicial notice. We review the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any theory. (DiPirro v. American Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 972, 14 Cal.Rptr.3d 787.)
The trial court granted judgment on the pleadings in favor of the County on all of the causes of action raised in Dunn's complaint for damages. The court granted judgment on the causes of action for a physical taking on the ground that Dunn could not state such a claim as a matter of law, and on the regulatory takings claims on the ground that they were not ripe for adjudication.[11] The remaining causes of action for equal protection, substantive due process, and civil rights violations were also deemed unripe on the theory that they were derivative of the regulatory takings claims.
Judgment on the physical takings claims was plainly correct because Dunn did not and cannot allege that the County took physical possession of his property or otherwise occupied it. (See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 322, 122 S.Ct. 1465, 152 L.Ed.2d 517.) We reject, however, the court's conclusion that Dunn's regulatory takings claims are not ripe for adjudication.
The Takings Clause of the Fifth Amendment of the United States Constitution, which applies to the states through the Fourteenth Amendment, prohibits the government from taking private property without just compensation. "Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. [Citation.]" (Palazzolo v. Rhode Island (2001) 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (Palazzolo).)
A takings claim challenging the application of regulations to particular property must be ripe for consideration. Such a claim is not ripe until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." (Williamson County Regional Planning Comm'n v. Hamilton Bank (1985) 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126.) "A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of `all economically beneficial use' of the property [citation], or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred [citation]. These matters cannot be resolved in definitive terms until *331 a court knows `the extent of permitted development' on the land in question. [Citation.]" (Palazzolo, supra, 533 U.S. at p. 618, 121 S.Ct. 2448.) The primary question to be answered in resolving this issue is whether the landowner "obtained a final decision from the [agency] determining the permitted use for the land." (Ibid.)
Applying these principles, the trial court concluded that Dunn's takings claims were not ripe because he had failed to apply for a permit to develop a single-family residence on his property. The County, however, has repeatedly indicated that it will allow Dunn to build a residence on his property. It is also apparent that the County has indicated it does not have the authority to subdivide the property into two lots, and the County is aware that only one viable building site exists as a result of its decision to deny that subdivision. "While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. The case is quite unlike those upon which respondents place principal reliance, which arose when an owner challenged a land-use authority's denial of a substantial project, leaving doubt whether a more modest submission or an application for a variance would be accepted." (Palazzolo, supra, 533 U.S. at p. 620, 121 S.Ct. 2448.) Because the County has made it clear that its wetland and ESHA regulations effectively limit the development of Dunn's property to one residence, his takings claim is ripe for adjudication even though he has not sought permission to build that residence.[12]
Our conclusion is compelled by the United States Supreme Court's decision in Palazzolo. The landowner in that case pursued a takings claim after the Rhode Island Coastal Resources Management Council (Council) denied his applications to develop the area containing wetlands on his 18-acre property, but before he made any attempt to develop that portion of the property that did not contain wetlands. Even though the Council informed the landowner "that they would have allowed petitioner to build a residence on the upland parcel," the lower courts concluded that the takings claim was not ripe for adjudication. (Palazzolo, supra, 533 U.S. at p. 622, 121 S.Ct. 2448.)
The United States Supreme Court reversed, reasoning that "[r]ipeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is required to explore development opportunities on his upland parcel only if there is uncertainty as to the land's permitted use." (Palazzolo, supra, 533 U.S. at p. 622, 121 S.Ct. 2448, italics added.) The court further concluded that "Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council's denial of his applications, and there is no indication that any use involving any substantial structures or improvements would have been allowed. Where the state agency charged with enforcing a challenged land-use regulation entertains an application from an owner and its denial of the application makes clear the extent of development permitted, and neither the agency nor a reviewing state court has cited noncompliance with reasonable state-law exhaustion or pre-permit processes [citation], *332 federal ripeness rules do not require the submission of further and futile applications . . . ." (Palazzolo, supra, at p. 626, 121 S.Ct. 2448.)
In concluding that Dunn's regulatory takings claims were not ripe, the trial court reasoned that "[u]ncertainty exists with respect to the scope of any development project which would be allowed on the remaining existing `building envelope,' whether the required setbacks and wetlands protections would allow for any alternative configuration of the lot(s) and building envelope(s), whether the County might entertain zoning or other regulation variances which would enable plaintiff to utilize the parcel to the fullest extent possible, or whether the County would allow some sort of development which involved minor intrusions into the buffer zone areas, in order to avoid a potential takings claim" pursuant to section 30010. None of these stated grounds undermines the unequivocal and final nature of the County's decision denying the lot split. The County has made clear that only one viable building site remains after the application of its regulations, and that Dunn will be allowed to build a single-family residence on that site. It is also undisputed that no alternative configuration of the lots would solve the problem, and that the application of the County's wetland and ESHA regulations will have no effect on Dunn's ability to build one residence on the building site that is not affected by those regulations. Moreover, the County has indicated that it will not be necessary to allow intrusions into the buffer area because there is ample room for Dunn to build a residence on the remaining building site. Because the County has stated that it will not allow Dunn to subdivide his property, and that it will allow him to build only one residence on the remaining building site, the permissible use of the property is known to a reasonable degree of certainty. Accordingly, the takings claims are ripe for review.
The only possibly relevant distinction between this case and Palazzolo is that in the latter, the Council conceded that the landowner's upland parcel had a development value of $200,000. Here, there is not evidence, or even an allegation, regarding the development value of Dunn's parcel. The $200,000 figure in evidence in Palazzolo was considered relevant mostly to the extent it contradicted the Council's claim that it had not definitively indicated it would allow the landowner to build only one residence on his upland parcel. (Palazzolo, supra, 533 U.S. at pp. 622-623, 121 S.Ct. 2448.) Here, the County has repeatedly indicated, in briefs and argument, that it will allow Dunn to build one, and only one, residence on his property. Moreover, the takings claim in Palazzolo was fully litigated in the trial court, while Dunn's takings claims were dismissed pursuant to a motion for judgment on the pleadings. On remand, the parties will have the opportunity to obtain appraisals of the property and offer their respective development values to the trier of fact.
Because Dunn's regulatory takings claims are ripe for adjudication, the trial court erred in granting judgment on those claims in favor of the County. By extension, the court also erred in granting judgment on the remaining claims for substantive due process, equal protection, and civil rights violations.[13] We therefore reverse *333 the grant of judgment on those claims and remand for further proceedings.
DISPOSITION
Judgment in favor of the County on Dunn's regulatory takings claims and his claims for violations of his substantive due process, equal protection, and civil rights is reversed. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
GILBERT, P.J., and COFFEE, J., concur.
NOTES
[1] All further statutory references are to the Public Resources Code unless otherwise noted.
[2] The guideline referenced is the Statewide Interpretive Guideline for Wetlands and Other Wet Environmentally Sensitive Habitat Areas, adopted February 4, 1981, by the California Coastal Commission (Interpretive Guideline).
[3] A hydrophyte is "a plant growing in water or in soil too waterlogged for most plants to survive." (Merriam-Webster's Collegiate Dict. (10th ed.1999) p. 568.)
[4] The substrate, or substratum, is the "layer beneath the surface soil." (Merriam-Webster's Collegiate Dict., supra, at p. 1174.)
[5] Throughout his briefs, Dunn asserts "that the County has conceded that a potted plant qualifies as a legally protected wetland." As the County correctly notes, the record does not support this contention. Rather, Dunn simply argued that the County's application of its regulations was so stringent that a potted plant would qualify as a wetland. The County never conceded the point.
[6] Dunn notes that the Commission expressly refers to wetlands as lands "transitional between terrestrial and aquatic systems," while the County does not. (Interpretive Guideline, pp. 78-79, appen. D.) Aside from the fact that the Commission effectively sanctioned the County's definition by certifying the LCP, the Cowardin factors are the objective proof that land is in the "transitional" state contemplated by the Commission's definition.
[7] In the trial court, Dunn argued that Areas A and B should not be designated as wetlands because they were artificially created. The trial court rejected that contention on the ground that the Coastal Act expressly protects "natural and artificial resources" within the coastal environment. (§ 30001.5, subd. (a), italics added.) The court also rejected Dunn's argument that only wetlands in existence as of the enactment of the Coastal Act in 1972 were subject to protection. Dunn has not challenged either of these conclusions on appeal.
[8] The merit of this contention is not clear. Although the court in Bolsa Chica unequivocally stated, "[w]e do not doubt that in deciding whether a particular area is an ESHA within the meaning of section 30107.5, [the] Commission may consider, among other matters, its viability" (Bolsa Chica, supra, at p. 508, 83 Cal.Rptr.2d 850.), the cited authority, Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 614-615, 15 Cal.Rptr.2d 779, does not directly support that proposition. Rather, the cited portion of that opinion merely recognized that the court had not been called upon to decide whether "pygmy-type" areas, which possessed pygmy-type vegetation or soils but did not qualify as a "pygmy forest," were entitled to ESHA protections. (Sierra Club, supra, at pp. 614-615, 15 Cal.Rptr.2d 779.) Moreover, in paraphrasing Bolsa Chica, the court in Kirkorowicz interpreted that decision as "[d]oubting that the Commission in deciding whether a particular area is an ESHA within the meaning of section 30107.5 may consider its viability . . . ." (Kirkorowicz v. California Coastal Com., supra, 83 Cal.App.4th at p. 995, 100 Cal.Rptr.2d 124, italics added.) Because there is no evidence indicating that the wetlands on Dunn's property are not viable, we have no occasion to weigh in on this apparent dispute.
[9] Dunn argues that the County engages in "convolution" by arguing as it did below that the ESHA designation is not essential to its findings. The County's argument in this regard merely recognizes that the wetland provisions of the Coastal Act control the regulation of wetlands that are also ESHAs to the extent those regulations conflict with ESHA provisions. (Bolsa Chica, supra, 71 Cal.App.4th at p. 515, 83 Cal.Rptr.2d 850.)
[10] That section provides that "[w]ith respect to a project that includes a housing development, a public agency may not reduce the proposed number of housing units as a mitigation measure or project alternative for a particular significant effect on the environment if it determines that there is another feasible specific mitigation measure or project alternative that would provide a comparable level of mitigation. This section does not affect any other requirement regarding the residential density of that project."
[11] Dunn alleges takings claims under the state and federal Constitutions. Because state takings law is coextensive with federal law (see Hensler v. City of Glendale (1994) 8 Cal.4th 1, 9, fn. 4, 32 Cal.Rptr.2d 244, 876 P.2d 1043), the analysis of the ripeness issue is the same.
[12] There is no dispute that the subdivision of property constitutes a form of "development" under the Coastal Act. (§ 30106; Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 387, 62 Cal.Rptr.2d 803.)
[13] Because we reverse the grant of summary judgment on the substantive due process claim, we need not address Dunn's claim that the trial court erred in deeming the claim derivative of the regulatory takings claims. (See Lingle v. Chevron U.S.A. Inc. (2005) ___ U.S. ___ [125 S.Ct. 2074, 2082-2083, 161 L.Ed.2d 876] [recognizing that the determination whether a regulation "substantially advances" a legitimate government interest for purposes of substantive due process is separate and distinct from the determination whether the application of a regulation effects a taking].)
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687 A.2d 206 (1996)
In re Jerry S. DUNIETZ, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 94-BG-780.
District of Columbia Court of Appeals.
Argued October 17, 1995.
Decided December 31, 1996.
Jerry S. Dunietz, pro se.
Ross T. Dicker, Assistant Bar Counsel, with whom Leonard H. Becker, Bar Counsel, was on the brief, for the Office of Bar Counsel.
Elizabeth J. Branda, for the Board on Professional Responsibility.
Before WAGNER, Chief Judge, and FARRELL and RUIZ, Associate Judges.
*207 WAGNER, Chief Judge:
In this disciplinary case, respondent stipulated to the facts supporting charges filed by Bar Counsel that he violated Disciplinary Rule 6-101(A)(3) (neglect of a legal matter), DR 7-101(A)(1) (intentional failure to seek the lawful objectives of a client), Rule 1.3(a) (failure to represent client zealously and diligently), Rule 1.3(c) (failure to act with reasonable promptness in representing a client) and Rule 1.4(a) (failure to keep client reasonably informed of the status of the case).[1] Respondent conceded that his conduct violated these rules and, in lieu of an answer, filed a Motion for Mitigation of Sanction, asserting that his conduct was substantially affected by a disability suffered at the time of the misconduct. Following an evidentiary hearing, Hearing Committee Number Eight (Hearing Committee) of the Board on Professional Responsibility (Board) determined that respondent's disability, chronic depression, was the direct cause of his professional misconduct. The Hearing Committee recommended an informal admonition in light of the mitigating factors and respondent's prior unblemished record at the Bar. The Board, with three members dissenting, recommended that the court enter an order censuring respondent, retaining the case in a confidential status, and staying the imposition of public censure conditioned on respondent's compliance with conditions of probation for a two-year period. Bar Counsel challenges the Board's recommendation, contending that it is inconsistent with the discipline imposed in comparable cases and not warranted otherwise. The principal issues presented for consideration are: (1) whether the recommended sanction is authorized by Rule XI, § 3(a) and consistent with sanctions imposed for comparable misconduct; and (2) whether any order for censure may be retained in confidential status. We hold that retaining the case in confidential status is inconsistent with prior precedents and contrary to the goal of protecting the public's interest. Although the sanction of a censure, along with a probationary period, is authorized by Rule XI, § 3(a), we conclude that a thirty-day suspension, with a stay conditioned upon satisfactory completion of probation, is warranted under the circumstances.
I. The Disciplinary Violations
Respondent was admitted to the District of Columbia Bar on June 25, 1982. He had no prior disciplinary record before Bar Counsel filed a petition in this case on February 24, 1993. The charges arise out of respondent's representation of a single client, Carl Miller, in connection with a proceeding in the United States Bankruptcy Court for the District of Columbia (Court). Ali Habib (Habib) filed a complaint contesting Miller's discharge in bankruptcy and served a copy of the complaint and summons on respondent on May 5, 1989 at his address of record. Respondent acknowledged receipt of the summons and complaint, but failed to file an answer. On June 15, 1989, Habib filed a request for entry of default, again mailing a copy to respondent at his business address, and respondent failed to answer. On June 21, 1989, Habib filed a motion for judgment by default, and a copy was mailed to respondent, but respondent filed no opposition.
On July 12, 1989, the Court issued a scheduling order, a copy of which was sent to Habib, but not to respondent. On October 2, 1989, a hearing was held in which the court found in favor of Habib in the amount of $274,000 and ordered Habib to file a brief on the issue of additional compensatory damages and punitive damages. On October 10, 1989, the court entered an order for Habib to file a brief on the question of reduction of the $274,000 award to reflect his sixty percent share in the partnership at issue. A copy of this order was mailed to respondent at his business address. Habib filed three briefs in support of an award for punitive damages and additional compensatory damages, to which respondent never responded. On May 9, 1990, the court entered an order granting Habib's motion for judgment by default and awarded him compensatory damages against *208 Miller in the amount of $236,000, plus costs and interest and punitive damages in the amount of $118,200.
On February 28, 1991, respondent filed a motion to vacate the entry of judgment and judgment by default with a supporting affidavit admitting that both he and Miller had received a copy of the complaint and failed to answer. However, respondent also stated in the affidavit that the clerk of the court had failed to send him a copy of the scheduling order and that he did not appear at the proceeding in which the default was entered because of the lack of notice. On March 19, 1991, respondent filed a reply to Habib's opposition to the motion in which he stated that he did not dispute that Habib had mailed several pleadings and notices to him. However, he represented that he had not seen the documents and that he was unable to confirm their receipt or to locate them.
On May 29, 1991, the court entered an order granting respondent's motion to vacate entry of default and judgment by default and ordered Miller to pay Habib's attorney's fees and costs within twenty days of a filing of an affidavit by Habib or the default judgment would be reinstated. Respondent assumed responsibility for paying these fees and costs, but he failed to pay. On June 17, 1991, Habib filed a motion to reinstate the default judgment, which the court later granted as unopposed on July 12, 1991.
On July 17, 1991, Miller was held in contempt for failing to file operating reports requested by the trustee in the bankruptcy proceeding. Respondent had the documents, but he failed to respond to the trustee's request. On August 7, 1991, respondent attempted to file a motion to vacate the order reinstating the judgment by default, but the court clerk rejected it because it did not include a proposed order. On September 6, 1991, respondent again filed a motion to vacate the July 12, 1991 order, asserting that the clerk did not mail a copy to him or to Habib and that neither learned of it until August 1, 1991. Respondent further claimed that the order was improvidently entered because he and Habib had entered into an agreement for the payment of the counsel fees, but Habib had failed to withdraw his motion to reinstate the default judgment. The court denied respondent's motion to vacate on November 14, 1991.
Successor counsel for Miller filed a motion for relief from the default judgment. In support of the motion, Miller submitted a declaration under penalty of perjury explaining the defaults of respondent in representing him and the fact that he was "faced with a $354,600 non-dischargeable debt that has gone uncontested because my lawyer [Dunietz] did not do the job properly." Miller also indicated that he had been held in contempt, without his knowledge, for failure to file operating reports which were in respondent's possession, that respondent had not informed him of the default judgment until December 1990, and that respondent did not inform him until August 1, 1991, about the reinstatement of the default judgment. The court granted Miller's motion for relief from default judgment. Subsequently, respondent voluntarily reimbursed Miller for attorney's fees and other expenses incurred as a result of his misconduct. Essentially, these stipulated facts and respondent's concession that his conduct violated the disciplinary rules as charged resulted in the determination of the Board and the Hearing Committee that respondent violated the various disciplinary rules charged by Bar Counsel.[2]
II. The Mitigation Defense
At the hearing, respondent presented evidence that he suffered from severe depression at the time of his misconduct, for which he was treated by a psychologist, who provided a written report. The psychologist made a diagnosis of depression and stress and opined that, as a result of respondent's circumstances and condition, he "was unable to function properly in regards to his professional responsibilities." She also reported that respondent had been "diligent about his treatment" and that he had a strong commitment to recovery.
*209 Dr. Richard Ratner, a forensic psychiatrist, examined respondent at the request of Bar Counsel. He met with respondent three times, spoke with respondent's psychologist and reviewed her report. Dr. Ratner's opinion was consistent with the opinion of the psychologist. Dr. Ratner concluded that respondent's condition directly caused his misconduct, but that respondent is now free of the major depressive component of his condition and is not likely to repeat his misconduct, because he continues to receive treatment. Dr. Ratner was also of the opinion that respondent was "as well armed or as well protected at this point from a relapse as he could be."
Respondent's law partner, Edward Carnot, testified that he considered respondent to be an "exceedingly responsible attorney" who carried a large case load and supervised others in the firm; however, around August, 1991, respondent began to neglect his work, concentrating on a major illness of one of his family members. According to Carnot, respondent looked "terrible" and "distracted." Carnot also testified that respondent told him about his mental condition in December, 1991, when Carnot discovered a pleading in the Miller case file. Carnot testified that he did not dismiss respondent because he believes that respondent is an excellent attorney who has overcome his disability. He also testified that as a result of respondent's neglect of the Miller case, respondent did not receive substantial bonuses.
III. The Recommended Sanctions
Hearing Committee Number Eight found that Bar Counsel had proved all the charged violations and that there was a causal connection between respondent's misconduct and his disability. In recommending that respondent be sanctioned with an informal admonition, members of the Hearing Committee stated that they did not "feel that [respondent] should be publicly reprimanded ... for conduct caused by a mental condition that he was trying to bring into control, but could not for reasons beyond his control." The Hearing Committee's report also states that they would have recommended public censure except for the mitigating factors. The Hearing Committee expressed concern that respondent had not submitted a post-hearing brief, although he had indicated that he would. However, having no evidence of any relapse, the committee recommended an informal admonition.
A majority of the Board's members recommended that the court enter an order censuring respondent, but retaining the matter in a confidential status and staying the imposition of public censure, provided that respondent complies with the following conditions of probation for a two-year period: (1) that he be supervised by a practice monitor selected by the Board; and (2) continue counseling with his psychologist or other qualified mental health professional, with quarterly reports of his progress from the professional. In view of respondent's cooperation with the disciplinary system, the lack of a prior disciplinary record, his efforts to make his former client whole, the evidence of his disability and expressed intention to continue with treatment, and his willingness to follow the terms of probation, the majority members of the Board determined that a suspension was not warranted and that the recommended sanction with probationary conditions would assure the protection of the public and serve as a deterrent to future violations.[3]
IV. Sanctions
The Board argues that its recommendation for sanction is consistent with sanctions imposed for comparable misconduct and appropriate to the facts of this case. Specifically, the Board contends that: (1) censure with probation is authorized under Rule XI, § 3(a); (2) censure with probation is consistent with discipline imposed in comparable cases of neglect; and (3) confidential censure accords with the purposes of Bar discipline. *210 Bar Counsel argues that the Board's recommended sanction is neither consistent with comparable discipline nor otherwise warranted.
In determining the appropriate sanction in a disciplinary proceeding, this court will "adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." Rule XI, § 9(g)(1); In re Peek, 565 A.2d 627, 632 n. 6 (D.C.1989); see also In re Steele, 630 A.2d 196, 199 (D.C. 1993). Under Rule XI, the choice of sanction rests with this court, although considerable deference is accorded the Board's recommendation. In re Temple, 629 A.2d 1203, 1207 (D.C.1993) (citing In re Robertson, 612 A.2d 1236, 1237 (D.C.1992) and In re Shillaire, 549 A.2d 336, 342 (D.C.1988)). As this court stated in In re Haupt, 422 A.2d 768 (D.C. 1980):
[T]he rule endorses the Board's exercise of broad discretion in handing out discipline that is subject only to a general review for abuse in that discretion's exercise. 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.
422 A.2d at 771.
The majority of the Board has devised a sanction which it contends accords with the purposes of Bar discipline and complies with the requirements of Rule XI. The Board takes the position that censure for respondent's first infractions is consistent with sanctions imposed for comparable conduct and that the recommendation takes into account the substantial evidence of mitigation. It is the Board's view that confidential censure, with the specter of disclosure upon violation of the terms of probation, assures respondent's compliance and protects the public. Bar Counsel responds that respondent's misconduct was pervasive and serious, although mitigated by his illness, and thus the private censure does not promote the concerns of discipline, i.e., "to protect the public, the courts, and the legal profession." Steele, supra, 630 A.2d at 200 (citations omitted). In light of the Board's findings that respondent engaged in prolonged neglect of his client's case, failed to represent him diligently and with reasonable promptness, and failed to keep him reasonably informed of the status of his case, Bar Counsel recommends a suspension of sixty days to be stayed upon compliance with the terms of probation for two years.[4]
Rule XI, § 3(a)(3) provides that "[a]ny of the following sanctions may be imposed on an attorney for a disciplinary violation: ... [c]ensure by the Court." Rule XI, § 3(a)(7) states, in pertinent part:
Any of the following sanctions may be imposed on an attorney for a disciplinary violation.... Probation imposed by the Court, or imposed by the Board with the consent of the attorney and the approval of the Court, for not more than three years. Probation may be imposed in lieu of or in addition to any other disciplinary sanction. Any conditions of probation shall be stated in writing in the order imposing probation.... Violation of any condition of probation shall make the attorney subject to revocation of probation and the imposition of any other disciplinary sanction listed in this subsection, but only to the extent stated in the order imposing probation.
(Emphasis added.) Under the plain language of Rule XI, censure is one of the disciplinary sanctions which may be imposed. Moreover, there is no prohibition to the imposition of probation in addition to censure under the rule. See Rule XI, § 2(a).
The Board, however, has gone an important step further and recommended that the censure be made confidential, conditioned upon respondent's compliance with the terms of his probation. We cannot accept that recommendation. A private censure would be contrary to the public interest, and it would be inconsistent with our recent amendment to Rule XI, § 17(a). Formerly, the only form of discipline that was required to *211 "be kept confidential" was an informal admonition, which all agree would be an inadequate sanction in this case. Even as to the informal admonition, however, we have since changed the rule on confidentially to read, in relevant part, as follows:
(a) Disciplinary proceedings. Except as otherwise provided in this rule or as the Court may otherwise order, all proceedings involving allegations of misconduct by an attorney shall be kept confidential until either a petition has been filed under section 8(c) or an informal admonition has been issued. All proceedings before the Hearing Committee and the Board shall be open to the public, and the petition, together with any exhibits introduced into evidence, shall be available for public inspection. If an informal admonition is issued, the correspondence from Bar Counsel informing the attorney of the grounds for the admonition shall be available for public inspection. Bar Counsel's files and records, however, shall not be available for public inspection except to the extent that portions thereof are introduced into evidence in a proceeding before the Hearing Committee.
Emphasis added.
The italicized language reflects a judgment by the court in favor of general openness of disciplinary proceedings, and of public disclosure of the sanction imposed, that is quite inconsistent with the private censure recommended by the Board. Protection of the public and promoting confidence in the disciplinary system counsels against confidential discipline except to the limited extent provided in revised section 17(a). We are thus left with the question whether to adopt a recommendation of censure (albeit public) followed by a period of probation.
The Board contends that censure with probation is consistent with discipline imposed in comparable cases for similar misconduct. Bar Counsel contends otherwise, pointing out that, in the typical case, probation is coupled with a brief suspension which is made public. In determining whether a sanction is consistent with sanctions imposed for comparable misconduct, this court compares the gravity and frequency of the misconduct, any prior discipline, and mitigating factors such as cooperation with Bar Counsel, remorse, illness or stress. Steele, supra, 630 A.2d at 199. (citations omitted). Ultimately, "each case must be decided on its particular facts," "[w]ithin the limits of the mandate to achieve consistency." Haupt, supra, 422 A.2d at 771.
Respondent's misconduct involved neglect of a legal matter, failure to represent a client zealously and diligently, failure to act with reasonable promptness in representing a client, and failure to keep a client reasonably informed of the status of the case. The misconduct arose out of respondent's representation of one client in a bankruptcy case; however the misconduct was prolonged and the consequences to the client serious. Respondent has had no prior discipline. As the Board points out, Bar Counsel's proposed two-month underlying suspension has been imposed only in cases of more aggravated neglect, accompanied by other violations. For example in Peek, supra, the only disciplinary case where the court has considered chronic depression as a mitigating factor, the attorney was suspended for four months of which two months were stayed, and Peek was placed on probation for two years. 565 A.2d at 628, 634. However, Peek had neglected his client's civil complaint for seven years, resulting in its dismissal with prejudice. He took no action to reinstate the case within the time permitted by court rules. He repeatedly avoided answering the telephone calls of his client and the attorney who called on her behalf. When the client finally reached Peek, he misrepresented the status of the case, assuring the client that everything was fine. Id. at 628-29. Unlike respondent in this case, Peek had had two prior informal admonitions and was not contrite about his misconduct. Id. at 630 n. 2.
Similarly, in other cases where a sixty-day suspension has been imposed, either the misconduct has been more serious, or the respondent had other discipline. See In re Santana, 583 A.2d 1011 (D.C.1990) (per curiam) (sixty-day suspension given for neglect in two legal matters "considered with failure to return unearned fees, lack of contrition, and harm and aggravation caused to *212 clients"); In re Landesberg, 518 A.2d 96, 97 (D.C.1986) (suspension for sixty-day for neglect of a legal matter and misrepresentations to the client where there was prior discipline).
In contrast, respondent in this case did not irretrievably prejudice his client. He was remorseful for his misconduct, had no prior disciplinary infractions, acknowledged his misconduct, and compensated his client and his former firm for losses suffered as a result of the neglect. The imposition of a two-month suspension, which has been imposed in more aggravated cases, coupled with two years probation would not only violate the rule's consistency requirement, but it would render the sanction punitive. See Steele, supra, 630 A.2d at 200 (purpose of imposing sanction is not to punish, but to protect the public and restore the attorney to fitness).
Nevertheless, respondent's conduct, as the Board noted, was replete with missed deadlines and failures to respond to court pleadings as a result of which his client was held in contempt of court and subjected to default judgments twice, resulting in the award of monetary damages against him. On the other hand, the mitigation evidence was substantial. He conceded the misconduct at the outset and expressed remorse for it. Respondent also proved that his misconduct was the result of his disability. In considering the specific discipline, we take into account "the nature of the violation, the mitigating and aggravating circumstances, the need to protect the public, the courts, and the legal profession." Haupt, supra, 422 A.2d at 771. While seeking to achieve consistency of sanction, each case must be decided upon its unique facts. Id.
In light of these considerations, we are persuaded that a thirty-day suspension to be stayed with a two-year probationary term is appropriate to achieve the goals of the disciplinary system. In In re Dory, 528 A.2d 1247 (D.C.1987), this court suspended Dory for thirty days for neglect of a legal matter in a single case, recognizing that Dory had no prior disciplinary history and that the misconduct resulted from work-related stress. 528 A.2d at 1248. Similarly, we suspended Dory for thirty days in a second case for neglect of a legal matter which occurred within a few weeks of the earlier violation and had been caused by the same stresses. In re Dory, 552 A.2d 518, 519 (D.C.1989). We found a thirty-day suspension with a one year probationary period to be an appropriate sanction for the attorney's neglect of a legal matter in In re Stow, 633 A.2d 782, 785 (D.C.1993). Although, unlike respondent in this case, the respondent in Stow had a record of prior discipline, the infractions in Stow were not as extensive and serious as those in this case.[5] Thus, balancing the variables, the imposition of a thirty-day suspension in respondent's case creates no meaningful inconsistency.[6]
Perhaps, more pertinent to our consideration here is that in Stow, we recognized the need for approaches to sanctions which are tailored to assure the protection of the public by addressing specifically the circumstances which brought about the misconduct through probationary conditions. See id. In Stow, we stayed the suspension conditioned upon compliance with the terms of probation which included a practice monitor to supervise respondent's organization of his practice, the general source of his difficulties. In respondent's case, his disability, which is being addressed through treatment, was shown to be the reason for his misconduct. While on probation, respondent will be required to continue treatment and work with a practice *213 monitor, which he is willing to do. Such conditions will assure the protection of the public and respondent's continuing fitness to practice.
Accordingly, it is ordered that respondent, Jerry S. Dunietz, be suspended from the practice of law for a period of thirty days. The suspension shall be stayed, and respondent shall be placed on probation for a term of two years with the following conditions: (1) supervision of respondent's professional conduct by a practice monitor selected by the Board; and (2) continued counseling by his psychologist or other qualified mental health professional, with quarterly reports of respondent's progress.
It is further ORDERED that this case be recaptioned in respondent's name, Jerry S. Dunietz.
So ordered.
NOTES
[1] Respondent was charged with violations of the Code of Professional Responsibility for his misconduct prior to January 1, 1991, the effective date of the District of Columbia Rules of Professional Conduct (Rules). He was charged with violations of the Rules for his misconduct after January 1, 1991.
[2] Bar Counsel did not pursue the alleged violation of DR 7-101(A)(1), intentional failure to seek the lawful objectives of a client.
[3] The Chairman of the Board and two other members recommended a two-month suspension with the execution suspended and a period of probation under the terms and conditions set forth in the majority's report. The dissenting members also recommended that the respondent's identity be revealed. It was their position that members of the Bar and the general public have a right to know and that confidential cases are inconsistent with the anticipated revisions to the disciplinary rules.
[4] The chairman of the Board made the same recommendation.
[5] In Stow, the attorney was hired to undertake the limited role of reviewing the trial record to determine whether his client had a basis for a claim of ineffective assistance of counsel, and he failed to provide timely services. 633 A.2d at 783.
[6] This court has imposed public censure for neglect of a legal matter, conduct prejudicial to the administration of justice, and failure to maintain complete client records and account to the client. See In re Jones, 521 A.2d 1119 (D.C.1986). Jones failed to file timely with the court accounts required by court rule, and she was removed from the case as a result. She also admitted to failing to respond to Bar Counsel's written inquiries. Id. at 1121. Respondent's conduct in this case was much more serious and caused significant difficulties for his client. Therefore, respondent's conduct, even though mitigated by his illness, is not sufficiently similar to warrant only censure, even with probation.
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37 Cal.Rptr.3d 694 (2006)
135 Cal.App.4th 732
Maura MONTERROSO, Plaintiff and Appellant,
v.
Mario Lopez MORAN, Defendant and Respondent.
No. B182553.
Court of Appeal, Second District, Division Two.
January 11, 2006.
*695 Legal Aid Foundation of Los Angeles and Jane S. Preece for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
ASHMANN-GERST, J.
Maura Monterroso (Monterroso) appeals an order entering a mutual restraining order enjoining her and her husband, Mario Lopez Moran (Moran), from specific acts of abuse. She argues that the trial court failed to make detailed findings, as required by Family Code section 6305,[1] that both parties acted primarily as aggressors and neither acted primarily in self-defense in a past incident. We hold that unless a trial court makes the detailed findings required by section 6305, it acts in excess of its jurisdiction by entering a mutual restraining order.
We reverse.
FACTS
Monterroso and Moran are married, they used to live together, and have minor children together. In the proceeding below, Monterroso sought temporary restraining orders against Moran under the Domestic Violence Prevention Act.[2] She requested that the trial court order Moran not to harass or contact her or her children, and to stay at least 100 yards away. She also requested that the trial court order Moran to attend a batterer intervention program, and that he not borrow against, sell or destroy any possessions or property.
Her application detailed the following facts: She and Moran separated in August 2004. Once he found out where she was living, he came into her home without permission and threatened their children, telling them that they needed to come see him. In October of that year, because he was angry at their 16-year-old daughter for having a boyfriend, he told Monterroso and their 13-year-old daughter that "you are going to die." He was driving Monterroso's car at the time. When she tried to get the keys, he grabbed her arm and left bruises. A few days later, when she went to pick up her son from a babysitter across the street from Moran's house, Moran showed her a knife, pointed it at several areas of his body and said that he would hurt himself to show his love for her. Moran accused Monterroso of having an affair with a friend that was giving Monterroso a place to stay. Subsequently, she found videotapes that Moran took of her without her knowledge.
On January 1, 2005, Moran came to her house and began verbally abusing her. He was upset that she would not move back in with him and told her that she was trash. *696 He took her keys, car, wallet and house cleaning materials that she uses for her job. A few days later she went to Moran's house to retrieve her house cleaning materials from her car. He grabbed her by the hair, dragged her into his house and told her that he was going to kill her. Then he covered her face with a pillow. After she struggled to get free, he put his hand on her throat and choked her. He picked her up by her hair and hit her head on a heater. He slapped her. She ended up with a cut lip and a chipped tooth. When she screamed, he stuck his hand in her mouth and scratched the roof of her mouth. He went to the kitchen and she ran outside to where her daughter was waiting and called the police. After the police arrived, she was told that Moran had already called and accused her of trying to kill him. Moran had apparently cut his chest with a knife. Both Monterroso and Moran were arrested. Eventually, Moran admitted that she had not tried to kill him. She was released.
Attached to Monterroso's application was a copy of an emergency protective order issued the date Moran was arrested. The emergency protective order lasted four days and instructed Moran not to contact or harass Monterroso. It instructed him to stay at least 100 yards away from her.
Moran filed an answer.
The matter came on for hearing. Moran was represented by counsel, but Monterroso was not. Both parties were assisted by a Spanish language interpreter.
According to the trial court, it read Monterroso's papers, but it did not read Moran's answer. The reason given for not reading Moran's answer was that he had been arrested and the trial court wanted to respect his constitutional right to remain silent in case he was charged with a crime.
When the trial court asked if the matter could be resolved, Moran's counsel indicated that the parties went to conciliation court that very morning and had agreed to make the restraining orders mutual, but they could not agree on child custody and visitation. The trial court asked Monterroso if she would be agreeable to mutual restraining orders. She said "yes."
The trial court altered the proposed restraining order submitted by Monterroso to make it mutual. Each party signed it. The altered order prohibited each party from, inter alia, harassing, attacking, striking, threatening, assaulting, or stalking the other, or from destroying the personal property of the other, for a period of six months. Thereafter, the order was entered.
The trial court made no findings of fact.
This timely appeal followed.[3]
DISCUSSION
This case presents the following question: Is reversal required if the trial court did not make the detailed findings of fact required by section 6305? This is a question of law. We review questions of law de novo. (Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780, 127 Cal.Rptr.2d 104.)
We begin with the statutory scheme at issue. Section 6305 provides that a "court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320(a) unless both parties personally appear and each party presents written evidence of abuse or domestic *697 violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense." Section 6320 permits a court to issue an ex parte order enjoining a party from "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls . . ., destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party."
The language of section 6305 is clear and its plain meaning must be respected. (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1525-1526, 26 Cal.Rptr.3d 328.) A trial court has no statutory power to issue a mutual order enjoining parties from specific acts of abuse described in section 6320 without the required findings of fact. When a trial court issues such an order in contravention of its statutory obligation to make the required findings of fact, it acts in excess of its jurisdiction. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291, 109 P.2d 942.)
Having agreed to the mutual restraining order, the question arises whether Monterroso can challenge it on appeal.
Our Supreme Court recently summarized the pertinent body of law this way: "`"[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction."' [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or judgment is valid until it is set aside, and a party may be precluded from setting it aside by `principles of estoppel, disfavor of collateral attack or res judicata.' [Citation.]" (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661, 16 Cal.Rptr.3d 76, 93 P.3d 1020.)
Similarly, it has been noted that there "`seems to be substantial authority for the proposition that a party who has invoked or consented to the exercise of jurisdiction beyond the court's authority may be precluded from challenging it afterwards, even on a direct attack by appeal.' [Citation.] `The circumstances of a particular case may be such as to estop a person from setting up the invalidity of a judgment.'" (Munns v. Stenman (1957) 152 Cal.App.2d 543, 558, 314 P.2d 67.)
There is nothing in the record suggesting that the principles of estoppel bar this direct appeal. We note that Monterroso cleans houses for a living. She appeared at the hearing without representation and needed a Spanish language interpreter. She did not display any legal sophistication. Though the trial court asked if she was amenable to a mutual restraining order, the trial court did not ask her if she understood that a mutual restraining order required a detailed finding that both parties acted primarily as aggressors and not primarily in self-defense during a prior incident. Nor did the trial court ask her to stipulate to such facts. Because the trial court did not fully explain the import of a mutual restraining order, there is no indication that Monterroso could appreciate all of its ramifications. Under these circumstances, it cannot be said that Monterroso consented to the mutual restraining order such that she is estopped from seeking redress on appeal.
As the court in Conness v. Satram (2004) 122 Cal.App.4th 197, 18 Cal.Rptr.3d 577 pointed out, the original version of section 6305 required the parties to present written evidence unless they agreed that the requirement did not apply. But *698 then the "1995 amendment eliminated the waiver provision and added a requirement that the court make detailed factual findings supporting the conclusion that both parties acted primarily as aggressors and neither acted primarily in self-defense. (Stats. 1995, ch. 246, § 2, p. 852.) This amendment helps ensure that a mutual order is the product of the careful evaluation of a thorough record and not simply the result of the moving party yielding to the other party's importunities or the court deciding that a mutual order is an expedient response to joint claims of abuse." (Conness v. Satram, supra, at p. 204, 18 Cal.Rptr.3d 577.)
This quote has particular resonance. Monterroso was never informed that she had every right to insist that the trial court rule on the merits of her application for restraining orders against Moran. At the hearing, it was Moran's counsel who brought up the idea of a mutual restraining order. The trial court did not inquire about the allegations of terrible domestic violence in Monterroso's application. Instead, it expressed concern over protecting Moran's constitutional right against self-incrimination and declined to review his answer. Then the trial court asked if Monterroso was amenable to a mutual restraining order. The inference is that the trial court decided that a mutual restraining order was an expedient way to protect or mollify Moran and resolve the matter without reaching the merits.
We write with an eye toward the role of the courts in our community. Though we do not know what actually transpired between Monterroso and Moran, we do know this: Domestic violence is a grievous problem in today's world, and its victims often have few places to turn. The courts must be sensitive to allegations of domestic violence, root out the truth in each case, and protect victims when possible. Victims should be guided through our judicial system, not herded.
In 1996, the Judicial Council of California Advisory Committee on Gender Bias in the Courts (the committee) issued a final report that found that "mutual restraining orders create difficult enforcement problems" because the police often do not know who to arrest if there is a subsequent altercation and may end up arresting both parties or neither party. Moreover, "the committee received convincing testimony that victims of domestic violence who have not engaged in an act of violence are confused, humiliated, and degraded by orders restraining them from such conduct." Some witnesses "reported that mutual restraining orders give victims the message that they are being blamed." According to the committee, "[p]erhaps a potentially volatile courtroom situation is diffused somewhat by issuing orders against both parties, but respect for the law is undermined." (Judicial Council of Cal., Advisory Com. on Gender Bias in the cts., Achieving Equal Justice for Women and Men in the California Courts, Final Report (July 1996) [as of Jan. 11, 2006].)
Today we do little more than require that trial courts follow the letter of the law set forth in section 6305. In so doing, we exhort them to recognize that an improvidently issued mutual restraining order may adversely impact victims of domestic violence and continue their victimization.
DISPOSITION
The order is reversed.
Upon remand, the trial court is directed to rule upon the merits of Monterroso's application for restraining orders against Moran.
*699 Monterroso shall recover her costs on appeal.
We concur: BOREN, P.J., and DOI TODD, J.
NOTES
[1] All further statutory references are to the Family Code unless otherwise indicated.
[2] Section 6200 et seq.
[3] Moran did not file a respondent's brief. We resolve this appeal pursuant to California Rules of Court, rule 17(a)(2).
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687 A.2d 886 (1996)
David A. CLEMENT
v.
WOODSTOCK RESORT CORP.
No. 95-375.
Supreme Court of Vermont.
October 10, 1996.
Before DOOLEY, MORSE and JOHNSON, JJ.
ENTRY ORDER
Defendant Woodstock Resort Corporation appeals a jury verdict awarding plaintiff David A. Clement damages for wrongful discharge. Defendant contends that (1) the court's instructions erroneously substituted its judgment for that of the jury's on whether defendant's employee handbook and policy manual created an employment contract obligating defendant to follow progressive disciplinary steps and to fire plaintiff only for cause; (2) there was insufficient evidence to support the jury's verdict; and (3) there was insufficient evidence to support the damage award. We affirm.
Plaintiff worked for defendant as a groundskeeper and mechanic for several summers before being hired as a custodian on a full-time basis. After one year on the job, plaintiff was suspended and discharged for "insubordination" stemming from a critical *887 and profane note he allegedly sent his supervisor. Plaintiff testified that he wrote the note to himself to ventilate his frustrations and did not intend that it be read by anyone else. Defendant claimed at trial that other misconduct also played a role in plaintiffs firing, including allegations that he improperly examined confidential papers on his supervisor's desk and sexually harassed a co-worker. Although the co-worker corroborated the allegation at trial, no complaint, investigation, or warning ever issued in connection with these additional allegations of misconduct.
Plaintiff argued at trial that his discharge violated an implied agreement or promise by defendant to terminate only for cause and to follow a progressive disciplinary procedure (verbal warning, written warning, suspension, hearing, termination) based upon its employee handbook and policy manual. See Taylor v. National Life Ins. Co., 161 Vt. 457, 464, 652 A.2d 466, 471 (1993) (personnel policy manuals inconsistent with at-will relationship may serve as evidence of contract requiring progressive discipline and good cause for termination). Defendant countered that plaintiff was an employee at-will and denied that the manual suggested otherwise, noting it contained an express disclaimer of intent to create an employment contract.
The court instructed the jury on several theories of liability, including implied contract, promissory estoppel, and termination in violation of public policy. The jury returned a general verdict in favor of plaintiff and awarded him $58,024. The trial court denied defendant's subsequent motions for judgment notwithstanding the verdict, remittitur, or, in the alternative, a new trial. This appeal followed.
Defendant first contends the trial court erroneously responded to a jury question concerning the breach of contract claim. During deliberations, the court received the following question from the jury: "What is the specific question(s) that we need to answer in coming to our decision ... regarding which party prevails, i.e., was there a contract or implied contract? If so, was it breached, etc." After discussing with counsel various possible responses, the court with counsel's approval reread its original instructions on breach of contract. Defendant now objects to the following specific language in the charge: "but whether defendant could terminate [plaintiff's] employment at any time for any reason depends on how you decide the terms of his contract, how the terms of the contract were modified." Defendant asserts that the instruction erroneously informed the jury that the contract had, in fact, been modified, rather than leaving that issue for the jury's determination. See Farnum v. Brattleboro Retreat, Inc., 164 Vt. ___, ___, 671 A.2d 1249, 1254 (1995) (whether conflicting provisions of employee manual create an implied contract is a jury question); Logan v. Bennington College Corp., 72 F.3d 1017, 1022 (2d Cir.1995) ("Under Vermont law, disputes concerning the agreed-upon terms and conditions of an employment contract are an issue of fact for the jury to decide.").
Defendant did not object, however, to the giving of the original instruction, and expressly concurred in the decision to reread the instruction in response to the jury question.[*] Thus, defendant has waived any claim of error on appeal. V.R.C.P. 51(b) ("No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection."); Winey v. William E. Dailey, Inc., 161 Vt. 129, 137, 636 A.2d 744, 750 (1993); Ainsworth v. Franklin County Cheese Corp., 156 Vt. 325, 332-33, 592 A.2d 871, 875 (1991). Furthermore, the instructions read as a whole clearly informed the jury of its responsibility to determine whether the at-will employment relationship had been modified. Winey, 161 Vt. at 143, 636 A.2d at 753 ("In reviewing jury instructions, we look at them as a whole, not piecemeal."). The claim of error is thus without merit.
Assuming the jury determined that the employer's handbook and policy manual *888 modified the at-will employment relationship, defendant next contends the evidence established just cause under the contract to dismiss plaintiff immediately rather than follow the progressive disciplinary procedures set forth in the policy manual. Defendant's argument, in essence, is that no credible evidence supported the jury's verdict and that its motion for judgment notwithstanding the verdict should have been granted. Whether plaintiff's conduct justified his immediate suspension and termination was the heart of the dispute at trial, and the evidence was sharply in conflict. Plaintiff denied that he read confidential documents on his supervisor's desk, denied that he had sexually harassed a co-worker, and claimed that the note that precipitated his dismissal was written to himself while he was under enormous stress and was never intended to be read by anyone else. Several witnesses testified that plaintiff was a good worker and that any problems on the job stemmed from overconscientiousness compounded by a learning disability, which hindered his ability to process verbal instructions. The jury could thus reasonably have determined that plaintiff's misconduct did not justify immediate termination and that he should have been given further verbal and written warnings. Accordingly, the verdict must be upheld. See Claude G. Dern Elec., Inc. v. Bernstein, 144 Vt. 423, 426, 479 A.2d 136, 138 (1984) ("if the verdict is justified by `any reasonable view of the evidence, it must stand.'"); Farnum, 164 Vt. at ___, 671 A.2d at 1256 ("if any evidence fairly or reasonably supports nonmoving party's claim, judgment notwithstanding verdict would be improper").
Finally, defendant contends the award of damages was unsupported by the evidence and that, consequently, the court erred by denying its motion for remittitur and a new trial on the issue of damages. The measure of damages for wrongful termination of an employment contract is the amount the plaintiff would have earned absent the breach, less what he actually earned or could have earned by the exercise of reasonable diligence. Benoir v. Ethan Allen, Inc., 147 Vt. 268, 272, 514 A.2d 716, 719 (1986). In Jackson v. Rogers, 120 Vt. 138, 150, 134 A.2d 620, 627 (1957), we reaffirmed the longstanding rule to be applied in reviewing jury awards in circumstances such as those presented here:
If the verdict can be justified upon any reasonable view of the evidence, it must stand. To warrant interference where there is no standard of damages disclosed by a contract, or otherwise ascertainable by exact evidence of pecuniary loss, the amount must be clearly shown to have been grossly insufficient or excessive and the fact that the verdict has received the express approval of the trial court inclines us strongly in its favor.
See also Winey, 161 Vt. at 144, 636 A.2d at 753; In re Estate of Boisvert, 135 Vt. 69, 73-74, 370 A.2d 209, 212 (1977).
Plaintiff gave his own estimate at trial of his hourly wages and average work week and the value of his employment benefits and tips. Although there was some evidence that the number of hours worked per week varied, the average of forty hours was supported by the evidence. Defendant's president confirmed the hourly wage rate for custodians in plaintiff's position. Plaintiff also testified about his efforts to secure subsequent employment. The total lost wages and compensation over the four-year period between his termination and trial exceeded $71,000. The evidence was thus sufficient for the jury to "estimate the amount [of damages] within reasonable limits" and "with reasonable certainty." Benoir, 147 Vt. at 272, 514 A.2d at 719. We find no basis to reverse the jury's verdict and no error in the trial court's denial of the motion for remittitur and new trial.
Affirmed.
Note: Chief Justice ALLEN sat for oral argument in this matter but did not participate in the decision.
NOTES
[*] Indeed, the record discloses that the trial court specifically tailored the breach of contract instruction to accommodate defendant's expressed concern that it preserve the issue for the jury.
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194 Ga. App. 797 (1990)
392 S.E.2d 259
HORTON
v.
THE STATE.
A89A2048.
Court of Appeals of Georgia.
Decided February 23, 1990.
Rehearing Denied March 12, 1990.
T. Lee Bishop, Jr., for appellant.
Britt R. Priddy, District Attorney, L. Earl Jones, Johnnie Graham, Assistant District Attorneys, for appellee.
BIRDSONG, Judge.
Horton appeals his conviction of possession of cocaine with intent to distribute. Held:
1. Horton enumerates as error the denial of his motions for a directed verdict and for a new trial because there was no evidence supporting his conviction that he possessed cocaine with the intention to distribute and also enumerates as error the trial court charging the jury he could be convicted of that offense when allegedly there was no evidence supporting the charge.
The evidence shows that three police officers were patrolling an area near some "crack houses" which they patrol regularly and usually arrest someone for dealing cocaine every third or fourth time they go there. They saw Horton standing about fifteen feet from a group of three or four men and women. When Horton saw the police approaching, he threw an object which landed a few feet away, went over to a bench, and sat down. One of the officers retrieved the object and found a matchbox containing five rocks of crack cocaine.
*798 Horton was searched, and the police found a number of matches, a wallet, and the usual things one carries, but found no drugs, no contraband, no weapons, no drug trade paraphernalia, and apparently no money. The arresting officer testified the cocaine was of such a small quantity that he did not weigh it, but other witnesses testified that the cocaine weighed .7 grams and that the five rocks of crack cocaine weighed less than one/twenty-eighth of an ounce.
a. Horton's motion for a directed verdict contended that the evidence set out above was not sufficient to prove any intent to distribute and asked the trial court "to either grant a directed verdict or to find that the charge not be with the intent to distribute. . . ." Thus, the motion was for the trial court to direct a verdict of acquittal or to grant a directed verdict on the issue of intent to distribute and submit the case to the jury on the lesser included offense of possession of cocaine.
A directed verdict of acquittal is authorized only "[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or `not guilty' as to the entire offense or to some particular count or offense. . . " OCGA § 17-9-1 (a); see also Taylor v. State, 252 Ga. 125, 127 (312 SE2d 311). The intent to distribute can be proven by circumstantial as well as direct evidence (Hunter v. State, 190 Ga. App. 52, 54 (378 SE2d 338)), and this court will not reverse the denial of such a motion when "[w]e cannot say that there was `no conflict in the evidence and the evidence . . . demand(ed) a verdict of acquittal.'" Conger v. State, 250 Ga. 867, 870 (301 SE2d 878). Accordingly, the trial court did not err by denying Horton's motion.
b. On the denial of Horton's motion for a new trial, the issue is similar, but the test is different.
When the jury is authorized to find the evidence, though circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Jones v. State, 165 Ga. App. 36, 38 (299 SE2d 576). In this regard, a conviction on circumstantial evidence is authorized if the "proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. "Whether this burden has been met is a question for the jury. . ." Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546). Moreover, while "`mere possession of contraband without more will not serve as the basis for a conviction for [possession of cocaine with intent to distribute]. . .'" (id.), the State's evidence consisted of more than evidence of mere possession. In this case, Horton had multiple rocks of crack cocaine and he was waiting in an area near several "crack houses" where arrests *799 for drug dealing were frequently made. To support the verdict, circumstantial evidence need only exclude reasonable hypotheses, not every inference or hypothesis except that of Horton's guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence in a light most favorable to the verdict (Watts v. State, 186 Ga. App. 358 (366 SE2d 849)), we conclude that the jury rationally could have found from this circumstantial evidence that it excluded every reasonable hypothesis except that Horton possessed the cocaine with the intent to distribute. Review of the transcript in a light most favorable to the jury's verdict reveals ample evidence from which "[a]ny rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of possession of cocaine with intent to distribute as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)." Walton v. State, 194 Ga. App. 490 (____ SE2d ____) (1990).
c. Under the circumstances, a charge to the jury on possession with the intent to distribute cocaine was authorized.
2. Horton also asserts that the trial court erroneously denied his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) alleging the prosecutor exercised his jury strikes in a racially discriminatory manner. Although we have some question whether Horton made a prima facie showing of discrimination (see Williams v. State, 258 Ga. 80, 82 (365 SE2d 408) and Aldridge v. State, 258 Ga. 75, 76 (365 SE2d 111)), the record supports the trial court's decision that the prosecutor did not use his peremptory challenges in a racially discriminatory manner. Lee v. State, 258 Ga. 481, 482-483 (371 SE2d 389); Henderson v. State, 257 Ga. 434, 436 (360 SE2d 263). Not only were racially neutral reasons given for the exercise of the four challenges made against members of Horton's racial group, but the prosecutor did not use all of his challenges before accepting a jury with five black members. See Mincey v. State, 257 Ga. 500, 503 (360 SE2d 578). This enumeration of error is without merit.
3. Horton enumerates as error the admission in evidence over his objection of a photograph showing the area of the crime scene. The photograph was properly authenticated before it was admitted (see McCoy v. State, 190 Ga. App. 258, 262 (378 SE2d 888)), and decisions on admission of evidence are within the discretion of the trial judge which will not be reversed absent an abuse of discretion. Palmer v. State, 186 Ga. App. 892, 898-899 (369 SE2d 38). We find no such abuse, and further, the law favors admission of evidence. See Whisnant v. State, 178 Ga. App. 742 (344 SE2d 536).
4. Horton enumerates as error the trial court's refusal to give certain defense requests to charge. Review of the trial court's charge shows that, with one exception, the substance of the requested charges was given in legally sufficient and correct terminology. This is *800 all that is required since a defendant has no right to have the trial court charge in the exact language of his requests. Ortiz v. State, 188 Ga. App. 532 (374 SE2d 92); Skinner v. State, 188 Ga. App. 458 (373 SE2d 271); accord Kelly v. State, 241 Ga. 190 (243 SE2d 857).
The requested charge not given would have instructed the jurors not to surrender honestly held convictions merely to be congenial or to reach a verdict merely because of the opinions of other jurors. Horton cites no authority requiring this charge, and although this charge could be given without causing error and, in certain circumstances might be required, this plainly was not one of those cases. The transcript shows that the jury retired at 11:12 a. m. and returned with its verdict at 11:45 a. m. Under these circumstances, it cannot be persuasively argued that Horton was prejudiced by the failure to give this charge even if the failure to do so could possibly be construed as error.
5. Horton also contends the trial court erroneously charged on joint possession when it was not raised by the evidence and gave a burden shifting charge on inferences which could be drawn from circumstantial evidence. Since there was some evidence from which an issue of joint possession could arise, the trial court did not err by giving the charge. Fredericks v. State, 172 Ga. App. 379, 380 (323 SE2d 265).
Further the charge on inferences, that Horton alleges was burden shifting, merely defined circumstantial evidence. This charge did not create a Sandstrom issue since it did not instruct the jury that any inference or presumption existed, and the charge, considered as a whole, properly instructed the jury on their duties in considering the evidence. Ward v. State, 238 Ga. 367, 370-371 (233 SE2d 175). There was no error.
Judgment affirmed. Deen, P. J., and Cooper, J., concur.
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2 Cal.2d 441 (1935)
THE PEOPLE, Respondent,
v.
ALTON H. VAILE, Appellant.
Crim. No. 3763.
Supreme Court of California. In Bank.
February 20, 1935.
Alton H. Vaile, in pro. per., for Appellant.
U.S. Webb, Attorney-General, and Jess Hession and William F. Cleary, Deputies Attorney-General, for Respondent.
PRESTON, J.
In this cause both appellant and respondent sought a rehearing, which was granted. Upon further consideration of the cause we are led to adhere to our former conclusion and readopt the opinion then prepared for the court by Mr. Justice Curtis, as follows:
"The appellant was charged by an information filed August 15, 1930, in the superior court of the county of Yolo with the commission of four felonies and also with three prior convictions of a felony. He was found guilty of two of the felonies charged and plead guilty to the three prior convictions of a felony as alleged in the information. The trial court thereafter and on October 14, 1930, pronounced judgment against him. Said judgment was entered upon the minutes of the court, and the court, as shown by said entry upon its minutes, after reciting that defendant had been convicted of two of the felonies charged against him in the information, and that he had pleaded guilty to the three prior convictions of a felony, pronounced judgment as follows: 'And no sufficient cause being shown or appearing to the court, thereupon the court renders its judgment: That whereas the said Alton H. Vaile has been duly convicted in this court of the crimes of lewd and lascivious conduct, and *443 infamous crime against nature, with three prior convictions of felony, it is therefore ordered, adjudged and decreed that the said Alton H. Vaile be punished by confinement in the State Prison of the State of California, and that the said Alton H. Vaile be taken to the Warden of the State Prison at Folsom.' Said minute entry further showed that the court then ordered that the defendant be remanded to the sheriff of the county of Yolo, to be by him delivered into the custody of the warden of the state prison at Folsom, California. A copy of this minute entry, certified as provided by law, was by the sheriff of said county delivered to the warden of the state prison at Folsom, at the time of the delivery of the defendant by said sheriff to said warden. On June 9, 1933, which was almost three years after said judgment was pronounced, the trial court made an order directed to the sheriff of said county to take defendant from the state prison at Folsom and bring him before said court for such further proceedings as to the court might seem meet and proper. It was recited in said order that the same was made for the reason that 'the court had omitted to find that the defendant was an habitual criminal without right of parole, and it appearing to the court to be a proper order in the premises'. In compliance with this order, the sheriff brought said defendant before the trial court, and said court again pronounced judgment against him, which said judgment was in all respects substantially like the first judgment pronounced against defendant, except that in said second judgment the court expressly adjudged defendant to be an habitual criminal by reason of said three prior convictions and the conviction in this action, and adjudged that said defendant 'as such habitual criminal be punished by confinement in the state prison of the state of California, without the right of parole'. It is from this judgment that the present appeal has been taken."
[1] "Appellant assigns various reasons why the judgment should be reversed. His main contention is that he has been prejudicially affected by the entry of the second judgment by reason of the fact, as claimed by him, that by the second judgment he had been adjudicated to be an habitual criminal and punished as such habitual criminal while by the first judgment he was sentenced and punished only for the two felonies of which he was convicted in the superior *444 court of the county of Yolo. We think the appellant has misconceived the legal effect of the first judgment pronounced against him by said superior court. In that judgment the court expressly found and adjudicated that the defendant had been convicted of two felonies after three prior convictions of a felony. It then directs that defendant be imprisoned in the state prison of the state and that the sheriff deliver him to the warden of said state prison. The commitment which was delivered to the warden, being a certified copy of the court's judgment, clearly showed that defendant had suffered the three prior convictions of a felony as well as his conviction of the two felonies charged against him in the information herein. Section 644 of the Penal Code as then in force declared that a defendant so convicted should 'be punished by imprisonment in the state prison for not less than life and shall not be eligible to parole'. There is no basis whatever for the claim of defendant that under the first judgment he was sentenced and punished only for the two felonies with which he was charged in said information as said judgment expressly adjudicated his three prior convictions of a felony as well as the subsequent conviction of two felonies. There was, therefore, in legal effect no difference between the two judgments and the defendant was in no way injured by the entry of the second judgment. It is true that the second judgment contains a formal adjudication that the defendant was an habitual criminal. The procedure leading up to the pronouncement of this second judgment apparently followed the suggestion made by this court in the case of In re Boatwright, 216 Cal. 677, 683 [15 PaCal.2d 755]. The validity of a judgment like the first judgment pronounced herein was not before us in that proceeding, and what was said in our opinion relative to such a judgment cannot be held to be a judicial determination of that question. [2] In cases where a defendant has been found to be an habitual criminal we think, as stated in our opinion in the Boatwright case, that the trial court should include therein as part of said judgment a formal adjudication that the defendant was an habitual criminal. But the omission of such formal adjudication in a final judgment would not vitiate said judgment nor in any way impair its effectiveness so long as the judgment contained an adjudication that the defendant had *445 been found guilty of the several crimes which, when committed by a single person, rendered him an habitual criminal. The defendant, therefore, was not aggrieved by the pronouncement of said second judgment. If the second judgment is erroneous for any reason, the first judgment is in full force and effect, and in pursuance thereof he is subject to punishment as an habitual criminal. If the second judgment is valid, it neither adds to nor detracts from the force and effect of the first judgment. It would avail defendant nothing to have the second judgment set aside, reversed, or in any way modified."
[3] As stated in the foregoing opinion, under the indictment, plea, verdict and commitment, the only term of imprisonment permissible under the law was imprisonment for life without parole (sec. 644, Pen. Code, as it read at the time judgment was pronounced). Under such circumstances the indeterminate sentence provisions of section 1168 of the Penal Code are inapplicable. The law itself has set a sole, definite and unchangeable period of imprisonment; therefore, when the court sentenced the defendant, it was of necessity for this period.
As we read the cases of In re Heath, 49 Cal.App. 657 [194 P. 68], and Ex parte Heath, 193 Cal. 192 [223 P. 546] (second application of same defendant), they confirm this conclusion. See to the same effect In re Carlton, 53 Cal.App. 225 [200 P. 51].
[4] By this holding no judicial function devolves upon the board of prison terms and paroles. Pronouncing of sentence is distinctly a judicial act. What we have here done is merely to hold that the only construction that can be given the judgment rendered on this conviction is that which imposes a sentence of life imprisonment. The resentence of the court added clarity but did not add efficacy to the former judgment.
The appeal is dismissed.
Curtis, J., Waste, C.J., Shenk, J., Langdon, J., Seawell, J., and Thompson, J., concurred.
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469 S.E.2d 677 (1996)
220 Ga. App. 557
STOCKS
v.
GLOVER.
GLOVER
v.
STOCKS.
Nos. A95A2522, A95A2523.
Court of Appeals of Georgia.
Decided January 22, 1996.
Reconsideration Denied March 11, 1996.
Certiorari Denied May 17, 1996.
*678 Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, Atlanta, for appellant.
Cauthorn & Phillips, Thomas E. Cauthorn III, B. Wayne Phillips, Marietta, for appellee.
POPE, Presiding Judge.
In this legal malpractice action, plaintiff Marie Stocks appeals from the grant of summary judgment for defendant Irma Glover, and Glover cross-appeals from the dismissal of her counterclaim for abusive litigation.
We view the facts in a light favorable to Stocks as the party opposing summary judgment. Glover represented Stocks in Stocks' divorce proceedings. As the result of Glover's failure to file a notice of lis pendens, Stocks' husband was able to use the marital residence to secure an $83,000 loan on April 6, 1989. And on February 9, 1990, Stocks' husband used the marital residence to secure a second loan, thereby increasing the encumbrance on the home to $125,000.
Stocks first sued Glover on February 8, 1994. This action was voluntarily dismissed without prejudice on June 24, 1994, and renewed on August 26, 1994. The trial court granted Glover's motion for summary judgment on the ground that the original action was not brought within four years. The court then dismissed Glover's abusive litigation counterclaim as premature, and these appeals resulted. We affirm in both cases.
1. In Case No. A95A2522, Stocks acknowledges that recovery for any damages resulting from the first security deed is barred by the four-year statute of limitation, but argues that she should be allowed to recover any additional damages resulting from the second security deed, since the original lawsuit was filed less than four years from the date of that second encumbrance. The limitation period in a legal malpractice case begins as soon as there is a breach of the attorney's duty and some degree of harm, however, even if the degree of harm is minimal and much or most of the harm occurs later. Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804(1), 273 S.E.2d 16 (1980). Moreover, the attorney's subsequent failure to take advantage of an opportunity to correct his earlier mistake is not a separate breach for which the client has a new cause of action. Id. at 807(2), 273 S.E.2d 16; Leon Jones Feed & Grain v. Gen. Business Svcs., 175 Ga.App. 569, 570-571, 333 S.E.2d 861 (1985). In Jankowski, the plaintiff's underlying case had been dismissed because the attorney did not appear for a calendar call, and the Supreme Court held that the attorney's subsequent failure to discover the dismissal and refile plaintiff's case before the statute of limitation ran was not a separate breach. Id. at 805-807, 273 S.E.2d 16. In Leon Jones Feed & Grain, an accountant failed to advise a client about an available tax exemption, and we held that his subsequent failure to advise the client about his right to a refund of overpaid taxes for three years was not a separate breach. Id. at 569-572, 333 S.E.2d 861. In the same way, Glover failed to file a notice of lis pendens as soon as the divorce was pending, and her failure to realize her mistake and correct it by filing the notice of lis pendens later was not a separate breach. See also Long v. Wallace, 214 Ga.App. 466(2), 448 S.E.2d 229 (1994).
Stocks asserts that since Glover had a continuing duty to file a notice of lis pendens and never did so, she breached her duty every day the divorce proceeding was pending. Thus, Stocks' argument goes, the additional harm from the second encumbrance joined with a new breach of duty to create a new cause of action which accrued on February 9, 1990less than four years before *679 Stocks' original action against Glover was filed. This argument has some logical appeal, but is precluded by Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365(2), 368 S.E.2d 732 (1988), in which the Supreme Court held that continuing tort theory is applicable only to cases involving personal injury.
2. In Case No. A95A2523, we conclude that the trial court properly dismissed Glover's abusive litigation claim as premature, since it was brought before the final termination of the proceeding. See OCGA § 51-7-84(b). Stocks' voluntary dismissal of her original action was not a "final termination" of the proceeding for purposes of this section. See OCGA § 9-2-61 (case may be renewed after dismissal).
Judgments affirmed.
BEASLEY, C.J., and RUFFIN, J., concur.
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469 S.E.2d 691 (1996)
220 Ga. App. 437
POTTER et al.
v.
WAL COMPUTERS, INC. et al.
No. A95A2862.
Court of Appeals of Georgia.
February 9, 1996.
Reconsideration Denied March 5, 1996.
Certiorari Denied May 17, 1996.
*692 Ruffin & Dell, Charles L. Ruffin, J.V. Dell, Jr., for appellants.
Chambless, Higdon & Carson, Marc T. Treadwell, Christopher D. Balch, Sell & Melton, Jeffrey B. Hanson, for appellees.
BLACKBURN, Judge.
This complex litigation involves the sale of a computer business, Wal Computers, Inc.[1] (Wal). The buyers, James H. Potter and his corporations, Management Matters, Inc. and Beverage Management Solutions, Inc. (referred to collectively as the Potter defendants), appeal the trial court's orders denying their motions to set aside the judgment and for new trial. The Potter defendants' motions were based primarily on violations of the Uniform Superior Court Rules (USCR) concerning the withdrawal of their attorney and the scheduling of their trial.
Walter Lee, working for Wal, created and marketed a software program to manage sales, inventory, and other financial matters in the retail liquor industry. Due to financial pressures, Lee sought investors and, ultimately, entered into negotiations with Potter to sell Wal. The negotiations culminated in several separate contracts, including an asset purchase agreement, an escrow agreement, and an employment contract with Lee. Within a short time after the sale, the parties' relationship deteriorated and this litigation ensued.
On June 3, 1994, Potter's counsel, G. William Long III, sent Potter a notice of his withdrawal as counsel. Long also notified Potter and his corporations of their obligation to apprise the court of the location where they could be served and to prepare for trial or hire other counsel. Potter objected to Long's withdrawal and throughout the summer and fall of 1994, Potter and Jeff Muir, an attorney who represented Potter in other matters, negotiated with Long concerning his desire to withdraw.
These negotiations were not successful and, on September 27, 1994, Long formally filed a motion to withdraw. His cover letter to the court stated that the case currently appeared on the October 17 trial calendar and that because he was withdrawing, he understood it would be placed on the December calendar. Long's letter indicated that the Potter defendants were sent copies of the correspondence as was Muir.
On September 28, 1994, the trial court entered an order allowing Long to withdraw as counsel and the case was then continued until the December calendar. Potter claims he never received notice that Long's request to withdraw was granted. It is undisputed that Potter never received a copy of the December trial calendar, but he admitted to knowing that his case had been moved from the October calendar until December. On *693 Friday December 9, Potter sent a facsimile to the trial court requesting a continuance due to his inability to secure representation in time for trial scheduled to begin on the following Monday, December 12.
On December 12, before the trial was scheduled to begin and on December 13, after the trial had commenced, the trial court heard argument on Potter's request for a continuance to obtain counsel. The court denied the request, observing that despite the fact that Potter received notice of Long's intent to withdraw in June, Potter first requested a continuance only days before trial. Upon hearing evidence, the court granted a directed verdict to Robert Lee, Walter Lee's father, who had been made a party to a cross-claim filed by Potter and his affiliated corporations. The jury then returned verdicts in favor of Walter Lee and Wal, awarding them collectively over $740,000.
The Potter defendants moved for a new trial asserting that the trial court acted improperly in permitting the withdrawal of Long as counsel and not continuing the trial. The trial court denied the motion, and the Potter defendants then moved to set aside the judgment on the grounds that the trial court violated various provisions of the USCR. The court summarily denied the motion.
1. We reject the Potter defendants' preliminary contention that any violation of the USCR constitutes reversible error. Under certain circumstances, including the facts of this case, substantial compliance with the USCR is acceptable. See Robinson v. Robinson, 256 Ga. 188, 345 S.E.2d 597 (1986). The contrary authority relied upon by the appellees, Barrett v. Wharton, 196 Ga.App. 688, 396 S.E.2d 603 (1990), is inapposite as it turned upon the due process concerns inherent in treating a motion to dismiss as a motion for summary judgment without providing the parties with proper notice. Such constitutional issues are not here involved.
2. The Potter defendants argue that the trial court erred in permitting Long to withdraw because the notice of withdrawal failed to comply with the terms of USCR 4.3 in a number of different respects.
First, the Potter defendants assert that the notice was deficient because it failed to state that they had a right to object to the withdrawal. USCR 4.3(H) requires withdrawing attorneys to notify their clients that unless requested withdrawal is being made with the client's consent, the client has a "right to object within 10 days" of the withdrawal. The notice at issue was deficient because it did not inform the clients of their right to object within ten days. However, we find that Long substantially complied with USCR 4.3 and that the error was harmless. The Potter defendants have offered no objection to Long's withdrawal that would have warranted a different decision by the trial court. OCGA § 9-11-61. Moreover, Muir, an attorney who represented the Potter defendants in other matters, attested that throughout the summer and fall of 1994 he negotiated on numerous occasions with Long about the fee dispute underlying Long's desire to withdraw. In light of the length and nature of the fee dispute, the Potter defendants cannot claim that they were surprised by Long's withdrawal. Finally, parties with a case in court have a duty to look after their own interests. Dunn v. Duke, 216 Ga.App. 829, 832, 456 S.E.2d 65 (1995). Despite the failure to comply with the USCR in connection with Long's withdrawal, the Potter defendants failed to exercise due diligence in keeping apprised of the progress of their case once they knew Long's request to withdraw had been filed.
Second, the Potter defendants argue that the trial court erred in denying their motion to set aside the judgment because the notification certificate failed to state their telephone numbers as required by USCR 4.3. This enumeration is meritless as the Potter defendants failed to show any injury caused by this deficiency. Ideal Pool Corp. v. Champion, 157 Ga.App. 380, 385(6), 277 S.E.2d 753 (1981).
Third, the Potter defendants argue that the denial of their motion to set aside was error because they received no notice that Long's request to withdraw had been granted. USCR 4.3 provides that "[a]fter the entry of an order permitting withdrawal, *694 the client shall be notified by the withdrawing attorney of the effective date of the withdrawal." Previously, we have held that clients who did not receive notice from their attorney that his request to withdraw had been granted by the trial court, must look to the withdrawing attorney for redress. Dunn v. Duke, supra at 831, 456 S.E.2d 65. Moreover, assuming arguendo that the Potter defendants did not receive notice of Long's withdrawal, "`in order for a defendant to obtain a new trial because of his absence or the absence of his counsel at the trial, it must be shown that the party was without fault.'" Id. The Potter defendants have not made that showing.
Finally, with respect to USCR 4.3 the Potter defendants argue that Long's withdrawal was manifestly unfair and prejudicial. Rule 4.3 provides that a request to withdraw will be granted "unless in the judge's discretion, to do so would ... be manifestly unfair to the client." The Potter defendants received ample notice of Long's intent to withdraw and were provided sufficient time to secure the services of another lawyer. Consequently, we find the trial court acted within its discretion by determining that the withdrawal was not unfair and would not cause the Potter defendants undue prejudice. See Everman v. State, 203 Ga.App. 350, 351(2), 416 S.E.2d 861 (1992).
3. The Potter defendants argue that the trial court erred in denying their motion to set aside the judgment because they never received a copy of the trial calendar for the session when their case was tried in violation of USCR 8.3. Rule 8.3 requires that clerks of court distribute trial calendars "not less than 20 days ... prior to the session of court at which the actions listed thereon are to be tried." However, a new trial is not warranted by the failure to receive a calendar when parties have actual notice of an upcoming trial and are prejudiced only by their own lack of due diligence. See Abercrombie v. Miller, 191 Ga.App. 858, 859, 383 S.E.2d 358 (1989); see also Glennco, Inc. v. Silver Shoes, Inc., 164 Ga.App. 30, 31, 295 S.E.2d 357 (1982); cf. Taylor v. Chester, 207 Ga.App. 217, 219, 427 S.E.2d 582 (1993) (no actual notice); Ga. Hwy. Express v. Whaley, 166 Ga.App. 662, 305 S.E.2d 411 (1983) (no evidence of actual notice).
The record shows that in September 1994 the Potter defendants had actual notice that their case was on the December trial calendar. Exact notice of the specific trial date is not required. Redding v. Raines, 239 Ga. 865, 866, 239 S.E.2d 32 (1977). The Potter defendants received further notice of their appearance on the December trial calendar on November 21, 1994 when counsel representing their opponents sent notice of his withdrawal. In light of the Potter defendants' actual notice that their case was scheduled to be heard in December, the trial court committed no error in refusing to continue the trial due to the clerk's failure to comply with USCR 8.3.
4. The Potter defendants argue that the trial court abused its discretion in denying their motion for continuance to obtain counsel and secure the attendance of material witnesses. The record reflects that Potter may have discussed this matter with opposing counsel; however, he never requested a continuance from the trial court so that he could secure the attendance of missing witnesses. Issues not raised before and decided upon by the trial court cannot be raised on appeal. Tyler v. Bennett, 215 Ga.App. 87, 88, 449 S.E.2d 666 (1994).
5. The Potter defendants argue that the trial court erred in granting a directed verdict for Robert Lee. The fraud cross-claim filed by Beverage Management Solutions, Inc. against Robert Lee asserted that he made various misrepresentations that induced the sale. In particular, Beverage Management Solutions, Inc. claimed that, as part of the purchase price for Wal, it agreed to satisfy a debt that Wal supposedly owed Robert Lee when in fact no such debt existed or said debt was much smaller than Robert Lee had represented.
"A directed verdict is authorized only when `there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.' OCGA § 9-11-50(a)." Carden v. Burckhalter, 214 Ga.App. 487, 488, 448 S.E.2d 251 (1994). Robert Lee testified that Wal owed *695 him the amount outlined in the purchase agreements and that he played no role in the sales negotiations or in the due diligence investigation performed by the purchasers prior to the sale. The contrary assertions of the Potter defendants are not supported in the record.[2] The trial court did not err in granting a directed verdict to Robert Lee.
6. The Potter defendants argue that the trial court erred in denying their motion for a new trial in that the jury's verdicts were strongly against the weight of the evidence. However, after the jury returns a verdict and the trial judge approves it, "`the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.'" Bldg. Materials Wholesale v. Reeves, 209 Ga.App. 361, 364(2), 433 S.E.2d 346 (1993). A review of the lengthy record, replete with a seven-volume trial transcript, reflects that the jury's verdicts are supported by evidence and this enumeration of error is thus without merit.
Judgment affirmed.
McMURRAY, P.J., and ANDREWS, J., concur.
NOTES
[1] Wal Computers was formerly known as Computer Source, Inc.
[2] The Potter defendants argue that evidence was introduced that a promissory note Wal had signed in the fall of 1991 was "intentionally and maliciously backdated to June 1, 1989" so as to inflate the sums Wal owed Robert Lee. However, the Potter defendants have provided no reference as to where this backdated note may be located in the lengthy record, replete with a seven-volume trial transcript. "`It is not the function of this court to cull the record on behalf of a party in search of instances of error.'" Asbury v. Ga. World Congress Center, 212 Ga.App. 628, 632, 442 S.E.2d 822 (1994).
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128 Cal.Rptr.2d 270 (2002)
104 Cal.App.4th 470
In re JAMES C. et al., Persons Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
John D., Defendant and Appellant.
No. B156096.
Court of Appeal, Second District, Division Five.
December 17, 2002.
Review Denied March 19, 2003.
*271 Judy Weissberg-Ortiz, under appointment by the Court of Appeal, Orange, for Defendant and Appellant.
*272 Lloyd W. Pellman, County Counsel, Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
John D. (the father) challenges juvenile court jurisdictional and dispositional orders finding his children, James C. (born July 1995) and S.D. (born May 1997), dependents of the court pursuant to Welfare and Institutions Code[1] section 300, subdivisions (b) and (g). The father contends the jurisdictional order should be reversed. The father argues the allegations of the petition were insufficient to support a jurisdictional determination based on his incarceration and there is no substantial evidence to support the findings. We conclude that the father has waived the right to challenge the sufficiency of the juvenile court petition allegations; nonetheless, the allegations were sufficient to confer jurisdiction on the juvenile court; and substantial evidence supports the jurisdictional and dispositional findings. Accordingly, the juvenile court orders are affirmed.
II. BACKGROUND
James and Saharra, along with their half siblings, Angel A. (born September 1999) and Victoria A. (born November 2000), came to the court's attention on June 20, 2001, when the Los Angeles County Department of Children and Family Services ("the department") filed a section 300 petition on their behalf. John D. is not the father of Angel and Victoria, who are not the subjects of this appeal. The petition alleged that the mother of all four children, had created a detrimental home environment for the children in that, on or about June 15, 2001, and prior occasions, the family residence was found in a filthy and unsafe condition. The conditions included: a nonfunctioning toilet with feces and urine on the floor; flea and scabies infestation; a filthy carpet; clutter to such a degree that entering and leaving the residence was difficult; the backyard was overgrown with flammable dry shrubbery and old paper; and the backyard was littered with beer cans, old toys, and bicycles. It was alleged that the mother's conduct endangered the children's physical and emotional health and safety and placed them at risk of physical and emotional harm and damage. It was further alleged: the children were found in a filthy and unkempt condition including six-month-old Victoria who had a severe diaper rash and dirt around her neck and under her fingernails; the mother knowingly allowed a registered sex offender, the children's maternal step-grandfather, Claude N., to reside in the home; Claude N. had unmonitored access to the children; five-year-old James was allowed to wander in the street and alley without adult supervision; and James and S.D. had been returned to the home by law enforcement for wandering outside the residence without adult supervision.
The detention report stated the case social worker received a referral concerning the family on May 10, 2001. The referral stated in part that: the children were neglected by the mother; "the house is horrible as it is a pig house"; the house was full of scabies because feces and urine were all over the toilet, which was not flowing properly; there were feces all over the house; Mr. N. was a convicted felon who had two guns including a loaded fire *273 arm which was in the proximity of the children; and the children roamed around the neighborhood unsupervised. The reporting party had called the health and fire departments and other local agencies but none had responded to help the children.
The social worker spoke with the mother on May 15, 2001. The mother admitted the family had scabies. However, the mother claimed that James had caught scabies at school. The social worker observed that: the home was unclean and unkempt; the rooms were very cluttered so that the social worker was unable to walk inside; and the carpet was very soiled. The mother cared for the elderly maternal great-grandmother who had recently had a stroke and was hospitalized. The mother said that relatives had made the report of unkempt conditions in the residence to the authorities in order to gain control of the great-grandmother's home.
The maternal grandmother, admitted that the family had scabies but had been treated by a doctor. She also stated that James brought the scabies home from school. The maternal grandmother had two children who also lived in the home. The two children were ages 11 and 12 at the time the June 20, 2001, detention report was prepared. The mother and the maternal grandmother attributed the feces on the restroom floor to the maternal great-grandmother who was ill and would "miss the toilet" because of severe arthritis. Both the mother and maternal grandmother denied that there were weapons in the residence and the children roamed around unsupervised.
The maternal step-grandfather, Claude N, admitted he was a convicted felon who was on probation for failing to register as a sex offender. (Pen.Code, § 290.) Claude N. stated that his probation conditions were such that he could be around children as long as someone in the home was over 18 years old. Claude N.'s probation officer, identified only as Ms. H. Lewis, stated that there was nothing in the minute order that he could not be around children. On June 13, 2001, the social worker spoke with Ms. Lewis regarding the probationary grant. Ms. Lewis stated that she had no knowledge that children were living in the home. Ms. Lewis was told that the mother did not live in the home and the children were cared for in Claude N.'s residence. On June 5, 2001, the mother told a social worker that to avoid the removal of the children from the home because of the risk from a registered sex offender, Claude N. would leave. However, on June 15, 2001, the social worker found Claude N. sleeping in one of the rooms. The children were then detained. Prior to the June 15, 2001, detention, the social worker observed James roaming unsupervised in the alley and down the street several times while the mother, the maternal grandmother, and the maternal step-grandfather were at home.
James denied that anyone had sexually abused him. James had several bad front teeth. Relatives stated that James, who was five years old, threatened to take a gun and kill his great-grandmother and then stab her with a knife until she died. James had no contact with the father, who was incarcerated.
As noted above, on June 20, 2001, the department filed a petition alleging the children were persons described by section 300, subdivision (b). The petition alleged that detention was necessary because the mother's conduct created a detrimental home environment due to: the unsanitary and unsafe condition of the residence; the children were unkempt and dirty; the maternal step-grandfather, a registered sex *274 offender, was allowed to live in the home; and the children were allowed to wander around the neighborhood unsupervised. There were no allegations about the father in the June 20, 2001, petition. On June 20, 2001, the juvenile court ordered the children detained. The department was ordered to conduct a due diligence search for the father.
On June 29, 2001, the department reported the children remained in foster care. The department reported on the condition of the mother's home. The mother had made some improvements in cleaning the home. However, the home was still cluttered to such an extent that the social worker could not enter the room the children had lived in before they were detained. The backyard was piled with debris that the State Department of Health Services had ordered the mother to eliminate.
On August 1, 2001, the department reported that the father was incarcerated at the California Men's Colony in San Luis Obispo. James had never seen the father. James had cavities, rotten teeth, and head lice. Angel, the mother's youngest son, also had tooth decay and head lice. James, Angel, and Victoria were treated for skin rash. The home, including the backyard, had been organized somewhat but remained cluttered. The two boys, James and Angel, had been placed with one another in one foster home. The two girls, S.D. and Victoria, had been placed together in another foster home. The mother was not visiting the children on a regular basis. The mother blamed difficulties with: the foster family agency; the department; and the foster parents. The foster parents reported that the mother had not contacted them. The father was incarcerated and unable to care for the children.
On September 13, 2001, the department filed a first amended petition, which named both the mother and father. The first amended petition alleged that the father was incarcerated in state prison and unable to provide James and. S.D. with the basic necessities of life including adequate food, clothing, shelter, and medical treatment. With respect to the father, it was alleged that James and S.D. were dependents of the court pursuant to section 300, subdivisions (b) and (g). The allegations as to the mother in the original petition were repeated in the amended petition. The original June 20, 2001, petition was dismissed.
In an interim review report, the department reported that the boys remained together in one foster home. The girls remained together in a separate foster home. The mother stated that her home was in worse condition than it was when the children were detained. The mother was not consistently visiting the children. The father had an expected release date from prison of June 29, 2003. The department recommended no family reunification services be provided to the father pursuant to section 361.5 subdivisions (a)(2) and (e)(1) because the duration of his anticipated incarceration exceeded the length of time family reunifications services would be provided.
On October 25, 2001, the department reported that the father had initially signed a waiver stating he was not interested in attending the adjudication and disposition hearing. However, the father subsequently changed his mind and wanted to be present for the hearing. The mother had been advised that the step-grandfather could not live in the home if the children returned. But Claude N.'s probation officer, Ms. Lewis, stated that he continued to reside in the mother's home. On October 15, 2001, the department received *275 the results of a sexual abuse exam completed on S.D. The results were consistent with the conclusion she had experienced sexual abuse. The results showed "abnormal findings in [S.D.'s] [posterior] fourchette, perianal skin, and anal verge/folds/fugae, which are consistent with healed anal and possible [posterior] fourchette trauma." At the October 25, 2001, hearing, counsel was approved for the father.
On December 5, 2001, the department filed a second amended petition. The September 13, 2001, first amended petition was dismissed. The second amended complaint alleged the father had a criminal history of violent and drug-related felony convictions. The father's current incarceration was for: an aggravated assault (Pen. Code, § 245, subd. (a)(1)); infliction of great bodily injury (Pen.Code, § 12022.7, subd. (a)), and a prior prison term enhancement. (Pen.Code, § 667.5, subd. (b).) The children's physical and emotional health and safety were alleged to be at risk from the father's conduct.
In an interim review report, the department reported that James had been inappropriately touching Angel and stealing items from the foster home. The department elaborated on the father's criminal conduct that caused his current period of incarceration resulting from a 1996 nine-year sentence for aggravated assault, a finding he inflicted great bodily injury on the victim, a girlfriend, and two one-year prior prison term enhancements. The nine-year sentence was imposed after the father slammed the woman's head into a wall telling the victim he would kill her. The woman had such deep extensive bruising on her side and stomach area that the doctor stated the X-rays were inconclusive regarding fractures. The girlfriend had lacerations on the top of her head, one approximately six inches long. The other laceration was approximately four to five inches long.
The father appeared at the December 5, 2001, hearing and waived his appearance for the next court hearing. The father informed the court that his release date was in 2003. The court dismissed the first amended petition and filed the second amended petition. The matter was continued to January 14, 2002, for mediation and January 24, 2002, for adjudication.
On January 14, 2002, the department reported that the mother and maternal grandmother were interviewed about the sexual abuse allegations. The maternal grandmother stated that her husband was arrested for oral copulation with a minor but stated the allegations were untrue. Although it was a consistent recommendation throughout the case, the mother and maternal grandmother stated they had not been given a referral for sexual abuse counseling. The maternal step-grandfather, Claude N., continued to reside in the home. When S.D. was interviewed about the sexual abuse allegations, she could not identify private parts but was able to name the buttocks (bottom). S.D. stated the step-grandfather had "tickled" her bottom. She said, it did not hurt, just tickled her. At that point, S.D. did not want to talk any further and changed the subject. On January 24, 2002, the parties entered into a mediation agreement concerning the December 5, 2001, second amended petition. The father did not sign the mediation agreement.
On January 25, 2002, the department filed a third amended petition, which reflected the changes agreed upon in mediation. The third amended petition contained the same allegations against the father that had been in the second amended petition. At the January 25, 2002, adjudication hearing, the court dismissed the December 5, 2001, second amended petition *276 and filed the third amended petition. A social worker, Edward Fithyan, spoke with the father's prison counselor. Mr. Fithyan had not spoken with the father. Mr. Fithyan testified the petition was filed against the father due to: the father's incarceration and the charges for which he was incarcerated; the father's incarceration caused the children to be neglected; and the father was unavailable to take care of the children. Mr. Fithyan was unaware of any evidence that the father had ever physically hurt either of the children. Court and Department of Corrections records demonstrated: defendant has been convicted on two separate occasions of Penal Code section 667.5, subdivision (c) violent felonies; he has now been convicted of a total of seven felonies; and his presently calculated release date was beyond the period of time reunification services could be provided.
At the conclusion of the adjudication hearing, the juvenile court sustained the allegations of the third amended petition as it related to the father under section 300 subdivisions (b) and (g). With respect to the section 300, subdivision (b) finding, the sustained petition provided: "Count b-5: ... [The] father, John [D.] is currently incarcerated in the state prison and is unable to provide the children with the basic necessities of life including, but not limited to, adequate food, clothing, shelter and medical treatment, thereby endangering the children's physical and emotional safety and placing the children at risk of serious harm." The sustained petition further alleged: "Count b-8: ... [The] father, John D, has a criminal history of violent and drug related felony convictions. The father is currently incarcerated in state prison on charges of 245(A)(1) [of the Penal Code]Assault with a deadly weapon with great bodily injury, 12022.7(A) [of the Penal Code]Infliction of great bodily injury, and 667.5(b) [of the Penal Code] Enhancement of prison term for new offenses. Said conduct on the part of the children's father endangers the children's physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and danger." The juvenile court sustained the allegations James and S.D. were dependents of the juvenile court under section 300, subdivision (g) based on the father's incarceration and failure to provide care for or support the children. The findings with respect to this issue were: "[The] father, John [D.], is currently incarcerated in state prison and is unable to provide the children with the basic necessities of life including but not limited to adequate food, clothing, shelter and medical treatment, thereby endangering the children's physical and emotional safety and placing the children at risk of serious harm." The trial court ordered no family reunification services be provided to the father pursuant to section 361.5, subdivisions (b)(12), (c), and (e)(1). The father filed a timely notice of appeal from the court's jurisdictional findings and dispositional orders.
III. DISCUSSION
A. The Sufficiency of the Third Amended Petition
The father claims the jurisdictional findings cannot be upheld because the allegations of the third amended petition were insufficient to support findings of juvenile court jurisdiction under section 300, subdivisions (b) and (g). A challenge to the sufficiency of a petition is treated as a demurrer. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1133, 106 Cal. Rptr.2d 465; In re Alysha S. (1996) 51 Cal.App.4th 393, 397, 58 Cal.Rptr.2d 494.) A reviewing court construes the wellpleaded facts in favor of the petition and determines whether a basis for jurisdiction *277 is stated. (In re Janet T. (2001) 93 Cal. App.4th 377, 386, 113 Cal.Rptr.2d 163; In re Nicholas B., supra, 88 Cal.App.4th at p. 1133, 106 Cal.Rptr.2d 465.) In the dependency scheme, the petition is examined for whether essential facts have been pleaded which establish "at least one ground of juvenile court jurisdiction." (In re Alysha S., supra, 51 Cal.App.4th at pp. 399-400, 58 Cal.Rptr.2d 494.) The department argues this argument has been waived by the failure to challenge the sufficiency of petition allegations in the juvenile court. Alternatively, the department claims the petition was sufficient.
There is a split of authority on whether a parent waives the right to challenge the sufficiency of the allegations in a dependency petition on appeal after failing to raise the issue by demurrer or other procedural mechanism in the juvenile court. In the case of In re Alysha S., supra, 51 Cal.App.4th at page 397, 58 Cal.Rptr.2d 494, it was concluded that no demurrer need be filed to raise an issue of the factual sufficiency of a petition on appeal. (See also In re Nicholas B., supra, 88 Cal.App.4th at pp. 1132-1133, 106 Cal. Rptr.2d 465 (challenge to sufficiency of petition is equivalent to claim of failure to state a cause of action and is not a substantial evidence issue].)) Alysha S. concluded a challenge to the sufficiency of a petition in a dependency proceeding is in the nature of a demurrer in a civil action. (Accord, In re Nicholas B., supra, 88 Cal. App.4th at p. 1133, 106 Cal.Rptr.2d 465.) Citing Code of Civil Procedure section 430.80, subdivision (a), Alysha S. concluded that, in a dependency case, the rule regarding the failure to object to a civil complaint by demurrer or answer is that the party is deemed to have waived the objection unless the petition does not state a cause of action. (In re Alysha S., supra, 51 Cal.App.4th at p. 397, 58 Cal.Rptr.2d 494.) Thus, Alysha S. concluded no waiver occurs when the issue raised on appeal is that the petition does not state a cause of action. (Ibid.)
By contrast, the decision of In re Shelley J. (1998) 68 Cal.App.4th 322, 328, 79 Cal.Rptr.2d 922, concluded that demurrer was required or the factual sufficiency issue was waived on appeal. Shelley J. concluded that dependency proceedings are not controlled by the Code of Civil Procedure but by the Penal Code. Penal Code section 1012 provides, "When any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and the failure so to take it shall be deemed a waiver thereof, except that the objection to the jurisdiction of the court and the objection that the facts stated do not constitute a public offense may be taken by motion in arrest of judgment." In explaining why Alysha S. was incorrect, Shelley J. noted: "[[Alysha S.] did not acknowledge that rules applicable to civil cases are not applicable to dependency actions unless expressly made so. `Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. (§ 300 et seq.; Cal. Rules of Court, rule 1440 et seq.) Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply. (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 245, fn. 3, [264 Cal.Rptr. 4]; In re Angela R. (1989) 212 Cal.App.3d 257, 273, [260 Cal.Rptr. 612].)' (In re Jennifer R. (1993) 14 Cal. App.4th 704, 711 [17 Cal.Rptr.2d 759], fn. omitted.) [¶] We find no authority that Code of Civil Procedure section 430.80, subdivision (a) applies to dependency actions. Rather, California Rules of Court, rule 39 provides that rules governing criminal cases and appeals apply to juvenile proceedings unless otherwise specified. (See, e.g., In re Troy Z. (1992) 3 Cal.4th *278 1170, 1181, [13 Cal.Rptr.2d 724, 840 P.2d 266] [plea of no contest in juvenile proceeding, as with a plea of nolo contendere in criminal action, waives appellate review].) Accordingly, juvenile cases are governed by Penal Code section 1012, which provides that the failure to demur to defective pleadings waives the defect." (In re Shelley J., supra, 68 Cal.App.4th at p. 328, 79 Cal.Rptr.2d 922.)
We agree with the reasoning in Shelley J. Moreover, the reasoning is supported by reference to section 348, which states that the Code of Civil Procedure provisions for variance and amendment to pleadings in civil actions apply to petitions and dependency proceedings under the Welfare and Institutions Code. Section 348 provides, "The provisions of Chapter 8 (commencing with Section 469) of Title 6 of Part 2 of the Code of Civil Procedure relating to variance and amendment of pleadings in civil actions shall apply to petitions and proceedings under this chapter, to the same extent and with the same effect as if proceedings under this chapter were civil actions." The incorporated provisions of Code of Civil Procedure allow amendments to pleadings when a demurrer is sustained. (Code Civ. Proc, § 469 et seq.) Code of Civil Procedure section 430.80 is in part 2, title 6, chapter 2, article 1, of that code. Code of Civil Procedure section 430.80, which allows a pleading deficiency to be raised for the first time on appeal, is not in "Title 6 of Part 2" which applies to juvenile proceedings pursuant to section 348. The provisions relating to the grounds for demurrer, specifically the failure to object to a pleading contained in Code of Civil Procedure section 430.80, upon which Alysha S. relied to support its conclusion, is not incorporated into the dependency statutes. Accordingly, the father's failure to challenge the sufficiency of the pleading has been waived. (Pen.Code, § 1012; Cal. Rules of Court, rule 39; In re Shelley J., supra, 68 Cal.App.4th at p. 328, 79 Cal. Rptr.2d 922.)
However, even if the issue had not been waived, no basis for reversal exists regarding the failure of the third amended petition to state a cause of action. The third amended petition presented as grounds for jurisdiction the mother's conduct in allowing James and S.D. to be in a filthy and unsanitary condition; the mother allowing the children to live in the home with a convicted sex offender; the father's incarceration and failure or inability to provide for the children; and the father's criminal history, which included a violent felony conviction.
The allegations against the mother were sustained and she has not appealed the jurisdictional findings or the order. The court could declare jurisdiction over the children based on the actions of the mother alone. (§ 302, subd. (a); In re Alysha S., supra, 51 Cal.App.4th at p. 397, 58 Cal.Rptr.2d 494; see also In re Nicholas B., supra, 88 Cal.App.4th at p. 1135, 106 Cal.Rptr.2d 465 ["a finding against one parent is a finding against both in terms of the child being adjudged a dependent"].) The rationale for the rule is that the dependency law is based on protection of the children rather than punishment of the parent. (In re Alysha S., supra, 51 Cal. App.4th at p. 397, 58 Cal.Rptr.2d 494, citing In re Jeffrey P. (1990) 218 Cal.App.3d 1548,1553-1554, 267 Cal.Rptr. 764.)
With respect to the father, the third amended petition sufficiently alleged that he was incarcerated and unable to provide care for the children. The third amended petition also alleged the father's criminal history, which involved drugs and violence, could endanger the children's welfare. The father's most recent conviction was alleged to be an assault with a deadly weapon with the infliction of great bodily *279 injury, which is a serious felony. The allegations were sufficient on their face. (§ 300, subds.(b), (g).)
B. The Sufficiency of the Evidence
The father claims that there was no substantial evidence to support the juvenile court's jurisdictional findings under section 300, subdivision (b). The section 300, subdivision (b) finding was that James and S.D. could suffer serious physical harm as a result of the father's failure or inability to protect the children. The father also challenged the section 300, subdivision (g) finding that he was incarcerated or did not know how to make or was physically or mentally incapable of making preparations or plans for the care of James and S.D. The juvenile court's findings are reviewed for substantial evidence to support the findings. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649, 54 Cal. Rptr.2d 722; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728, 17 Cal.Rptr.2d 282.)
Substantial evidence supports the juvenile court's section 300, subdivision (b) finding that the children did or may suffer serious physical harm as a result of the father's failure or inability to protect or supervise them. Section 300, subdivision (b) provides that the juvenile court may adjudge a child a dependent of the juvenile court when "The child had suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, [and] shelter...." The record shows the children were living in a home that was described by one observer as a "pig house"; there were two families living in a three bedroom home with one toilet; the toilet was covered with feces; the home had feces and urine on the floors; the home was so cluttered that a social worker could not get into a room; and the children, who were filthy, had scabies. S.D. said that she had bugs in her head. No doubt, the mother washed S.D.'s hair. But the mother only washed the child's hair the day before S.D. was detained. The other children were filthy when they were detained and were subsequently diagnosed with head lice and skin rashes. There was evidence that James, who was five years old when he was detained, was allowed to wander around streets and alleys unsupervised. The mother also allowed a convicted sex offender to live in the home with the children. The mother admitted that she knew the conviction was based on the oral copulation of his own 11-year-old daughter. Medical records suggested that S.D. had been sexually molested in the anal region. When questioned, S.D. stated that her step-grandfather, a convicted child molester, had "tickled" her in the area. James was also found touching his younger brother inappropriately. The father, who was incarcerated, had never met James. According to James, S.D. had seen the father once.
Because the father was incarcerated, he was not able to adequately protect the children from the deplorable home conditions. Being incarcerated, the father was unable to supervise the children. While the father claims that his incarceration should not be used as evidence of "willful or negligent" failure to adequately protect or supervise his children from these conditions, there is no evidence that he made any arrangements to have anyone even make *280 inquiries about the supervision of the youngsters while he was incarcerated. The father presented no evidence he had ever made inquiries about the care or supervision of the children. All arrangements for the children's care had been made by the department. The father also did not offer any evidence that he had made any alternative arrangements for the children once their circumstances were made known to him. Those circumstances included a filthy home, untreated medical and dental conditions, living in a residence with a convicted sex offender, and lack of supervision of toddlers. The juvenile court could infer that the father was either unable or unwilling to arrange for the care of the children.
The father also claims that there was insufficient evidence that his incarceration was a basis to support the finding under section 300, subdivision (g). Section 300, subdivision (g) provides the juvenile court may adjudge any child a dependent child if "The child has been left without any provision for support; ... the child's parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child...." The decision of In re Aaron S. (1991) 228 Cal.App.3d 202, 208, 278 Cal.Rptr. 861, concluded, "[S]ection 300, subdivision (g) applies when, at the time of the hearing, a parent has been incarcerated and does not know how to make, or is physically and mentally incapable of making, preparations for the care of his or her child." (See also In re Monica C. (1995) 31 Cal.App.4th 296, 304-305, 36 Cal.Rptr.2d 910.) According to the father, the Aaron S., standard has not been met because there is no evidence that he did not know how to make or was physically or mentally capable of making preparations or plans for the care of the children. We disagree. The record shows that the father was incarcerated all of the children's lives. There is no evidence he ever attempted to care for the children during their lifetimes. The absence of evidence suggesting that the father was ever interested in the welfare of the two toddler children during the entire time of his incarceration was sufficient for the juvenile court to infer that he either could not or was incapable of making preparations for their care. Thus, substantial evidence supports the juvenile court's determination that, with respect to the father, jurisdiction was appropriate under section 300, subdivision (g).
C. The Dispositional Order Denying Reunification Services
The father also claims that the order denying him reunification services must be set aside. We examine the court's determination denying reunification services for substantial evidence. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18-19, 100 Cal.Rptr.2d 540; In re Jasmine C. (1999) 70 Cal.App.4th 71, 75, 82 Cal.Rptr.2d 493; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164, 64 Cal.Rptr.2d 33; In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1653, 33 Cal.Rptr.2d 265.)
The trial court found that reunification services were unwarranted pursuant to section 361.5, subdivisions (b)(12) and (e)(1). Section 361.5, subdivision (b)(12) provides that reunification services need not be provided if the parent has been convicted of a violent felony as defined by Penal Code section 667.5 subdivision (c). Section 361.5, subdivision (b)(12) states: "(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] ... (12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code." *281 Also, section 361.5, subdivision (e)(1) states reunification services must be ordered even if the parent is incarcerated unless the court determines "by clear and convincing evidence, those services would be detrimental to the child." (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472, 50 Cal.Rptr.2d 385; In re Cicely L. (1994) 28 Cal.App.4th 1697, 1702, 34 Cal.Rptr.2d 345.) Detriment is determined by reference to: the child's age; the degree of bonding between the parent and the child; the length of the sentence; the nature of the crime; and the degree of detriment to the child in the absence of services. (§ 361.5, subd. (e)(1).) Section 361.5, subdivision (e)(1) further provides that, if reunification services are ordered, the services are subject to the applicable time limits imposed by section 361.5, subdivision (a). Section 361.5, subdivision (a) limits reunification services to 12 months for children 3 years of age or older and 6 months for under the age of 3 years.
First, reunification services may be denied pursuant to section 361.5, subdivision (b)(12) because the father has been convicted of a violent felony. In fact, he had been convicted of a violent felony on two occasions. The father has been convicted of robbery with firearm use, a violent felony. (Pen.Code, §§ 211, 667.5, subds.(c)(8), (c)(9), 12022.5, subd. (a).) Also, the father was convicted of aggravated assault where he was found to have inflicted great bodily injury which is also a violent felony. (Pen. Code, §§ 245, subd. (a), 667, subd. (c)(8), 12022.7, subd. (a).) Therefore, substantial evidence supports the section 361.5, subdivision (b)(12) finding.
Second, the evidence supports the denial of reunification services based on application of the factors for determining detriment to a child pursuant to section 361.5, subdivision (e)(1). Here, at the time of the adjudication, James and S.D. were six years old and four years old respectively. When the children were detained, James was five and S.D. was three. The maximum amount of time for reunification services was 12 months. There is no evidence that either child knew the father or had any kind of relationship with him. James, who was born in July 1995, stated that he had never seen his father. James believed that S.D., who was born in 1997, had seen the father once. The father was incarcerated for an offense committed in 1995 for which he had been convicted in 1996. The father was convicted of a violent felony directed at a former girlfriendan act of domestic violence. The girlfriend was violently assaulted and the father inflicted great bodily injury upon her. (Pen. Code, §§ 245, subd. (a), 12022.7, subd.(a).) Two one-year enhancements were imposed pursuant to Penal Code section 667.5. The father was sentenced to prison for nine years. The father has now been convicted of seven felonies. The father was expected to be released from prison in June 2003. The children were detained on June 15, 2001. The father's June 2003 release date exceeded the 12-month maximum period of reunification services which could be provided. (§ 361.5, subds.(a) and (e)(1).) Furthermore, there is no indication that the children would suffer any detriment from not receiving reunification services. The juvenile court order denying reunification services is supported by substantial evidence.
IV. DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: ARMSTRONG and MOSK, JJ.
NOTES
[1] All further statutory references are to the Welfare and Institutions Code unless other wise indicated.
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129 Cal.Rptr.2d 138 (2002)
104 Cal.App.4th 737
Ivan INSUA, Plaintiff and Appellant,
v.
SCOTTSDALE INSURANCE COMPANY, Defendant and Respondent.
No. B155799.
Court of Appeal, Second District, Division Eight.
December 20, 2002.
Review Denied February 25, 2003.
*139 John A. Belcher, Los Angeles, for Plaintiff and Appellant.
Selman Breitman, and Alan B. Yuter and Rachel E. Hobbs, Los Angeles, for Defendant and Respondent.
RUBIN, J.
Ivan Insua doing business as Ivan Insua Construction Company (appellant) appeals from the judgment entered against him and in favor of Scottsdale Insurance Company (respondent), following a court trial on appellant's complaint for, among other things, breach of contract arising out of respondent's refusal to indemnify appellant for costs he incurred defending a lawsuit. Appellant contends the trial court's ruling was erroneous as a matter of law for the following reasons: (1) California Insurance Code section 554 precludes respondent from objecting to appellant's belated tender of the claim; (2) respondent's unequivocal denial of coverage under the policy bars it from invoking a `no-voluntary-payments' provision as a defense; and (3) under an "as soon as practicable" provision, respondent was required to establish it was prejudiced by appellant's late tender. After review, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is an architect and licensed general contractor. He was insured by respondent under a comprehensive commercial *140 general liability policy from September 30, 1994, through September 30, 1995 (the policy). In pertinent part, section IV, paragraph 2 of the policy provides: "(a) You must see to it that we are notified as soon as practicable of an `occurrence' or an offense which may result in a claim . . .. [¶] (b) If a claim is made or `suit' is brought against any insured, you must: [¶] . . . [¶] (2) Notify us as soon as practicable. [¶] You must see to it that we receive written notice of the claim or `suit' as soon as practicable . . .. [¶] . . . [¶] (d) No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent." (Italics added.)
On September 24, 1996, Dianne Francisco brought suit against appellant and others based upon allegations of defective workmanship in construction and remodeling work appellant performed on her home (the underlying action).
Appellant did not give respondent notice of the underlying action because, he explained, he could not find the policy. Although appellant could not recall searching for the policy while the underlying action was underway, his attorney in that action recalled appellant did so, albeit without success. Appellant's office manager, Margaret Caputo, recalled receiving instructions from appellant to gather all materials relating to Francisco's claim, including all insurance policies, soon after the complaint was filed. Caputo did not recall ever finding the policy. Neither appellant nor Caputo recalled ever contacting the insurance broker who issued the policy to request a copy.
The underlying action was arbitrated before the American Arbitration Association during the summer of 1999, and an award in favor of appellant was issued on September 14, 1999.
In October 1999, after the underlying action had been resolved, the policy "was mysteriously found." In a letter to respondent dated October 21, 1999, appellant's attorney requested reimbursement of $47,000 in attorney's fees and costs appellant incurred defending the underlying action.
On November 5, 1999, respondent denied reimbursement of appellant's defense costs because the policy excluded coverage for incorrectly performed work. In January 2001, respondent agreed to reconsider its position. Appellant did not provide respondent with a copy of the complaint in the underlying action until February 8, 2001. In a letter dated February 19, 2001, respondent denied reimbursement because: (1) appellant continued to be engaged in operations on the project after the policy had expired; (2) the attorney's fees were incurred before the matter was tendered to respondent; and (3) the policy contained a no-voluntary-payments provision. This appears to be the first written notice to appellant that respondent was relying on the no-voluntary-payments provision to deny reimbursement of the pretender defense costs.
On March 2, 2001, appellant filed the complaint in the instant action for declaratory relief, breach of contract and bad faith. Respondent generally denied the allegations of the complaint and asserted as affirmative defenses, among other things: appellant failed to notify respondent of any occurrence giving rise to a claim under the policy "as soon as practicable"; various policy exclusions applied; and the attorney's fees and costs paid by appellant were voluntary payments under the policy.
On August 8, 2001, the trial court denied respondent's motion for summary judgment, finding there to be triable issues of *141 fact as to: (1) whether the policy's novoluntary-payments provision included defense costs; and (2) whether appellant's failure to tender the claim prior to incurring the defense costs was voluntary.
During a two-day judge trial, appellant called three witnesses and respondent called none. The trial court rendered judgment in respondent's favor on November 2, 2001. In a written statement of decision, the trial court found "no reasonable grounds for [appellant] to have waited until October of 1999 to have tendered" the defense in the underlying action. It described as "mysterious" the late discovery of the policy, three years after the underlying suit was filed. The trial court also found appellant's excuses "not plausible," and reasoned it was more probable someone on appellant's side decided there was no coverage under the policy. The trial court concluded: "[Appellant] has breached the voluntary payments provision of the insurance contract . . . and is therefore barred from recovery. Prejudice need not be shown. See Truck Insurance Exchange v. Unigard Insurance Company [(2000)] 79 Cal.App.4th 966 at 977 [94 Cal.Rptr.2d 516]. The court rejects [appellant's] argument that Insurance Code section 554 precludes the defense of no voluntary payments in the context of this lawsuit. Waiver in the delay in presenting the loss by [appellant] is not relevant to the voluntary payments provision." Judgment was entered on December 13, 2001.
Appellant filed a timely notice of appeal.
DISCUSSION
1. Objection to Late Tender of Claim is Not Waived Under Insurance Code section 554 Where Policy Contains a No-Voluntary-Payment Provision and Only Issue is Reimbursement of Pre-Tender Defense Costs
Insurance Code section 554 (section 554) provides: "Delay in the presentation to an insurer of notice or proof of loss is waived . . . if [the insurer] omits to make objection promptly and specifically upon that ground." Appellant contends the trial court erred in finding section 554 did not apply to denial of a claim based on a no-voluntary-payment provision. He argues a no-voluntary-payment provision should be treated the same as a timely notice provision and cannot be used to excuse an insurer from compliance with section 554. Appellant maintains that a no-voluntary-payments provision is void as a matter of law to the extent it acts to waive the insurer's compliance with section 554. We disagree.
a. A no-voluntary-payments provision is not void as a matter of law.
The general validity of no-voluntary-payment provisions in liability insurance policies is well-established. In Gribaldo, Jacobs, Jones & Associates v. Agrippina Versicherunges A.G. (1970) 3 Cal.3d 434, 91 Cal.Rptr. 6, 476 P.2d 406 (Gribaldo), our Supreme Court observed that such clauses are common "`to prevent collusion as well as to invest the insurer with the complete control and direction of the defense or compromise of suits or claims. . ..' [Citation.]" (Id. at p. 449, 91 Cal.Rptr. 6, 476 P.2d 406; Truck Ins. Exchange v. Unigard Ins. Co. (2000) 79 Cal. App.4th 966, 977, 94 Cal.Rptr.2d 516 (Truck) ["`California law enforces such no-voluntary-payments provisions in the absence of economic necessity, insurer breach, or other extraordinary circumstances . . ..'"]; Jamestown Builders, Inc. v. General Star Indemnity Co. (1999) 77 Cal.App.4th 341, 346, 91 Cal.Rptr.2d 514 (Jamestown) [same].)
b. A no-voluntary-payments provision is not inconsistent with section 554.
Appellant's contention that a no-voluntary-payment provision is inconsistent with *142 section 554 and should be treated the same as a timely notice provision, i.e., it should be deemed waived by the insurer if not promptly stated as an objection to the insured's claim, is without merit. The rule that failure to comply with a policy notice or proof of loss provision is deemed waived if not promptly objected to by the insurer, is consistent with the general principle, articulated 40 years ago by the court in Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1963) 218 Cal.App.2d 869, 879, 33 Cal.Rptr. 67, that an insurer cannot deny all liability, and at the same time be permitted to stand on a provision inserted in the policy for its benefit. In Alta Cal. Regional Center v. Fremont Indemnity Co. (1994) 25 Cal.App.4th 455, 30 Cal. Rptr.2d 841 (Alta), the court explained the reason for the general rule is that, where the insurer denies all liability under the policy, the insured is misled into believing it would be futile to perform any affirmative obligation under the policy.[1] In other words, the insurer is deemed to have waived the insured's failure to perform because the nonperformance is attributable to the insurer's conduct. (Id. at pp. 467-468, 30 Cal.Rptr.2d 841.) Thus, the cases in which a notice or proof of loss provision has been deemed waived by the insurer usually involve an insured lulled by the insurer's silence into believing it had complied with the policy notice and/or proof of loss provisions.[2] Consistent with this rule, section 554 operates to deem an insurer's belated objection to an untimely notice of claim or proof of loss waived if not promptly called to the attention of the insured. Complementing the general rule, section 554 prevents an insurer from lulling the insured into believing that notice and proof of loss are unnecessary.
The evil that section 554 is intended to avoidmisleading the insured into inactiondoes not arise in the context of a no-voluntary-payments provision. Such provision typically bars "reimbursement for pre-tender expenses based on the reasoning that until the defense is tendered . . . there is no duty to defend. [Citation.]" (Tradewinds Escrow, Inc. v. Truck Ins. Exchange (2002) 97 Cal. App.4th 704, 710, 118 Cal.Rptr.2d 561 (Tradewinds).) Under the provision, only "previous voluntary payments by the insured are barred from indemnification." (Jamestown, supra, 77 Cal.App.4th at p. 350, 91 Cal.Rptr.2d 514; original italics.) Once the insured has requested and been denied a defense by the insurer, "the insured *143 may ignore the policy's provisions forbidding the incurring of defense costs without the insurer's prior consent. . .." (Gribaldo, supra, 3 Cal.3d at p. 449, 91 Cal.Rptr. 6, 476 P.2d 406; Tradewinds, supra, 97 Cal.App.4th at p. 710, 118 Cal. Rptr.2d 561; Truck, supra, 79 Cal.App.4th at pp. 976-977, 94 Cal.Rptr.2d 516; Jamestown, supra, 11 Cal.App.4th 341 at p. 346, 91 Cal.Rptr.2d 514.) However, if the insured makes no demand to defend, the no-voluntary provision lawfully precludes recovery of pre-tender costs. (Gribaldo, supra, 3 Cal.3d at p. 449, 91 Cal.Rptr. 6, 476 P.2d 406.) In that setting, when the insurer invokes the protection of a no-voluntary-payments provision, it does not mislead the insured into believing that there is nothing more to be done. This is so because the insured could not possibly have relied on the insurer's conduct since the insured's payment preceded any action by the insurer.
We have found no California state court cases that address the precise relationship between section 554 and a no-voluntary payments provision. (See Etchell v. Royal Ins. Co. (N.D.Cal.1996) 165 F.R.D. 523, 550 (Etchell).) The issue has, however, been discussed by the federal courts. In Etchell, the magistrate concluded that section 554 was not intended to apply where a carrier is trying to use a no-voluntary-payment clause in the insurance policy to avoid paying for only those defense costs that were incurred before the tender was made. (Id. at p. 551.) In that case, the insureds did not tender their defense to their insurer until 11 months after they were served with a complaint. (Id. at p. 529.) The insurer initially denied both defense and liability under the policy without specifying any grounds therefore. (Id. at p. 552.) After a second tender, the insurer denied coverage under substantive provisions of the policy, but still made no reference to the late tender. (Id. at p. 553.) The first time the insurer suggested coverage was not available for pre-tender expenses under a no-voluntary-payments provision of the policy was five years later, in opposition to the insureds' motion for reimbursement of $227,409.67 in fees and costs incurred in defending against the underlying litigation. (Id. at pp. 544, 547, 550, 553.) The magistrate in Etchell rejected the insured's argument under section 554 that the insurer had waived any delay in presenting notice or proof of loss by failing to promptly object on that ground. (Id. at p. 553.) The magistrate surmised that lawyers and judges involved in cases involving no-voluntary-payment provisions had not referred to section 554 because they understood the statute was intended to apply only where a carrier is trying to use an alleged violation of the prompt notice requirements to avoid all of its obligations under the insurance policy, and not where a carrier is trying to use a no-voluntary-payment clause only to avoid paying for pre-tender defense costs. (Id. at pp. 550-551.)
Whether or not the magistrate correctly interpreted the silence in prior litigation, we find the reasoning of the court in Etchell persuasive, and more importantly, consistent with our Supreme Court's analysis of the issue in Gribaldo. Accordingly, we adopt it here. Appellant sought reimbursement only for pre-tender expenses incurred to defend the underlying action and incurred no expenses after he tendered the claim. Under these circumstances, respondent was not precluded by section 554 from denying liability for such costs under the no-voluntary-payments provision.
2. Denial of Coverage on Other Grounds Does Not Bar No-Voluntary-Payments Defense
Appellant contends respondent's "unequivocal denial bars the voluntary *144 payments defense." As we understand it, defendant's contention is that, by initially denying policy coverage for reasons other than the no-voluntary-payments provision, respondent became barred from asserting the no-voluntary-payments provision as a defense to indemnification of the pre-tender expenses. This is not the law, and appellant's apparent reliance on Jamestown, supra, 77 Cal.App.4th 341, 91 Cal. Rptr.2d 514, in support of his contention is misplaced.
An insurer's denial of coverage on one ground "does not, absent clear and convincing evidence to suggest otherwise, impliedly waive grounds not stated in the denial." (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 31, 44 Cal. Rptr.2d 370, 900 P.2d 619.) Under California law, an insurer waives defenses to coverage not asserted in its denial only if the insured can show misconduct by the insurer or detrimental reliance by the insured. (Id. at p. 33, 44 Cal.Rptr.2d 370, 900 P.2d 619.) This is in keeping with the general rule, discussed above, that an insurer cannot deny all liability, and at the same time be permitted to stand on a provision inserted in the policy for its benefit.
In Jamestown, 11 Cal.App.4th 341, 91 Cal.Rptr.2d 514, the court affirmed an order sustaining the carrier's demurrer to its insured's complaint for breach of contract. The court held a no-voluntary-payments provision precluded coverage for expenses voluntarily incurred by the insured, a home developer, to repair defects in construction, before it tendered the claim to the insurer. (Id. at p. 343, 91 Cal.Rptr.2d 514.) The court noted that, in some circumstances (although not present there), a no-voluntary payments provision would be deemed to not preclude coverage. For example, an insurer that has denied a tendered defense is not protected by the provision as to future costs incurred by the defense. In such a case, the "insured that has been abandoned by its carrier and left exposed to the possibility of a default judgment may protect its own interests by entering into a reasonable settlement without losing its right to recover on the policy. [Citations.] The no-voluntary-payments provision is superceded by an insurer's antecedent breach of its coverage obligation. And the burden of proof shifts to the insurer to show that settlement was not reasonable or was the product of fraud or collusion. [Citation.]" (Id. at pp. 347-348, 91 Cal.Rptr.2d 514.)
Here, respondent did not abandon appellant. On the contrary, without legitimate reason, appellant did not tender the claim to respondent until after all expenses had been incurred. Thus, there was no antecedent breach as in Jamestown. Under the circumstances here, the no-voluntary-payments provision precludes appellant from recovering his pre-tender expenses.
3. The "as soon as practicable" Provision did not Require Respondent to Establish Prejudice From Appellant's Pre-Tender Voluntary Payments
Also without merit is appellant's contention that respondent was required to establish it was prejudiced by appellant's failure to tender the claim to respondent "as soon as practicable" as required by the policy.
The rule appellant asserts is the "notice-prejudice" rule applicable to notice and cooperation conditions of insurance policies. (Scottsdale Ins. Co. v. Essex Ins. Co. (2002) 98 Cal.App.4th 86, 97, 119 Cal. Rptr.2d 62.) It is not generally applicable outside that context. (Ibid.) Specifically, in the context of a no-voluntary-payments provision, it is "not part of the equation in evaluating denial of pre-tender costs. [Citation.]" *145 (Tradewinds, supra, 97 Cal. App.4th at p. 711, 118 Cal.Rptr.2d 561; Truck, supra, 79 Cal.App.4th at p. 977, 94 Cal.Rptr.2d 516 [prejudice requirement applies only where insurer uses belated notice to defend against payment of losses and costs incurred after notice]; Jamestown, supra, 77 Cal.App.4th at pp. 349-350, 91 Cal.Rptr.2d 514 [same]; Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th 501, 566, 15 Cal.Rptr.2d 726 [same]; see also Croskey & Kaufman, California Practice Guide (2001 ed.) Insurance Litigation, 3:170.7; 6 Witkin, Summary of Cal. Law (2002 supp.) Torts, § 1139B, p. 404.)
Campbell v. Allstate Ins. Co. (1963) 60 Cal.2d 303, 32 Cal.Rptr. 827, 384 P.2d 155, does not compel a contrary result. In that case, the trial court denied recovery to a third party based on the insured's breach of a policy provision requiring him to cooperate with the insurer in effecting settlement of claims or defending against suits. Our Supreme Court reversed, holding that breach of a cooperation clause in an insurance contract is only a valid defense where it is shown that the insurer was substantially prejudiced by the breach. (Id. at p. 305, 32 Cal.Rptr. 827, 384 P.2d 155.) Campbell is distinguishable both in that it involved a cooperation clause, which is subject to the prejudice rule, and in that the insurer was attempting to use the insured's noncooperation to escape all liability under the policy. (See Faust v. The Travelers (1995) 55 F.3d 471; Etchell, supra, 165 F.R.D. at p. 548.) Here, by contrast, respondent is using the no-voluntary-payments provision only to justify its contention that it is not liable for pretender expenses; something it has every right to do under Gribaldo, supra, 3 Cal.3d 434, 91 Cal.Rptr. 6, 476 P.2d 406, and its progeny.
Finally, appellant's reliance on Shell Oil Co. v. National Union Fire Ins. Co. (1996) 44 Cal.App.4th 1633, 52 Cal.Rptr.2d 580 (Shell Oil), is also unavailing. Although discussed in its opening brief in terms of respondent's obligation to show prejudice, Shell Oil was not decided on that ground. There, the trial court awarded the insured their defense costs for a four-month period prior to tender. The insureds argued they were "`compelled' . . . to respond to legal process and to protect their legal interests," before contacting the carrier. (Id. at p. 1648, 52 Cal.Rptr.2d 580.) The Court of Appeal affirmed. Shell Oil is not a prejudice case at all; rather, it is an affirmation that certain claimed "voluntary" payments may be in fact involuntary. (Ibid.; see also Jamestown, supra, 77 Cal. App.4th at p. 350, 91 Cal.Rptr.2d 514.) The Court of Appeal essentially concluded substantial evidence supported the finding of involuntariness during the four-month period before the insured found its policy and tendered the defense. (See also Fiorito v. Superior Court (1990) 226 Cal. App.3d 433, 438-439, 277 Cal.Rptr. 27 [whether a payment was voluntary created a triable issue of fact defeating summary judgments].) Unlike Fiorito and Shell Oil, which both involved four-month delays, appellant waited three years before tendering the defense, under circumstances the trial court described as "mysterious." Sufficient evidence supported the trial court's finding that the insured's pre-tender payments were voluntary and that the belated tender was a ruse to exact defense costs on an uncovered claim.[3]
*146 DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: COOPER, P.J., and ROLAND, J.
NOTES
[1] Alta was disapproved on another point in Waller v. Truck Insurance Exchange, Inc. (1995) 11 Cal.4th 1, 34, 44 Cal.Rptr.2d 370, 900 P.2d 619.
[2] See, e.g., Elliano v. Assurance Co. of America (1970) 3 Cal.App.3d 446, 448-449, 83 Cal.Rptr. 509 [insurer waived requirement of formal proof of loss where insurer accepted insured's estimate and itemization of losses; entered into settlement negotiations with insured; and never denied insured suffered a covered loss or requested submission of formal proof of loss]; Estrada v. Indemnity Ins. Co. (1958) 158 Cal.App.2d 129, 322 P.2d 294 [insurer waived failure to deliver copy of summons and complaint where to do so would be idle act and insurer not prejudiced: insurer had full knowledge of facts and circumstances and denied liability on sole ground occurrence not covered by policy]; Comunale v. Traders & General Ins. Co. (1953) 116 Cal. App.2d 198, 202-203, 253 P.2d 495 [insurer waived insured's failure to submit written notice of accident]; Enfantino v. United States Fire Ins. Co. (1931) 116 Cal.App. 729, 731-732, 3 P.2d 331 [insurer waived failure to submit proof of loss where, within time for presenting such proof, insurer denied liability and refused to pay loss on unrelated grounds]; Francis v. Iowa Nat. Fire Ins. Co. (1931) 112 Cal.App. 565, 575, 297 P. 122 [insurer waived insured's failure to file proof of loss by dispatching adjuster immediately after the fire, adjuster obtained full report and told insured nothing more was needed].
[3] Equally unhelpful are Aerojet-General Corp. v. Transport Indem. Co. (1997) 17 Cal.4th 38, 64, 70 Cal.Rptr.2d 118, 948 P.2d 909, Jamestown, supra, 77 Cal.App.4th 341, 91 Cal. Rptr.2d 514, and other cases cited by appellant that hold that the insured's antecedent breach of the policy bars reliance on the no voluntary-payments provision. Here, there was no breach. The insurer was not even aware of the claim until after the defense payments were made, it could, thus, not have committed any antecedent breach.
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364 F.Supp. 24 (1973)
Elizabeth W. COOK, Plaintiff,
v.
Milton O. CARLSON, Defendant.
Civ. 73-4042.
United States District Court, D. South Dakota, S. D.
August 2, 1973.
Timothy J. Nimick, Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., appeared in behalf of plaintiff.
R. G. May, May, Johnson & Burke, Sioux Falls, S. D., appeared in behalf of defendant.
MEMORANDUM DECISION
NICHOL, Chief Judge.
This case centers upon the constitutionality of South Dakota's mechanics' and materialmen's lien statutes, S.D. Comp.L.Ann. 44-9 et seq. (1967). For reasons stated hereafter, I conclude that those statutes are constitutional.
The controversy necessitating resolution of this important and complex issue is rather simple. The plaintiff, Elizabeth W. Cook, is the owner of certain commercial rental property in Sioux Falls, South Dakota, a portion of which property she leases to Management Diversified Services of North Dakota, Inc. (M.D.S.). M.D.S. contracted with the defendant, Milton O. Carlson, for the improvement of that portion of the *25 premises leased by M.D.S. Plaintiff contends that this contract violates the lease in that her prior written consent was not obtained. It is the contention of the defendant that plaintiff's husband acted as her agent in this matter and that he had authorized the improvements. On April 20, 1973, presumably upon failure of payment, defendant filed a mechanics' and materialmen's lien against the entire premises.
Under the South Dakota statutory scheme, whoever, at the instance of a property owner or his authorized representative, furnishes labor or materials for the alteration or repair of any building shall have a first lien upon the property, cutting off all subsequent purchasers and encumbrancers. S.D.Comp.L. Ann. 44-9-1 (1967). The lien attaches, without the necessity of filing, from the time the first item of material or labor is furnished upon the premises for the beginning of the improvement. S.D. Comp.L.Ann. 44-9-7 (1967). As against a bona fide purchaser, mortgagee or encumbrancer without notice, the lien does not attach prior to the actual and visible beginning of the improvement upon the premises, unless the lienholder files notice of the lien with the county register of deeds, which provides constructive notice to subsequent purchasers and encumbrancers. S.D.Comp. L.Ann. 44-9-8 (1967). The lien terminates unless a statement of the claim is filed with the register of deeds of the county in which the property is situated within 120 days of the completion of the improvements. S.D.Comp.L.Ann. 44-9-15 (1967). The lien also terminates unless an action to enforce is commenced within six years of the completion of the improvement. S.D.Comp.L.Ann. 44-9-24 (1967). The owner may make written demand upon the lienholder at any time, and if the lienholder does not commence a suit to enforce the lien within 30 days, the lien is forfeited. S.D.Comp.L.Ann. 44-9-26 (1967).
The plaintiff challenges this statutorily prescribed procedure on the ground that it affords no notice or opportunity to be heard prior to the attachment of the lien and thereby deprives the plaintiff of her property without due process of law. She prays that the lien be declared void, that the defendant be permanently enjoined from attempting to enforce it, and that the statutory scheme under which it attached be declared unconstitutional. 28 U.S.C. Sec. 1343 provides plaintiff's jurisdictional base, and 42 U.S.C. Sec. 1983 provides her basis in substantive law.
It is a fundamental principle that the ". . . procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Thus, whether or not a prior hearing is required in a given situation is dependent upon a judicial weighing of the seriousness of the deprivation against the importance of the governmental or public interest served by summary procedure. Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). In certain areas, the existence and severity of the deprivation are not questioned. Where an individual is threatened with the deprivation of his liberty, there is no question that an effective prior hearing is required. Argersinger v. Hamlin, 407 U. S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Where an individual is threatened with the deprivation of title to or possession of property, there is no question. Chicago, Burlington and Quincy R.R. Co. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L.Ed. 979 (1897). Where an individual is completely deprived of the use and enjoyment of that property, there is no question. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). The Supreme *26 Court has recently held that an individual is entitled to a prior hearing when threated with the loss of a statutory entitlement such as welfare benefits or a driver's license. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). At the frontier are courts which hold that a customer is entitled to a hearing before a utility company can terminate service, Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972), and that a husband is entitled to a hearing before the issuance of a restraining order keeping him away from his home pending divorce proceedings. Geisinger v. Voss, 352 F.Supp. 104 (E.D. Wis. 1972).
The most recent objects of this weighing process have been summary creditors' remedies. With its decisions in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the Supreme Court of the United States has inspired a massive judicial assault on summary creditors' remedies. Among the casualties have been landlords' lien remedies, Hall v. Garson, 468 F.2d 845 (5th Cir. 1972); MacQueen v. Lambert, 348 F.Supp. 1334 (M.D. Fla. 1972); Gross v. Fox, 349 F.Supp. 1164 (E.D. Pa. 1972), creditors' self-help repossession remedies, Adams v. Egley, 338 F. Supp. 614 (S.D. Cal. 1972), garagemen's lien remedies, Straley v. Gassaway Motor Co., Inc., 359 F.Supp. 902 (U.S.D.C. S.W.Va.1973), Mason v. Garris, 360 F. Supp. 420 (U.S.D.C. N.Ga. 1973), pre-judgment real property attachment remedies, Lake Arrowhead Estates, Inc. v. Cumming, 360 F.Supp. 1085 (U.S.D.C. Me. 1973), Idaho First National Bank v. Rogers, 41 U.S.L.W. 2492 (Idaho Dist. Ct., First Jud.Dist., Feb. 21, 1973), and remedies available to municipal and privately-owned utility companies by which they can terminate service without prior hearing, Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir. 1972); Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972). Rationale once deemed sufficient to justify these summary remedies have fallen to the superior interest of the individual in a fair and timely process of decisionmaking when the possession of his property is threatened.
But because some rationale have fallen before certain interests does not mean that other rationale must fall before other interests. This court is presented with a challenge to a previously unscathed creditors' remedy the mechanics' and materialmen's lien. The test against which the validity of the lien must be measured, and possibly the most concise statement of the weighing process referred to above, is set forth in Boddie v. Connecticut, 401 U.S. 371, 378-379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971):
What the Constitution does require is "an opportunity * * * granted at a meaningful time and in a meaningful manner," "for [a] hearing appropriate to the nature of the case". The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. That the hearing required by due process is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event. In short, "within the limits of practicability," a State must afford to all individuals a meaningful opportunity to be heard if it is to fulfill the promise of the Due Process Clause. (citations omitted) (emphasis added).
Whether the mechanics' and materialmen's lien withstands constitutional attack, then, is dependent upon two considerations: (1) whether the deprivation can be classified as "insignificant" or *27 "de minimis"[1]; and, (2) whether the lien constitutes that "extraordinary situtation . . . that justifies postponing the hearing until after the event."
In the view of this court, the deprivation which results from the filing of a mechanics' lien is de minimis. The creditors' remedies thus far invalidated have completely, though temporarily, deprived the owner of the use of his property. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed.2d 349 (1969) (garnishment "freezes" wages and prevents their use by debtor); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (writ of replevin authorizes sheriff to seize the property, depriving debtor of possession and use); Hall v. Garson, 468 F.2d 845 (5th Cir. 1972) (landlords' lien allows landlord to seize tenants' personal property as security for rent payments); Adams v. Egley, 338 F.Supp. 614 (S.D. Cal. 1972)(self-help repossession remedies authorize creditor to peaceably seize collateral upon default in payments); Straley v. Gassaway Motor Co., Inc., 359 F.Supp. 902 (U.S.D.C.S.W. Va. 1973) (garagemen's lien remedies allow repairmen to retain possession of an automobile pending payment or posting of bond by owner); Lake Arrowhead Estates, Inc. v. Cumming, 360 F. Supp. 1085 (U.S.D.C. Me. 1973) (pre-judgment real property attachment remedies place the real estate "in custodia legis", in the custody of the court, preventing the transfer or encumbrance of the land). The mechanics' and materialmen's lien, however, neither deprives the owner of the possession nor of the use of his property. Although the use of the property might be said to be curtailed, in that selling the property, borrowing on the property, or renting the property may be more difficult or less profitable, the owner is not legally prevented from selling, encumbering, renting or otherwise dealing with his property as he chooses. Although the value of the property may be diminished due to the existence of the lien, two factors tend to mitigate that harm: (1) while the value of the property may be diminished by the amount of the lien, the improvements, at least theoretically, have increased the value of the property by the amount of the lien, thereby minimizing harm to the owner; and, (2) the owner can force an expeditious adjudication on the merits, without cost to him, by demanding that the lien be foreclosed, whereupon the lienholder must commence foreclosure proceedings within 30 days or forfeit the lien. S.D.Comp.L. Ann. 44-9-26 (1967).
The primary purpose of the mechanics' and materialmen's lien, of course, is to provide construction contractors with security. A secondary purpose, however, is to give notice to subsequent purchasers and encumbrancers that there is a charge on the property and that they will take subject to that charge. In that regard, it is similar to the lis pendens notice. In fact, the statute authorizing lis pendens notice refers to the notice of a mechanic's lien as a substitute for lis pendens notice in the applicable situation. S.D.Comp.L.Ann. 15-10-1 (1967). It is the purpose of lis pendens notice to inform purchasers and encumbrancers that there is pending litigation and that they take the property subject to the result of that litigation. Although the notice incidentally hampers use, it in no way prevents sale, encumbrance or lease of the property. Lis pendens notice exists, at least in part, as a matter of public policy in that it prevents multiplicity of litigation. The requiring of a hearing prior to the filing *28 of lis pendens notice would destroy its effectiveness, since it would result in an interim period during which bona fide purchasers and encumbrancers could tie into the property, complicating the process of litigation and disappointing the expectations of the litigants. All of the above could also be said of the mechanics' and materialmen's lien. It is not meant to deprive the owner of possession, but to give interim protection to laborers and materialmen by giving notice of a charge on the property.
The only case I could find which treats the constitutionality of the summary imposition of a lien is Sager v. Burgess, 350 F.Supp. 1310 (E.D. Pa. 1972). A municipal ordinance authorized the summary imposition of a real estate lien upon the owner's failure to pay an assessment for abutting street improvement. Faced with the due process question, a three-judge District Court upheld the ordinance on two grounds:
We do not construe the procedures adopted by the defendants in causing a lien to be impressed upon abutting properties to be so fundamentally unfair as to constitute a denial of due process. We do not think that the failure to provide a hearing prior to the imposition of the lien violates the due process tenets of the Constitution. Id. at 1313.
. . . . . .
In sustaining the constitutional validity of the Municipal Claims Act, this Court also determined that a compelling state interest prevails over that of the individual property owner. Id. at 1313-1314.
. . . . . .
If challenges to assessments could be routinely and sporadically made by every affected person it would obviously erode the underpinning of every municipal budget and financial program. Id. at 1314.
The three-judge District Court thus implicitly concluded that the deprivation arising from the imposition of a lien is not such as to invoke the protection of the due process clause.
I conclude, also, especially in light of the insignificant nature of the deprivation, that the situation giving rise to the mechanics' and materialmen's lien is an "extraordinary situation" justifying the attachment of the lien as soon as the first materials or labor are furnished. I think this is a case "requiring special protection to a . . . creditor interest", and where the statute is "narrowly drawn to meet . . . such unusual condition." Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 1821, 23 L.Ed.2d 349 (1969). I think this is a case where "prompt action" is "directly necessary to secure an important government or general public interest." Fuentes v. Shevin, 407 U.S. 67, 91, 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972). The Court, in Fuentes, outlined these extraordinary situations. In the case of outright seizure of property or discharge from employment, the situation must be "truly unusual." The Court, in Boddie, 401 U.S. at 379 n. 6, 91 S.Ct. 780, refers to the following cases as presenting such unusual situations: Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (government interest in maintaining direct and immediate control over military reservations for national security reasons justifies summary dismissal of on-base civilian employee); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (public interest requires summary takeover of a bank in danger of failing); Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944) (economic necessities of wartime require the imposition of rent controls without prior hearing); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (economic necessities of wartime require the imposition of price controls without prior hearing). In the case of attachment, where use of the property is completely curtailed but the owner remains in possession, the *29 Court, in Fuentes, 407 U.S. at 91 n. 23, 92 S.Ct. 1983, referred to the case of Ownbey v. Morgan, 256 U.S. 94, 41 S. Ct. 433, 65 L.Ed. 837 (1920). That case held that an attachment of real property served a most basic and important public interest by securing jurisdiction in a state court. In the case of a mechanics' and materialmen's lien, where use of the property is only incidentally and partially hampered, it is the view of this Court that there exists a basic and important public interest in the summary imposition of the lien. The mechanics' and materialmen's lien originated in the necessity of protecting the construction industry and those in its employ. Labor and materials contractors are in a particularly vulnerable position. Their credit risks are not as diffused as those of other creditors. They extend a bigger block of credit, they have more riding on one transaction, and they have more people vitally dependent upon eventual payment. They have much more to lose in the event of default. There must be some procedure for the interim protection of contractors in this situation. A contractor must have some protection against subsequent bona fide purchasers between the time he completes the work and the time he gets a judgment. Considering their vulnerability, and especially considering their importance to the stability of the American economy, I think there exists sufficient justification for the South Dakota statutory scheme which creates a lien as a matter of law as soon as labor and materials are furnished.
I think it is also evident that the statutes are "narrowly drawn to meet the unusual condition." The lien arises as a matter of law only when labor or materials are furnished to the construction scene. The lien is valid against bona fide purchasers only when improvements are visually evident or when the contractor files a notice of the construction contract with the register of deeds. The extent of the lien is only to the value of the labor or materials thus furnished. A property owner can force an adjudication on the merits within 30 days from the time he makes his demand that the lien be foreclosed. It seems that these narrowly drawn statutory provisions are sufficient to protect the property owner from "substantively unfair or mistaken deprivations of property. . . ." Fuentes, supra, 407 U. S. at 81, 92 S.Ct. at 1994.
For the foregoing reasons, I conclude that the South Dakota statutory scheme for the imposition of mechanics' and materialmen's liens exhibits no constitutional infirmity. The plaintiff's complaint is hereby dismissed.
NOTES
[1] That the threatened deprivation must be of a significant property interest before a prior hearing is mandated was also stated by Justice Harlan, concurring in Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969): "The `property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit. Since this deprivation cannot be characterized as de minimis, she must be accorded the usual requisites of procedural due process: notice and prior hearing."
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211 Ga. App. 619 (1993)
440 S.E.2d 218
CENTRAL OF GEORGIA RAILWAY COMPANY
v.
BUTTS.
A93A2244.
Court of Appeals of Georgia.
Decided December 9, 1993.
Reconsideration Dismissed January 4, 1994.
Miller, Simpson & Tatum, William E. Dillard III, for appellant.
Taylor & Harp, J. Anderson Harp, Jefferson C. Callier, Beckmann & Pinson, Walter W. Ballew III, for appellee.
BLACKBURN, Judge.
Appellee Robert Butts brought the underlying civil action against his employer, appellant Central of Georgia Railway Company (Central), to recover for injuries arising from a herniated disc which Butts alleges he sustained on two occasions as he attempted to open a window on a locomotive while working for Central. Butts' action was predicated on the Federal Employers' Liability Act (FELA), 45 USC § 51 et seq.; the Boiler Inspection Act, 45 USC § 23; and two regulations promulgated thereunder, 49 CFR §§ 229.23 (a) and 229.119 (d). The jury returned a verdict in favor of Butts for $759,555. Central appeals the jury award asserting five enumerations of error.
1. In its first enumeration of error, Central contends that the trial court erred in permitting Butts to introduce evidence which constituted evidence of "other transactions." Specifically, two of Butts' co-workers were allowed to testify as to Central's general maintenance policies and conditions of the windows on GP-30 locomotives (the model involved in the subject incident), that they were generally difficult to open, and that sometimes it was necessary to beat them with a hammer or to push them open with one's leg. Both co-workers were allowed to testify that the railroad, in their opinion, generally performed inadequate maintenance on its locomotive engines and finally one co-worker was allowed to testify that he occasionally had engines returned from the mechanical department with conditions unrepaired. Butts maintained that the evidence was admissible because maintenance was similar on all locomotives and the records detailing the maintenance and repair of the GP-30 locomotive engine on which Butts was injured had been destroyed by Central. Furthermore, the actual GP-30 locomotive had been sold for scrap and was unavailable for inspection.
"Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Evidence of other transactions or occurrences is admissible if it is relevant to the particular instance and does not place too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise." (Citations and punctuation omitted.) Ramey v. Leisure, Ltd., 205 Ga. App. 128, 132 (421 SE2d 555) (1992). The trial court did not abuse its discretion by allowing the testimony. Furthermore, Central waived any error by not objecting to the same testimony that was introduced through other witnesses. The second witness to testify, Central's engine terminal foreman, testified that he was aware that Central had problems with defective windows on locomotives, particularly the GP-30 series and similar models. This testimony came in without objection well *620 before Central's counsel raised his objection to this line of inquiry with later witnesses. Therefore, Central waived its objection to this testimony. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (199 SE2d 881) (1973).
2. In its second enumeration of error, Central asserts that the trial court erred in denying its motion for directed verdict as to the applicability of 49 CFR § 229.119 (d). In relevant part, this federal regulation provides "[t]he cab shall be provided with proper ventilation..." At trial, Butts contended that by operating a locomotive engine with a window which was difficult to open Central failed to provide a cab with proper ventilation. At the conclusion of the trial, Central moved for a directed verdict on this issue arguing that any violation of the regulation was not causally related to the injury sustained by Butts.
Central cites to Mosco v. Baltimore &c. R., 817 F2d 1088 (4th Cir. 1987), to support its argument that the ventilation regulation does not apply to the present case. However, the analysis in Mosco actually supports the application of federal regulations in determining violations of the Boiler Inspection Act. 817 F2d at 1090. The plaintiff in Mosco complained that his employer should have provided screens for the locomotive windows so that the rock which caused his injury would have been prevented from entering the cab through the window. The court determined that the Boiler Inspection Act "imposes on carriers only the duty to maintain the parts and appurtenances of their locomotives in safe and proper condition and the term `parts and appurtenances' does not include every item of equipment that conceivably could be installed on a locomotive." 817 F2d at 1091. Federal regulation requires proper ventilation; however, proper ventilation does not require a screen over the window. Id.
"A plaintiff need not establish that the defect [the malfunctioning window] in this case was the sole cause of injury. [Cits.] . . . [Cit.] Where there has been a failure of a required appliance, there is liability only where the failure of the appliance not only creates a condition under which, or an incidental situation in which the employee is injured, but where the defective appliance is itself an efficient cause of or the instrumentality through which the injury is directly brought about. [Cits.]" (Punctuation omitted.) Green v. River Terminal R. Co., 763 F2d 805, 810 (6th Cir. 1985). The only sources of proper ventilation on the locomotive were the windows. It follows that malfunctioning windows may not provide proper ventilation. Further, Butts was injured as he attempted to open the window to achieve proper ventilation on a hot August day in Savannah, Georgia. The trial court did not err in denying Central's motion for directed verdict.
3. Central asserts that the trial court erred in permitting Butts' *621 economist to state a legal opinion of the proper method of calculating future wage losses. Dr. Coston was allowed to testify that he was familiar with a case decided by the U. S. Supreme Court and a case decided by the Eleventh Circuit Court of Appeals and that the method of calculation which he used was approved in those cases. Central's counsel objected to the witness citing and misstating the law. The court overruled this objection. Contrary to Central's contentions, the jury was made aware that the method Dr. Coston used to calculate present value was one of the methods that had been approved in the cases. Therefore, Central's assertion that there was an inference that there was only one acceptable method is erroneous. Additionally, Central was not deprived of the right to cross-examine the witness with regard to other approved methods of present value calculations. Furthermore, there was no objection to the substance or conclusions of Dr. Coston's testimony regarding Butts' future wage loss.
4. In its fourth enumeration of error, Central asserts that the trial court erred in applying Georgia law to prohibit it from eliciting testimony regarding alternative methods of discounting future wage losses to present value. Central argues that substantive law issues of damages are governed by federal law in a FELA case.
On direct examination, Dr. Coston testified that Butts' future wage loss, reduced to present value, had an economic value of $1,419,344.25. On cross-examination, Dr. Coston agreed that he would consider a United States Government 30-year treasury bond to be a safe investment. The court prohibited Central's counsel from eliciting testimony from Dr. Coston concerning the interest income Butts would derive from investing the lump sum figure ($1,419,344.25). This court has specifically addressed and excluded this type of testimony in a FELA case. See CSX Transp. v. Levant, 200 Ga. App. 856 (410 SE2d 299) (1991), rev'd on other grounds, 262 Ga. 313 (417 SE2d 320) (1992) (rationale of Gusky v. Candler Gen. Hosp., 192 Ga. App. 521 (3) (385 SE2d 698) (1989), applied to FELA case). Furthermore, the trial court did not restrict Central's right to cross-examine Dr. Coston regarding alternative methods of calculating the discount rate. What Central attempted to do was elicit testimony showing how much money someone could earn by taking an award of damages and investing it. This type of testimony is prohibited. Id.
5. Central contends that the trial court erred in denying its motion for mistrial based upon Butts' circumvention of the trial court's orders prohibiting testimony concerning Butts' allegations of misconduct by Central's investigators, testimony concerning the financial difficulties of other members of his family, and testimony that Central had paid the medical expenses he had incurred in the treatment of his injuries.
*622 (a) Butts' counsel asked Butts if Central had paid some of his medical bills, to which Butts responded, "yes." However, a mistrial was not warranted as the trial court gave the jury curative instructions in which it informed the jury that the payment of any medical expenses was made without regard to liability and that the jury was not to conclude, because these expenses were paid, that the railroad admitted any liability. After the curative instruction, Central did not renew its motion for a mistrial or object to the instruction given. Therefore, Central's enumeration is without merit. Kendrick v. Kendrick, 218 Ga. 460 (4) (128 SE2d 496) (1962); Seaboard System R. v. Taylor, 176 Ga. App. 847 (5) (338 SE2d 23) (1985).
(b) Butts testified that he had been forced to file bankruptcy, that his wife had been forced to take another job, and that his family "really just missed out on everything." The trial court instructed the jury that the financial circumstances of any party were not at issue and that the jury should dismiss it from their minds. Again, Central neither renewed its motion for mistrial nor objected to the curative instructions given by the trial court. Therefore, this assertion of error is also without merit. Id.
(c) Central objects to Butts' response to a question concerning the surveillance conducted by Central. Butts responded, "Oh. Yes, sir. The stories I could tell, but I guess the one that " at this point, Central moved for a mistrial. This testimony is the sum total of what the jury heard regarding Central's surveillance of Butts. The question posed was proper as a surveillance tape was to be later introduced by Central and Butts did not mention any specific fact covered in Central's motion in limine. The trial court correctly determined that Butts had not transgressed its earlier order and that no harm had been done.
Judgment affirmed. McMurray, P. J., and Johnson, J., concur.
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687 A.2d 461 (1997)
Anthony MANZI et al.
v.
STATE of Rhode Island et al.
No. 95-544-C.A.
Supreme Court of Rhode Island.
January 13, 1997.
Robert J. Cosentino, Providence.
Rebecca Tedford Partington, James Lee, Providence.
ORDER
This matter came before a panel of the Supreme Court for oral argument on December 17, 1996, pursuant to an order that directed the plaintiffs to show cause why the issues raised by their appeal should not be summarily decided. The plaintiffs, Anthony Manzi, Paula Manzi, and their sons, Michael Manzi and Anthony Manzi, Jr., appealed from a judgment entered for the defendants, the State of Rhode Island, Department of Children, Youth and Families (DCYF) and James P. O'Donnell, after a Superior Court trial judge granted the defendants' motion to dismiss the plaintiffs' civil action.
After hearing the oral arguments and reviewing the memoranda submitted by the parties, we are of the opinion that cause has not been shown, and therefore the case will be decided at this time.
On March 24, 1995, plaintiffs filed a claim against defendants in Superior Court alleging negligent infliction of emotional distress, breach of a duty of confidentiality, invasion of privacy and breach of a contractual duty of good faith and dealings. The claim arose out of Anthony Manzi's employment as a juvenile program worker at the Rhode Island Training School for Boys. The plaintiffs contended that James O'Donnell, acting superintendent at the training school, told Craig Price, an inmate, that Manzi was cooperating with the Attorney General in an investigation of Price. Manzi alleged that defendants were negligent in disclosing the information and that, as a result, Price made threatening statements to him and phone calls to his home, thereby causing plaintiffs to suffer emotional and physical distress.
On July 18, 1995, the trial justice heard arguments on defendants' motion to dismiss, and granted the motion. On July 27, 1995, plaintiffs appealed.
The defendants contended that plaintiffs' claims were barred because Anthony Manzi had previously settled a workers' compensation claim for $4,000 pursuant to G.L.1956 (1986 Reenactment) § 28-33-25.1 for the same injuries set forth in his civil complaint. The defendants further contended that Manzi had released all claims under the Rhode *462 Island Workers' Compensation Act pursuant to an executed release and that Manzi's claims were barred under G.L.1956 (1986 Reenactment) § 28-29-20. Finally, defendants argued that Manzi's wife's and children's claims were derivative claims that would fail if Manzi's claims failed and that defendants owed no duty to the wife and children.
The plaintiffs argued that pursuant to § 28-29-20, a party is completely barred from filing a civil action only if he was successful in a workers' compensation claim and that because Manzi's workers' compensation claim was denied and dismissed, and because under § 28-33-25.1 settlements are deemed "compromise payments of a disputed claim" and not payment of workers' compensation benefits, Manzi could proceed with his civil action. The plaintiffs further contended that at the time Manzi executed the release, counsel for the state, Samuel DiSano, stated that acceptance of the $4,000 settlement "in no way barred" plaintiff from filing a civil action against the state and that therefore the state was estopped from invoking § 28-29-29.
Because plaintiffs submitted an affidavit of DiSano, a matter outside the pleadings, defendants' motion to dismiss was treated as a motion for summary judgment under Super.R.Civ.P. 56(b). It is well settled that when a trial justice rules on a motion for summary judgment, the only question before him or her is whether there is a genuine issue of material fact that must be resolved. Golderese v. Suburban Land Co., 590 A.2d 395, 396 (R.I.1991). In the event the trial court's review reveals no issues of material fact and the moving party is entitled to judgment as a matter of law, this Court will uphold the trial justice's order granting summary judgment. Banks v. Bowen's Landing Corp., 522 A.2d 1222, 1224 (R.I.1987).
In affirming the trial justice's decision, we note that the clear and unambiguous language of § 28-33-25.1 mandates that "the employer and insurer shall be entitled to a duly executed release which fully and finally absolves and discharges the employer and insurer from any and all liability arising out of the claimed injury." We hold, therefore, that Manzi discharged defendants from any liability when he signed the release pursuant to § 28-33-25.1.
Moreover, the exclusivity clause of the Workers' Compensation Act bars plaintiffs from bringing this action. Section 28-29-20 provides that the right to compensation for an injury under title 28 chapters 29-38, and the remedy received pursuant to those chapters, "shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer." Our holding in Cianci v. Nationwide Ins. Co., 659 A.2d 662 (1995) established that the exclusivity clause of the Workers' Compensation Act bars a plaintiff from filing a second cause of action on the basis of a different legal theory in circumstances in which a plaintiff seeks recovery for the same injuries on which his or her workers' compensation claim was based.
Because Manzi's claim has failed, the derivative claims of Manzi's wife and children must also fail.
Consequently, the plaintiffs' appeal is denied and dismissed, and the papers may be returned to the Superior Court.
FLANDERS, J., did not participate.
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455 Pa. Superior Ct. 267 (1996)
687 A.2d 1163
COMMONWEALTH of Pennsylvania
v.
Harry Burton BARNES, Jr., Appellant.
Superior Court of Pennsylvania.
Argued November 12, 1996.
Filed December 17, 1996.
*269 Matthew T. Mangino, New Castle, for appellant.
J. Craig Cox, Assistant District Attorney, New Castle, for Commonwealth, appellee.
Before HUDOCK, FORD ELLIOTT and HESTER, JJ.
HESTER, Judge.
Harry Burton Barnes, Jr., appeals from the April 3, 1996 order denying his motion for post-sentence relief. We affirm.
On June 3, 1994, a jury convicted appellant of first degree murder, burglary, and arson. The portion of appellant's trial wherein the evidence was introduced is not transcribed. However, the affidavit of probable cause for appellant's arrest warrant indicates the following. On August 29, 1990, Lelitia A. Reynolds was found dead in her residence in Hickory Township, Lawrence County. A neighbor discovered the body at 9:00 p.m., and the victim's home had been set on fire. She died of strangulation and smoke inhalation. Her right hand was bound with a wire which also was wrapped around her throat. An investigation revealed that a petroleum-based accelerant had been used to set the fire, and it was discovered throughout the home as well as on the victim's body. Ms. Reynolds was alive when the fire was started. When firemen came to extinguish the fire, the front door had been kicked open.
Mrs. Reynolds' children determined that her purse, car keys, and check book had been stolen. Appellant was interviewed by police and admitted being in the home but said that he came upon the house after it was on fire, went inside to look for people, and left when he could not find anyone. Boot prints consistent with shoes appellant was wearing at the time of the interview were discovered in Mrs. Reynolds' home. At the time of the incident, appellant was on parole, and he had committed nine other burglaries.
In this case, the Commonwealth sought the death penalty. Accordingly, after the jury returned its verdict of guilty as to first degree murder, the death penalty phase of the trial was *270 set to occur on June 4, 1994. Fearful that the Commonwealth would be successful in obtaining the death penalty, appellant elected to forego his rights to file any motions for post-trial relief, including his right to file post-sentencing motions, appeal to any higher courts, and to seek federal habeas corpus relief. In return, the Commonwealth agreed not to seek the death penalty.
A colloquy was held June 4, 1994, wherein these decisions were discussed, and appellant was sentenced. The transcript of that hearing indicates the following. Appellant's counsel said that after negotiations with the prosecution, the defense and the Commonwealth arrived at an agreement. The agreement was, "In exchange for the Commonwealth not seeking the death penalty in this case and this Court sentencing my client to life imprisonment on the charge of first degree murder and as well as the Court sentencing my client at the Court's discretion [on the remaining charges] . . . my client will waive . . . any rights that he may have to file post-trial motions, including the right to raise any pre-trial error or post-verdict error." Notes of Testimony ("N.T.") 6/4/94, at 2.
Appellant also agreed to relinquish "the right to file any further appeal to the Superior or Supreme Courts of the Commonwealth of Pennsylvania [and] he will waive any right he may have to file for habeas corpus relief in the federal courts. . . ." Id. at 2-3. Counsel then stated that he wanted to ask appellant some questions about his understanding of this agreement and "to determine that it is being voluntarily entered into by him." Id. at 3. A colloquy ensued.
Appellant indicated that he can read, write, and understand English and that he understood the proceedings. He said that he had not consumed any alcohol or drugs, legal or illegal, which would have interfered with his ability to understand the proceedings. Appellant next indicated that he understood that the jury had convicted him of one count of first degree murder, two counts of arson, and one count of burglary, and that the proceedings were at the point where the death penalty phase could be entered.
*271 Appellant said that before the death penalty proceedings started, appellant and defense counsel discussed the possibility of entering into an agreement wherein the Commonwealth would agree to a penalty of life imprisonment instead of death in exchange for which appellant would waive his appellate rights. The following exchange then occurred on the record between defense counsel and appellant:
Q And you understand that that proposal will be in exchange for their agreeing that the judge sentence you to life in prison on the charge of first degree murder, that you're going to give up your right to file post-trial motions in this matter?
A Yes.
Q Do you understand that?
A Yes.
Q And by post-trial motions, do you understand that I am including your right to challenge pre-trial error, trial error, and post-verdict error?
A Yes.
Q You also understand that in exchange for what the Commonwealth is agreeable to, you will give up any right to file any appeal to the Superior or the Supreme Court of Pennsylvania?
A Yes.
Q Do you understand also, Harry, that you will be giving up your right to file a federal habeas corpus petition challenging your convictions on the charges of first degree murder, burglary or arson or any of the pre-trial or post-verdict complaints that you might have? Do you understand that?
A Yes.
Q Now, the Court, Harry, is going to sentence you the agreement is that the sentence will be life imprisonment on first degree, it will be up to the judge as to the sentences on burglary and one count of arson. Do you understand that?
A Yes.
*272 Q Have I explained to you, Harry, that the maximum penalty for burglary is 10 to 20 years and up to a $25,000 fine?
A Yes.
Q And have I explained to you that the maximum penalty for arson is 10 to 20 years and up to a $25,000 fine?
A Yes.
Q Now, Harry, you also understand, or do you understand that as a result of your conviction, that you will no doubt face some sort of action by the board of the Pennsylvania Board of Probation and Parole regarding your existing parole status?
A Yes.
Q That that may order an additional period of incarceration as a result of those convictions?
A Yes.
Q Harry, are you satisfied with my representation of you in this matter?
A Yes.
Q Have I been your lawyer since nearly the inception of these charges against you?
A Yes.
Q And you are satisfied with what I've done for you in this matter to date?
A Yes.
Q Do you understand the agreement that I have asked you about and have put on the record?
A Yes.
Q Do you agree to it, Harry?
A Yes.
Q Do you understand the agreement?
A Yes.
Q Are you voluntarily agreeing to it?
A Yes.
*273 Q Has anybody made any threats to you to make you enter into this agreement?
A No.
Q Has anybody coerced you in any way?
A No.
Q Have any promises been made to you other than those promises set forth in the agreement, particularly that the Commonwealth will agree to a penalty of life imprisonment and not the death penalty?
A No.
Q Are you answers today truthful?
A Yes.
. . . .
Q Do you understand that you're bound by your answers today because you have indicated that they're truthful and you can't later say that you didn't mean your answers and that they weren't the truth?
A Yes.
Id. at 6-9. The prosecutor explained appellant's federal habeas corpus rights and appellant indicated that he understood that he was relinquishing those rights. Next, defense counsel indicated that appellant suffers from diabetes and asked appellant, "Is there anything in your health condition today that interferes with your ability to understand what's taking place today?" Id. at 12. Appellant responded, "No." Id.
Appellant's general educational background was explored as well as his mental health. Appellant indicated that he suffers from migraine headaches and said that he had one at the proceeding. The following colloquy then ensued:
Q Have you had any migraine headaches since this trial began?
A I have one right now, sir.
Q You have one now?
A But it's not affecting anything, I understand perfectly.
Q Is there much pain associated with your migraine?
A Quite a bit, but I can continue with no problem.
*274 Q Are you hearing and understanding what's going on?
A Yes, sir.
Id. at 16. Appellant then indicated that he had refused to eat lunch but that did not affect his ability to think or understand.
Then, appellant's appellate rights were explained as well as the Commonwealth's proof required in order to successfully seek the death penalty. Id. at 17-19. Appellant also was informed that he was losing his right to complain of any error which had occurred in the proceedings by entering the agreement. The trial court then asked appellant, "Is this what you want to do?" Id. at 24. Appellant responded that he did not want to die. Appellant was sentenced to life imprisonment with a consecutive sentence of fifteen to thirty years imprisonment.
After sentence was imposed, the court explained that appellant had ten days to file post-sentencing motions and thirty days after those motions were denied to file an appeal. The court also indicated that those rights had been waived by the agreement.
Appellant nonetheless filed post-trial motions which were untimely by one day. When those motions were denied due to untimeliness, appellant appealed, and we reversed. On April 6, 1995, a hearing was held. Post-trial motions then were denied based on the trial court's conclusion that appellant knowingly and voluntarily waived his post-sentencing and appellate rights. This appeal followed.
Appellant presents two challenges to the denial of his post-trial motions. He contends that the agreement was invalid under the reasoning of Commonwealth v. Falcone, 440 Pa. 61, 269 A.2d 669 (1970), and Commonwealth v. Floyd, 451 Pa. 366, 304 A.2d 131 (1973). In Falcone, the defendant knew of his right to appeal a first degree murder conviction but did not do so out of fear that he might receive a sentence of death if a new trial were awarded, and his trial counsel indicated that he did not believe that a death penalty was a reasonable possibility in that case. Under those circumstances, the Supreme Court concluded that the defendant had not voluntarily, knowingly, *275 and understandingly relinquished his appellate rights. In Floyd, the defendant's counsel informed him that he might receive the death penalty if he appealed.
The case at issue cannot be compared to either Falcone or Floyd, Herein, appellant was about to enter the death penalty phase of his trial. Both he and counsel discussed the matter and concluded that there was a possibility that he might receive the death penalty. The Commonwealth agreed not to seek death in exchange for appellant's relinquishment of post-trial review rights. An extensive colloquy ensued. Appellant indicated that it was his decision, after full disclosure of what rights he was relinquishing, to enter the agreement.
In this case, appellant entered the functional equivalent of a plea of guilt. A plea of guilt that is motivated by a fear that the prosecution may obtain the death penalty is valid as long as the guilty plea is entered knowingly and voluntarily. Commonwealth v. Bhillips, 475 Pa. 427, 380 A.2d 1210 (1977). A well-reasoned decision to plead guilty in order to avoid the death penalty does not render the plea invalid. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978).
In this case, it is clear that the decision was well-reasoned. Appellant just had been convicted of strangling and setting an elderly woman on fire in the course of a burglary. He faced the death penalty and had a past history of nine burglaries and three other misdemeanors. Counsel and appellant agreed that he faced the possibility of receiving the death penalty. An agreement was reached with the Commonwealth. We also note that the Commonwealth initially refused the agreement. Our review of the colloquy indicates that the agreement was reached by appellant in a knowingly, voluntary, and intelligent manner. Hence, it is valid.
Appellant also suggests that his health, specifically the migraine headache and diabetes, rendered the June 4, 1994 agreement invalid. Again, we turn to applicable case law in the guilty plea area. In that area, a defendant is bound by the statements which he makes during his plea colloquy. Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813 *276 (1985)(en banc). A defendant may not assert grounds for withdrawing the plea that contradict statements made when he pled guilty. Id. Herein, appellant stated clearly that neither his diabetes nor his migraine headache affected his ability to understand the proceedings. Counsel informed appellant that he was bound by those statements, as well he is under applicable law. Therefore, the agreement to relinquish post-trial review rights is not invalid based on the fact that appellant had diabetes and had a migraine headache at the time it was entered.
Order affirmed.
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687 A.2d 465 (1996)
Roger COBURN
v.
FRANK DODGE & SONS and Travelers Insurance Co.
No. 95-475.
Supreme Court of Vermont.
August 30, 1996.
Matter for Reargument Denied October 31, 1996.
*466 Rodney F. Vieux, Johnson, for plaintiff-appellant.
Andrew C. Boxer of Kiel & Associates, Springfield, for defendants-appellees.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
ALLEN, Chief Justice.
This is a workers' compensation case in which Roger Coburn (claimant) appeals a decision of the Commissioner of the Department of Labor and Industry awarding him permanent disability compensation, medical benefits, and partial attorney's fees. Claimant argues that the Commissioner erred in limiting his recovery and seeks additional compensation, benefits, and fees. We affirm.
On January 24, 1988, claimant suffered a work-related injury while employed by defendant Frank Dodge & Sons, a construction company. He experienced recurring lower-back, neck, and shoulder-blade pain, which he treated with an over-the-counter pain medication. On April 13, 1989, claimant suffered another work-related injury. As a result of this second injury, he complained of increased neck and upper- and lower-back pain.
Claimant sought medical treatment on a number of occasions to alleviate his neck and back pain. On March 1, 1990, his treating physician, Dr. Binter, performed a bilateral L3-4 laminectomy and discectomy, which alleviated his lower-back pain. On December 31, 1990, Dr. Binter performed a foraminotomy, which relieved some of his neck and upper-back pain. Dr. Binter noted that, although claimant recovered well from this surgery, he continued to experience some mid-scapular pain. She therefore recommended physical therapy.
On July 13, 1992, Dr. Binter placed claimant at "medical end result" regarding both his neck and lower-back surgeries. Medical end result is "the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment." Vt. Labor and Indus. Dep't Reg., Vt. Workers' Comp. and Occupational Disease Rules, Rule 2(h), 3 Code of Vt. Rules XXXXXXXX-X (1995). Dr. Binter concluded that claimant had thirty-one percent permanent partial impairment to the cervical and lumbar spine. Two other physicians also examined him to determine whether he had reached medical end result. Dr. Phillips opined that claimant had reached medical end result with respect to his lower-back injury in October 1991. Dr. Ford examined claimant on October 7, 1992, for defendant Traveler's Insurance Company and concluded that he had reached medical end result for both his neck and lower-back surgeries. Dr. Ford concluded that claimant had a twenty-nine percent permanent partial impairment to the spine.
In August 1992, claimant sought chiropractic treatment from Dr. Vartanian for his remaining upper-back pain. Dr. Vartanian treated him on a regular basis from August 1992 until March 1993. Claimant testified that this treatment relieved his symptoms to the extent that it improved his ability to walk, enabled him to work part time, and enabled him to perform simple household chores. His sleep patterns also improved, and he decreased his use of pain medication. Because claimant's condition improved while under his care, Dr. Vartanian disagreed with the earlier diagnoses of medical end result.
*467 Claimant began working part time at an automotive supply store in September 1992. He testified that his pain increased while working for this employer because the job required him to spend long hours on his feet and to stock merchandise. He also testified that he experienced difficulty dealing with customers and working on the computer. His weekly work hours varied, but he generally worked thirty hours per week, earning six dollars an hour.
In June 1993, claimant left the automotive supply store and accepted employment as a truck driver with a crane service company. This employer demanded longer hours and frequent overtime. The increased physical demands aggravated claimant's back pain, and he resumed taking pain medication. In the fall of 1993, he left the crane service company because he could not withstand the job's physical demands. He entered a physical therapy program at Copley Hospital in November 1993 and was discharged on January 5, 1994.
Claimant sought workers' compensation for the injuries he received while employed by Frank Dodge & Sons. In February 1992, the Commissioner ordered Traveler's Insurance Company to pay the amount necessary to allow claimant to continue treatment with Dr. Binter. Claimant later filed a claim with the Commissioner to recover additional temporary disability compensation and medical benefits for the Copley Hospital physical therapy program and Dr. Vartanian's care. The Commissioner concluded that Dr. Binter's opinion regarding medical end result was entitled to the greatest weight because she was claimant's primary treating physician. Having found that medical end result occurred July 9, 1992, the Commissioner concluded that claimant was not entitled to temporary disability benefits beyond that date. The Commissioner further concluded that Dr. Vartanian's care was reasonable, necessary, and compensable, but somewhat excessive. The Commissioner awarded $1629 in medical benefits for treatment rendered by Dr. Vartanian through January 4, 1993, the date by which claimant had reached a steady weekly work schedule at the automotive supply store. The Commissioner also awarded $194.05 in costs and $542.95 in attorney's fees. The Commissioner did not award medical benefits for the Copley Hospital physical therapy program.
Claimant argues that the Commissioner's award is inadequate in light of her findings. He maintains that he is entitled to: (1) temporary disability compensation beyond July 9, 1992, the date found by the Commissioner to be medical end result, (2) medical benefits for the Copley Hospital physical therapy program and all of Dr. Vartanian's care, and (3) full costs and attorney's fees.
I.
Claimant argues that he is entitled to temporary disability benefits beyond July 9, 1992. He contends that the Commissioner's finding of medical end result on July 9, 1992, is erroneous because her findings are inconsistent. Specifically, he contends that medical end result is a conclusion of law and that this conclusion is erroneous where the Commissioner finds that a patient later experienced substantial improvement in his condition. We disagree.
Under Vermont workers' compensation law, a claimant is entitled to temporary disability compensation until reaching medical end result or successfully returning to work. See Orvis v. Hutchins, 123 Vt. 18, 24, 179 A.2d 470, 474 (1962) (temporary disability ends when maximum earning power has been restored or recovery process has ended). The determination of medical end result is a question of fact for the Commissioner. See Ortiz v. Industrial Comm'n of Utah, 766 P.2d 1092, 1095 (Utah App.1989); see also Merrill v. University of Vt., 133 Vt. 101, 106, 329 A.2d 635, 638 (1974) ("`duration of the disability is one of fact to be determined by the commission'") (quoting Employers' Liab. Assur. Corp. v. Industrial Accident Comm'n, 42 Cal.App.2d 669, 109 P.2d 716, 718 (1941)). When reviewing the Commissioner's factual findings, we test the sufficiency of the findings from a point of view favorable to the award, Moody v. Humphrey & Harding, Inc., 127 Vt. 52, 54, 238 A.2d 646, 647-48 (1968), and we will overrule only where those findings have no evidentiary support in the record or where the decision is *468 based on "evidence so slight as to be an irrational basis for the result reached." Kenney v. Rockingham Sch. Dist., 123 Vt. 344, 348, 190 A.2d 702, 705 (1963).
Claimant argues that the Commissioner erred by assigning greatest weight to Dr. Binter's opinion. He contends that the Commissioner should have assigned Dr. Vartanian's opinion the greater weight because Dr. Vartanian examined claimant later in time and had more information on which to base a diagnosis of medical end result. Dr. Binter, however, was claimant's treating physician for three years. During that time she performed two surgeries and recommended that he receive physical therapy. She noted claimant's improvement after each surgical procedure. Dr. Binter's opinion therefore is not so slight as to be an irrational basis for the Commissioner's finding. Moreover, the weight of the evidence is not reviewable by this Court on appeal. Jewell v. Olson Constr. Co., 122 Vt. 434, 436, 175 A.2d 509, 511 (1961); see also 21 V.S.A. § 672 (jurisdiction of Supreme Court limited to review of questions of law).
Claimant further argues that the Commissioner's finding of medical end result is inconsistent with her finding that he later improved while under Dr. Vartanian's care. The fact that Dr. Vartanian's care later improved claimant's symptoms is not inconsistent with finding medical end result earlier in time. The proper test to determine medical end result is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement. Vt. Labor and Indus. Dep't Reg., Vt. Workers' Comp. and Occupational Disease Rules, Rule 2(h), 3 Code of Vt. Rules XXXXXXXX-X (1995). The fact that some treatment, such as physical or drug therapy, continues to be necessary does not preclude a finding of medical end result if the underlying condition causing the disability has become stable and if further treatment will not improve that condition. 1C A. Larson, Workmen's Compensation Law § 57.12(c), at 10-40 to 10-46 (1996); see also Janis v. Industrial Comm'n, 27 Ariz.App. 263, 265, 553 P.2d 1248, 1250 (1976) (claimant's condition is stationary where underlying condition causing pain is stable, although pain may not be stable); O'Banner v. Westinghouse Elec. Corp., 319 S.C. 24, 459 S.E.2d 324, 327 (S.C.Ct.App.1995) (finding that employee continued to take pain medication not inconsistent with finding of medical end result where underlying condition was stable and would show no further improvement).
II.
Claimant next argues that he is entitled to medical benefits for the Copley Hospital physical therapy program and all of Dr. Vartanian's care pursuant to 21 V.S.A. § 640. He contends that he is entitled to be reimbursed for all of his medical treatment because the Commissioner found that treatment reasonable and necessary. Again, we disagree.
"The award of the [C]ommissioner is equivalent to the judgment of a trial court and doubtful findings must be construed to support it if this may reasonably be done." Goodwin v. Fairbanks Morse & Co., 123 Vt. 161, 166, 184 A.2d 220, 223 (1962). Dr. Vartanian treated claimant with scheduled care from August 1992 until March 1993. The Commissioner found that this treatment relieved claimant's symptoms to the extent that he was able to perform simple household chores such as washing dishes without holding onto the sink. Further, his sleep patterns improved, and his use of pain medication decreased. The record also established that by January 4, 1993, claimant had returned to work nearly full time at the automotive supply store, averaging thirty hours per week. His job involved stocking merchandise and required that he remain on his feet for long periods of time. The Commissioner could reasonably infer that, because claimant was able to perform stock work, remain on his feet for extended periods of time, and work nearly full time, Dr. Vartanian's care after that date was excessive.
Additionally, claimant attended the Copley Hospital physical therapy program from November 1993 to January 1994. The Commissioner found that this treatment "significantly improved [claimant's] condition." *469 The record also established, however, that claimant entered physical therapy to treat pain induced by the increased physical demands of his job at the crane service company. From this evidence, the Commissioner could have reasonably concluded that the need for physical therapy did not arise from the injuries sustained by claimant while employed by defendant Frank Dodge & Sons and that the therapy therefore was not compensable. See Quinn v. Pate, 124 Vt. 121, 126, 197 A.2d 795, 798 (1964) (employer need not compensate employee who received injuries outside occupation engaged in for employer). Consequently, claimant is not entitled to additional medical benefits.
III.
Claimant argues that the Commissioner erred by awarding him only a portion of his attorney's fees. The Commissioner may award a claimant reasonable attorney's fees if the claimant prevails. 21 V.S.A. § 678(a). This fee may be calculated as a percentage of the award as long as the fee does not exceed twenty percent of the medical compensation awarded. Vt. Labor and Indus. Dep't Reg., Vt. Workers' Comp. and Occupational Disease Rules, Rule 10(a)(2), 3 Code of Vt. Rules XXXXXXXX-X (1995). The Commissioner awarded claimant attorney's fees equal to one-third of the medical compensation awarded. Although this amount is greater than twenty percent of the medical compensation, we affirm because claimant has not suffered any prejudice and defendant has not cross-appealed on the issue.
Claimant also has filed a motion requesting reimbursement for attorney's fees and costs incurred in this appeal. In a workers' compensation appeal to the Supreme Court, a claimant is entitled to reasonable attorney's fees if he prevails. 21 V.S.A. § 678(b). Claimant has not prevailed in this appeal, and his motion therefore is denied.
Affirmed.
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127 Cal.Rptr.2d 912 (2002)
104 Cal.App.4th 327
Ruby YAO, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent, Brian Lovell, Real Party in Interest.
No. B157220.
Court of Appeal, Second District, Division Four.
December 13, 2002.
Jon H. Freis, for Petitioner.
No appearance for Respondent.
Mancini & Associates, Marcus A. Mancini and Christopher Barnes, Encino, for Real Party in Interest.
CHARLES S. VOGEL, P.J.
INTRODUCTION
"Code of Civil Procedure section 1030 provides that upon a defendant's motion, *913 the trial court is required to order an out-of-state plaintiff to file an undertaking to secure recoverable costs and attorney's fees if the defendant shows a reasonable possibility that it will obtain judgment in the action." (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430, 110 Cal.Rptr.2d 72.) If the undertaking is not posted, the action "shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made." (§ 1030, subd. (d).)[1] This mandate proceeding raises a question of first impression. Can section 1030 be applied to require an out-of-state defendant who has filed a cross-complaint against a California resident to post an undertaking in order to continue prosecution of the cross-complaint? We conclude it does not so apply.
FACTUAL AND PROCEDURAL BACKGROUND
Brian Lovell sued Ruby Yao on a variety of causes of action. The operative facts involve an agreement between the two to form a production company and develop a film project and the breach(es) of that agreement.
Yao filed a cross-complaint against Lovell. The cross-complaint included six causes of action arising out of the same factual matrix alleged in Lovell's complaint.
Citing section 1030, Lovell filed a motion for an order requiring Yao to post security in order to continue to prosecute her cross-complaint. Lovell offered evidence Yao was not a California resident but instead a citizen of Hong Kong residing in Canada.
Yao's opposition to the motion for security did not contest that she was not a California resident. Instead, she contended section 1030's requirement of posting a bond did not embrace a "cross-complainant" but instead applied only to a "plaintiff."
The trial court rejected Yao's analysis. At the hearing on the motion, the court stated: "[I]t's just so basic.... When you've got a complaint and a cross-complaint, each one is a separate lawsuit. So when cross-actions are filed, they constitute two simultaneous, separate actions between the same parties, wherein each party is, at the same time, both a plaintiff and a defendant. It goes back a long time. So that was an easy one." The court granted Lovell's motion for security and required Yao to post $10,000 security within 20 days of its order (Mar. 14, 2002).
Yao filed a petition for a writ of mandate to overturn the trial court's order. We stayed the trial court's order requiring Yao to post security and later, after receiving preliminary opposition to Yao's petition and copies of the court's minute order and the reporter's transcript of the hearing held on the motion, issued an alternative writ of mandate.[2] Lovell *914 has since filed an "opposition" to Yao's petition. We now grant the requested relief.
DISCUSSION
Section 1030, subdivision (a) provides, in pertinent part: "When the plaintiff in an action ... resides out of the state, ... the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action ...." Subdivision (b) explains the "motion shall be made on the grounds that the plaintiff resides out of the state ... and that there is a reasonable possibility that the moving defendant will obtain judgment in the action...."
The purpose of the statute is to enable a California resident sued by an out-of-state resident "`to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court's jurisdiction.'" (Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 913, 210 Cal.Rptr. 861, quoting from Recommendations Relating to Security for Costs (Oct. 1970) 14 Cal. Law Revision Com. Rep. (1978) p. 323.) The statute therefore acts to prevent out-of-state residents from filing frivolous lawsuits against California residents. (See also Gonzales v. Fox (1977) 137 Cal.Rptr. 312, 68 Cal. App.3d Supp 16, 18.)[3] The statute violates neither federal nor state due process guarantees because the "statutory hearing procedure is the one usually prescribed for pretrial motions, that is, the opportunity to present declarations and other documentary evidence, the opportunity for both counsel to be present, and the opportunity to be heard." (Shannon, supra, 164 Cal. App.3d at p. 913, 210 Cal.Rptr. 861.)
The only issue in this writ proceeding is whether section 1030 applies to a nonresident cross-complainant. In other words, if a California resident (e.g., Lovell) sues an out-of-state defendant (e.g., Yao) and the defendant responds, in part, by filing a cross-complaint against the plaintiff, can the plaintiff move the court to require the defendant/cross-complainant to post security in order to prosecute the cross-complaint? We conclude the answer is "no" for two reasons. The first is that section 1030 unambiguously refers only to a "plaintiff; when the Legislature intends for a specific statutory provision to apply to both a plaintiff and cross-complainant, it expressly indicates that intent. The second is that to construe the statute to include an out-of-state cross-complainant would not promote the policy served by the statute. We explain.
To begin, it is highly significant that section 1030 refers only to an out-of-state *915 plaintiff but makes no similar reference to an out-of-state cross-complainant. This is in marked contrast to many other statutes that reference both a plaintiff and a cross-complainant. Such a dual reference clearly demonstrates a legislative intent to have the specific statutory provision apply both to a plaintiff and a cross-complainant. (See, e.g., § 386, subd. (c) ["plaintiff or cross-complainant" deposit in court amount subject to interpleader action] § 389, subd. (b) [trial court should consider "whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder"] § 403.020, subd. (a) [stating who pays the additional fee "[i]f a plaintiff, cross-complainant, or petitioner files an amended complaint or other amended initial pleading that changes the jurisdictional classification from limited to unlimited"] § 411.35, subd. (a) [requirement that "the attorney for the plaintiff or cross-complainant" shall file the required certificate in designated professional malpractice actions] § 430.10 [a demurrer or answer may be filed by "[t]he party against whom a complaint or cross-complaint has been filed"] and § 1031, subd. (c) ["in any judgment recovered by the plaintiff or cross-complainant" for wages for labor performed, attorney fees can be recovered as costs if certain conditions met].) Section 1030, on the other hand, contains no similar reference to a cross-complainant.
In another group of statutes, there is an express statement that a plaintiff includes a cross-complainant and a complaint includes a cross-complaint. That is, in certain situations when the Legislature intends for a particular statutory provision to apply to both plaintiffs and cross-complainants, it explicitly indicates the words are being used interchangeably. (See, e.g., § 425.16, subd. (h) [SLAPP statute] § 426.10, subds. (a) & (b) [compulsory cross-complaints] § 481.180 [attachment actions] § 1032 [in defining a "prevailing party," "plaintiff" includes a cross-complainant].) Such a direction is lacking in section 1030. Nothing in the statute states that a plaintiff includes a cross-complainant.
In sum, the Legislature clearly knows how to indicate when it wants a statutory provision to apply to both a plaintiff and a cross-complainant. It also clearly knows how to indicate that a reference to "plaintiff" must be construed as including a cross-complainant. The Legislature chose not to adopt either option in this case. We therefore decline plaintiffs invitation to rewrite section 1030 to provide that "plaintiff includes cross-complainant.[4] "Where the Legislature makes express statutory distinctions, we must presume it did so deliberately, giving effect to the distinctions, unless the whole scheme reveals the distinction is unintended. This concept merely restates another statutory construction canon: we presume the Legislature intended everything in a statutory scheme, and we should not read statutes to omit expressed language or include omitted language. As our Supreme Court stated, `we are aware of no authority that supports the notion of legislation by accident.' [Citation.]" (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 894, 113 Cal.Rptr.2d 483, italics added.)
Lovell's argument to the contrary is not persuasive. He argues: "Section 1030 *916 does not directly equate the term `plaintiff with `cross-complainant' because this is a foregone conclusion that has been previously litigated and rests in common sense." The cases he cites are inapposite because none involved an interpretation of section 1030. (See, e.g., Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 65 Cal.Rptr. 65, 435 P.2d 825 [interpreting former § 117j, which denied the right of appeal to a small claims court plaintiff, not to bar an appeal by a plaintiff from an adverse decision on a cross-complaint filed against it in small claims court because in that context the plaintiff has become a defendant]; McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1218, 73 Cal.Rptr.2d 288 [citing the statutory definition of "plaintiff in the vexatious litigant statute]; Ohio Casualty Ins. Group v. Superior Court (1994) 30 Cal.App.4th 444, 448-51, 35 Cal. Rptr.2d 771 [interpreting the word "plaintiff in section 394, a change of venue statute, in light of judicial interpretations of a related venue statute]; Eveleth v. American Brass & Iron Foundry (1962) 203 Cal.App.2d 41, 46-47, 21 Cal.Rptr. 95 [interpreting "plaintiff and "defendant" in section 396, a change of venue statute, to include cross-complainants and cross-defendants].) Because a "case is not authority for an issue not raised by its facts" (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1230, 254 Cal.Rptr. 410), these authorities simply do not support Lovell's argument.
Lastly, Lovell's reliance upon "common sense" to support his argument fails. Common sense, in fact, supports the contrary conclusion. The purpose of section 1030 is to protect California residents who are sued by out-of-state plaintiffs when there is no reasonable possibility the out-of-state plaintiff will prevail. The section protects California residents by requiring the out-of-state plaintiff to post security to ensure payment of costs and attorney fees (if recoverable) in the likely event the plaintiffs action is defeated. (Shannon v. Sims Service Center, Inc., supra, 164 Cal.App.3d 907, 913, 210 Cal.Rptr. 861.) This purpose is attenuated when, as here, a California resident has initiated a lawsuit against an out-of-state defendant and that defendant has responded, in part, by filing a cross-complaint. In that circumstance, requiring the posting of security by an out-of-state defendant does not further the statute's salutary goal.
DISPOSITION
The alternative writ, having served its purpose, is discharged. Let a peremptory writ of mandate issue compelling respondent court to set aside its March 14, 2002 order granting real party in interest Brian Lovell's motion to require petitioner Ruby Yao to post security in order to prosecute her cross-complaint and to enter a new and different order denying that motion. Our April 2, 2002 order staying enforcement of the March 14, 2002 order is to remain in effect until the remittitur issues. Petitioner Yao is to recover her costs in this writ proceeding. (Rule 56.4, subd. (a), Cal. Rules of Court.)
We concur: HASTINGS and CURRY, JJ.
NOTES
[1] All statutory references are to the Code of Civil Procedure.
[2] Lovell's contention the remedy at law is adequate is meritless. For one thing, subdivision (g) of section 1030 provides: "An order granting or denying a motion for an undertaking under this section is not appealable." The Law Revision Commission Comment explains this provision "codifies existing law. See Horton v. City of Beverly Hills, 261 Cal. App.2d 306, 67 Cal.Rptr. 759, ... (1968). An order granting or denying a motion for an undertaking may sometimes be reviewed by extraordinary writ. See Beaudreau v. Superior Court, 14 Cal.3d 448, 121 Cal.Rptr. 585, 535 P.2d 713, ... (1975). A judgment of dismissal following the plaintiff's failure to furnish required security is appealable as a final judgment. Efron v. Kalmanovitz, 185 Cal.App.2d 149, 156-57, 8 Cal.Rptr. 107, ... (1960)." (Cal. Law Revision Com. com, 18A West's Ann.Code Civ.Proc. (2002 Supp.) foll. § 1030, p. 63.)
For another thing, Lovell's claim that Yao has the option of refusing to post the undertaking and then appealing from the trial court's dismissal of her cross-complaint is not persuasive. The complaint and cross-complaint arise out of the same transaction(s). Judicial economy suggests the two pleadings should be litigated together. This is particularly true if Yao is correct that her cross-complaint is compulsory so that if she failed to file it, she would be barred from subsequently pursuing its claims. (See § 426.30.)
In any event, our issuance of the alternative writ constitutes a determination the remedy at law is inadequate. (See, e.g., Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 644, 88 Cal.Rptr.2d 197 and cases cited therein.)
[3] Gonzales, supra, found an earlier version of section 1030 to be unconstitutional because it failed to "provide a meaningful pretaking hearing" allowing inquiry into all the pertinent issues. (Gonzales v. Fox, supra, 68 Cal. App.3d Supp. at Supp. 18, 137 Cal.Rptr. 312.) Thereafter, the Legislature enacted what is essentially the present version of section 1030. Nonetheless, the Gonzales's court observations about statutory intent remain apposite.
[4] Because we conclude the statute does not include a cross-complainant within its reach, we need not address Yao's contention that a contrary construction would be unconstitutional. "Constitutional issues will be resolved only it absolutely necessary and not if the case can be decided on any other ground. [Citation.]" (Community Redevelopment Agency v. Force Electronics (1997) 55 Cal.App.4th 622, 630, 64 Cal.Rptr.2d 209.)
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687 A.2d 581 (1996)
Calvin A. SMITH, Appellant,
v.
UNITED STATES, Appellee.
No. 95-CO-1721.
District of Columbia Court of Appeals.
Argued November 25, 1996.
Decided December 30, 1996.
*582 Mark J. Rochon, Washington, DC, for appellant.
Catherine F. Sheehan, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.
Before FERREN, FARRELL, and REID, Associate Judges.
FERREN, Associate Judge:
Calvin A. Smith appeals from the trial court's decision to reimpose his original sentence after the court had granted Smith's motion to reduce it; he claims this change of mind violated the Double Jeopardy Clause of the Fifth Amendment. The government responds that the trial court's decision to grant the motion to reduce was based on an erroneous belief that the motion was unopposed, and that the trial court, for that reason, could properly vacate the reduced sentence and reinstate the original one after hearing the government's position. We conclude that the trial court unlawfully increased the defendant's sentence after an expectation of finality had attached to the reduced sentence. We therefore reverse.
I.
Smith pleaded guilty to one count of assault with a dangerous weapon (ADW), D.C.Code § 22-502 (1996 Repl.), and one count of carrying a pistol without a license (CPWL), id. § 22-3204(a). The trial court sentenced him to three to nine years in prison on the CPWL charge, to run consecutively to a 40-to-120 month prison term the court imposed on the ADW count. On April 19, 1995, Smith timely moved for a reduction of sentence pursuant to Super. Ct.Crim. R. 35(b).[1] Smith supplemented his motion on May 23, and the trial court granted it as unopposed on June 5, 1995, reducing Smith's sentence on the CPWL count to one to three years. On June 6 and 7, the government filed, respectively, its opposition and a motion to reconsider the order reducing Smith's sentence. Together, these filings asserted both that Smith's motion was untimely[2] and that the Assistant United States Attorney handling the case had telephoned the judge's chambers, before he had signed the order reducing Smith's sentence, to inform the judge of the government's intention to file an opposition to Smith's plea for leniency and to explain the reason for the delay in filing the opposition. On June 7, 1995, the court vacated its prior order reducing Smith's sentence. The court later denied Smith's motion, allowing the original sentence to stand unaltered.
II.
Smith contends on appeal that the trial court's order denying his motion to reduce sentence effectively increased his sentence, *583 in violation of the Double Jeopardy Clause.[3] The courts of this jurisdiction have long recognized a general rule premised on double jeopardy concerns that, once a defendant begins serving a sentence, the sentence may not lawfully be increased. See Lindsay v. United States, 520 A.2d 1059, 1062 (D.C.1987); United States v. Robinson, 388 A.2d 469, 471 (D.C.1978); Tatum v. United States, 114 U.S.App. D.C. 49, 50, 310 F.2d 854, 855 (1962). This rule, however, is not absolute. The trial court has authority to modify an illegal sentence to bring it into conformity with the law, even if the defendant receives a stiffer sentence as a result. See Gray v. United States, 585 A.2d 164, 166 (D.C.1991) (citing Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947)); Super. Ct.Crim. R. 35(a) ("The Court may correct an illegal sentence at any time. . . ."). A court also may resentence a defendant to an increased term when a defendant wins a new trial on appeal and is convicted again after the remand. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This case presents still another scenario.
A.
We have never had occasion to delineate precisely the extent to which the Double Jeopardy Clause prohibits an increase in the defendant's sentence. Nonetheless, both the government and Smith agree that the answer turns on whether a defendant has a legitimate expectation of finality in the sentence. While our cases do not reflect these exact words, they are consistent with the concern those words reflect. We agree that under the Supreme Court's double jeopardy jurisprudence, this expectation of finality is the dispositive consideration.
In United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court held that a statute permitting the government to appeal from a sentence imposed under certain dangerous special offender provisions of federal law did not violate the Double Jeopardy Clause. The Court rejected dicta from earlier cases such as Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), and United States v. Benz 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), which had suggested a per se rule against increasing a sentence. DiFrancesco, 449 U.S. at 139, 101 S.Ct. at 438-39. The Court concluded that under the circumstances of that particular case, where the governing statute specifically provided for the government's right of appeal, "there can be no expectation of finality in the original sentence." Id. The Court's repeated emphasis on the fact that the defendant had no such legitimate expectation of finality in his sentence, see id. at 136-39, 101 S.Ct. at 437-39, at least implicitly stands for the proposition that the Double Jeopardy Clause may bar resentencing where the defendant's expectation of finality is not undermined by a statutory scheme allowing a government appeal. Indeed, in Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985) (per curiam), the Court reinforced that implication in DiFrancesco as follows:
In DiFrancesco, a federal statute clearly allowed appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco.
Goldhammer, 474 U.S. at 30-31, 106 S.Ct. at 354 (citations omitted).
Most federal courts of appeals "have interpreted DiFrancesco as holding that the double jeopardy clause protects a defendant's legitimate expectation of finality in the length of his [or her] sentence." United States v. Fogel, 264 U.S.App. D.C. 292, 301 n. 10, 829 *584 F.2d 77, 86 n. 10 (1987) (collecting cases). This approach also accords with our own double jeopardy case law, which never has suggested that DiFrancesco invalidates any of our prior rulings. See, e.g., Lindsay, 520 A.2d at 1062 (reaffirming general principle that Double Jeopardy Clause bars increase of sentence after defendant has begun serving it).
B.
With this background, we turn to a more detailed examination of our own decisions to determine whether, in the present case, Smith had a protectable expectation of finality in his sentence once the court granted his motion to reduce it.
In Robinson, we found a violation of the Double Jeopardy Clause where, after sentencing, the defendant moved for two sentences to run concurrently (instead of consecutively, as provided in the original sentence); the sentencing judge signed and dated an order granting that motion; and, a week later, the same judge signed another order denying the motion. See Robinson, 388 A.2d at 470. The first order was not entered on the court jacket or communicated to the parties. See id. Nonetheless, we concluded that the very signing of the second order unlawfully increased a sentence which the defendant had already begun to serve. Because the trial judge hearing the motion to correct sentence, pursuant to D.C.Code § 23-110, found that the first order, to run the sentences concurrently, had been entered intentionally, not inadvertently, we agreed that the sentencing judge could not later change his mind and restore the original sentence. See id. at 471-72.
In contrast, in Lindsay, the defendant had been placed on one year's probation under the Federal Youth Corrections Act. See Lindsay, 520 A.2d at 1060. After Lindsay was arrested for another crime, the trial court ordered him to show cause why his probation should not be revoked. See id. In the meantime, Lindsay had been committed to the custody of the Attorney General for a study to evaluate whether he would benefit from treatment. See id. at 1061. While Lindsay was still in custody, the trial court received an erroneous report indicating that Lindsay had successfully completed his probation. See id. In response to this report, the court discharged Lindsay from probation, which had the effect of automatically setting aside the underlying conviction. See id. When the court discovered its mistake approximately one week later, it vacated the prior order. See id. We affirmed the trial court's ruling, concluding that Robinson was inapplicable because the order discharging Lindsay from probation had been "erroneous both in fact and in law." Id. at 1063.[4] The sentencing judge not only had been mistaken in fact about the reported completion of probation but also had ruled unlawfully because Lindsay, at the time, was in custody for evaluation and subject to "an outstanding order to show cause why the probation, far from being discharged, should not be revoked for the subsequent arrest and conviction." Id. at 1062-63. The order, for double jeopardy purposes, was "analogous to an illegal sentence" which could lawfully be corrected because the erroneous order had "created no vested rights protected by the double jeopardy clause." Id. at 1063 (citing Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818 (1947)).
Similarly, in Newton v. United States, 613 A.2d 332 (D.C.1992), we upheld the trial court's decision to reverse an earlier decision granting the defendant's new trial motion under D.C.Code § 23-110 (1996 Repl.) based on ineffective assistance of counsel. 613 A.2d at 333. Under the law governing post-conviction proceedings, the court must notify the government if the motion cannot be resolved conclusively against the prisoner based on the record. See id. (citing D.C.Code § 23-110(c)). Thus, the government had no obligation to file a response to the prisoner's motion until notified by the court that a response and a hearing were necessary. The trial court, mistakenly believing that it had notified the government and that the government *585 had declined to file a response, granted the motion as conceded. See id. When the government filed a motion to vacate the order granting a new trial asserting that the court had failed to notify the government to allow it an opportunity to respond the court, recognizing the mistake, granted the government's motion. See id. Newton maintained that the trial court had no jurisdiction, let alone authority, to vacate its prior order. We disagreed, noting that the court had had a statutory obligation to serve notice on the government, and that the court, therefore, sought only to correct its own procedural mistake of law, not merely of fact. See id. at 334-35 (citing Lindsay). Declining to adopt the government's suggestion that Super. Ct. Civ. R. 60(b) should apply in collateral attack proceedings,[5] we held that the court's "`inherent power to correct its record so as to reflect the truth and insure that justice be served'" permitted the court to rectify its own mistake. Newton, 613 A.2d at 334 (quoting Rich v. United States, 357 A.2d 421, 423 (D.C.1976)). We rejected the idea that a "wrong move by the judge means immunity for the prisoner" and noted the strong efficiency justification for allowing the trial court to correct errors that would otherwise burden the appellate courts. Id. at 335 (internal quotation marks omitted) (citing Bozza, 330 U.S. at 166-67, 67 S.Ct. at 648-49).
III.
In the present case, Smith contends that Robinson dictates reversal of the orders vacating the reduced sentence and, ultimately, denying Smith's motion for reduction of sentence. He argues that, because the court had entered a valid not a legally flawed order reducing his sentence, the court's eventual reinstatement of the original sentence amounted to an increased sentence, contrary to his right to expect finality of the reduced sentence. The government replies that, because the court's original order granting Smith's motion to reduce sentence had been premised on a factual error that the motion was unopposed the court could correct its mistake without infringing Smith's double jeopardy rights. According to the government, Lindsay and Newton together stand for the proposition that, when an order affecting a sentence is based upon a mistake of fact, the Double Jeopardy Clause does not prevent the court from correcting its order to reflect the true state of events.
When the court ruled, the government had filed no opposition to Smith's motion or even a formal request for extension of time to file an opposition. But even if the government may have notified the judge's chambers by telephone of its intention to oppose the motion, that act had no legal significance. Resolution of this case does not turn on whether the government informed the court that it was preparing its opposition, or even on what the court was thinking when it characterized the motion as unopposed. The government cites no rule, and we are aware of none, authorizing a trial court to change a sentence based on factual error alone. Indeed, court rules authorize correction of a sentence only when it is illegal or imposed in an illegal manner, Super. Ct.Crim. R. 35, or contains a clerical mistake, Super Ct.Crim. R. 36.
The government maintains, nonetheless, that the court can correct its error using its "inherent power to correct its record so as to reflect the truth." Newton, 613 A.2d at 334 (internal quotation marks omitted). We cannot agree. Newton's discussion of the court's inherent power to correct its record must be understood in context. Newton concerned a motion under D.C.Code § 23-110 to set aside a judgment of conviction. It involved no issue of double jeopardy. Moreover, as detailed above, when the court granted Newton's motion and ordered a new trial, it had no authority to do so because it had not notified the government, as the statute required, to allow the government an opportunity to respond to the motion. By vacating its judgment and conducting a hearing on the merits of Newton's motion the court "set aside what it had no authority to do." Bozza, 330 U.S. at 167, 67 S.Ct. at 649 *586 (citations omitted.) While the order was not inherently illegal, it was issued in a manner that departed from the statute. The government, moreover, could have appealed the court's ruling on the ground that the court had denied it the statutorily required opportunity to respond to Newton's motion and participate in the proceeding. D.C.Code § 23-110(f) (1996 Repl.). Newton, therefore, could have acquired no legitimate expectation of finality in such a court order issued in an unlawful manner.
Critically, in both Newton and Lindsay, the so-called mistake of fact went to the trial court's very authority to issue the orders that were subsequently vacated. In the present case, in contrast, there can be no question that the trial court had the authority to grant Smith's motion to reduce sentence when it did, in the way it did, and thus that the resulting order was altogether valid. Contrary to the situation in Newton, the sentencing judge had no obligation, statutory or otherwise, to notify the government that the judge was considering a sentence reduction or to invite a government response. In short, there was no irregularity in the signing of the order that can be understood to have undermined Smith's expectation of finality in the sentence.
The government's perception of a rule, derived from Newton and Lindsay, that would permit revocation of an order granting a reduced sentence under Super. Ct.Crim. R. 35(b) based purely on factual error cannot possibly be the rule if its implications are examined. If we adopted the government's pure mistake-of-fact approach, it would not be an exaggeration to say that a defendant could never have an expectation of finality in a sentence. The government, apparently, could come back to court at any time to claim that the sentence had been premised on an erroneous view of the facts. If, for example, a defendant received a lenient sentence because the evidence at sentencing had shown no criminal record, but years later the government discovered multiple prior convictions, the government could return to court under the government's theory and ask the trial court to increase the sentence so that the record would "reflect the truth" and justice would be served. We decline to extend Newton and Lindsay in this manner. Only when a mistake of fact goes to the sentencing court's very authority to issue the order will a defendant's normal expectation of finality in the sentence be so eviscerated that double jeopardy concerns will not forbid the court to retrace its steps to "set aside what it had no authority to do." Bozza, 330 U.S. at 167, 67 S.Ct. at 649. (citations omitted) Where, as here, the asserted mistake of fact does nothing to undermine the court's power to order a particular reduced sentence, and the resulting sentence is accordingly valid both procedurally and substantively, the Double Jeopardy Clause forbids reimposition of a lengthier sentence.
* * *
Accordingly, the order of the court denying Smith's motion to reduce sentence is reversed, and the case is remanded to permit entry of an order imposing a reduced sentence in conformity with the court's order of June 5, 1995 granting Smith's motion to reduce.
So ordered.
FARRELL, Associate Judge, concurring:
"[N]either the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls." Jones v. Thomas, 491 U.S. 376, 387, 109 S.Ct. 2522, 2529, 105 L.Ed.2d 322 (1989). At the same time, "[d]ouble jeopardy is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities." Id.; see also id. at 396, 109 S.Ct. at 2533 (Scalia, J., with whom three other Justices join, dissenting) ("The Double Jeopardy Clause is and has always been, not a provision designed to assure reason and justice in the particular case, but the embodiment of technical, prophylactic rules that require the Government to turn square corners."). In this case, the government can argue with considerable plausibility that our holding yields a "windfall." There can be no doubt that the trial judge reduced appellant's sentence in the mistaken belief that the government was not opposing the motion to reduce. The judge reduced the sentence on *587 June 5 expressly noting that the motion was unopposed. The next day the government filed its opposition and, on June 7, moved to reconsider the reduction order, stating that it had not received the order until that day, had previously (without specifying a date) informed chambers that it would be opposing, and had not filed its opposition earlier only because it was awaiting preparation of the transcript of sentencing. That same day (June 7) the trial judge rescinded the reduction order "[f]or good cause" and stated that the motion to reduce would be "considered along with the government's opposition." There seems not the slightest question that if the judge knew of the government's intent to oppose the reduction, he would not have acted on June 5 but instead waited for its response. The judge will be surprised, to say the least, to learn that when his understanding of the true state of affairs was corrected, and he acted in conformity therewith, he violated double jeopardy.
Still another technical feature of our holding is apparent from application of the governing standard: whether appellant had a legitimate expectation of finality in the reduced sentence once it was entered. United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437-38, 66 L.Ed.2d 328 (1980). As appellant's counsel acknowledged at argument, appellant probably did not even know his sentence had been reduced until learning, simultaneously, of the order rescinding it. His actual expectation of finality in the reduction was therefore probably zero. This contrasts with the normal case in which a double jeopardy argument of this sort is made where the defendant is present at sentencing, is told his sentence, and begins serving it with the expectation that, absent legal error, it will not be increased.
Technical or not, however, our holding follows from the principles the court enunciates. The legitimate expectation of finality that controls must be an objective standard: would a defendant knowing the sentenced imposed (or as reduced) reasonably expect it to be final? His actual knowledge is thus immaterial; ascertaining when a defendant learned of the reduction in a case such as this would be an impractical task. Moreover, as Judge Ferren points out, the government's "mistake of fact" gloss on the finality standard is sweeping: a judge, for example, who misread the presentence report, thinking the defendant had one instead of three prior convictions, could recall the defendant and increase the sentence well after he had begun serving it. Further, the result of the order rescinding the reduction here was to leave appellant in suspense for five months while the judge reconsidered the matter. "One of the interests protected by constitutional finality is that of the defendant to be free from being compelled to `live in a continuing state of anxiety and insecurity.'" United States v. Fogel, 264 U.S.App. D.C. 292, 303, 829 F.2d 77, 88 (1987) (quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)). Finally, the government can easily prevent mishaps such as occurred here by giving the trial judge timely written notice of its intent to file an opposition in the near future.
NOTES
[1] Super. Ct.Crim. R. 35(b) provides in relevant part: "A motion to reduce sentence may be made not later than 120 days after the sentence is imposed . . . . The Court shall determine the motion within a reasonable time."
[2] The government concedes on appeal that Smith's motion for reduction of sentence was timely filed.
[3] The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. . . ." U.S. CONST. amend. V.
[4] In Lindsay, there was no challenge to the trial court's authority to vacate its order. See Lindsay, 520 A.2d at 1061. Lindsay only claimed that the court's decision to do so violated his double jeopardy rights.
[5] Super. Ct. Civ. R. 60(b) provides in relevant part: "On motion ... the Court may relieve a party or a party's representative from a final judgment [or] order ... [for] mistake, inadvertence, surprise, or excusable neglect...."
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687 A.2d 606 (1996)
Stanley SCHNEIDER, et al.,
v.
Judith COOPER, et al.
Supreme Judicial Court of Maine.
Submitted on Briefs September 20, 1995.
Decided June 24, 1996.
Keith R. Varner, Lipman & Katz, P.A., Augusta, for Plaintiffs.
U. Charles Remmel, II, Leland Chisholm, Kelly, Remmel & Zimmerman, Portland, for Defendants.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA and LIPEZ, JJ.
LIPEZ, Justice.
Judith Cooper appeals from an order of the Superior Court (Penobscot County, Pierson, J.) approving an attachment and trustee process in the amount of $142,327.10. Cooper contends on appeal that the court abused its discretion in granting the motion of Stanley Schneider and Martin Schneider for an attachment because the affidavits filed in support of that motion were insufficient to support a conclusion that it is more likely than not that they will prevail in an amount equal to or greater than $142,327.10. We agree and vacate the order.
Background
In 1977, Stanley and Martin Schneider as limited partners and Judith Cooper as the general partner formed a limited partnership known as Park Street Associates. Cooper has at all times been, and continues to be, the general partner of Park Street. The Schneiders have continuously served as limited partners since the inception of the partnership. The partnership agreement named Cooper's husband Darrell as managing agent of the partnership.
In February 1989, the Schneiders filed a complaint against the Coopers, alleging breach of the fiduciary duties owed by Judith as a general partner and Darrell as the managing agent. The Schneiders alleged that the breaches consisted of the Coopers' *607 refusal to provide a formal partnership accounting in violation of 31 M.R.S.A. § 160(B) (1978),[1] their refusal to allow the Schneiders to inspect the partnership's financial records on demand in violation of the written partnership agreement, and their causing the partnership to make improper payments and enter into improper transactions for their individual benefit. The Schneiders demanded a judicial accounting for the purposes of determining the extent of their damage, and general as well as punitive damages.
The Schneiders subsequently filed a first amended complaint that named various additional defendants[2] and added a claim for treble damages pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(C) (1984 & Pamph. 1996), and a claim for tortious interference with an advantageous business relationship. Ultimately, the actions against the Coopers and the actions against the additional defendants were consolidated[3] and the RICO count dismissed, leaving the following three causes of action for litigation: (1) that the Coopers breached their fiduciary duties to the partnership by failing to provide the requested accounting; (2) that the Coopers caused the partnership to make improper payments and to engage in improper transactions for their benefit, to the detriment of the partnership; and (3) that the business entities that purchased land from the partnership tortiously interfered with an advantageous business relationship between the Schneiders and the partnership.
Darrell Cooper filed a petition for relief under the Bankruptcy Code, thereby staying the litigation against him. See 11 U.S.C. § 362 (1993 & Supp.1996). Subsequently, the Schneiders filed a motion to sever their claims against Darrell in order to proceed to trial against Judith Cooper and the other defendants. The court granted the motion.
The Schneiders filed a motion for the approval of an attachment and trustee process against Cooper's property in the amount of $142,327.10, the total amount allegedly contributed by them in the form of initial investments in the partnership, as well as loans and advances to the partnership. The Schneiders' motion was accompanied by two affidavits. The first affidavit, signed by Martin Schneider, detailed his and Stanley's financial contributions to the partnership. The second affidavit, signed by the Schneiders' attorney Keith Varner, was accompanied by Cooper's deposition testimony that she did not understand her role as the general partner of Park Street.
The Schneiders also filed a motion for an expedited hearing on their motion for the approval of an attachment, together with another affidavit signed by Varner. In the affidavit, Varner stated that: (1) Cooper had failed to account to the partnership for the proceeds of a $72,000 sale of real estate made by the partnership in 1993; (2) that Darrell had testified under oath at a recent meeting of creditors in the bankruptcy proceeding that the balance of the partnership's bank account was approximately $300; and (3) that the Coopers' residence in Bangor was listed for sale.
The court held the expedited hearing telephonically over Cooper's objection and granted the motion for approval of an attachment and trustee process, finding that it was more likely than not that the Schneiders would *608 recover a judgment from Cooper of at least $142,327.10. Cooper appealed the court's order approving the attachment.
Discussion
Pursuant to M.R.Civ.P. 4A, an attachment of real estate, goods and chattels is available to satisfy any judgment recovered by a plaintiff if that plaintiff can establish that it is "more likely than not that [she] will recover judgment ... in an amount equal to or greater than the ... attachment...." M.R.Civ.P. 4A(a) & (c). A plaintiff is required to submit affidavits in support of a motion for an approval of an attachment. M.R.Civ.P. 4A(c). Pursuant to M.R.Civ.P. 4A(i), the affidavits must "set forth specific facts sufficient to warrant the required findings," i.e., facts which warrant a finding that it is more likely than not that the plaintiff will prevail at trial in an amount which at least equals the amount sought to be attached. We review orders of attachment for clear error or an abuse of discretion. Wilson v. DelPapa, 634 A.2d 1252, 1253 (Me.1993).
Liability
A partnership is fiduciary in character. See Rosenthal v. Rosenthal, 543 A.2d 348, 352 (Me.1988); Dalton v. Austin, 432 A.2d 774, 777 (Me.1981); 68 C.J.S. Partnership § 76 (1950). The fiduciary duties of a partner include the following: diligence, good faith in dealing with partners about the subject matter of the partnership, disclosure of information affecting the status and affairs of the partnership, refraining from taking advantage of partners by any means, and providing an accounting of the partnership property. 31 M.R.S.A. §§ 301, 302, & 443 (1978); Rosenthal, 543 A.2d at 352 (delineating fiduciary duties encompassed by sections 301 and 302 of the Uniform Partnership Act); Dalton, 432 A.2d at 777 (discussing duty to provide an accounting). The uncontroverted evidence presented by the Schneiders establishes that Cooper owed the Schneiders fiduciary duties. The Schneiders also produced evidence in their affidavits that Cooper breached her fiduciary duty to them by failing to account for the disposition of partnership property and by failing to deal in good faith with the limited partners, including themselves. Although Cooper generally denied any breach of a fiduciary duty in her answer to the Schneiders' complaint, she did not oppose their motion for the approval of an attachment with written submissions or affidavits.[4] Under these circumstances, the Schneiders met the "more likely than not" standard required by Rule 4A(c) on the liability issue.
Damages
In their complaint, the Schneiders request a judicial accounting for the purpose of ascertaining their damages. Thus they do not presently have sufficient information about the partnership's affairs to calculate the damages flowing to them from Cooper's tortious conduct. Moreover, they are not entitled to damages in the amount of their total contributions and loans to the partnership simply because they were forced to seek a judicial accounting.
A formal judicial accounting is a systematic and thorough financial review of a partnership's affairs. II Bromberg & Ribstein, On Partnership § 6.08(d) (1988, 1992, 1994 & Supp.1995). The court conducts a comprehensive investigation of the transactions undertaken by the partnership and partners, determines the partners' relative rights, and enters a money judgment in favor of or against each partner according to the determined balance. Id. at § 608(a). At common law, because of the atmosphere of distrust that typically existed between partners at the point of seeking a judicial accounting, accounting actions were usually accompanied by a dissolution of the partnership. Id. at § 6.08(b). The Maine Uniform Partnership *609 Act, however, which governs general partnerships and limited partnerships to the extent not inconsistent with the provisions of the Maine Revised Limited Partnership Act, 31 M.R.S.A. § 286 (1978), specifically makes formal accounting available prior to and independent of a dissolution, 31 M.R.S.A. § 302 (1978). Finally, a limited partner's right to receive the fair value of his interest in the partnership and his right to a priority distribution of amounts loaned to the partnership (if he is a creditor of the partnership) is triggered by the dissolution of the partnership or his withdrawal from the partnership, and not by the mere occurrence of an accounting. See 31 M.R.S.A. §§ 464, 466, 484(1)(A) (Supp.1995).[5]
According to the record, the Schneiders have not applied for a judicial dissolution of the partnership or given notice of their withdrawal therefrom. Thus neither their right to receive the fair value of their interest in the partnership nor their right to a priority distribution of the amounts loaned to the partnership has been triggered, 31 M.R.S.A. §§ 464, 466, 484(1)(A). Moreover, contrary to the assertion of the Schneiders, there is no necessary connection between the value of their contributions and loans to the partnership and the damages they have incurred because of Cooper's breach of her fiduciary duties. That connection requires a degree of proof lacking in the record at the time of the hearing on the motion for an attachment.
Because the Schneiders did not meet their burden of establishing that they were more likely than not to recover in an amount equal to or greater than their original investment in and loans to the partnership, it was clear error for the court to grant the Schneiders' motion for the approval of an attachment.
The entry is:
Order approving attachment and trustee process vacated.
All concurring.
NOTES
[1] 31 M.R.S.A. § 160(B) is a section of the Maine Uniform Limited Partnership Act, 31 M.R.S.A. §§ 151-184 (1978), that was in effect when this litigation began. On January 1, 1992, the Maine Revised Uniform Limited Partnership Act, 31 M.R.S.A. §§ 401-530 (Pamph.1995) repealed and replaced the Uniform Limited Partnership Act. P.L.1991, ch. 552, § 2 (eff. Jan. 1, 1992). Section 524 of the Revised Act makes the Revised Act applicable to all limited partnerships in existence on its effective date. 31 M.R.S.A. § 524.
[2] The defendants named in the Schneiders' first amended complaint were various business entities that purchased land from the partnership.
[3] Despite the caption "first amended complaint," the document with that title was not a true amended complaint, but rather a distinct complaint against defendants other than the Coopers. In recognition of the fact that the complaint and first amended complaint set forth separate causes of action and named different defendants, the court assigned them different docket numbers. Despite their nomenclature, the complaint and first amended complaint were properly consolidated by the court.
[4] At the time of the expedited hearing and the court's decision to grant the Schneiders' motion for approval of attachment, Cooper had not filed any papers in opposition to the motion. The normal twenty-one day time period for filing responsive papers had not yet lapsed, however. The court acted after asking counsel for Cooper if he could represent that there would be no conveyances of Mrs. Cooper's property or any further liens placed on her property prior to the date of a regularly scheduled hearing on the motion. Counsel for Cooper could not so represent.
[5] The two cases cited by the Schneiders in their memorandum in support of their motion for the approval of the attachment, Waldo Lumber Co. v. Metcalf, 132 Me. 374, 171 A. 395 (1934), and A. Willmann & Assocs. v. Penseiro, 158 Me. 1, 176 A.2d 739 (1962), predate both the Maine Uniform Partnership Act and the Maine Revised Limited Partnership Act. When we stated in Penseiro that the goal of a judicial accounting is to restore to the complaining party his original investment, Penseiro, 158 Me. at 8, 176 A.2d 739, that statement contemplated the inevitable dissolution of the partnership. Pursuant to the present statutory scheme that governs partnerships, dissolution does not necessarily follow an accounting.
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687 A.2d 681 (1997)
344 Md. 458
In re ADOPTION/GUARDIANSHIP No. 93321055/CAD in the Circuit Court for Baltimore City et al.
No. 25, Sept. Term, 1996.
Court of Appeals of Maryland.
January 16, 1997.
*684 Donna R. Heller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Petitioner.
Michael R. Braudes, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ. *682
*683 WILNER, Judge.
We have before us five cases in which the State sought guardianship of a child pursuant to Maryland Code (1984, 1991 Repl.Vol.), § 5-313 of the Family Law article. A judgment of guardianship under that section terminates the parental rights of the parents of the child and permits the State, through its Department of Social Services (DSS), to consent to the subsequent adoption or other long-term placement of the child without the need for any further consent of the parents.
Both the Code and the Maryland Rules set forth a procedure for bringing and prosecuting these kinds of cases. That procedure will be described in some detail below. Suffice it to say here that, if a parent does not affirmatively consent to the guardianship, he or she is entitled to notice of the State's petition and an opportunity to object to it. The notice is given through a show cause order issued by the court. If a parent does not file a written objection within the time specified in the show cause order, the court is directed to consider the parent to have consented to the guardianship and to treat the petition accordingly.
We granted certiorari in these cases to consider three questions, which we rephrase slightly as follows:
(1) Does the circuit court have authority to accept and consider an objection filed after the time specified in the show cause order;
(2) If a parent fails to file a timely objection as directed in the show cause order and is therefore deemed to have consented to the DSS petition, may the parent thereafter revoke that deemed consent; and
(3) May a parent who fails to file a timely objection collaterally attack a judgment of guardianship entered in the case on the ground that the parent did not receive notice of the judgment or proceedings leading to it?
Regrettably, after delving into the records of these cases, we discovered that (1) the first question was squarely raised in only three of the five cases and is moot in those cases, and (2) the fourth case, because of its procedural posture, does not present any of the three questions directly. The fifth case raises the second and third questions, which overlap. In the context of that case, we shall answer those questions. For reasons to be explained, we shall address the first question as well, notwithstanding its mootness.
Our answer to the first question is "ordinarily no." Our answer to the second is "no" with a caveat. Our answer to the third is an unqualified "no."
I. FACTUAL AND PROCEDURAL BACKGROUND
A. No. 93321055
On November 17, 1993, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Marlo and Marlen C. and to terminate the parental rights of their mother, Monique C., and their putative father, Eugene A. The children were born on May 9, 1991, cocaine addicted and in need of extraordinary care. They were placed in foster care five weeks lateron June 19, 1991. In October, 1991, they were found by the juvenile court to be children in need of *685 assistance (CINA) and formally committed to the custody of DSS.
Upon the filing of DSS's petition for guardianship, show cause orders were issued by the court informing the parents of the petition, enclosing a copy of it, advising them of their right to file an objection to the petition by a certain date, and stating the court's address, where the objection should be filed. The orders warned, in capital letters, that "IF YOU DO NOT FILE A NOTICE OF OBJECTION ON OR BEFORE THE DEADLINE STATED ABOVE A DECREE TERMINATING YOUR PARENTAL RIGHTS MAY BE ENTERED WITHOUT YOUR CONSENT." Attached to the show cause order was a form entitled "Notice of Objection"; it too warned, in capital letters, that "IF YOU WISH TO OBJECT, YOU MUST FILE YOUR NOTICE OF OBJECTION WITH THE COURT ON OR BEFORE THE DEADLINE STATED IN THE SHOW CAUSE ORDER." All that the parent had to do was to sign the objection form, print his or her name, address, and telephone number, and mail or deliver it to the court.
The show cause order was served on Monique on July 26, 1994; it required that any objection by her be filed by August 11, 1994. Eugene was not served until November 14, 1994.[1] The order required that any objection be filed by January 9, 1995. On January 19, 1995five months after the deadline set for Monique and almost two weeks after the deadline set for Eugenethey each filed an objection. DSS moved to strike the late-filed objections.
The court conducted a hearing on the DSS motion on June 30, 1995. Monique did not appear. Eugene appeared and explained that he had read the show cause order and was aware of the deadline, that he had taken some papers to the clerk's office at some unspecified time but was told that they were filled out incorrectly, that he took them back three or four times only to find the clerk not there, and that he did not think a week or so delay "would make a difference." DSS informed the court that the parents had not visited the children since 1991 and that the last contact DSS had with Eugene was in 1993, when he was told that DSS intended to proceed with adoption rather than continued foster care. The court was also informed that the children had no concept of a biological parent, that they had been placed in a pre-adoptive home in February, 1995 and were doing well there, and that the plan was to have that couple adopt the children.
On this evidence, the court granted the motion with respect to Monique but denied it as to Eugene. It found that, although Eugene "could have filed [the objection] more timely" and failed to do so, "it is just a matter of days." DSS filed an appeal from the denial of the motion as to Eugene as well as a motion to reconsider that decision. On August 9, 1995, the court denied the motion to reconsider. In an amended order, it confirmed its decision to strike Monique's objection, finding no timely intervention by her, and also confirmed its decision to allow Eugene's objection, finding that his objection, though filed 10 days "after the expiration of time for objection within the Show Cause Order, is sufficiently timely to allow this objection to be received by this Court." DSS filed another appeal from that order.[2]
The court conducted a hearing on the merits on January 25, 1996. Eugene did not appear. On February 26, 1996more than two years after the petition was filedthe court entered an order appointing DSS as guardian of the children with the right to consent to their adoption. That order effectively terminated the parental rights of Monique and Eugene.
B. No. 95089042
On March 30, 1995, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Devonta H. and to terminate *686 the parental rights of his mother, Evonne H., and his putative father, Ali J. or Paul W. Devonta was born on May 15, 1993; he was placed in foster care on October 7, 1993, and was found to be a CINA on May 16, 1994.
Show cause orders were issued on April 18, 1995, setting a deadline of July 19, 1995 for objections and giving the same printed warnings noted in our discussion of No. 93321055, supra. Ali filed a timely objection. Evonne was served on May 15, 1995. She filed an objection, on the form included with the show cause order, on August 22, 1995a month late. DSS moved to strike the objection. At a hearing on the motion, Evonne testified that she misplaced the paper and did not find it until August. DSS informed the court that Devonta was in an approved pre-adoptive home and that the plan was for him to be adopted if the DSS petition was granted. The court expressed some disbelief that Evonne "would be served with notice of termination of your parental rights and you would lose it," but denied the motion nonetheless, essentially because there would have to be a trial in any event due to Ali's objection. DSS filed an appeal.
Notwithstanding her objection, when the hearing on the merits occurred seven months later, on June 7, 1996, Evonne failed to appear, and the court granted the petition for guardianship.
C. No. 95108035
On April 18, 1995, DSS filed a petition in the Circuit Court for Baltimore City for guardianship of Portia and William G. and to terminate the parental rights of their mother, Veronica D. The father of the children had died. Portia was born on April 16, 1988. Three months later, she was found to be a CINA and committed to DSS for placement with relatives. She was returned to Veronica in July, 1990, but was replaced in foster care in November, 1993. William was born on August 22, 1990. He was found to be a CINA and committed to DSS on January 17, 1994.
A show cause order, containing all of the information noted above, was served on Veronica on May 6, 1995. It set a deadline of July 26, 1995 for her to file an objection to the petition. Veronica filed an objection on August 10, 1995, which DSS moved to strike. At a hearing held on November 16, 1995, Veronica's lawyer informed the court that Veronica had "mistakenly allowed the time to elapse"that "it just got away from her." It appears from the transcript that Veronica was not in court when the hearing began, that she appeared about an hour late, and that the court saw no reason to hear from her. It denied DSS's motion and set the matter in for hearing on the merits in June, 1996. DSS filed an appeal from the denial of its motion.
In its brief, the State informed us that the hearing did not occur until August and that no decision had been made in the matter. Even at oral argument in this Court on December 5, 1996, no one seemed to know whether the circuit court had yet decided the case. In fact, we were informed that, on September 16, 1996, the court entered a judgment of guardianship, and we have had the record before us supplemented to include that judgment.
D. Nos. 11711 and 11712
On May 4, 1994, DSS filed petitions in the Circuit Court for Montgomery County for guardianship of Andrew J. and Unique O. and to terminate the parental rights of their mother, Nicole S., and their respective fathers, Andre J. and Tony O. Andrew was born on March 1, 1992. He was placed in the custody of DSS and put into foster care on January 12, 1993. In April, he was found to be a CINA by the juvenile court. In July, 1993, he was returned to his mother or other relatives but five weeks later was placed back in foster care.
Unique was born March 14, 1993. She was placed in the custody of DSS and put into foster care two days later. In April, 1993, she was found to be a CINA by the juvenile court. Like her half-brother, Andrew, she was returned to Nicole in July but placed back into foster care in August.
Show cause orders were issued on May 10, 1994, setting a deadline of July 8, 1994 for filing an objection and giving the advice and warnings noted above. Nicole was served on June 10, 1994. No objection was filed, and, *687 on September 27, 1994, upon motion by DSS, the court entered an order granting the petitions.
On June 12, 1995, Nicole filed what she termed a Revocation of Consent to Petition for Guardianship with respect to each child. She noted in her Revocations that, pursuant to what is now Family Law article, § 5-322(d), her failure to file an objection had been deemed a consent to the guardianship and that, under § 5-311(c) of that article, she was authorized to revoke her consent at any time prior to the entry of a final decree of adoption. As no such decree had yet been entered with respect to Andrew or Unique, she averred that she still had the right to revoke her presumed consent and object. Along with those Revocations, she filed a motion in each case to vacate the guardianship order. At a hearing on the motion in August, 1995, she argued, through counsel, that her due process rights had been violated because she never received notice of DSS's motion for the guardianship order or notice of a hearing on the motion. The court denied Nicole's motions, and she appealed.
E. Nos. 11387 and 11388
On April 21, 1993, DSS filed petitions in the Circuit Court for Montgomery County for guardianship of Stephon and Alphonso P. and to terminate the parental rights of their parents, Clemy P. and Sam L. Stephon was born on April 16, 1989. He was committed to the custody of DSS in August, 1990, was placed with his mother or other relatives until September, 1991, and had been in foster care since then. He was adjudicated to be a CINA in October, 1991. Alphonso was born on August 3, 1990. He was committed to DSS at birth, resided with his maternal grandmother until September, 1991, and had been in foster care thereafter.
Sam L. consented to the petition. The show cause order issued for Clemy P. was served on her on May 11, 1993. It gave her the same advice and warnings noted above and set June 25, 1993 as the deadline for filing an objection. No objection was filed, and, on October 20, 1993, upon motion by DSS, the court granted the petition and entered a judgment of guardianship. Clemy filed an appeal 32 days later, which the circuit court struck as untimely.
On July 25, 1994, through their court-appointed counsel, the children requested a hearing. They averred that a number of problems had developed since the order of guardianship had been entered. They pointed out that, under Family Law article, § 5-319, DSS was obliged to make a written report to the court and to give notice to both the children's attorney and the natural parents if placement for adoption was not made within nine months after entry of the guardianship, that nine months had passed, that the children had not been placed for adoption, and that no report had been made. Underlying that problem, they averred, was the fact that they were not going to be able to remain in the home where they were then living because the foster mother was not willing to adopt them. Compounding the problem was the additional circumstance that their sister was also living in the home, that their natural parents' parental rights had not yet been terminated with respect to their sister, and that "this is causing problems for all three children, as the mother is still visiting and talking by phone with [the sister], but is not able to talk with [them], causing upset to Stephon and Alphonso." Among other things, they asked that their maternal grandmother be considered as a resource.
Three days after the children's motion was filed, Clemy P. moved to intervene. She too complained about (1) the failure of DSS to make a written report as the statute required, (2) its refusal to consider her mother as a resource, and (3) the impending separation of Stephon and Alphonso from their sister. She complained as well that the guardianship order was entered without any testimony and that she "did not receive notice of the Motion or Order of Default due to a change of address until the time for appeal had expired." She averred that she was then ready to resume custody of the children.
DSS opposed the children's motion and Clemy's request to intervene. As to the children's motion, it informed the court that it intended to place Stephon and Alphonso in a pre-adoptive home within 10 days and that no hearing would be necessary. As to Clemy's *688 motion, DSS pointed out that there had never been a default order, that Clemy received all of the notices to which she was entitled, and that there were no proceedings pending before the court. The docket indicates that a "status hearing" was held by Judge McGuckian on August 11, 1994, but neither the docket nor anything else in the record indicates how, or whether, the children's and Clemy's motions were resolved.
On July 5, 1995some 21 months after the judgments of guardianship were entered Clemy moved to vacate them. Although she did not deny receiving a copy of the show cause order and did not deny reading it, she alleged that she "was not aware of the necessity of filing a written response" to the guardianship petitions and "remained unknowing as to the significance of [those petitions]." She claimed that she had expressly declined to consent to the guardianships, that she had informed DSS orally that she would not consent, and that she did not become aware of the judgments until a month after they had been entered. She averred that the children had still not been adopted and continued to live in foster care.
Clemy complained that she had received no notice of DSS's motion for final order and, indeed, no notice of any proceedings after the initial petition. She urged that the judgments were defective because they were based on her presumed consent and she was never informed of her right to revoke that consent. Her theory seemed to be that, once DSS took the position that her non-response amounted to a consent, it was obliged to inform her of her right to revoke that consent. She complained as well about not receiving a copy of the judgments or of any status report required by § 5-319.
On December 5, 1995, the court entered an order vacating the judgments of guardianship. In an accompanying opinion, the court held that, although Clemy may be deemed to have consented to the guardianships by not filing a timely objection, she retained the right to revoke that deemed consent and to receive notice of all further proceedings, including service of all pleadings. The court, at least tacitly, appeared to regard the failure of DSS to serve a copy of its motion for final order on Clemy as an irregularity under Md. Rule 2-535, thereby justifying a setting aside of the 21-month old judgments.
DSS promptly filed a motion to alter or amend that order as well as a request to stay its effect. The motion for stay was supported by a letter from Stephon's psychiatrist and pointed out that (1) Clemy had requested that the children be immediately returned to her, (2) unless the order was stayed, DSS's authority to continue the children in foster care would terminate, and (3) immediate return of the children would be detrimental to them.
The court initially stayed the December 5 order but ultimately denied the motion to alter or amend, and this appeal by DSS ensued. Whether the stay is still in effect is not entirely clear.[3]
II. STATUS OF THE CASES IN TERMS OF THE ISSUES PRESENTED
A. Nos. 93321055, 95089042, 95108035
As we observed in Part I, the only appeals in these three cases are those of DSS, complaining of the orders denying its respective motions to strike the untimely objections filed by one or both of the parents. When those appeals were filed, no judgment had been entered in the cases; the appeals were from orders that were clearly interlocutory. *689 We need not address here whether those appeals were proper, for subsequent events have made the three appeals moot. The State acknowledges, as it must, that the appeals in the first two cases are moot, and, because of the post-appeal judgment entered in No. 95108035, that case has also been rendered moot.[4] The objecting parents' parental rights were terminated after a hearing on the merits, and it is therefore utterly immaterial at this point whether the court erred in allowing the untimely filed objections. Even if DSS is correct and the court erred in considering the untimely objections, DSS has won on the merits, and there is no effective relief that we can provide. We shall therefore dismiss these three appeals.
B. Nos. 11711 and 11712
Nicole's appeals in these two cases are from an order denying her motion to vacate an enrolled judgment. The motion to vacate was filed more than 30 days after the judgment was entered and is therefore deemed to have been filed under Md. Rule 2-535(b). Under that rule, a court may revise an enrolled judgment upon a finding of fraud, mistake, clerical mistake, or other irregularity if, in addition, the movant establishes that she acted in good faith and with ordinary diligence and that she has a meritorious defense. Owl Club v. Gotham Hotels, 270 Md. 94, 100, 310 A.2d 534, 537 (1973); Maryland Lumber v. Savoy Constr. Co., 286 Md. 98, 101-02, 405 A.2d 741, 743-44 (1979).
The denial of a motion to revise under Rule 2-535(b) is appealable, but the only issue before the appellate court is whether the trial court erred as a matter of law or abused its discretion in denying the motion. New Freedom Corp. v. Brown & Meyer, 260 Md. 383, 386, 272 A.2d 401, 403 (1971); S. & G. Realty v. Woodmoor Realty, 255 Md. 684, 690-92, 259 A.2d 281, 283-85 (1969).[5] Except to the extent that they are subsumed in that question, the merits of the judgment itself are not open to direct attack. In order to challenge the judgment itself, a timely appeal must be taken from it.
In these cases, Nicole filed her Revocation and motion to vacate nine months after the judgment of guardianship was entered and eleven months after the deadline for objecting. She produced no evidence of either due diligence or a meritorious defense to the petition. Indeed, she produced no evidence at all. The attack on the judgment was based entirely on counsel's argument that, as a matter of law, Nicole had until entry of a judgment of adoption to object. At no point in her argument did counsel offer any evidence that Nicole actually believed that she had that extended time or that she had any reason for not acting sooner. As DSS pointed out, the show cause order was also served on the attorney who represented Nicole at the CINA hearing. There was no evidence, or even any suggestion, that Nicole was ill or otherwise incapacitated. Nor was *690 there any indication of what defense she would have interposed to the petition. The children had been found CINA in 1993 and had been in foster care for over two years. There had been no contact by Nicole during that time with DSS and apparently none with the children.
On this record, we find no error of law and no abuse of discretion in the denial of Nicole's motions to vacate; we therefore shall affirm the orders denying those motions.
C. Nos. 11387 and 11388
These appeals by DSS arise from an order granting a motion to revise under Md. Rule 2-535(b) and vacating enrolled judgments. Such an order is appealable as a final judgment, and it brings before the appellate court the merits of that judgment. First Federated Com. Tr. v. Comm'r, 272 Md. 329, 333, 322 A.2d 539, 542 (1974); Ventresca v. Weaver Brothers, Inc., 266 Md. 398, 403, 292 A.2d 656, 659 (1972); Mut. Benefit Soc'y v. Haywood, 257 Md. 538, 540, 263 A.2d 868, 870 (1970). See also Sisk v. Friendship Packers, 326 Md. 152, 157-58 n. 3, 604 A.2d 69, 71-72 (1992).
III. DISCUSSION
A. Statutory Procedure
The procedure governing adoptions and guardianships that terminate parental rights is found in §§ 5-301 through 5-330 of the Family law article and in the implementing rules of this Court. The former rules were in Ch. 1100, subtitle D of the Md. Rules; they now comprise Rules 9-101 through 9-113.
We commence with Family Law article, § 5-311(a), which provides that a child may not be adopted without the consent of his natural parents unless the parental rights of those parents have been terminated by a judicial proceeding. It is common for the State, when it concludes that a continuing relationship between a child and his natural parents is likely to be harmful to the welfare of the child, to seek to terminate parental rights as an intermediate measure. A judgment terminating those rights not only eliminates the need for parental consent to a subsequent adoption but also provides the State with flexibility in seeking out adoptive persons or families and in caring for the child in the interim. Most States authorize this intermediate procedure. See Joan H. Hollinger, et al., ADOPTION LAW AND PRACTICE, § 4.04[1][a].
A judgment terminating parental rights may be entered upon the voluntary, affirmative consent of the natural parents if the action is filed under title 5, subtitle 3 of the Family Law article.[6] Indeed, except as provided in §§ 5-313 and 5-313.1, a guardianship may not be entered without the consent of each living natural parent. See § 5-317(c); Md. Rule 9-102(a) (former Md. Rule D 73). Section 5-313 sets forth the circumstances under which a court may enter a judgment of guardianship without the consent, and even over the objection, of the natural parents; section 5-313.1 deals with foreign adoptions and guardianships. Neither section is directly relevant in these cases.
A parent's affirmative consent is not valid unless (1) it contains an express notice of the right afforded by § 5-317 to revoke the consent, and (2) if the parent is a minor, it is also accompanied by an affidavit of counsel that the consent is given knowingly and willingly. Fam. Law art., § 5-314.
The statute contemplates, and the rules (former Rule D 72 a.1.(g)); current Rule 9-103(b)(2)(A)(viii) and (c) require that a copy of any consent signed by a parent either accompany the DSS petition or be filed in court thereafter. At the time the petition was filed in Clemy P.'s case, § 5-317(e) allowed a consenting parent to revoke her consent at any time within the earlier of 30 days after the consent was filed in court or entry of the judgment of guardianship. As the result of a 1994 amendment, § 5-317(e) *691 now limits the revocation period to 30 days after the consent is signed.
In cases in which the parent does not affirmatively consent to the guardianship, § 5-322(a) of the Family Law article requires that the court, upon the filing of a petition, enter and serve upon the parent a show cause order informing the parent of the petition. The rules extend the statute and require more detailed information. Former Rule D 74 (current Rule 9-105) required that a copy of the petition also be served on the parent and set forth a form of show cause order for the courts to use. The order explains in plain language that the parents have the right to object to the guardianship but that, if they wish to object, they must file their objection with the court by the date set forth in the order. In Clemy P.'s case, that date was June 25, 1993.
As we noted in Part I, the order tells the parents, in capital letters, that if they do not file a notice of objection by the stated deadline, a decree terminating their parental rights may be entered without their consent. As we further noted, a form notice of objection is appended to the show cause order, which also advises the parent of the need to file the notice before the stated deadline. The notice makes clear that the parent need do nothing more than sign the form and print his or her name, address, and telephone number in the places indicated and mail or deliver it to the court at the address shown.
Section 5-322(d) provides in relevant part:
"If a person is notified under this section and fails to file notice of objection within the time stated in the show cause order or if a person's notification has been waived under subsection (c) of this section:
(1) the court shall consider the person who is notified or whose notice is waived to have consented to the ... guardianship; and
(2) the petition shall be treated in the same manner as a petition to which consent has been given."[7]
Former Rule D 76.a. provided that a person having the right to notice of a guardianship proceeding may file an objection to the guardianship "[w]ithin the time specified in the show cause order." Rule D 77.a. did not make a hearing mandatory but stated only that the court "shall hold such hearing as justice may require." Current Rule 9-107(b)(1) requires that, if the show cause order is served within Maryland, a notice of objection must be filed within 30 days after the show cause order is served. Rule 9-109(a) requires a hearing on the merits "in a contested guardianship action and in every adoption action." (Emphasis added). Rule 9-111(a) precludes a court from entering a judgment of guardianship before "[e]xpiration of the time for revoking all required consents."
B. The Parents' Position
In the circuit court, Clemy P. attempted to relate the "deemed" consent under § 5-322(d) to an affirmative consent contemplated by § 5-317 and former Rule D 73, now expressly provided for by Rule 9-102. She argued that (1) if the judgment of guardianship was based on her "deemed" consent under § 5-322(d), she had a right under § 5-317(e) to revoke that consent at any time prior to entry of the judgment, (2) it was incumbent upon DSS as a matter of due process to inform her that she had that right and to give her notice of all proceedings and papers filed with the court prior to entry of the judgment so that she could effectively exercise her right to revoke, (3) she was not apprised of her right to revoke and was not given notice of DSS's motion for entry of the judgment or of the entry of the judgment, and (4) the judgment was therefore defective and invalid.
In this Court, the Public Defender presses that argument on behalf of Clemy P. but, in advocating the position of the parents in the three Baltimore City cases, has expanded it to include the filing of untimely objections prior to the entry of a judgment of guardianship. In that regard, he urges that (1) courts have discretion under Rules 1-204 and 2-613 *692 to consider late-filed objections, and (2) to construe the law otherwise would cause it to constitute a violation of due process of law and equal protection of the law. That argument was not articulated by Clemy P. in her case in the circuit court.
C. Analysis
(1) Question 2: Right To Revoke "Deemed" Consent
The argument actually articulated by Clemy P. in the circuit court, which was accepted by that court, founders on the erroneous assumption that underlies its major premise. Section 5-322(d) does not incorporate within it the provisions of § 5-317(e). A deemed consent under § 5-322(d) may not be revoked, for it is not a volitional consent but one arising by operation of law. If the parent fails to file a timely objection, no further notices need be given to the parent, prior to or upon the entry of a judgment of guardianship. This conclusion is clear from both the structure and the history of the relevant statutes and rules.
Before considering in further detail the current text of the statutes, we note that we have examined closely the legislative development of those statutes and of the rules implementing them. We have reviewed the 1982 general revision of the adoption and guardianship laws (1982 Md. Laws, ch. 514), the revision of the subtitle D Rules in 1983 and 1986, the amendments to § 5-322(d) made in 1987 (1987 Md. Laws, ch. 282), the amendments made to § 5-317(e) adopted in 1992 and 1994 (1992 Md. Laws, ch. 511; 1994 Md. Laws. ch. 234), and the most recent revision to the adoption and guardianship rules adopted by this Court in June, 1996, which took effect January 1, 1997. It is not necessary to prolong this opinion with a complete recitation of those various enactments and promulgations. It will suffice, to demonstrate the point, to focus on 1987 Md. Laws, ch. 282 amending § 5-322(d) and 1992 Md. Laws, ch. 511 and 1994 Md. Laws, ch. 234, amending § 5-317(e).
Until 1986, § 5-322(d), as supplemented by Md. Rule D 76, required a parent who wished to object to a DSS petition for guardianship to file a formal petition to intervene in the case and, if that petition was granted, to file an answer to the petition. In the 94th Report of this Court's Standing Committee on Rules of Practice and Procedure, filed in January, 1986, the Committee recommended, and this Court later adopted, rules that replaced the intervention scheme with a simple notice of objection and required the show cause order to give clear advice as to the necessity and manner of filing an objection and as to the consequence of failing to do so.
Apart from that change, the Rules Committee raised in its 94th Report the very issue underlying the questions presented here, pointing out that it was unclear from the existing statutes what the effect was of a parent refusing to consent but failing to object to a DSS petition. At the time, § 5-322(c) provided that, if a parent failed to intervene within the time specified, the court shall consider the "requirement of consent" by that person to have been waived. Even with the other changes recommended by it, the Committee urged in its Report that the failure to object not be treated as the effective equivalent of consent. In light of substantial opposition to that approach by various groups and certain other ambiguities in the statute, however, the Committee asked the Court to defer action on that recommendation, which we did.
The issue raised by the Rules Committee was presented squarely to the Legislature in its 1987 session through the introduction of HB 590, which was enacted as ch. 282. The bill was introduced at the behest of the Governor's Task Force To Study Adoption Procedures in Maryland. In its 1987 Report, the Task Force noted the increasing number of children "drifting" in foster care without any permanent home or family attachment. It pointed out that there were then 5,300 children in Maryland in the DSS foster care program, about 3,200 of whom had been in foster care for more than two years. GOVERNOR'S TASK FORCE TO STUDY ADOPTION PROCEDURES IN MARYLAND, GROWING UP ALONE: CHILDREN WAITING FOR FAMILIES vii (1987). DSS statistics showed that, State-wide, it took an average of 5.1 years for a child in foster care to be adopted. The delay in *693 Baltimore City was even worsean average of 7.4 years. Id. at viii.
The Task Force recommended 54 measures to speed up the process, one of which Recommendation 6was that, if a parent who was duly notified failed to file a timely objection to a DSS petition, "the petition shall be treated as one in which consent has been granted." Id. at 4. The consequence of failing to file a timely objection was thus to be changed from a waiver of the requirement of consent to a statutorily deemed consent. That recommendation was supported by the State Department of Human Resources as a "clarification of legislative intent." In its written statement to the General Assembly, the Department observed that many parents, though recognizing that adoption would be in their child's best interest, were nonetheless unable to bring themselves to sign a consent to a termination of their parental rights but chose instead "to simply take no action when served with the show cause orderin effect, to `allow their child to be taken from them.'" The Department expressed concern about continuing to treat such cases as contested, requiring full evidentiary hearings and delaying the termination process. The bill was also supported by several foster care review boards, which expressed similar concern over the delay in achieving permanence for children in foster care.
From this legislative history, it is evident that, in enacting HB 590, the General Assembly intended to eliminate any uncertainty over the effect of a parent's failure, after proper notice, to file a timely objection. The sole purpose of regarding such a lapse as a statutory consent imposed by operation of law and directing the court to proceed accordingly was to treat the case thereafter as though it were uncontestedto avoid the need for further notice and hearing and thus to speed up the judicial component of the permanency planning process.
That same purpose is equally clear in the 1992 and 1994 amendments to § 5-317(e). Until 1992, a parent who consented to a guardianship could revoke the consent at any time before judgment was entered. In 1992, the Legislature attempted to shorten that period by limiting the revocation period to the earlier of entry of judgment or 30 days after the consent was filed in court. 1992 Md. Laws, ch. 511. That was the law in effect when the petition was filed in Clemy P.'s case. In adopting that approach, the Legislature evidently believed that DSS would routinely file its petition almost immediately after obtaining the consent, that the consent would be filed with the petition, that the judicial action would proceed apace, and that the deadline for revoking the consent would therefore expire approximately 30 days after the consent was signed, if not sooner upon the entry of judgment.
That assumption, however, turned out to be unwarranted, and thus the statutory scheme carried within it a serious deficiency. Evidence presented to the Rules Committee showed that, for a variety of reasons, DSS did not routinely file its petition immediately upon obtaining a consent. In many cases, there was a delay in obtaining the consent of the second parent, or that parent could not be located or would not consent. In some instances, there were simply bureaucratic delays. Whatever the reason, even the mere prospect that the petition would not be filed contemporaneously with the obtention of a consent made it impossible to inform the consenting parent, at the time he or she signed the consent, when the revocation period would expire. At the urging of the Rules Committee, the General Assembly amended the statute in 1994 to fix the revocation period, in all cases, to 30 days after the consent was signed. 1994 Md. Laws, ch. 234. That change created a fixed, ascertainable expiration dateone that would allow DSS, the court, and all other interested parties to rely on the consent once the 30-day period expired.
In light of this history, it is evident that any construction of § 5-317(e) or § 5-322(d) that would have the effect of engendering further delays or imposing additional impediments to achieving permanent and stable family settings for children placed in foster care, usually as the result of a CINA proceeding, would be flatly inconsistent with and antithetical to the clear legislative purpose, *694 and is to be avoided unless absolutely required.
As noted, § 5-317(e) permits a parent to revoke an actual, written consent at any time up to 30 days after the consent is signed. The right to revoke ends upon the expiration of that period. Unless the parent, in the consent, has expressly reserved the right to notice, he or she is not entitled to any notice of the petition or of any proceedings on it, including entry of a judgment, for the consent has made the case an uncontested one with respect to that parent. The only further notice to which such a parent is entitled, unless it too has been waived, is that provided for in § 5-319(b)that a placement for adoption has not been made within nine months after the judgment of guardianship, that a placement made within the nine months has been "disrupted," as defined in the statute, or that a judgment of adoption has not been entered within two years after a placement.
The revocation period allowed under § 5-317(e), as it now reads, is clear, fixed, and easily ascertained. The certainty of the period is essential for DSS and the court to know what, if any, right to notice and participation the parent retains. That certainty would not exist if a right to revoke is attached to the "deemed" consent under § 5-322. Under the theory espoused by Clemy P., the right to revoke the statutory consent would continue until the entry of judgment, which is an approach expressly rejected by the Legislature in 1992 and 1994 with respect to consents under § 5-317(e). It would also have the effect of giving a defaulting parent greater rights than one who affirmatively consents, and no rational justification for that has been proposed.
We can find nothing in the legislative history of the 1987 enactment, which put § 5-322(d) into its present form, suggesting an intent to attach a right to revoke to the statutory consent. As we indicated, the evident purpose for that approach was narrow and restrictive rather than expansiveto cut off the right of a parent who fails to file a timely objection to any further notice and any right to participate in the action. Indeed, that parent has fewer, not greater, rights than the parent who signs a written consent, for the latter is expressly authorized to retain the right at least to notice of further proceedings, though not the right to participate in them.[8] Adoption of Clemy P.'s view would render § 5-322(d) essentially meaningless, for, if the parent is allowed to ignore the plain advice and warnings in the show cause order and proceed to challenge the DSS petition at any time up to the entry of judgment (and perhaps even during the 30-day post-judgment period when the court retains full discretion under Md. Rule 2-535(a) to vacate the judgment), prudence would dictate that every case not based on actual consents obtained under § 5-317 be treated as contested.
As a matter of statutory construction, therefore, we conclude that there is no right to revoke a statutory consent arising under § 5-322(d). That is a consent, as we have said, arising by operation of law, not by volition, and it is not within the power of the parent to revoke it.
(2) Question 3: Right To Notice
Because there is no right to revoke a consent arising under § 5-322(d), it follows that the consent becomes fully effective when the time for filing an objection expires. Thereafter, as to the non-objecting parent, the case becomes uncontested, in the same manner as to a parent who has consented under § 5-317 without reservation and has allowed the revocation period to lapse. Such a parent is entitled to no further notice of proceedings on the DSS petition and has *695 no further right to participate in the action. Moreover, because there is no right to revoke such a statutory consent, it is not incumbent on DSS, or anyone else, to inform the parent that he or she has such a right. The advice and warnings contained in the show cause order adequately explain the effect of a failure to file a timely objection. No other advice is required. Because, in Clemy P.'s case, the motion to vacate the guardianship judgment and the order granting that motion were based solely on the ground that Clemy P. had a right to revoke her statutorily deemed consent, we shall reverse the order as being legally unfounded.
(3) Caveat
We indicated in the introduction to this opinion that our answer to the second question raised in the certiorari petition was "no" with a caveat. The caveat arises from a statute that we mentioned in passing but which was not raised by Clemy P. or any of the other petitioners, either in the circuit court or in this Court. It has no relevance to the first four cases but could have relevance in Clemy P.'s case.
Section 5-319 of the Family Law article, as noted, requires that DSS file a report if an adoption placement is not made within nine months after entry of the guardianship judgment, if a placement made within that period has been disrupted, or if an adoption does not take place within two years after placement. If any of those circumstances exist, the statute requires the guardian to send notice of the child's status to the natural parents. More significantly, § 5-319(f) provides that, on receipt of the guardian's report and every 12 months thereafter, the court
"(1) shall hold a hearing to review the progress which has been made toward the child's adoption and to review whether the child's current placement and circumstances are in the child's best interest; and
"(2) shall take whatever action the court considers appropriate in the child's best interest."
(Emphasis added).
The issue of whether § 5-319(f) would allow the court to reopen or vacate an enrolled judgment of guardianship in the limited circumstances enumerated in the statute was not included in the petition for certiorari and was not briefed or argued in this Court. It is not clear whether it was considered below. As noted, counsel for the children asked for a hearing because of the delay in placing them for adoption and Clemy P. sought to intervene in that proceeding, but the record before us is silent both as to what happened in that regard and as to whether that circumstance in any way influenced the court in its decision to vacate the guardianship judgment. The court made no mention of § 5-319(f) in its order vacating the guardianship, which was based solely on the court's erroneous conclusion that Clemy P. had a right to notice of all pleadings filed after the deadline passed for her objection.
It would be inappropriate for us to consider and construe § 5-319(f) in this case. We simply call it to the attention of the bar, the bench, and especially to DSS.
(4) Question (1): Authority To Consider Untimely Objection
(a) Mootness
We turn, finally, to the moot question presented in the three Baltimore City caseswhether the court has authority to accept and consider an objection filed after the deadline set in the show cause order. We have made clear many times that, while we have the Constitutional authority to express our views on moot questions, we exercise that authority "only in rare instances which demonstrate the most compelling of circumstances." Reyes v. Prince George's County, 281 Md. 279, 297, 380 A.2d 12, 27 (1977); Mercy Hosp., Inc. v. Jackson, 306 Md. 556, 562, 510 A.2d 562, 565 (1986); Baltimore Sun Co. v. State, 340 Md. 437, 454, 667 A.2d 166, 174 (1995). We have addressed moot questions when "the public interest clearly will be hurt if the question is not immediately decided," if the issue is "likely to recur frequently, and its recurrence will involve a relationship between government and its citizens," and if "the same difficulty which prevented the appeal at hand from being heard in time is likely again to prevent a decision." Lloyd v. Supervisors of Elections, *696 206 Md. 36, 43, 111 A.2d 379, 382 (1954); Mercy Hosp., supra, 306 Md. at 563, 510 A.2d at 565; Coburn v. Coburn, 342 Md. 244, 250, 674 A.2d 951, 954 (1996); In re Riddlemoser, 317 Md. 496, 502-03, 564 A.2d 812, 815 (1989).
This is one of those rare situations. The issue is obviously of considerable public importance; given the number of termination cases filed each year, the issue is likely to recur frequently;[9] it involves an important and dramatic conflict between the government, acting as parens patriae, and the most fundamental rights of individual citizens as parents; and there are significant practical difficulties in effectively and efficiently presenting this issue, which necessarily arises from an interlocutory order, for appellate review.
The Public Defender does not suggest that there is any internal ambiguity in § 5-322(d). That section states quite clearly that, if the parent is properly notified and fails to file an objection "within the time stated in the show cause order," the parent is deemed to have consented to the petition. His argument is two-fold. First, he contends that § 5-322(d) must be read in conjunction with Rules 1-204(a) and 2-613, which, respectively, allow a court to extend a filing deadline and to strike an order of default entered upon a party's failure to file a timely responsive pleading, and that, when so read, the court has discretion to accept a late-filed objection. Second, he argues that, if the statute is not read in that manner, it denies parents due process of law and equal protection of the law. We find no merit in either argument.
(b) Rules 1-204 and 2-613
Rule 1-204(a) states, in relevant part, that
"[w]hen these rules or an order of court require or allow an act to be done at or within a specified time, the court, on motion, may (1) shorten the period remaining, (2) extend the period if the motion is filed before the expiration of the period ... or (3) on motion filed after the expiration of the specified period, permit the act to be done if the failure to act was the result of excusable neglect."
(Emphasis added). It is only the third clause that is potentially applicable here, as no motion to extend the deadline was filed prior to its occurrence.
The Public Defender's argument pertaining to Rule 1-204 overlooks the fact that the time period for filing an objection is defined and mandated by statute, not by the rules or by order of court. It is true that former Rule D 76 a. parroted the statutory requirement that an objection be filed "[w]ithin the time specified in the show cause order," but that does not alter the fact that the period was established by statute, rather than by rule or court order.[10] Rule 1-204(a) therefore does not apply.
Nor does Rule 2-613 apply in this case. Section (a) of that rule permits a court to enter an order of default "[i]f the time for pleading has expired and a defendant has failed to plead as provided by these rules...." (Emphasis added). Section (b) directs the clerk to notify the defendant that such an order has been entered. Section (c) permits the defaulting defendant to move to vacate the order within 30 days after its entry, and § (d) directs the court to vacate the order if it finds that "there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead...."
Rule 2-613 is based on a default in pleading. Rule 1-202(r) defines "pleading" as "a complaint, a counterclaim, a cross-claim, a third-party complaint, an answer, an answer to a counterclaim, cross-claim, or third-party complaint, a reply to an answer, or a charging *697 document as used in Title 4." A notice of objection is none of those things. One of the major changes made in the rules in 1986 was to convert the requirement of a petition to intervene and an answer into a simple notice of objection. The objection need not state any defenses to the petition and need not admit or deny any of the allegations made by DSS, as would be required in an answer. See Md. Rule 2-323. Nor need the parent serve the objection on DSS, as would be required if the objection were regarded as a pleading. See Md. Rule 1-321. Apart from the objection not being a pleading, no order of default is entered if an objection is not filed; there is, accordingly, no order to vacate. As with Rule 1-204, Rule 2-613 has no application to this procedure.
(c) Due Process
The Public Defender's due process argument springs from the fundamental liberty interest that parents have to raise their children, articulated in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). Noting that, under Rule 1-204(a), courts have discretion generally to excuse late filings, he urges that the removal of such discretion in termination cases, regardless of the circumstances, "is shocking to the conscience and violative of the right of due process."
Lassiter, Santosky, and their progeny recognize three basic principles: (1) parents have a fundamental liberty interest in the care, custody, and management of their children, (2) when the State moves to abrogate that interest, it must provide the parents with fundamentally fair procedures, and (3) the process due to parents in that circumstance turns on a balancing of the three factors specified in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), i.e., the private interests affected by the proceeding, the risk of error created by the State's chosen procedure, and the countervailing governmental interest supporting the use of the challenged procedure.
The first and third Mathews factors are obviously important ones in a termination of parental rights action. The private interest is the parent's fundamental right to raise his or her children, and there are few, if any, rights more basic than that one. The governmental interest in securing permanent homes for children placed into its custody because of an inability or unwillingness of their parents to care for them properly is also strong and vital, however. These are vulnerable and defenseless children, usually at critical stages of their development and having only the government and its agents to turn to for physical and emotional sustenance. Once it appears that reunification with their parents is not possible or in their best interest, the government has not only a special interest, but an urgent duty, to obtain a nurturing and permanent placement for them, so they do not continue to drift alone and unattached.[11]Compare M.L.B. v. S.L.J., ___ U.S. ___, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), where the countervailing governmental interest found wanting was only a financial one.
*698 With two strong countervailing interests here, the pivotal issue is the secondthe risk of error created by the challenged procedure.
In this regard, the Public Defender conjures up the prospect of a mother who lapses into a coma upon receipt of the show cause order and is, for that reason, rendered unable to file a timely objection. Something so extreme as that might indeed present a due process problem in the particular application of the statute, but the attack here is a frontal one, and, in that context, the risk of error factor is not to be judged by the remote, extreme case that, to the best of our knowledge, has never yet happened and is not ever likely to happen. None of the parents in the three Baltimore City cases, in which this issue was raised, offered any excuse beyond mere neglect for failing to file a timely objection. Compare Matter of K.B.E. and T.M.E., 740 P.2d 292, 296-97 (Utah.Ct. App.1987); Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272, 278 (1987); Adoption of Kassandra B. v. Martin G., 3 Neb.App. 180, 524 N.W.2d 821, 827 (1994). In judging the facial validity of the procedure, we must look to the normal case, not to a conjured, hypothetical aberration.
We cannot say that there is no risk of error in an absolute deadline, but zero tolerance is not required and is probably not achievable in any procedure. The statutory deemed consent does not exist in a vacuum. It arises only after service on the parent of a show cause order that explains, in plain, simple language, the right to object, how, where, and when to file a notice of objection, and the consequence of not filing one within the time allowed. A form notice of objection is attached to the order, and all that the parent need do is to sign it, print on it his or her name, address, and telephone number, and mail or deliver it to the address shown in the order. If, as in each of the cases before us, the children have already been declared to be CINA, a copy of the order is also served on the attorney who represented the parent at the CINA proceeding. The order states clearly that the parent has a right to an attorney and may have the right to a court-appointed attorney, and there is a clearly marked space on the objection form for the parent to exercise that right. Each of the parents now before us had several weeks after service of the order within which to file an objection; current Rule 9-107(b) requires the objection to be filed within 30 days after service of the show cause order.
In this setting, we believe that the risk of error in establishing an absolute deadline for filing a notice of objection is relatively small. It is evident to us that, in the normal case and in the cases now before us, the parent is given fair and adequate notice of what is required and a fair and adequate opportunity to file a timely notice of objection. It is, perhaps, noteworthy that, in two of the Baltimore City cases, the late-objecting parent did not even show up at the hearing on the merits.
Balancing the three Mathews factors, therefore, we conclude that the statutory scheme of regarding the failure to file a timely objection as an irrevocable deemed consent to the petition does not facially offend any due process right of the parent.
(5) Equal Protection
The Public Defender's equal protection argument proceeds from a comparison of the parent who suffers from a deemed consent under § 5-322(d) with (1) an ordinary civil litigant, whose late filings may be accepted by the court under Rule 1-204, and (2) the parent who signs an affirmative consent and has 30 days within which to revoke it. He urges that, because a fundamental right is at stake, these comparisons must be subjected to a strict scrutiny analysis and that there is neither a necessity nor a compelling State interest in treating the parent who fails to file a timely objection differently.
We shall assume, for purposes of this appeal, that the deemed consent under § 5-322(d) is subject to a strict scrutiny analysis, although it is not necessary that we so hold. A statutory classification impinging upon a fundamental right "must be narrowly tailored to serve a compelling governmental interest." Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666, 110 S.Ct. 1391, 1401, 108 L.Ed.2d 652 (1990); Verzi v. Baltimore County, 333 Md. 411, 418, 635 A.2d 967, *699 970 (1994); Kirsch v. Prince George's County, 331 Md. 89, 98, 626 A.2d 372, 376, cert. denied, 510 U.S. 1011, 114 S.Ct. 600, 126 L.Ed.2d 565 (1993); Murphy v. Edmonds, 325 Md. 342, 356, 601 A.2d 102, 109 (1992).
We have already elucidated the governmental interest underlying § 5-322(d) and need not repeat it. It is a compelling interest. The question, then, is whether the device of a statutorily deemed irrevocable consent is narrowly tailored to serve that interest. We have no hesitation in concluding that it is.
In the normal civil case, the governmental interest is limited to providing a neutral forum and fair procedures for the efficient resolution of the dispute. Deadlines for the filing of lawsuits and for the filing of pleadings and other papers in lawsuits that have been filed serve only that general interest, and escape hatches, such as provided for by Rule 1-204(a), are simply part of the established dispute resolution process. In termination of parental rights cases, the government has a special, more particular interest in the speedy resolution of DSS petitions. The Legislature has made manifest its concern over children lingering in foster care, even during the judicial phase of the permanency planning process.
As we indicated above, if the court had the general discretion to accept and consider a late-filed objection, no one could safely rely on the absence of a timely objection. A parent who, out of negligence or deliberation, allows the time for objection to lapse and later has a change of heart, would be able to seek the opportunity to object at any time prior to entry of judgment, and possibly even for 30 days thereafter. Under the Public Defender's view, parents would presumably have to be told that they have that ability, which would tend to make untimely objections even more frequent. Giving the parent fair notice, warning, and opportunity to object, coupled with a clear, irrevocable deemed consent if a timely objection is not filed, is a narrowly tailored device reasonably designed to serve the compelling governmental interest.
The different status of a parent who signs an affirmative consent does not alter that conclusion. As we noted, such a consent is a volitional act. Allowing the parent 30 days to revoke that consent does not significantly impede the process. Those consents are usually obtained before the petition is filed, for they must accompany the petition. Even if DSS files its petition before the revocation period expires, that period will necessarily expire before the action proceeds very far. Allowing a reasonable period to revoke an actual consent does not, therefore, present the same delays and uncertainties as allowing an escape from the failure to file a timely objection.
For these reasons, even under a strict scrutiny analysis, we find no denial of equal protection of law in regarding the consent arising under § 5-322(d) as irrevocable and not allowing the court routinely to entertain late-filed objections.
APPEALS IN NOS. 93321055, 95089042, AND 95108035 DISMISSED, COSTS TO BE PAID BY APPELLANTS; JUDGMENT IN NOS. 11711 AND 11712 AFFIRMED, COSTS TO BE PAID BY APPELLANTS; ORDER VACATING JUDGMENT IN NOS. 11387 AND 11388 REVERSED, THOSE CASES REMANDED TO CIRCUIT COURT FOR MONTGOMERY COUNTY FOR ENTRY OF ORDER DENYING MOTION TO VACATE AND REINSTATING JUDGMENT OF GUARDIANSHIP, COSTS TO BE PAID BY APPELLEE.
NOTES
[1] The show cause order was served on Eugene by alternate serviceordinary mail to his last known address and leaving a copy with his sisterbased on a finding that he had been avoiding service of earlier-issued show cause orders.
[2] The first appeal was dismissed by the Court of Special Appeals for failure to file a prehearing information report, as required by Md. Rule 8-205. That report was filed in connection with the second appeal.
[3] The motion to alter or amend was denied on February 14, 1996. DSS filed its appeal on February 27, 1996 and, at the same time, moved to extend the stay during the pendency of the appeal. Docket Entry No. 48 indicates that, on March 1, 1996, the court entered an order extending the stay pending final decision on appeal, although no such order appears in the record. Docket Entry No. 51 indicates that, on March 12, 1996, Clemy's motion to strike the order extending the stay was granted, although no order to that effect appears in the record. Two conflicting entries appear under the date of March 14, 1996. No. 52 states that Clemy's request that the court strike the order extending the stay was granted; No. 54, on the other hand, states "Order of Court (McGuckian, J.) that stay entered December 7, 1995 be extended pending final decision on appeal filed." There are no orders in the record supporting either of the March 14 docket entries. Indeed, the record contains no papers between No. 49 and No. 56.
[4] In its brief and at oral argument, the State conceded that the appeals in Nos. 93321055 and 95089042the ones in which it knew a judgment of guardianship had been enteredwere moot. Not having bothered to check the docket in No. 95108035an inexcusable lapsethe parties were unaware that judgment had been entered in that case as well. The State attempted to find a right to appeal the interlocutory order under Family Law article, § 5-330, which provides that "[a]ny party to an adoption proceeding may appeal to the Court of Special Appeals from any interlocutory or final order or decree." (Emphasis added). It will suffice to remind the State that No. 9510835 was not an adoption proceeding. It arose from a petition for guardianship. No adoption was sought or decreed.
[5] New Freedom and S. & G. Realty hold that the issue on appeal from the denial of a motion under what is now Rule 2-535(b) is whether the trial court abused its discretion in denying the motion. That holding may be too narrow. If the court denies the motion based on its conclusion that the event or conduct underlying the motion did not constitute cognizable fraud, mistake, or irregularity or on the ground that the movant had not demonstrated a meritorious defense or claim and that conclusion is challenged as being erroneous as a matter of law, the issue on appeal would be a purely legal one, not abuse of discretion. A court, for example, does not have discretion to determine that conduct constituting fraud as a matter of law is not fraud. As in any appeal, of course, the ultimate legal conclusion may be based on subsidiary findings to which an abuse of discretion standard does apply. That relaxed standard would also apply to the ultimate ruling if the ruling is based on a finding that the movant did not exercise due diligence in light of the circumstances, for, ordinarily, that is a discretionary determination.
[6] We have recognized that the State must follow this statutory scheme if parental rights are to be terminated. See Carroll County v. Edelmann, 320 Md. 150, 170-76, 577 A.2d 14, 26 (1990) (precluding a court from terminating a parent's parental rights other than through this statutory scheme).
[7] The reference to subsection (c) has no application here. That subsection sets forth circumstances in which the show cause order need not be served on the parentin which notice to the parent of the filing of the petition is deemed waived.
[8] As noted, when DSS filed its petition in Clemy P.'s case, the 1992 law was in effect. That is of no assistance to her, however, for the same principle applies. If Clemy had given an actual consent under § 5-322(c), it would have been filed with the DSS petition, as required by the rules, and thus would have expired in May, 1993. The show cause order set a deadline of June 25, 1993 to file an objection, and thus the "deemed" consent occurred then. Even if we were to accord her the same 30-day period allowed under § 5-317(e), as it read in 1992, she would have had only until July 25, 1993 to revoke. The judgment was entered October 20, 1993, after any equivalent right to revoke would have expired. Even the DSS motion for judgment, of which she complains she received no notice, was filed after October 11.
[9] The 1995-96 Annual Report of the Maryland Judiciary indicates that, in FY 1996, 2,895 petitions for adoption or guardianship were filed.
[10] New Rule 9-107(b) is consistent, though worded differently. As noted, it requires that an objection be filed within 30 days after the show cause order is served. Rule 9-105, which sets forth the form of show cause order, requires that the order specify that the objection must be filed within that period. Thus, the new rule continues to carry forth the statutory mandate that the objection be filed within the time stated in the show cause order.
[11] The problems facing these children and the need to find permanent homes for them with reasonable dispatch were set forth in the 1987 Report of the Governor's Task Force To Study Adoption Procedures in Maryland, supra. The Commission noted, at iii:
"As a result of the dramatic decrease in the number of healthy infants and toddlers available for adoption, the overwhelming majority of children receiving adoption services today have very special needs. They are school-aged; they have severe and demanding mental and emotional conditions which will require extensive ongoing care and treatment and may prevent future self-sufficiency. Services needed include recruitment and assessment of adoptive families, preparation of children and families for adoption placement, pre and post-placement services and post finalization services to adoptive families.... Older children who have experienced living with a number of families require extensive preparation and work around issues of grief before they can accept an adoptive family and trust that this placement will be permanent....
"At public hearings held by the Task Force, adoptive parents spoke of the severe emotional problems of the children who came to them after years in the state's foster care system."
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https://www.courtlistener.com/api/rest/v3/opinions/2258925/
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38 Cal.Rptr.3d 450 (2006)
135 Cal.App.4th 1377
CITY OF RANCHO CUCAMONGA, Plaintiff and Appellant,
v.
REGIONAL WATER QUALITY CONTROL BOARD-SANTA ANA REGION et al., Defendants and Respondents;
County of San Bernardino et al., Real Parties in Interest and Respondents.
No. E037079.
Court of Appeal, Fourth District, Division Two.
January 26, 2006.
*452 James L. Markman, Brea; Richards, Watson & Gershon, John J. Harris, Los Angeles, and Evan J. McGinley, for Plaintiff and Appellant.
Bill Lockyer, Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Richard Magasin, Supervising Deputy Attorney General, and Jennifer F. Novak, Deputy Attorney General, for Defendants and Respondents.
*451 OPINION
GAUT, J.
1. Introduction
This case involves environmental regulation of municipal storm sewers that carry excess water runoff to the Santa Ana River as it passes through San Bernardino County on its way to the Pacific Ocean. Federal and state laws impose regulatory controls on storm sewer discharges. Municipalities are required to obtain and comply with a federal regulatory permit limiting the quantity and quality of water runoff that can be discharged from these storm sewer systems.
In this instance, the Regional Water Quality Control Board for the Santa Ana Region (the Regional Board) conducted public hearings and then issued a comprehensive 66-page municipal storm sewer permit governing 18 local public entities. Two permittees, the City of Rancho Cucamonga and the City of Upland, among others, filed an administrative appeal with the State Water Resources Control Board (the State Board.) The State Board summarily dismissed the appeal. The Cities of Rancho Cucamonga and Upland[1] then filed a petition for writ of mandate and complaint against the State Board and the Regional Board.
The trial court sustained without leave to amend the demurrer of the State Board to the entire action. It sustained the demurrer as to four causes of action and granted the motion to strike of the Regional Board. After a hearing, the trial court denied the petition for writ of mandate.
Both procedurally and substantively, the City of Rancho Cucamonga challenges the conditions imposed by the NPDES[2] Permit and Waste Discharge Requirements (the 2002 permit). It contends the procedure by which the 2002 permit was adopted was not legal, that the 2002 permit's conditions are not appropriate for the area, and that the permit's requirements are too expensive. Because we conclude the permit was properly adopted and its conditions and requirements are appropriate, we reject these contentions.
2. The National Pollutant Discharge Elimination System
California cases have repeatedly explained the complicated web of federal and state laws and regulations concerning water pollution, especially storm sewer discharge into the public waterways. (City of Burbank v. State Water Resources Control Bd. (2005) 35 Cal.4th 613, 619-621, 26 Cal.Rptr.3d 304, 108 P.3d 862 (Burbank); Building Industry Assn. of San Diego County v. State Water Resources Control Board (2004) 124 Cal.App.4th 866, 872-875, 22 Cal.Rptr.3d 128 (Building Industry); Communities for a Better Environment v. State Water Resources Control Board (2003) 109 Cal.App.4th 1089, 1092-1094, 1 Cal.Rptr.3d 76 (Communities); Water-Keepers Northern California v. State Water Resources Control Board (2002) 102 *453 Cal.App.4th 1448, 1451-1453, 126 Cal.Rptr.2d 389 (WaterKeepers)).
For purposes of this case, the important point is described by the California Supreme Court in Burbank: "Part of the federal Clean Water Act [33 U.S.C. § 1251 et seq.] is the National Pollutant Discharge Elimination System (NPDES), `[t]he primary means' for enforcing effluent limitations and standards under the Clean Water Act. (Arkansas v. Oklahoma [(1992) 503 U.S. 91, 101, 112 S.Ct. 1046, 117 L.Ed.2d 239.]) The NPDES sets out the conditions under which the federal EPA or a state with an approved water quality control program can issue permits for the discharge of pollutants in wastewater. (33 U.S.C. § 1342(a) & (b).) In California, wastewater discharge requirements established by the regional boards are the equivalent of the NPDES permits required by federal law. (§ 13374.)" (Burbank, supra, 35 Cal.4th at p. 621, 26 Cal.Rptr.3d 304, 108 P.3d 862.)
California's Porter-Cologne Act (Wat.Code, § 13000 et seq.) establishes a statewide program for water quality control. Nine regional boards, overseen by the State Board, administer the program in their respective regions. (Wat.Code, §§ 13140, 13200 et seq., 13240, and 13301.) Water Code sections 13374 and 13377 authorize the Regional Board to issue federal NPDES permits for five-year periods. (33 U.S.C. § 1342, subd. (b)(1)(B).)
As discussed more fully in section 6 below, the state-issued NPDES permits are subject to the informal hearing procedures set forth for administrative adjudications. (Gov.Code, § 11445.10 et seq.; 23 C.C.R., § 647 et seq.) The issuance of permits is specifically excluded from the procedures for administrative regulations and rulemaking. (Gov.Code, § 11340 et seq. and § 11352.)
3. Factual and Procedural Background
The Regional Board issued the first NPDES permit for San Bernardino County in 1990. The principal permittee was the San Bernardino Flood Control District (the District). The 1990 permit required the permittees to develop and implement pollution control measures, using "best management practices" and monitoring programs, to eliminate illegal discharges and connections, and to obtain any necessary legal authority to do so. The management programs could be existing or new.
In 1993, the District developed the NPDES Drain Area Management Program (DAMP).
The second NPDES permit was issued in 1996 and was based on the Report of Waste Discharge (ROWD) prepared by the principal permittee and co-permittees, including Rancho Cucamonga. The 1996 permit proposed extending the existing program, which included inspections of industrial and commercial sources; policies for development and redevelopment; better public education; and implementation of a monitoring program. It offered a commitment to reduce pollutants to the "maximum extent practicable."
In 2000, the permittees submitted another ROWD to renew their NPDES permit. The 2000 ROWD proposed continuing to implement and develop water quality management and monitoring programs.
Based on the 2000 ROWD, the Regional Board staff created five successive drafts of the 2002 permit, incorporating written comments by Rancho Cucamonga and others and comments made during two public workshops. Some of the comments addressed the economic considerations of anticipated prohibitive compliance costs.
The notice of the public hearing to consider adoption of the 2002 permit hearing *454 announced: "relevant Regional Board files are incorporated into the record;" the governing procedures were those for an informal hearing procedure as set forth in "Title 23, California Code of Regulations, Section 647 et seq.;" and "Hearings before the Regional Water Board are not conducted pursuant to Government Code section 11500 et seq.," the alternative formal hearing procedure for administrative adjudication. The notice was mailed to all permittees. The accompanying "fact sheet," which was publicly circulated, offered further information about the conduct and nature of the hearing and the legal and factual grounds for the Regional Board's recommendation to adopt the 2002 permit.
The informal public hearing was conducted on April 26, 2002. Neither Rancho Cucamonga nor any of the permittees objected to the form or substance of the hearing. Ultimately, after a staff presentation and testimony, including a statement from Rancho Cucamonga's counsel, the Regional Board adopted the 2002 permit. After the State Board dismissed their administrative appeal, Rancho Cucamonga and Upland filed the instant action.
The operative pleading is the second amended petition for writ of mandate and complaint. The petition alleges that the State Board and the Regional Board acted illegally and in excess of their jurisdiction in developing, adopting and implementing the 2002 permit. Based on 26 pages of general allegations, the petition asserts eight causes of action, alleging the State Board and the Regional Board violated sections 13241, 13263, and 13360 of the Water Code (the Porter-Cologne Act); the California Environmental Quality Act (CEQA); the California Administrative Procedure Act (Gov.Code, §§ 11340 through 11529); the California Constitution; and the Federal Clean Water Act; and seeking declaratory and injunctive relief.
The State Board successfully opposed the action on demurrer. The Regional Board eliminated four causes of action, the fourth, fifth, seventh, and eighth by demurrer and motion to strike. On the remaining four causes of action, the trial court found in favor of the Regional Board.
4. State Board's Demurrer
Rancho Cucamonga maintains the trial court should not have sustained the demurrer of the State Board without leave to amend because the State Board is the ultimate authority on state-issued NPDES permits, and, therefore, was properly joined as a party: "Because the State Board has for all intents and purposes adopted the rules and policies of general application upon which the Permit is based, it is clearly a proper party to this action."
The difficulty with Rancho Cucamonga's theory of liability against the State Board is, to quote Gertrude Stein about the City of Oakland, "There is no there there." (Gertrude Stein, Everybody's Autobiography.) In other words, Rancho Cucamonga's allegations against the State Board lack any substance. Instead, Rancho Cucamonga launches an unspecific attack on the State Board without identifying any particular problems. The petition makes the unexceptional allegation that the State Board formulates general water control policy which it implements and enforces through regional boards. It also alleges the State Board has not complied with the Administrative Procedures Act but it does not identify any objectionable policies or how there is no compliance. Instead the petition complains about a State Board letter directing that all NPDES permits follow consistent principles regarding Standard Urban Storm Water Mitigation *455 Plans. Additionally, the petition maintains the 2002 permit included new reporting requirements and increased costs of compliance.
But the foregoing allegations did not articulate any improper State Board conduct. The 2002 permit, issued by the Regional Board and not by the State Board, is not subject to formal rule-making procedures. (Gov.Code, § 11352, subd. (b).) The State Board's letter, explaining a precedential decision concerning mitigation plans, is not an example of formal rule-making. (Gov.Code, § 11425.60, subd. (b).) By dismissing Rancho Cucamonga's administrative appeal concerning the 2002 permit, the State Board declined to become involved and the Regional Board's decision to issue the permit became final and subject to judicial review. (People ex rel Cal. Regional Wat. Quality Control Bd. v. Barry (1987) 194 Cal.App.3d 158, 177, 239 Cal.Rptr. 349 (Barry).) But the State Board was not made a proper party by reason of its dismissal of the administrative appeal.
Furthermore, even if Rancho Cucamonga had identified any cognizable claim against the State Board, it would have been barred by the 30-day statute of limitations for challenging an improperly-adopted State Board policy or regulation. (Wat.Code, § 13330; Gov.Code, § 11350.)
We hold the trial court properly sustained without leave to amend the State Board's demurrer to the second amended petition for writ of mandate and complaint.
5. Standard of Review for Petition for Writ of Mandate
In deciding a petition for writ of mandate, the trial court exercises its independent judgment. (Code Civ. Proc., § 1094.5, subd. (c); Wat.Code, § 13330, subd. (d); Building Industry, supra, 124 Cal.App.4th at p. 879, 22 Cal.Rptr.3d 128.) But, "[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, ... Because the trial court ultimately must exercise its own independent judgment, that court is free to substitute its own findings after first giving due respect to the agency's findings." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817-818, 85 Cal.Rptr.2d 696, 977 P.2d 693.)
On appeal, the reviewing court determines whether substantial evidence supports the trial court's factual determinations. (Fukuda, supra, 20 Cal.4th at p. 824, 85 Cal.Rptr.2d 696, 977 P.2d 693; Building Industry, supra, 124 Cal.App.4th at p. 879, 22 Cal.Rptr.3d 128.) The trial court's legal determinations receive a de novo review with consideration being given to the agency's interpretations of its own statutes and regulations. (Building Industry, supra, at p. 879, 22 Cal.Rptr.3d 128; Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482, 22 Cal.Rptr.3d 772.)
6. Rancho Cucamonga's Objections to the Administrative Record and Lack of Notice
The notice of the administrative hearing for adoption of the 2002 permit included the statement that the Regional Board's files would be incorporated as part of the record. Before trial on the writ petition, Rancho Cucamonga attempted to raise an omnibus objection to the entire administrative record and a specific objection to four documents, three studies about marine pollution and one economic study. The trial court ruled the objections had been waived by not making them before or at the time of the hearing. Applying the presumption of administrative regularity, we affirm the trial court's evidentiary ruling. (Mason v. Office of Administrative *456 Hearings (2001) 89 Cal.App.4th 1119, 1131, 108 Cal.Rptr.2d 102.)
The reasons given by Rancho Cucamonga as to why the trial court should have sustained its objections to all or part of the administrative record are that it did not waive its objections to the record because Rancho Cucamonga did not know the hearing was adjudicative; the Regional Board did not provide notice of an informal hearing (Gov.Code, § 11445.30); and Rancho Cucamonga never had an opportunity to object to the administrative record.
As noted previously, Government Code section 11352, subdivision (b), makes the issuance of an NPDES permit exempt from the rulemaking procedures of the Administrative Procedures Act. Permit issuance is a quasi-judicial, not a quasi-legislative, rule-making, proceeding: "The exercise of discretion to grant or deny a license, permit or other type of application is a quasi-judicial function." (Sommerfield v. Helmick (1997) 57 Cal.App.4th 315, 320, 67 Cal.Rptr.2d 51; City of Santee v. Superior Court (1991) 228 Cal.App.3d 713, 718, 279 Cal.Rptr. 22.)
Instead, the Regional Board correctly followed the administrative adjudication procedures (Gov.Code, § 11445.10 et seq.) and the companion regulations at Code of Regulations, Title 23, sections 647-648.8 for informal adjudicative public hearings. These procedures were announced in the notice of hearing which also stated that Government Code section 11500 et seq., governing formal administrative adjudication hearings, would not apply, thus satisfying Government Code section 11445.30 requiring notice of an informal hearing procedure. At the time of the hearing, Rancho Cucamonga did not object to the informal procedure. Rancho Cucamonga's effort to argue that federal notice requirements (40 C.F.R. § 124.8, subd. (b)(6)(ii)) should also have been followed fails because this involved a state-issued NPDES permit adopted according to California procedures.
Because Rancho Cucamonga was given notice that the hearing on the permit would proceed as an informal administrative adjudication, it cannot successfully argue it was relieved of the obligation to object to the administrative record at the time of the hearing. An informal administrative adjudication contemplates liberality in the introduction of evidence. (23 C.C.R. §§ 648, subd. (d) and 648.5.1.) If Rancho Cucamonga wished to object to the informal hearing procedures, including the liberal introduction of evidence, it should have raised its objections as provided by statute and regulation before or at the time of the hearing (Gov.Code, §§ 11445.30, 11445.40, and 11445.50; 23 C.C.R. § 648.7), not a year later in the subsequent civil proceeding.
7. Economic Considerations for Issuance of NPDES Permit
Rancho Cucamonga's next assignment of error is the Regional Board failed to consider the economic impact of the requirements of the 2002 permit by not conducting a cost/benefit analysis. Rancho Cucamonga relies on the California Supreme Court's Burbank opinion, in which the court held: "When ... a regional board is considering whether to make the pollutant restrictions in a wastewater discharge permit more stringent than federal law requires, California law allows the board to take into account economic factors, including the wastewater discharger's cost of compliance." (Burbank, supra, 35 Cal.4th at p. 618, 26 Cal.Rptr.3d 304, 108 P.3d 862.) Rancho Cucamonga contends that the 2002 permit exceeds federal requirements and that, therefore, this case should be remanded for a consideration of *457 economic factors. (Ibid., Wat.Code, § 13241, subd. (d).)
The two problems with this argument are the trial court found there was no evidence that the 2002 permit exceeded federal requirements and Rancho Cucamonga does not explain now how it does so. There was also evidence that the 2002 permit was based on a fiscal analysis and a cost/benefit analysis. In the absence of the foundational predicate and in view of evidence that cost was considered, Rancho Cucamonga's contention on this point fails.
We also reject Rancho Cucamonga's related procedural argument that the Regional Board's motion to strike was impermissible as piecemeal adjudication. (Regan Roofing v. Superior Court (1994) 24 Cal.App.4th 425, 432-436, 29 Cal.Rptr.2d 413, Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1851-1855, 16 Cal.Rptr.2d 458.) It is well recognized a court may strike all or part of a pleading as it did in this instance. (Code Civ. Proc., §§ 431.10 and 436; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683, 40 Cal.Rptr.2d 169.)
8. Substantial Evidence
Rancho Cucamonga also challenges the trial court's independent factual determination that sufficient evidence supports the findings of the Regional Board. Rancho Cucamonga's main contention is that the 2002 permit was not distinctively crafted for San Bernardino County but, instead, copied a similar permit for other counties without identifying any particular water quality impairment in San Bernardino County caused by the permittees. In other words, no evidence in the record supports issuance of the 2002 permit and the trial court did not identify any such evidence in its statement of decision.
One problem with Rancho Cucamonga's foregoing argument is that the Clean Water Act requires an NPDES permit to be issued for any storm sewer discharge whether there is any actual impairment in a particular region. (33 U.S.C. § 1342; Communities, supra, 109 Cal.App.4th at pp. 1092-1093, 1 Cal.Rptr.3d 76.) Therefore, Rancho Cucamonga's contention that the permit fails to identify impaired water bodies in the region is beside the point.
In its statement of decision, the trial court discussed the inadequacy of the arguments and evidence cited by Rancho Cucamonga and concluded: "The San Bernardino Permit is based in part on the Basin Plan for this region. It is also based on the permittees' own reports and monitoring within this region.... It incorporates the permittees' management program, which is unique to these cities and county." The trial court included a citation to the 1993 DAMP report's "Geographic Description of the Drainage Area," which discusses the specific conditions present in San Bernardino County.
On appeal, Rancho Cucamonga faults the trial court for not presenting a more detailed description of the evidence supporting the issuance of the permit. We do not think the trial court, or this court, must bear that burden.
First, "[a]n agency may ... rely upon the opinion of its staff in reaching decisions, and the opinion of staff has been recognized as constituting substantial evidence. (Coastal Southwest Dev. Corp. v. California Coastal Zone Conservation Com. (1976) 55 Cal.App.3d 525, 535-536, 127 Cal.Rptr. 775.)" (Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 866, 226 Cal.Rptr. 575.) Here the Regional Board adopted the recommendation of its staff in issuing the permit. And, as the record shows, the staff's recommendation was based on the previous 1990 and 1996 permits, the 1993 DAMP *458 report and the 2000 ROWD, the permittees' application for renewal of the 1996 permit, as well as more general water quality factors. The evidence contradicts Rancho Cucamonga's assertion, that "the Regional Board simply copied verbatim the NPDES Permit for North Orange County, a coastal region with markedly different water quality conditions and problems."
As part of the trial court's consideration of the petition for writ of mandate, Rancho Cucamonga and the Regional Board directed the court to review specific items of evidence contained in the administrative record. In its opposing brief, the Regional Board offered a detailed account of the evidence supporting the issuance of the permit. The trial court indicated it had reviewed the parties' submissions before ruling. It discussed the evidence at the hearing on the petition and referred to it in its statement of decision. (Lala v. Maiorana (1959) 166 Cal.App.2d 724, 731, 333 P.2d 862.) Rancho Cucamonga had the burden of showing the Board abused its discretion or its findings were not supported by the facts. (Building Industry, supra, 124 Cal.App.4th at pp. 887-888, 22 Cal.Rptr.3d 128.) To the extent it attempted to do so at the trial court level, it was not successful.
This court has independently reviewed the record with particular attention to the evidence as emphasized by the parties. We do not, however, find it incumbent upon us or the trial court to review the many thousands of pages submitted on appeal and identify the particular evidence that constitutes substantial evidence. Instead, we deem the trial court's findings sufficient and not affording any grounds for reversal. (Building Industry, supra, 124 Cal.App.4th at p. 888, 22 Cal.Rptr.3d 128; see Weisz Trucking Co., Inc. v. Emil R. Wohl Construction (1970) 13 Cal.App.3d 256, 264, 91 Cal.Rptr. 489, citing Perry v. Jacobsen (1960) 184 Cal.App.2d 43, 50, 7 Cal.Rptr. 177.)
9. Safe Harbor Provision
As it did repeatedly below, Rancho Cucamonga maintains the 2002 permit violates section 402(k) of the Clean Water Act, 33 U.S.C. § 1342, subd. (k), because the permit does not include "safe harbor" language, providing that, if a permittee is in full compliance with the terms and conditions of its permit, it cannot be found in violation of the Clean Water Act. (United States Public Interest Research Group v. Atlantic Salmon of Maine, LLC (1st Cir.2003) 339 F.3d 23, 26; EPA v. State Water Resources Control Bd. (1976) 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578.) The trial court found there was no statutory right to a "safe harbor" provision to be included as the term of the permit. We agree.
This seems like much ado about nothing because 33 U.S.C. § 1342, subdivision (k), already affords Rancho Cucamonga the protection it seeks: "Compliance with a permit issued pursuant to this section shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1312, 1316, 1317, and 1343 of this title, except any standard imposed under section 1317 of this title for a toxic pollutant injurious to human health." Rancho Cucamonga does not cite any persuasive authority as to why this statutory protection had to be duplicated as a provision in the 2002 permit.
Furthermore, the 2002 permit complied with the State Board's Water Quality Order 99-05, a precedential decision requiring NPDES permits to omit "safe harbor" language used in earlier permits. A permit without "safe harbor" language was upheld in Building Industry, supra, 124 *459 Cal.App.4th at p. 877, 22 Cal.Rptr.3d 128. The trial court did not err.
10. Maximum Extent Practicable
Rancho Cucamonga protests that the 2002 permit's discharge limitations/prohibitions exceed the federal requirement that storm water dischargers should "reduce the discharge of pollutants to the maximum extent practicable." (33 U.S.C. § 1342, subd. (p)(3)(B)(iii).) The trial court, however, found there was no evidence presented that the 2002 permit exceeded federal requirements. Because there is no evidence, the issue presented is hypothetical and, therefore, premature. (Building Industry, supra, 124 Cal.App.4th at p. 890, 22 Cal.Rptr.3d 128.)
Additionally, as Rancho Cucamonga recognizes, Building Industry rejected the contention that a "regulatory permit violates federal law because it allows the Water Boards to impose municipal storm sewer control measures more stringent than a federal standard known as `maximum extent practicable.' [Citation.] [Fn. omitted.] [W]e ... conclude the Water Boards had the authority to include a permit provision requiring compliance with state water quality standards." (Building Industry, supra, 124 Cal.App.4th at p. 871, 22 Cal.Rptr.3d 128.) The Burbank case, allowing for consideration of economic factors when federal standards are exceeded, does not alter the analysis in this case where there was no showing that federal standards were exceeded and where there was evidence that economic factors were considered. Furthermore, like the permit in Building Industry, the 2002 permit contemplates controlling discharge of pollutants to the maximum extent practicable through a "cooperative iterative process where the Regional Water Board and Municipality work together to identify violations of water quality standards." (Building, supra, at p. 889, 22 Cal.Rptr.3d 128.) The 2002 permit does not exceed the maximum extent practicable standard.
11. The Requirements of the 2002 Permit
Rancho Cucamonga lastly complains the requirements of the 2002 permit are "overly prescriptive," illegally dictating the manner of compliance and improperly delegating to the permittees the inspection duties of the State Board and the Regional Board. Rancho Cucamonga's arguments contradict the meaning and spirit of the Clean Water Act.
In creating a permit system for dischargers from municipal storm sewers, Congress intended to implement actual programs. (Natural Resources Defense Council, Inc. v. Costle (D.C.Cir.1977) 568 F.2d 1369, 1375.) The Clean Water Act authorizes the imposition of permit conditions, including: "management practices, control techniques and system, design and engineering methods, and such other provisions as the Administrator of the State determines appropriate for the control of such pollutants." (33 U.S.C. § 1342, subd. (p)(3)(B)(iii).) The Act authorizes states to issue permits with conditions necessary to carry out its provisions. (33 U.S.C. § 1342, subd. (a)(1).) The permitting agency has discretion to decide what practices, techniques, methods and other provisions are appropriate and necessary to control the discharge of pollutants. (NRDC v. EPA (9th Cir.1992) 966 F.2d 1292, 1308.) That is what the Regional Board has created in the 2002 permit.
Rancho Cucamonga's reliance on Water Code section 13360 is misplaced because that code section involves enforcement and implementation of state water quality law, (Wat.Code, § 13300 et seq.) not compliance with the Clean Water Act (Wat.Code, § 13370 et seq.) The federal law *460 preempts the state law. (Burbank, supra, 35 Cal.4th at p. 626, 26 Cal.Rptr.3d 304, 108 P.3d 862.) The Regional Board must comply with federal law requiring detailed conditions for NPDES permits.
Furthermore, the 2002 permit does afford the permittees discretion in the manner of compliance. It is the permittees who design programs for compliance, implementing best management practices selected by the permittees in the DAMP report and approved by the Regional Board. Throughout the permit, the permittees are granted considerable autonomy and responsibility in maintaining and enforcing the appropriate legal authority; inspecting and maintaining their storm drain systems according to criteria they develop; establishing the priorities for their own inspection requirements; and establishing programs for new development. The development and implementation of programs to control the discharge of pollutants is left largely to the permittees.
More particularly, we agree with the Regional Board that the permit properly allocated some inspection duties to the permittees. As part of their ROWD application for a permit, the permittees proposed to "Conduct Inspection, Surveillance, and Monitoring. Carry out all inspections, surveillance, and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal storm drain system." The ROWD also discussed continuing existing inspection programs.
Water Code section 13383 provides that as part of compliance with the Clean Water Act, the Regional Board may establish inspection requirements for any pollutant discharger. Federal law, either expressly or by implication, requires NPDES permittees to perform inspections for illicit discharge prevention and detection; landfills and other waste facilities; industrial facilities; construction sites; certifications of no discharge; non-stormwater discharges; permit compliance; and local ordinance compliance. (40 C.F.R. 122.26, subds. (d) and (g); 33 U.S.C. § 1342, subd. (p)(3)(B)(ii).) Permittees must report annually on their inspection activities. (40 C.F.R. § 122.42, subd. (c)(6).)
Rancho Cucamonga claims it is being required to conduct inspections for facilities covered by other state-issued general permits. Rancho Cucamonga and the other permittees are responsible for inspecting construction and industrial sites and commercial facilities within their jurisdiction for compliance with and enforcement of local municipal ordinances and permits. But the Regional Board continues to be responsible under the 2002 NPDES permit for inspections under the general permits. The Regional Board may conduct its own inspections but permittees must still enforce their own laws at these sites. (40 C.F.R. § 122.26, subd. (d)(2).)
12. Disposition
Rancho Cucamonga is the only of the original 18 permittees still objecting to the 2002 NPDES permit. It has not successfully demonstrated that substantial evidence does not support the trial court's factual determinations or the trial court erred in its interpretation and application of state and federal law.
We affirm the judgment and order the prevailing parties to recover their costs on appeal.
HOLLENHORST, Acting P.J., and RICHLI, J., concur.
NOTES
[1] Upland is not a party to this appeal.
[2] The National Pollutant Discharge Elimination System.
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364 F.Supp. 37 (1973)
James D. JOHNSON, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.
No. 1866.
United States District Court, N. D. Florida, Tallahassee Division.
September 28, 1973.
*38 Kent Spriggs, Philip Parsons, Tallahassee, Fla., Ralph Helge, Pasadena, Cal., for plaintiff.
Clinton Ashmore, Asst. U. S. Atty., Tallahassee, Fla., for defendant.
OPINION-ORDER
MIDDLEBROOKS, District Judge.
PRELIMINARY STATEMENT OF THE ACTION
This is a civil action brought pursuant to Title 42, U.S.C.A., Section 2000e-16(c) and the First Amendment. The plaintiff James D. Johnson seeks judicial review of his removal from his position as a part-time postal distribution clerk with the defendant United States Postal Service (hereafter USPS). The gravamen of plaintiff's claim is that he was dismissed solely because of his religious beliefs and thus the defendant USPS denied plaintiff his rights under the Civil Rights Act of 1964, as amended, and under the First Amendment to the United States Constitution. Preliminarily, the Court notes that it is not satisfied that plaintiff has timely filed this lawsuit. Title 42, U.S.C.A., Section 2000e-16(c), explicitly written for employees of the federal government, provides for the filing of a Section 2000e-5 civil action in the United States District Court (1) within thirty (30) days of receipt of notice of final action *39 taken by an agency (or within thirty (30) days of receipt of notice of an appellate decision of the Civil Service Commission if appeal be sought through the Civil Service Commission Board of Appeals and Review) or (2) after one hundred and eighty (180) days from the filing of the initial charge of discrimination with the agency or with the Civil Service Commission until such time as final action may be taken. . . . The plaintiff Johnson filed the instant suit one hundred and ten (110) days before receipt of notice of final action by the defendant USPS. Plaintiff also filed this suit one hundred and eighteen (118) days after the initial informal complaint was filed with the Civil Service Commission. Thus, on neither of provisions (1) or (2) above has the plaintiff specifically complied with the statute. Indeed, the Court notes that plaintiff Johnson filed his complaint in this Court only one hundred and thirty eight (138) days after the occurrence of the conduct about which plaintiff is aggrieved. Thus, to the extent plaintiff's claim arises out of Title 42, U.S.C.A., Section 2000e-16(c), this Court is of the view that plaintiff has not prosecuted his claim with the diligence required by that statute. However, since at this date the plaintiff is apprised of the "final agency" disposition of his complaint and since a decision on the merits would be both expedient and fair to the parties, the Court enters the following findings of fact and conclusions of law as may be required by Rule 52, Federal Rules of Civil Procedure:
FINDINGS OF FACT
1. The plaintiff James D. Johnson is a resident of Chattahoochee, Florida. Plaintiff was employed by the defendant USPS from approximately June 1966, until his dismissal on April 29, 1972.
2. The defendant United States Postal Service was established pursuant to Public Law 91-375, August 12, 1970, 84 Statute 720 (Title 39, U.S.C.A., Section 201), as an independent establishment of the executive branch of the government of the United States, having the authority under Section 401(1), Title 39, U.S. C.A., to sue and be sued in its official name.
3. The plaintiff was hired in 1966, and served until his dismissal in 1972, as a "part-time flexible clerk", such classification in essence being work at the discretion of the Postmaster depending upon the needs of the Post Office. No certain amount of hours of work is guaranteed to individuals serving in the capacity held by the plaintiff.
4. The Chattahoochee, Florida, Post Office, at which plaintiff was employed, operated with a total of eight (8) persons as of December 1972. Of the eight employees there was one regular mail clerk, two part-time flexible clerks, one city carrier, one rural carrier, the Postmaster and one assistant to the Postmaster as well as one part-time carrier.
5. According to the testimony of the Assistant Postmaster (transcript p. 36), both part-time clerks and the regular clerk were employed on Saturdays together with two of the three carriers. The testimony indicates that one of the six employees could get Saturday off; such determinations were based on seniority.[1]
6. Sunday at the Chattahoochee Post Office was a nonbusiness day. Carriers did not run and the public did not expect mail to be in their boxes by eight o'clock A.M. Additionally, the Post Office was open only for five (5) hours on Sunday. The character of the work load on Sunday and the work force demanded simply was significantly different than that on Saturday. The requisite manpower and committed facilities were not interchangeable.
7. In the summer of 1971, the plaintiff Johnson became a member of a religious *40 group which observed Saturday as its Sabbath. Plaintiff thereafter sought to continue his employment with the Postal Service except with arrangements which would allow him to have Saturdays as his permanent day off. Plaintiff had at all previous times worked Saturdays with no objection.
8. It appears to this Court upon review of the record in general and particularly the testimony of the plaintiff in proceedings before the agency, that the Chattahoochee Postmaster did make all reasonable efforts to allow the plaintiff his Saturdays off for religious purposes throughout the summer of 1971.[2]
9. On August 28, 1971, the plaintiff received notice of proposed disciplinary action being taken against him in regard to "failure to report" to work on Saturday, August 14, 1971, and August 28, 1971. On September 10, 1971, plaintiff was notified of the Chattahoochee Postmaster's decision to dismiss him from the Postal Service.
10. On October 12, 1971, the plaintiff appealed to the Regional Director of the Postal Service. Plaintiff's dismissal was reversed due to a procedural defect in the dismissal process; plaintiff had not been informed as to whether or not the charges against him had been sustained.
11. On November 30, 1971, plaintiff was again notified of proposed disciplinary action. Plaintiff was charged with seven (7) "failure to report" violations. Plaintiff was notified on December 10, 1971, of Postmaster Johnson's decision to remove him from the Postal Service effective January 6, 1972.
12. Plaintiff again appealed to the Regional Director of the Postal Service and requested an agency investigation. On March 7, 1972, Mr. John Lindler, the Hearing Officer and Investigator appointed for plaintiff's case, conducted a hearing on the seven (7) counts of failure to report charged against plaintiff. The following findings were published on March 22, 1972:
"He [plaintiff Johnson] wanted it known that he is a member of the World Wide Church of God and each of the charges came about as a result of his following the tenets and doctrine of his chosen church.
"He [Postmaster Johnson] saw no alternative to the course of action he took and it was not taken with any malicious intent.
"Of the 5 clerk craft employees, 4 are required on Saturdays. The appellant [plaintiff Johnson] is one of the junior employees. Thus he [Postmaster] cannot give him each Saturday off".
13. Accordingly, plaintiff was dismissed from the Postal Service on April 29, 1972. The U. S. Postal Service Board of Appeals and Review affirmed the adverse action on August 16, 1972.
14. On or about June 22, 1972, plaintiff filed a "discrimination" charge against Postmaster Johnson with the Equal Employment Opportunity Officer. A complaints examiner assigned by the U. S. Civil Service Commission made the following findings:
"No discrimination because of religion could be found in this allegation. The small amount of employees at the Chattahoochee Post Office would not allow an hourly rate employee, who replaces regular employees, such as Mr. Johnson to be scheduled off the same day every week. Mr. Johnson was given Saturdays off as often as the other hourly rate employees. . . ." . . ."
15. On December 5, 1972, in furtherance of plaintiff's appeal from the findings by the EEO investigator, plaintiff was granted a special hearing with regard *41 to the religious discrimination complaint. The finding by the complaints examiner for the U. S. Civil Service Commission was simply that "the evidence does not support the complaint". All agency action with regard to plaintiff's claims terminated January 2, 1973.
16. Meanwhile, the complaint in this Court had been filed on September 14, 1972, such filing being one hundred ten (110) days before final agency action and only one hundred eighteen (118) days after initial filing with the Civil Service Commission.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the subject matter of and the parties to this action.
2. Plaintiff contends herein that his dismissal from the Postal Service for his failure to report for Saturday work assignments violates rights guaranteed by the First Amendment to the United States Constitution and by the Civil Rights Act of 1964, as amended.
3. To the extent that plaintiff's claim is before this Court pursuant to the authority of Title 42, U.S.C. A., Section 2000e-16(c), the Court should note the scope of review to which plaintiff is entitled. The law of this Circuit was explicitly defined by Judge Gewin in Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 at 1141 (5th Cir. 1971):
"We will not permit the single finding of this investigatory agency to stand as a complete defense which precludes all hope of adversary adjudication or remedial action in the courts."
At page 1142:
"Title VII itself implicitly recognizes this fact by provisions which (1) assume the existence of the powers of the courts to make independent de novo rulings and (2) afford no binding weight to Commission actions."
However, the trial de novo is not required in all cases. In the reasoned opinion of Judge Gesell in Hackley v. Johnson, 360 F.Supp. 1247, District of Columbia, 1973 [Civil Action No. 1258-72, July 13, 1973]:
"If it [the District Court] determines that an absence of discrimination is affirmatively established by the clear weight of the evidence in the record, no new trial is required. If this exacting standard is not met, the Court shall, in its discretion, as appropriate, remand, take testimony to supplement the administrative record, or grant the plaintiff relief on the administrative record."
In the instant case the Court has for its consideration a complete administrative record in which appears two transcribed hearings afforded the plaintiff and the findings of numerous investigations for both the Postal Service and the United States Civil Service Commission. Additionally, the Court notes that the parties have had occasion to offer supplementary factual matter for consideration by the Court. But since the Court is of the view that the record does not support a finding of discrimination a de novo review is not necessitated. The Court will however, view the record as supplemented by the parties to determine whether plaintiff has any basis for relief; such a viewing shall not be restricted in any manner to the earlier administrative rulings.
4. In regard to plaintiff's claim herein which is that the action of dismissal is violative of his First Amendment rights, we look now to that repository of civil rights which provides in pertinent part:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . ."
Speaking for the Supreme Court in Walz v. Tax Commission, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970) Chief Justice Burger observed as to this clause that:
"The general principle deducible from the First Amendment and all *42 that has been said by the Court is this: that we will not tolerate either governmentally established religion or government interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference".
However, since Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), it has also been recognized that while "[t]he Constitution protects the right to have and to express beliefs, it does not blindly afford the same absolute protection to acts done in the name of or under the impetus of religion".
The regulations which governed the actions of the defendant Postal Service, 5 C.F.R., Section 713.204(f) provide in part that an agency shall:
"Make reasonable accommodations to the religious needs of applicants and employees, including the needs of those who observe the Sabbath on other than Sundays, when those accommodations can be made without undue interference with the business of the agency or with the rights of other applicants or employees".
And since the law of this Circuit places the burden upon the employer to show that it was reasonably unable to accommodate the employee's religious practice without undue hardship on the employer's business, Riley v. Bendix Corp., 464 F.2d 1113, 5th Cir. 1973, this Court must now look to the evidence presented by the defendant USPS.
5. The evidence is undisputed that the Chattahoochee Post Office functioned with a minimum number of employees of which only five (5) at the most, including the plaintiff, were in the clerk craft.[3] Viewing the testimony most favorable to plaintiff there were but two regular clerks, two part-time clerks (one of whom was plaintiff) and one temporary clerk. According to the testimony of the Assistant Postmaster (who is presently the Postmaster) and the plaintiff, Saturday duty required a minimum of three to four clerks in addition to the carrier personnel. Plaintiff has seniority only over the temporary clerk and the second part-time clerk. The inescapable conclusion is that to grant plaintiff's request would mandate that at least one senior regular employee be subordinate to the schedule of a part-time non-senior employee. At the very least such an accommodation for the plaintiff would inconvenience other workers. More importantly it would frustrate the program of using part-time help at the discretion of the Postmaster for the peak business hours of a small postal service.
6. The Court is convinced beyond doubt that the defendant USPS simply did not have the manpower to accommodate plaintiff's request. The Court does not suggest that plaintiff's complaint was specious or conceived in a sense of vexation. Certainly the testimony indicates a convivality on the part of the Chattahoochee postal employees and a good faith effort on their part to accommodate the plaintiff. The simple fact which places this factual situation squarely within the exception, which is not contested, is that the Chattahoochee Post Office operates on a limited scale with a minimal number of employees and facilities. The requisite manpower does not exist to accommodate plaintiff. It is, therefore,
Ordered that judgment in this matter shall be entered disposing of the issues raised in the pleadings in favor of the defendant.
NOTES
[1] Other factual accounts reveal that there were two regular clerks, two part-time clerks and one temporary clerk. But the essential fact is unaltered, plaintiff was a junior part-time clerk in a minimum staffed postal facility.
[2] Transcript, page 17:
A: The Postmaster said that he would give me as many Saturdays as he possibly could.
Q: Did this actually happen?
A: Yes sir, he gave me, I don't recall how many, but I would say the majority of Saturdays off".
* * * * *
[3] See footnote #1, supra.
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364 F.Supp. 808 (1973)
UNITED STATES of America, Plaintiff,
v.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA LOCAL UNION NUMBER 24 et al., Defendants.
Civ. A. No. 444-71.
United States District Court, D. New Jersey, Civil Division.
February 16, 1973.
Supplementary Opinion and Final Order August 20, 1973.
*809 *810 Douglas Huron, and A. Thomas Hunt, Dept. of Justice, Washington, D. C., for plaintiff.
Parsonnet, Parsonnet & Duggan, by Thomas L. Parsonnet, Newark, N. J., for Electricians Local 52 & Electrical Joint Apprenticeship Committee.
Clancy & Callahan by Edward M. Callahan, Newark, N. J., for Essex Division, Northern New Jersey Chapter, National Electrical Contractors Ass'n and Electrical Joint Apprenticeship Committee.
OPINION AND ORDER
(Electricians Cluster)
GARTH, District Judge:
This action was brought on March 25, 1971, by the Attorney General on behalf of the United States, seeking relief from violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and from interference with the implementation of Presidential Executive Order 11246 forbidding racial discrimination in employment opportunities by government contractors. Pursuant to statutory mandate,[1] this case was assigned for hearing at the earliest practicable date.
At the outset of the proceeding each defendant moved for a severance because of the alleged peculiarities and differences among the various trades, contracts and practices. While denying the formal motions for severance, I structured the presentation of proofs and trial order as follows: the government initially would be required to present proofs common to all defendants with all defendants present; thereafter, the defendants by "cluster" or trade[2] would be deemed "severed" and each such "cluster" or trade would be tried separately. The parties agreed and stipulated that the initial or "common" part of the trial was to be incorporated into each separate trial of a "cluster" or trade.
To expedite the trials of all "clusters" the court scheduled and supervised pretrial discovery and pretrial conferences held at prescribed intervals, culminating in a formal pretrial order as to each "cluster" or trade. This procedure resulted in a complete stipulated consent decree with respect to the Operating Engineers and a complete decree entered upon stipulated facts with respect to the Plumbers.[3] In a similar fashion the *811 Ironworkers and the government agreed upon all provisions to be incorporated in the Ironworkers decree other than those provisions relating to the requirements to be imposed on applicants seeking journeyman membership.[4] The remaining aspects of the Ironworker case were disposed of in an opinion and decree dated December 22, 1972.
The findings of facts herein are derived from stipulations of counsel, the pretrial order, and evidence adduced at trial.[5]
JURISDICTION
The Court has jurisdiction over the subject matter of this action and the parties to it by virtue of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Attorney General is authorized under Section 707(a) of that Act to institute suit to enjoin a pattern or practice of discrimination and to request such relief as may be necessary to insure the full enjoyment of the rights described in Title VII, 42 U.S.C. § 2000e 6(a).
FINDINGS OF FACT
Parties
1. Defendant International Brotherhood of Electrical Workers, Local Union Number 52 (hereafter Local 52), is an unincorporated association of persons engaged in the electrical trade. Local 52 has approximately 600 journeyman members and is a labor organization engaged in an industry affecting commerce within the meaning of Section 701(d), (e), of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(d), (e). Local 52's geographical jurisdiction includes all of Essex County, New Jersey, and its principal office is located at 717 South Orange Avenue, Newark, New Jersey (Uncontested Facts, paragraph 1; hereafter U.F. 1).
2. As of March 25, 1971, defendant Essex Division of the New Jersey Chapter, National Electrical Contractors Association (hereafter Essex Division), was a branch of the New Jersey Chapter containing those members of the Chapter having their principal offices in Essex County, New Jersey. Since January 1972, the Essex Division has been a branch of the Northern New Jersey Chapter of NECA. The members of the Essex Division are contractors engaged in the electrical construction industry, and one function of the Division is the negotiation of collective bargaining agreements on behalf of its members with Local 52. The principal office of the Northern New Jersey Chapter, National Electrical Contractors Association, is located at 1120 Morris Avenue, Springfield, New Jersey (U.F. 2).
3. The Electrical Joint Apprenticeship and Training Committee (hereafter *812 JAC) is an unincorporated body composed of six members, of whom three are representatives of Local 52 and three are representatives of the Essex Division. The JAC administers and controls the apprenticeship training program in the electrical trade within the jurisdiction of Local 52 and selects participants for that training program. The JAC is a joint labor management committee controlling apprenticeship within the meaning of Section 703(d) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 2(d). It principal office is located at 717 South Orange Avenue, Newark, New Jersey (U. F. 3, Pl.Ex. 14).
Referral Procedures
4. Local 52 operates an exclusive hiring hall pursuant to its collective bargaining agreement with the Essex Division. That is, contractors who are parties to the agreement are obliged to hire electricians through Local 52. The union refers to the contractors the requisite number of men needed from among individuals who have registered for work at the hall. Three categories of electricians make use of Local 52's hiring hall: (1) members of Local 52; (2) members of other IBEW locals ("travelers"); and (3) persons who are not members of any IBEW local union (Pl. Ex. 13).
5. The agreement between Local 52 and the Essex Division establishes five priority groups for referral purposes. According to the agreement, all persons who are eligible for Group I and who have registered for work at the union hall are referred first, then all persons in Group II, all persons in Group III, all persons in Group IV, and finally all persons in Group V. A person in Group I always has a priority right to referral over all persons in Groups II through V, even though persons in Groups II through V may have registered for work before persons in Group I (Pl.Ex. 13; Tr. 29-32).
6. The collective bargaining agreement in effect on March 25, 1971, the date this action was instituted, provided that Group I would include all persons who (1) have four or more years experience in the trade, (2) are residents of northern New Jersey, or within commuting distance thereto, (3) have passed Local 52's journeyman examination, and (4) have been employed at least four years under a collective bargaining agreement between Local 52 and the Essex Division. In fact, all such individuals are necessarily members of Local 52, because the union admits into membership all persons who pass its examination. Group I contains no persons who are not members of Local 52. Groups II and III consist of "travelers," i. e., members of other IBEW locals, and Groups IV and V are comprised of individuals who are not members of any IBEW local union (U.F. 9; Pl.Ex. 13 [Art. VIII, 1968 Collective Bargaining Agreement]; Tr. 29-32).[6]
7. Eligibility for Group I has a great practical significance for an electrician since when work is slow, persons in Group I obtain referral jobs ahead of all other individuals (Tr. 30).
8. Only eight blacks were journeymen members of Local 52 as of March 25, 1971. Only these eight blacks, in contrast to other black electricians, were referred to jobs on a priority basis from Group I. All individuals not members of Local 52 or of another IBEW local who register for work at the union's hiring hall are referred from Groups IV or V and thus obtain work only after referrals are made from Groups I, II and III. *813 Members of Groups IV and V often wait long periods for referral while Local 52 members are being referred more than once during the same period of time. For example, Allen Smith, a black electrician who is not a Local 52 member and not a member of another IBEW local, waited four months in 1970 for referral by Local 52 while individual union members in Group I were being referred on more than one occasion. Similarly, other black electricians such as Ronald Graham and James Malone, Jr., while not members of Local 52 or another IBEW local, waited for referral in 1967 and 1968 for periods of some two to three months while individual Local 52 union members were being referred out more than once. Joseph Watts, who is black and who is now a member of Local 52, worked on referral while not a member of any IBEW local for six years before he became a member of Local 52. During that six year period, he had to wait for referral until after union members had been sent to work. There was no evidence, however, that among individuals waiting for referral in any of the aforementioned Groups, any preference within a referral Group was given to whites over blacks. The difficulties experienced by black electricians seeking referral through Local 52 are directly attributable to the fact that they were not members of Local 52 or another IBEW local. (U.F. 4; Tr. 32; Tr. 2.64-2.68, 2.76-2.77, 2.174-2.175, 2.177-2.178, 7.3-7.6).
Membership in Local 52
9. There are two principal means by which individuals achieve membership in Local 52: (A) direct admission as a journeyman member for persons who are experienced in the trade; and (B) apprenticeship a four year program leading to journeyman status, designed for persons with little or no experience in the electrical trade (Tr. 27).
9A. Direct Membership. An experienced non-member electrician who is permitted by Local 52's Executive Board to take Local 52's journeyman examination will be admitted into journeyman membership in the union upon passing the examination. The collective bargaining agreement effective June 1, 1971, between Local 52 and the Essex Division provides that all persons having four years experience in the trade are eligible to take the examination (U.F. 9, 10; Tr. 32; Pl.Ex. 13).
9A.1(a) Applicant Pool and Barriers to Minority Membership. The majority of experienced non-member electricians who have achieved journeyman membership in Local 52 by passing the union's journeyman examination did not apply for membership. Instead the usual practice has been for the Business Manager to recommend to the Executive Board that certain non-members be brought into the union, even though the men themselves have not applied for membership; the Executive Board then invites these individuals to take the examination, and they are admitted as journeyman members of Local 52 if they pass it (Tr. 33-34).
9A.1(b) Local 52 had never admitted a black into the union as a journeyman member until November 1966. Between July 2, 1965 and March 25, 1971, Local 52 admitted directly into journeyman membership 67 persons who had not gone through an apprenticeship program sponsored by the Local. Of the 67, five (7.5 per cent) were black. The five blacks admitted directly into journeyman membership and their dates of admission are as follows:
William McCraw November 1966
Luther Porter April 1967
Junius Copeland November 1968
Daniel Jacocks March 1969
Joseph Watts October 1969
(U.F. 4)
9A.1(c) Local 52 refused to permit the following qualified black electricians who formally applied for journeyman membership to take the journeyman examination and thereby denied them any *814 possibility of direct journeyman membership:
Name Date of Application
Julian Whitney[7] July 20, 1961
Roscoe Jennings[8] September 6, 1962
Ralph Garvin[9] November 4, 1965
(U.F. 23, 77; Pl.Ex. 5A at minute entry dated 7-20-61, 9-6-62, 11-4-65; Tr. 33-34, 104-105, 135-136).
9A.1(c)(1) At the time of his application, Julian Whitney was 40 years old. Following his rejection, he complained to the New Jersey Division on Civil Rights. On September 7, 1961, Local 52's Executive Board informed Whitney that he could not be accepted because of his age. On the same date, the Executive Board permitted Norman Mack, then 47 years old, to transfer into Local 52 as a journeyman member. Mack is white. In the Autumn of 1960, the union had initiated a white apprentice, George Morton, who was 41 years old (U.F. 24, 76; Pl. Ex. 5A at 7-20-61, 8-17-61, 9-7-61; Pl. Ex. 7).
9A.1(c)(2) The Executive Board informed Roscoe Jennings on September 6, 1962, that "we are not taking new members due to poor employment situation."[10] On August 16, 1962, the Business Manager reported that the employment situation was "very good." On September 6, 1962, he reported that "the work situation had slackened off slightly." On September 20, 1962, he reported that the employment situation was "good" (U.F. 33; Pl. Ex. 5A at 9-6-62).
9A.1(c)(3) The present Business Manager of Local 52 has conceded that Ralph Garvin is a competent electrician but that the union refused to permit him to take the journeyman examination (Tr. 104-05, 135-36).
9A.1(d) James Malone, Sr., is a black electrical contractor. At a hearing held by the United States Civil Rights Commission in Newark in the late summer of 1962, he testified that Local 52 discriminated against blacks. Soon thereafter, Malone, Sr., met several times with Mr. Vehling, the Business Manager of the union, with regard to getting qualified minority electricians into Local 52. Malone, Sr., then began to send what he considered to be qualified black and Puerto Rican electricians to Local 52 to seek journeyman or apprenticeship membership. In 1962, he sent over 25 such individuals to the union to inquire about membership. None were accepted as apprentices and none as members (U.F. 4, 30; Tr. 2.28, 2.31, 2.42-2.45).
9A.1(e) As is noted in Finding 9A.1(a), electricians who become journeyman *815 members of Local 52 normally do not make formal application for membership. Instead the Business Manager recommends to the Executive Board that certain non-members be brought into membership, and the Board then invites these individuals to become members by passing the journeyman examination. Up to March 25, 1971, the date of filing of this action, there is evidence of the union having "reached out" in this manner for only one black construction (as opposed to maintenance) electrician, Joseph Watts; this was approximately six years after Watts, an experienced electrician, had first requested membership. Watts was admitted directly as a journeyman in November 1969 (U.F. 4, 48; Tr. 33.34, 7.3-7.7).
9A.1(f) In January 1971 Local 52 permitted another black electrician, Edroy Moore, to take its journeyman examination. Moore had explicitly requested the opportunity to take the examination in February 1970 but was not permitted to take it until January 1971, almost one year later, although it had been administered during that year. Moore failed to pass the examination at that time (January 1971) (U.F. 54-55; Tr. 41-43).
9A.1(g) In September 1971, following the institution of this action, Local 52 permitted Moore and four black electricians Ivan Binns, William Holland, William Ledford, and John Williams who had been working on referral, to take its journeyman examination. All four had been qualified to take the examination in January 1971, some three months prior to the date of filing of the complaint in this action, but there is nothing in the record to indicate that these four blacks were invited to take the examination until September 1971, approximately six months after the institution of this action (U.F. 55, 77; Tr. 36-37).
9A.1(h) Ronald Graham, David Jackson, James Malone, Jr., and Allen Smith are all black electricians who have worked on referral through Local 52. All have more than four years experience in the trade and thus are eligible to take the journeyman examination under the provisions of the collective bargaining agreement. The union has never invited any of these men to take the examination (U.F. 9, 10; Pl. Ex. 13; Tr. 33, 34, 40-41).
9A.1(i) Since this action was commenced, the number of black and Spanish surnamed members of Local 52 has about doubled, reaching the present total of approximately 30. During this period, the union had no difficulty in finding qualified black and Spanish-surnamed individuals to take into membership (U.F. 4-5; Tr. 144).[11]
9A.2(a) Channeling Blacks into Maintenance Jobs. About two-thirds of Local 52's 600 journeyman members as of March 25, 1971, were engaged in construction work and made use of the union's hiring hall. The remaining one-third were divided among approximately 32 inactive or retired members, about 45 members working as supervisors (foremen) or owners, and about 123 members working as maintenance electricians. Maintenance work tends to be of a permanent nature, so maintenance electricians normally do not make use of Local 52's hiring hall. Maintenance men receive, on the average, twenty cents per hour less than construction scale, and they receive fewer fringe benefits than are afforded construction electricians. *816 They are also required to perform shift work, unlike construction electricians. These maintenance electricians, however, are competent electricians qualified to work on construction jobs (U.F. 4, 37; Tr. 46-48, 51).
9A.2(b) Members of Local 52 generally regard maintenance work as being less desirable than construction work. In recent years, the union has been unable to induce its members to take maintenance jobs over which it has jurisdiction. As a result, Local 52 has had to bring into membership electricians who are willing to do maintenance work. The union has, however, required as a condition of membership that such individuals sign a twenty-year waiver of their right to perform construction work. Employers who are parties to maintenance contracts are not members of the Essex Division. (U.F. 37-38; Tr. 48-51, 136, 8.89).
9A.2(c) The first four blacks to be admitted into Local 52 as journeyman members McCraw, Porter, Copeland and Jacocks (See Finding 9A.1(b) supra) were all admitted into the less desirable classification of maintenance electrician, and all were required, as a condition of membership, to sign a twenty-year waiver of their right to work on construction (U.F. 4; Tr. 48-51).
9A.2(d) Prior to his admission as a maintenance electrician, William McCraw had been working from 1962 through 1966 on construction referral through Local 52. He had applied for journeyman membership as a construction electrician on May 3, 1962, and on June 6, 1963, but was rejected without having been administered the journeyman examination on both occasions, even though he had nineteen years experience in the trade at the time of his first application. On the occasion of his first application, McCraw was told that it was the practice of Local 52 to take in members as apprentices and not as journeymen directly. In addition, McCraw was informed that the "employment situation" made it impossible for the union to take him in. Although several other apprenticeship applicants (race unknown) were turned away on May 3, 1962, "due to the employment situation," the union's minutes show that employment was "good" at that time. In 1966 Louis Vehling, then the Business Manager of Local 52, directed McCraw to the maintenance job which led to his admission upon the successful completion of the journeyman examination and the execution of a twenty-year waiver. McCraw was one of 22 maintenance electricians whom Local 52's Executive Board decided to admit as journeymen on June 16, 1966 (U.F. 40; Pl. Ex. 5A at 5-3-62).
9A.2(e) Prior to his admission as a maintenance electrician, Junius Copeland had worked on construction referral out of Local 52. On September 7, 1961, when he was about 27 years old, he and his two brothers and another black had applied for apprenticeship in the union. The Executive Board told him that he was too old and told all four blacks that no consideration could be given to their applications since there was a "long waiting list" for apprenticeship. At the time, however, Local 52 imposed no age limit on apprenticeship applicants, and on September 21, 1961, the union initiated five white apprentices between the ages of 27 and 30. Moreover, in spite of the "long waiting list," at least four whites, all sons of Local 52 members, who applied for apprenticeship after Copeland were "placed on the list"; i. e., they were referred to work preparatory to formal initiation as apprentices. Copeland worked on referral out of Local 52 for seven years following his rejection as an apprentice, even though he had been told when he was rejected for apprenticeship that he would be given "first preference" to take the journeyman examination. (Copeland's two brothers could not get work through Local 52 following their rejection as apprentices; eventually they stopped trying when they got jobs with Western Electric (not through Local 52). E. Copeland, one of the brothers, had been a member of Local 1159, IBEW, at least *817 since 1961.) In 1968 Louis Vehling, Local 52's Business Manager, told Copeland that he could probably gain admission to Local 52 if he would take a maintenance job. Copeland agreed, and he was admitted as a maintenance electrician after signing the twenty-year waiver and successfully completing the journeyman examination the second time he took it. (U.F. 14, 25, 27, 42; Pl. Ex. 5A at 9-7-61; Tr. 6.184-6.188).
9A.2(f) Ronald Graham and James Malone, Jr., are step-brothers who are qualified black electricians. In 1963, James Malone, Jr., had about ten years and Ronald Graham about eight years experience working for James Malone, Sr., a black electrical contractor. At that time, they questioned Louis Vehling, the union's Business Manager, concerning the possibility of gaining apprenticeships. Vehling replied that they were too experienced to become apprentices and he advised against apprenticeships for them. On September 6, 1962, Malone, Jr., had applied for journeyman membership in Local 52 but was told that the union was not taking in new members because of the "poor employment situation." However, the employment situation was "very good" on August 16, 1962, "had slackened off slightly" on September 6, 1962 and was "good" on September 20, 1962. (U.F. 33; Pl. Ex. 5A at 9-6-62; Tr. 40, 2.161, 2.166, 2.169-2.170).
9A.2(g) In the Autumn of 1962, Graham and Malone, Jr., obtained maintenance jobs at the Newark Housing Authority through Local 52. They were laid off from these jobs in mid-1965. In late 1965, they began seeking construction work through Local 52's hiring hall. Early in 1966 they asked Vehling how they could become union members. Vehling replied that the only way to obtain membership was to go into the twenty-year maintenance program. Both declined, but they continued to be referred through Local 52 periodically. (Tr. 2.163, 2.165, 2.167-2.168, 2.171-2.172, 2.181).
9A.2(h) Joseph Watts, who was admitted as a journeyman member of Local 52 in November 1969, was the only black admitted directly as a journeyman prior to March 25, 1971, who was eligible to work on construction (i. e., who was not admitted as a maintenance electrician). Watts had been working on construction referral through Local 52 since 1963. Soon after he began working on referral, he inquired about union membership, and Louis Vehling told him that he would notify him when it was possible for Watts to be admitted. At the time of his inquiry, Watts had at least ten years experience in the electrical trade (U.F. 4, 48; Tr. 7.3, 7.5, 7.9-7.11. See Finding 9A.2(c)).
9A.3(a) Examination Procedure. Local 52 utilizes an examination which individuals must pass as a condition of journeyman membership in the union. Local 52's Examining Board administers the examination and grades it. Examination papers are identified by the name of the examinee appearing on the answer sheet (U.F. 9; Tr. 3.123-3.124, 3.156-3.157).
9A.3(b) The Examining Board exercises wide discretion in determining what type of examination to administer. It has chosen to administer a written test containing many questions dealing with electrical theory and practice. The examination has no manual component; i. e., an applicant is not called upon to demonstrate his competence with tools and materials in a typical working situation. The examination does not differ according to the type of work, e. g., maintenance versus construction for which the examinee has applied (Tr. 3.127, 3.145-3.147, 3.160, 3.161).
9A.3(c) An electrician may not be able to answer a theoretical question on the examination, yet may still be able to perform his work satisfactorily. For example, one question on the examination relates to Ohm's Law. In theory, it is necessary to understand this law in order to be able to determine the proper size of wire to use for a particular job. *818 In fact, however, an electrician can determine the size of the wire that should be used by following the blueprints and specifications for the job (Tr. 3.147, 3.164).
9A.3(d) The Chairman of the Examining Board testified and the Court finds that blacks do not perform as well as whites on Local 52's journeyman examination. The union has never subjected the examination to any validation study to determine whether it accurately measures the skills required of the average journeyman electrician. The Chairman of the Examining Board of Local 52 is not familiar with the EEOC Guidelines for validation of employment testing (Tr. 3.131, 3.136-3.137).
9B. Membership in Local 52 Through the Apprenticeship Program
9B.1(a) Apprenticeship Selection from 1960 to 1965. From 1960 through November of 1965, the Executive Board of Local 52 selected apprentices for the union. Those applicants who were approved by the Board for consideration for an apprenticeship would be placed "on the list"; i. e., they would be referred to work as "helpers" for six months or more. If their work was satisfactory, they would then be initiated as apprentice members of Local 52 (U.F. 12-15; Tr. 105).
9B.1(b) On March 18, 1965, Local 52's Executive Board informed nine applicants, all white, that their apprenticeship applications had been approved. Of the nine, six had fathers who were union members, and one a brother who was a member of Local 52. On October 15, 1965, twenty-one applicants, all white, were informed that their apprenticeship applications had been approved. Of these, fourteen were sons of Local 52 members, one was a brother of a Local 52 member, another a brother-in-law of a Local 52 member, and another a nephew of a Local 52 member. Generally, from 1961 through 1965, the Executive Board gave great priority to relatives of union members in the apprenticeship selection process (Tr. 105; Pl. Ex. 5A at 3-18-65, 10-15-65; Pl. Ex. 16; Pl. Ex. 24).
9B.1(c) At least thirteen blacks applied and were rejected for apprenticeship between 1961 and 1965:
Name Date of Application
Edward Copeland September 7, 1961
Junius Copeland September 7, 1961
Marvin Copeland September 7, 1961
Wendall Thomas September 7, 1961
R. Armour September 21, 1961
Williard Price November 1962
James Malone, Jr. 1963
Ronald Graham 1963
Savage Smallwood June 6, 1963
Dennis Nelson June 6, 1963
Raymond Barnette June 6, 1963
Richard Johnson June 20, 1963
James Dandridge August 6, 1964
(U.F. 4, 77; Pl. Ex. 5A at 9-7-61, 9-21-61, 9-20-62, 6-6-63, 6-20-63, 8-6-64; Tr. 2.140, 2.143-2.145, 2.161, 2.166, 2.169-2.170, 6.187-6.188).
9B.1(d) At least three of the five blacks who applied for apprenticeship in September 1961 had experience in the electrical trade. One black, E. Copeland, was already a member of IBEW Local 1159 at the time of his apprenticeship application. The Executive Board informed all of the five applicants that they could not be accepted because of the "long waiting list for apprenticeship." Junius Copeland was also told that at 27 he was too old. At the time, however, Local 52 imposed no age limit on apprenticeship applicants. Moreover, in spite of the "long waiting list," at least four whites were "placed on the list" within eight weeks after the five blacks had been rejected (Finding 9A.2(e); U.F. 27, 78; Tr. 6.186-6.187; Pl. Ex. 5A at 9-7-61, 9-21-61).
9B.1(e) Williard Price and R. Armour both applied for apprenticeship in the Autumn of 1962. Both were recent graduates from Essex County Vocational High School, and both had concentrated on electricity while in school. A union official informed Price in October or November of 1962 that Local 52 was just looking for journeymen at that time, and the Executive Board told Armour on September 20, 1962, that the *819 union was not taking in any new members "due to poor employment situation." The Business Manager reported, however, that with the exception of the first week in October 1962, the employment situation was "good" during this period of time (U.F. 33, 78; Pl. Ex. 5A at 9-20-62, 10-4-62, 10-18-62, 11-1-62, 11-15-62, 12-6-62; Tr. 2.141-2.145).
9B.1(f) In 1963 James Malone, Jr., and Ronald Graham asked Louis Vehling, then Business Manager of Local 52, if they could become apprentices. He replied that they were much too experienced to be apprentices. The previous autumn Malone, Jr., had applied for journeyman membership and was rejected (Finding 9A.2(f)).
9B.1(g) The four other blacks who applied for apprenticeship on June 6 and June 20, 1963 (see Finding 9B.1(c)) were told that, because of "considerable unemployment," they could not be given any consideration. They were told, however, that they were "on record, would be called." The union never communicated with any of these men concerning apprenticeships. On July 18, 1963, however, James Douglas, Jr., an 18 year old white with a father in the local, was placed "on the list"; i. e., he was referred to work as a helper prior to formal initiation. On that date, the employment situation in Local 52's jurisdiction, which had been "poor" on June 6, was reported as "improving slowly" but with still "quite a few men out of work" (U.F. 35-36; Pl. Ex. 5A at 6-6-63, 6-20-63, 7-18-63).
9B.1(h) When James Dandridge, a black, applied for apprenticeship with Local 52 in August 1964, he was already in his second year of apprenticeship with Local 24, IBEW, Baltimore, Maryland. The Board rejected his application, telling him "it's best he complete his apprenticeship in Baltimore which would then allow him to work throughout the country" (Pl. Ex. 5A at 8-6-64).
9B.1(i) Bernie Edmonson is a black electrical contractor and an instructor in electricity. In the Autumn of 1962, he and some other black contractors including James Malone, Sr., met with Louis Vehling, then Business Manager of Local 52, in an attempt to place black electricians in union work and also to get young blacks into the union's apprenticeship program. Vehling suggested that the contractors put together a list of men who would be qualified and interested. Edmonson visited churches and other black organizations and developed a list containing eighteen names. He attempted to submit the list to Vehling in the spring of 1963, but Vehling said that since work was slow, Edmonson should "wait until work picks up." When Edmonson again tried to give Vehling the list in the summer of 1963, Vehling said to "forget the whole thing" until some trouble at Barringer High School involving a black protest at a construction site was "ironed out" (Tr. 147-154).
9B.1(j) In 1962, James Malone, Sr., a black contractor, prepared a list of more than 100 blacks and Puerto Ricans who were interested in apprenticeship and forwarded the list to Local 52 through the Newark Mayor's Office. There is no evidence that the union ever accepted any of Malone's referrals. In addition, between 1962 and 1968, Malone, Sr., sent 25 blacks and Puerto Ricans with electrical experience to Local 52 to apply for apprenticeship or journeyman membership. None were ever accepted (Finding 9A.1(d), Tr. 2.239-2.241, 2.243-2.244).
9B.1(k) In the summer of 1961, Julian Whitney, a black electrician, filed a complaint with the New Jersey Division on Civil Rights after Local 52 had rejected his application for membership. Because of the complaint, the union communicated with the Urban League in search of two blacks to work as helpers. The Urban League sent one, Robert Turner, who had some electrical experience. Turner began working in July 1961 and continued to work as a helper for 16 months. He was not taken into *820 the apprenticeship class which was initiated on September 21, 1961, nor was he taken into the class which was initiated on August 16, 1962, although at least four whites who began working as helpers after Turner were taken into the August 1962 class. Turner was admitted as an apprentice on November 15, 1962 (U.F. 23, 27-28; Pl. Ex. 15 at 60).
9B.1(l) On September 11, 1962, the United States Civil Rights Commission held hearings in Newark. One of the topics on the agenda was possible racial discrimination by building trade unions. Local 52's Business Manager testified at the hearings, and his report for September 20, 1962, contains the following entry:
"A Negro contractor named Malone made a number of statements to the commission, in our presence, to the effect that Local Union No. 52 does discriminate against Negroes. This the Business Manager denied.
While we were told we would only be on the stand for five minutes, we were questioned for over an hour.
Robert Turner This young Negro boy has been working on permit as a helper for approximately a year and four months. On the advice of our attorney, Parsonnet, the Business Manager recommends that this boy be taken in to the Local Union as a wireman's apprentice."
On November 15, 1962, Robert Turner was initiated as an apprentice member of Local 52. He was the only apprentice initiated at that time. Turner was the only black apprentice initiated by the Executive Board from 1961 until November 1965, when the function of selecting apprentices was assumed by the JAC. Turner was also the only apprentice initiated during that period who was not taken in as part of a class. Local 52's Business Manager has testified that the union's failure to bring Turner in as part of the regular class initiated in August 1962 was the result of "an oversight" (U.F. 29-31, Tr. 136-138).
9B.1(m) On the basis of Findings 9B.1(k), (l), the Court finds that Robert Turner was permitted to become a helper only after pressure was put upon Local 52 by individuals who complained that the union was practicing racial discrimination, and that his initiation as an apprentice was the result of similar pressure. The treatment accorded Turner differed markedly from the treatment accorded whites by Local 52.
9B.2(a) Apprenticeship Selection from November 1965 to 1971. From its creation in November of 1965 by Local 52 and the Essex Division, the JAC has selected apprentices for Local 52. The JAC selects one class of apprentices each year (U.F. 12, 16).
9B.2(b) Between July 2, 1965, the effective date of Title VII, and March 25, 1971, six classes of apprentices were selected for Local 52 the first by the Union's Executive Board, the last five by the JAC. The following chart sets forth the total number of apprentices selected and the number of blacks selected for each class:
Year Total Black
1965 21 0
1966 12 1
1967 16 1
1968 19 2
1969 26 4
1970 32 5
____ ___ __
All Years 126 13
It does not appear that Spanish-surnamed individuals were selected for any class (U.F. 5, 12, 16; Pl. Ex. 16; Pl. Ex. 2A).
9B.2(b)(1) Apprenticeship Selection Procedures from November 1965 Through 1969. From 1960 through 1969, there existed no established criteria which even purported to govern the final selection of apprentices. The Executive Board and later the JAC simply selected those apprentices they desired from among applicants who met certain minimum requirements, e. g., age (18-25), residence (within New Jersey for four previous years), completion of high *821 school,[12] and (under the supervision of the JAC) passing selected portions of the General Aptitude Test Battery (GATB) administered by the New Jersey Employment Service, as well as attending a 15-minute oral interview before a JAC Board (U.F. 14-16, 18, 19; Tr. 59-60, 70, 71).[13]
9B.2(b)(2) Prior to 1970, the JAC did not award individual scores to applicants with respect to their overall qualifications for apprenticeship; all the applicants who qualified for and took the oral interview were simply placed on a roster on an ordinal basis following the completion of all interviews, and the JAC selected as many apprentices as were needed from the head of the roster. (U.F. 19; Tr. 60).
9B.2(b)(3) The Executive Board did not maintain records reflecting the race of apprenticeship applicants, and the JAC did not begin to maintain such records until 1968, although it is possible to determine the race of some applicants in 1967 by examining such items as birth certificates. For the three years 1967, 1968, and 1969, the JAC rejected at least sixteen black and Spanish-surnamed applicants who met all minimum standards then imposed by the JAC and who had work experience and education generally comparable to that of white applicants who were accepted. The sixteen individuals are Henry Williams, Miguel Cardona, Earl Jones, William Lugo, Ezekiel Maxey, Carl Boyd, John Bryant, John Whitley, James Dyer, George Fowlkes, Nathan Gallup, Freeman Harris, Jr., Nelson Moore, Jr., Arthur Rogers, Archie Troy, and Carl Warren (Pl. Ex. 1A to 3B; Pl. Ex. 5A; Pl. Ex. 18A).
9B.2(b)(4) Among the blacks who were rejected for apprenticeship in the years 1967-1969 were such persons as Carl Warren, who graduated in the upper ten percent of his high school class and who had 16 months electrical experience, and James Dyer, who graduated in the upper one-quarter of his high school class. On the other hand, at least eight of the whites who were selected graduated in the bottom 15 percent of their class; six were in the bottom ten percent and two in the bottom two percent (Pl. Ex. 1A to 3B; Pl. Ex. 18B; Tr. 3.187, 3.189-3.190, 3.192-3.192A).[14]
9B.2(c)(1) Apprentice Selection Procedures After 1969. After the 1969 apprenticeship selections had been announced, a number of black applicants who had not been selected filed complaints with the New Jersey Division on Civil Rights which informed the JAC of the complaints. Following discussions between the JAC and the agency, the JAC suggested and it was agreed that the JAC would develop a rating sheet to be used in scoring each applicant during the oral interview. The JAC also agreed to permit the blacks who had complained to the New Jersey Civil Rights Division to attend the oral interview for the 1970 class without having to resubmit to any of the preliminary screening procedures (U.F. 20; Tr. 7.159-7.161).
9B.2(c)(2) The rating sheet developed following discussions between the JAC and the Civil Rights Division in 1969, was first used in 1970. Under the rating *822 system, a maximum of 100 points may be awarded as follows: Education (28); Physical Stature (5); Physical Appearance (5); Electrical Experience (5); Other Experience (10); Conduct Record (12); References (5); Interest (12); Attitude (12); and Financial Condition (6). The interview for each applicant lasts about 15 minutes and each member of the JAC scores the applicant on each of the above categories during the interview. Following the interview, the scores given the applicant by each of six raters are averaged. Those applicants who receive an average score of 70 or better are eligible for selection and are placed on a roster in order of their scores. The JAC selects as many apprentices as are needed from the head of the roster (U.F. 19, 21; Pl. Ex. 17C; Tr. 79, 106).
9B.2(c)(3) In 1970, a total of 67 whites and 17 minority applicants met all minimum requirements and attended the oral interview given by the JAC. Included among the 17 minority applicants were four blacks who had complained to the New Jersey Division of Civil Rights in 1969 and who were being re-interviewed pursuant to the agreement between that agency and the JAC (see Finding 9B.2(c)(1)). Three of the four were selected as apprentices. The white applicants averaged 70.6 points out of a possible 100. The minority applicants averaged 64.9 points. On the basis of these ratings, the average white applicant was eligible for selection, while the average minority applicant was not eligible. Five of the minority applicants were selected, compared to the selection of 27 whites. Three of the five minority applicants selected were blacks being re-interviewed pursuant to the JAC's agreement with the New Jersey Division on Civil Rights (Findings 9B.2(b), 9B.2(c)(1)-(2); U.F. 20, 62; Tr. 3.169-3.171; Pl. Ex. 17A).
9B.2(c)(4) The defendants introduced no evidence to show that a validation study to determine the relation between performance on the entire rating system and job performance was ever conducted. Moreover no evidence was adduced to show that the minority applicants in 1970 were in fact, on the average, any less qualified to become apprentices than the white applicants. On the contrary, the present Business Manager of Local 52, who is also Secretary of the JAC and participates in the rating procedure, believed that the black and white applicants were rated about evenly. Moreover, at least nine of the rejected minority applicants had work experience and education comparable to that of whites who were accepted. The nine are Michael Barrett, James Dyer, Herbert Hogans, Eugene Jones, Michael Mitchell, Vaughan Scott, Claborn Hudson, Robert Salter, and Kenneth Shearin. At least two of the rejected blacks graduated in the upper one-third of their high school class, one of which graduated in the upper one-quarter. At least thirteen of the accepted whites graduated in the bottom one-half of their class, four of whom were in the bottom 15 percent, and one of whom was in approximately the bottom ten percent[15] (Pl. Ex. 18A, 18B; Tr. 82).
9B.2(c)(5) The records demonstrate that the present Business Manager personally rated minority applicants, on the average, lower than whites in the category of "Interest." He testified, however, that the black applicants were not any less interested in apprenticeship than the whites (Pl. Ex. 17C; Tr. 83, 3.171-3.176).
9B.2(c)(6) Applicants for apprenticeship who have experience in the electrical trade are rated higher than applicants without such experience. One way in which such experience may be gained is by working as a "helper" through Local 52 (U.F. 63, 67; Pl. Ex. 17C, 23).
9B.2(c)(7) Local 52 does not publicize its "summer helper" program in the community; rather, word of the program gets out through the members of Local 52. In the past, numerous requests *823 were made by friends and relatives of members of Local 52 to work as "summer helpers" and sons of members were given preference. In the summer of 1971, after this suit was filed, Local 52 selected a total of 41 persons to work as helpers. Three were black (U.F. 65-66, 68; Pl. Ex. 6 at 6-14-62).
9B.3(a) High School Requirement. Until January 1972, the JAC required all applicants for apprenticeship to be high school graduates. (At that time the policy was changed to permit acceptance of an equivalency certificate.) The present Business Manager has testified that the JAC's policy has been to accept any proof of completion of high school, including a letter from a school official; actual presentation of a diploma is not required. In 1968, however, the JAC rejected two black applicants, Michael Barrett and Rufus Daniels, stating as its reason that they had failed to produce a high school diploma. In both cases, the applicants had produced letters from high school officials certifying that they had graduated (U.F. 60; Tr. 84, 86-88).
9B.3(b) In 1968, the JAC rejected a Spanish-surnamed applicant, Wilfredo Cardona, because he had an equivalency certificate and had not formally graduated from high school. In 1969, two black applicants, Thomas Lollis and Samuel Smith, were rejected for the same reason. Cardona had experience working as an electrical helper, Lollis had been in the Army for three years, and Smith had taken some courses in electronics and had experience in the building trades as a laborer and carpenter. All three had experience which was comparable to that of some whites who were selected but all of whom had actual high school diplomas (Pl. Ex. 3A-3B; Pl. Ex. 18C; Tr. 3.183).
9B.3(c) The Census Bureau has prepared statistics relating to its 1970 census of the population which set forth level of educational achievement, by race, for persons 25 years and older. According to these figures, in Essex County, approximately 53.3 percent of the whites, American Indians and Orientals 25 years and older have graduated from high school, as compared to 37.2 percent of the blacks and 15.5 percent of persons of Puerto Rican lineage. In Essex County, the median educational attainment figure for all males 25 and older is over 12 years; for comparable black males the median is 10.4 years; for Puerto Rican males, 8.2 years (Pl. Ex. 19B; Census Bureau Report PC(1)-C: General Social and Economic Characteristics for New Jersey, Table 120, 125, 130).[16]
9B.3(d) Defendant introduced no evidence to show that the educational disparities among racial groups in suburban Essex County with respect to persons over 25 years of age are less severe for persons under the age of 25. Hence the Court finds that the imposition of a high school graduation requirement by the JAC falls more severely on blacks and Spanish-surnamed persons than it does on whites.
9B.3(e) Although algebra and trigonometry and other high school courses may be relevant to an electrician's work, defendants have not shown that the requirement of high school graduation for apprenticeship applicants is significantly related to future performance either as an apprentice or journeyman electrician, nor have they shown that the imposition of that requirement is a business necessity. The JAC has never conducted a validation study to determine the relevance of the high school standard. The defendants produced an expert witness to testify on this point, but his conclusions were based on general observations and were not grounded on any comprehensive analysis (Tr. 72, 73, 7.110, 7.118-7.120, 7.125-7.126).
9B.4(a) GATB. All apprenticeship applicants since 1966 have been required to pass a specific aptitude test designed to measure interest and aptitude for prospective electricians. To qualify for *824 consideration as an apprentice, an applicant must exceed a minimum norm in each of four categories (numerical aptitude, spatial aptitude, finger dexterity, manual dexterity). These norms are selected from the General Aptitude Test Battery (GATB) as particularly relevant to success as an electrician. GATB and the specific aptitude test for electricians derived from it was developed by the United States Training and Employment Service of the United States Department of Labor (USTES) in conjunction with state labor agencies. The specific electricians test used by the JAC here was developed jointly by USTES and a Texas labor agency. The New Jersey State Employment Service (NJSES) did not participate in the development of the test and does not prepare any questions for it; all GATB questions come directly from the USTES. The NJSES merely administers and grades the GATB examination at the behest of the JAC. I find that the administration of the test by the NJSES meets all standards of fairness.
A national survey conducted in 1970 by the National Joint Apprenticeship and Training Committee for the Electrical Industry indicated that at least 75 percent or about 302 Joint Apprenticeship Training Committees in the electrical industry throughout the nation utilized this test as a prerequisite qualification for apprenticeship training. The GATB test utilized by the JAC in the instant case is a "test" as defined by 29 C.R.F. § 1607.2 (Tr. 4.63-4.67, 4.70-4.72, 4.94-4.97, 4.106; D. Ex. D-7).
9B.4(b) In the years 1969 and 1970, the specific GATB examination employed by the JAC resulted in the disqualification of 13.8 percent of the white applicants who took the test and 34.1 percent of the blacks. Hence the court finds that the GATB examination used by the JAC falls more severely on blacks than on whites (U.F. 59, Tr. 71, 72).
9B.4(c) When the JAC decided to adopt the GATB in 1966, it made no inquiries to attempt to determine the test's relationship to job performance. The JAC has never conducted a validation study to determine the relevance of the GATB standard. The official in the New Jersey Employment Service who administers the GATB testified that he does not know whether the examination has been properly validated. An official in the federal Bureau of Apprenticeship and Training also testified that a question existed as to the validity of the GATB test within the federal Bureau of Apprenticeship and Training and that his agency does not require its use. The manual which accompanies the test states that it is to be used for the purpose of vocational counselling rather than for job-screening (Tr. 71-72, 130, 4.61-4.62, 4.65, 4.108-4.112, 5.6, 5.98-5.101, 7.143; D. Ex. D-7).
9B.4(d) The manual accompanying the GATB test demonstrates that, with respect to two sample groups given the test, a significantly higher percentage of "good workers" were chosen when the test was used than when it was not. In one instance, 68 percent of the nontest-selected workers were deemed "good workers" whereas 81 percent of test-selected workers were judged to be "good workers". Similar results were obtained in a cross-validation sample (D. Ex. D-7).
The criteria for choosing "good workers", however, does not comport with the validation requirements of 29 C.F.R. § 1607.5(b)(3) inasmuch as appraisal forms and instructions to the raters used in their designation of what constituted "good workers" were not introduced into evidence. Thus the court has not been shown what constitutes a "good worker" under the applicable federal standards. In addition, although the test manual (D. Ex. D-7) describes in detail the type of job for which the test was used, the defendants have failed to show under 29 C.F.R. § 1607.7(a) that the type of job for which the test was validated in the manual is comparable to the type of work engaged in by Local 52 members.
*825 The GATB test has not been validated in compliance with EEOC Guidelines in several other important aspects. First, the test has not been validated for each minority group with which it is now being used (see D. Ex. D-7, at 1). Second, the defendants have not demonstrated that validation of minority group results on the test is technically unfeasible. In these respects, validation does not comport with 29 C.F.R. § 1607.4(a), (b). See also 29 C.F.R. § 1607.5(b)(5). Since the validation method applied is that of "concurrent validation," that is, the testing of a group of incumbent employees and apprentices and the correlating of their test scores with the quality of their performance on the job or in training programs, the possibility that there were no blacks or other minority group representatives among the incumbent apprentices or employees in the sample would render impossible the ascertainment of whether the test is valid for blacks or other minority groups. See Note, Employment Testing: The Aftermath of Griggs v. Duke Power Company, 72 Columbia L. Rev. 900, 913, 914 (1972). (The invalidity of concurrent validation where the sample is not representative of the minority population available for jobs in the local labor market is recognized by 29 C.F.R. § 1607.5(b)(1).) Finally, the defendants have not shown, in compliance with 29 C.F.R. § 1607.3(b), that "alternative suitable hiring . . . procedures" are unavailable for their use.
9B.5 Residence Requirement. The official Census Bureau figures show that persons from racial minorities are somewhat more mobile than whites in terms of prior residence. That is, proportionately more minorities than whites moved into New Jersey between 1965 and 1970. The court finds that the imposition of a durational residency requirement by the JAC falls with more severity on black and Spanish-surnamed persons than on whites. Local 52's Business Manager testified that the present residence requirement serves no business purpose, and the court finds that it does not (Census Bureau Report PC(1)-C: General Social and Economic Characteristics for New Jersey,[17] Tables 119, 125, 130; Tr. 8.92).
9B.6(a) Recruitment and Availability of Apprentices. At least 46 of the 135 persons selected as apprentices from July 2, 1965 to March of 1971, had relatives in Local 52 at the time of their selection. All 46 are white. Several of the white apprentices who graduated in the lower part of their high school class had relatives in the union (Pl. Ex. 16; Pl. Ex. 18V; Tr. 64, 3.183).
9B.6(b) Bernie Edmonson is a black electrical contractor who presently teaches electricity at the Newark Manpower Skills Center of the State Board of Education Vocational Center. While Edmonson's course does not prepare a student to be a journeyman electrician, it gives him a thorough grounding in basic electrical knowledge. Since Edmonson has been teaching the course, about 80 students have graduated, of whom 64 to 66 were black or Puerto Rican. Neither Local 52 nor the JAC has even communicated with Edmonson in an attempt to recruit his graduates for their apprenticeship program, and only one of his students has ever become an apprentice in Local 52 (Tr. 148, 155-158, 169).
General Membership Characteristics of Local 52
10.1(a) Statistical Profile. Local 52 did not admit its first black journeyman member until November 1966. As of March 25, 1971, Local 52 had approximately 600 journeyman members and 75 apprentice members. At that time, eight of the journeyman members (1.3 percent) and ten of the apprentices (13.3 percent) were black. Hence, in the total of 675, there were eighteen blacks (2.7 percent) (U.F. 4-5).
*826 10.1(b) As of June 1972[18] some eight years after the enactment of Title VII, 42 U.S.C. § 2000e, and fourteen months after the institution of this action, Local 52 had approximately 30 blacks or Spanish-surnamed members or apprentices (U.F. 4-5; Tr. 132).
10.1(c) Official 1970 Census Bureau statistics reflect that black persons constitute 30 percent of the total population of Essex County, the geographical jurisdiction of Local 52. The combined percentage for blacks and persons of Spanish heritage in Essex County is 39.1 percent (Pl. Ex. 19B; Tr. 4-5).
10.2(a) Community Involvement and Reputation. Local 52 has consistently opposed programs which would train persons from minority groups in the electrical field. In 1966 the union discouraged the establishment of a city program which would have trained 30 to 40 electrical apprentices at the Montgomery Street School in Newark. In 1968, the International President suggested that Local 52 form a joint committee with the Essex Division and the Urban League to seek out minority workmen and bring them into the union; such a committee was never established. Local 52 has also, in the language of its minutes, "rejected" the minority training program established at the New Jersey College of Medicine and Dentistry after the Newark race riots and has also rejected other similar programs. In the spring of 1968, when the Medicine and Dentistry College project was starting up and electrical contractors were under obligations to use their best efforts to obtain black workmen, a number of black electricians who wanted work on the job were unable to get referrals through the Local 52's hiring hall (U.F. 70-72; Tr. 98-99; 174-176, 3.112-3.113, 8.134-8.136).
10.2(b) Local 52 has a reputation in the black community as being a union which discriminates against blacks.[19] The strength of this reputation is illustrated by the fact that in recent years, five experienced black electricians who lived within Local 52's jurisdiction and wanted work John Webb, Clifton Plummer, Lawrence Griffin, Thomas Athill, and George Simmons left the jurisdiction to seek work through Local 164, IBEW, Jersey City. All are now journeyman members of Local 164 (Tr. 178-179, 3.93, 3.95, 3.100, 3.114-3.115).
10.3 Hiring Situation. Local 52 took in about three times as many new members in the period 1966-1971 as were admitted between 1960 and 1965. Nevertheless, the size of the union has been decreasing in recent years, causing concern to both the Local and the International union. There is generally sufficient work within the jurisdiction to permit all the members of Local 52 to work, as well as upwards of 100 "travelers" (members of other IBEW locals) and non-members. In the summer of 1971, for example, about 125 travelers and 40 non-members were working through Local 52's hiring hall. In the summer of 1972, one of the slowest in years, there were still about 50 travelers and 50 non-members working. As of July 1971, at least 75 travelers and non-members have worked out of Local 52 long enough to qualify for various benefits, i. e., more than one year plus 1200 hours (U.F. 44-45; Pl. Ex. 20; Tr. 55-58, 126, 141-142, 8.129-8.133).
*827 GENERAL FINDINGS AND CONCLUSIONS OF LAW
I. Direct Journeyman Membership in Local 52
Until November 1966 no black or Spanish-surname electricians had been admitted directly as journeyman members of Local 52. The lack of black journeymen members did not result from a lack of applicants. At least three qualified black applicants who applied for direct journeyman membership during this period were turned away (Finding 9A.1(c)). This union conduct is prima facie discriminatory. As the court stated in Green v. McDonnell Douglas Corp., 463 F.2d 337, 344 (8th Cir. 1972), cert. granted, 409 U.S. 1036, 93 S.Ct. 522, 34 L.Ed.2d 485 (1972):
"When a black man demonstrates that he possesses the qualifications to fill a job opening and that he was denied the job, we think he presents a prima facie case of racial discrimination and that the burden passes to the employer to demonstrate a substantial relationship between the reasons offered for denying employment and the requirements of the job."
Here the union has not demonstrated any business necessity justification for the denial of employment to the three qualified blacks. Prior to July 2, 1965, the effective date of Title VII, the exclusion of blacks did not constitute a violation of Title VII of the Civil Rights Act of 1964,[20] but the pre-Title VII history of discrimination is probative as to the continuing discriminatory intent of the union and as to the present effect of past discriminatory practices. These past practices will also be taken into consideration in the fashioning of appropriate relief. United States v. Local I, Ironworkers, 438 F.2d 679, 683 (7th Cir.) cert. denied, 404 U.S. 830, 92 S.Ct. 75, 30 L.Ed.2d 60 (1971); Marquez v. Omaha Dist. Sales Office, Ford Div., 440 F.2d 1157, 1160 (8th Cir. 1971); Green v. McDonnell Douglas Corp., supra, 463 F.2d at 338, 339.
Subsequent to July 2, 1965, the discriminatory practices of the union continued as before. Ralph Garvin, for example, was not permitted to take the journeyman examination in November of 1965, just as Julian Whitney and Roscoe Jennings had been rejected previously (Finding 9A.1(c)). I find no business necessity justification for Garvin's rejection,[21] and thus the government's prima facie showing of racial discrimination stands unrebutted. Green v. McDonnell Douglas Corp., supra.
I have found that the union discriminated against blacks in rendering it more difficult for them than for whites to take the journeyman examination which if passed would result in Local 52 membership. I further find that the journeyman examination falls more harshly on those blacks who have been permitted to take it than on whites, and has not been shown to be job-related under the standards set forth in the EEOC Guidelines, 29 C.F.R. § 1607.1 et seq. (Findings 9A.3(a)-(d)). See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Tests or other measuring devices may be utilized to select applicants for union membership provided that the tests are not designed, intended, or used to discriminate by reason of race, color or national origin. However, in this situation where *828 the journeyman examination disqualifies a proportionately higher degree of minority group applicants than whites, the union's failure to demonstrate by appropriate data that the examination given is a reasonable measure of performance for the job for which the examination is being used establishes the invalidity of that examination under Title VII and the regulations pursuant thereto. 42 U. S.C. § 2000e-2(h); 29 C.F.R. § 1607.1 et seq.; Griggs v. Duke Power Co., supra, 401 U.S. at 431, 91 S.Ct. 849. See Note, Employment Testing: The Aftermath of Griggs v. Duke Power Company, 72 Columbia L.Rev. 900 (1972).
The union-imposed barriers to direct journeyman admission into Local 52 for blacks are also borne out by the statistics. As I found earlier, between July 2, 1965, and March 25, 1971, (when this action was instituted), Local 52 had admitted 67 journeymen directly into its membership, only five of whom (7.5 percent) were black (Finding 9A.1(b)). In contrast, black persons constitute 30 percent of the total population of Essex County, the geographical jurisdiction of Local 52 (Finding 10.1(c)).
This statistical disproportion, especially in light of the instances of differential treatment and "facially neutral" practices which fall more severely on blacks than on whites, establishes a prima facie case of discrimination, shifting the burden of going forward and the burden of persuasion to the defendant union to demonstrate that the standards for union membership bear a substantial relationship to job performance. United States v. Local 169, Carpenters, 457 F.2d 210, 214 (7th Cir. 1972); United States v. Local 86, Ironworkers, 443 F.2d 544, 551 (9th Cir.), aff'g, 315 F.Supp. 1202 (W.D.Wash.1970), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971). Furthermore, the union is obliged to demonstrate that even if the standards for union membership are job related, "there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact." Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972). The defendant union has not overcome plaintiff's prima facie case of exclusion of blacks from direct journeyman membership under any of the above standards.
Finally, although the union discriminated against direct black journeyman membership into the union, it also discriminated against the blacks actually admitted into membership. Of the five blacks admitted, the first four were channeled into the less desirable job classification of maintenance electrician. As was required of all maintenance electricians, all four blacks were required to sign a 20-year waiver of the right to do construction work. The last black admitted (Watts) was accepted into the more desirable classification of construction electrician (Findings 9A.2(a)-(h)). As of March 21, 1971, there were approximately 400 construction electricians and 123 maintenance electricians in Local 52. Although the statistical sample may be too small in itself to be significant, the combination of the following factors comprises sufficient proof that blacks were discriminated against by way of exclusion from a more desirable job classification to constitute a violation of Title VII, 42 U.S.C. § 2000e-2(c)(2): (1) a disproportionate number of blacks accepted directly into the union were steered into the maintenance category; (2) the first four blacks were steered there while there existed more than three times as many construction electricians than maintenance electricians; and (3) substantial barriers to direct black admission into the union existed in the first instance.[22] The fact *829 that blacks hired after the institution of this action as maintenance electricians may subsequently have been transferred to construction jobs (Tr. 121-23), does not absolve the union from having engaged in unlawful employment practices under Title VII. Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426 (8th Cir. 1970). See note 11 supra.
II. Membership in Local 52 Through the Apprenticeship Program.
The court finds that, with one exception, Local 52 excluded blacks from its apprenticeship program until after the effective date of Title VII. Local 52's stated reasons for rejecting black applicants during this period e. g., their age, the employment situation, the "long waiting list" do not withstand scrutiny, and preference in selection was accorded to the relatives of the members of the all-white union. The admission of Robert Turner, the lone exception to the exclusionary pattern, was the result of pressure brought to bear on Local 52 by blacks who charged the union with practicing racial discrimination. The pre-Title VII pattern and practice of discrimination continued beyond the effective date of Title VII (July 2, 1965), and is probative as to the continuing discriminatory intent of the JAC. United States v. Local 1, Ironworkers, supra. I reject the suggestion by defendants that the "sins" of Local 52's procedures are not to be visited upon the practices of the JAC. I find that the JAC patterns and procedures for apprenticeship selection were adopted directly and without modification from those used by Local 52's Executive Board.[23]
The court additionally finds that from 1966 through 1969, the JAC's procedure for selecting apprentices from among applicants who met minimum qualifications was completely subjective. White applicants fared better than minority applicants, and many minority applicants were rejected who were as or more qualified than whites who were selected under the standards then being applied by the JAC. The JAC's subjective procedure operated to exclude blacks and has not been shown to be related to job performance. Where such discrimination is shown "subjective, rather than objective, criteria carry little weight in rebutting charges of discrimination." Green v. McDonnell Douglas Corp., supra, 463 F.2d at 343. See Moore v. Board of Educ. of Chidester School Dist. No. 59, 448 F.2d 709 (8th Cir. 1971); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). The employment from 1966 to 1969 of these subjective and unreviewable standards for apprenticeship selection not shown to be significantly related to successful job performance was unlawful. Griggs v. Duke Power Co., supra; United States v. Local 86, Ironworkers, supra; United States v. Local 36, Sheet Metal Workers, 416 F.2d 123, 136 (8th Cir. 1969).
The court finds further that the system for selecting apprenticeship applicants introduced in 1970, while having some appearance of objectivity, retained much subjectivity. This last method has resulted in minority applicants scoring significantly lower than whites, even though no showing has been made that minorities were in fact less qualified; on the contrary, several rejected minority applicants were as or more qualified than whites who were selected under the standards then being applied by the JAC. Thus the still subjective rating system unrelated to job performance used subsequent to 1969 is unlawful as above.
The court finds further that the JAC has maintained standards for selection of apprentices which result in the disqualification of disproportionately more *830 minority applicants than whites. The defendants have not demonstrated that these standards bear a significant relationship to successful job performance, and therefore their application constitutes an unlawful employment practice. Griggs v. Duke Power Co., supra; United States v. Local 86, Ironworkers, supra, 443 F.2d at 552. This is true of the rating system as a whole as well as of the preliminary screening devices such as the high school graduation requirement and the durational residency requirement. As to the rating system, credit is given to persons with electrical experience, but only whites have been able to receive pre-apprenticeship experience working as helpers through Local 52. Nepotism has continued to play an important role in the selection of apprentices and "summer helpers". The preference that has been accorded to friends and relatives of members of the predominantly white union with respect to admission to the apprenticeship program constitutes, in the above context of discrimination, a violation of Title VII. Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047, 1050 (5th Cir. 1969); United States v. Local 1, Ironworkers, supra, 438 F.2d at 683.
I find also that the high school requirement has in the past in some cases been applied more stringently to blacks, and certified black high school graduates have been rejected simply because they could not produce a diploma (Finding 9B.3(a)). The application of more stringent procedures to minority apprenticeship applicants than to white applicants constitutes an unlawful employment practice. 42 U.S.C. § 2000e 2(d); Griggs v. Duke Power Co., 420 F.2d 1225, 1231 (4th Cir. 1970), rev'd in part on other grounds, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
As to the GATB requirement, although I have found that the GATB is related to successful job performance it has not been validated under the EEOC standards (29 C.F.R. § 1607.1 et seq.) which the Supreme Court has concluded are expressive of congressional intent. Griggs v. Duke Power Co., supra, 401 U.S. at 436, 91 S.Ct. 849. This is not to say that should the JAC properly validate the test, it cannot be shown to comport to the guidelines at some future time. On the basis of the evidence presented, however, the defendants have not borne their burden of proving that the GATB, which falls more severely on blacks, is sufficiently job-related under the EEOC guidelines (See 9B.4(a)-(d)).
Finally, since the JAC is the representative and agent of the Essex Division of NECA and of Local 52, the unlawful employment practices of the JAC subject NECA and Local 52 to liability as well.
III. Pattern and Practice of Discrimination.
On the basis of the above findings, the court finds that Local 52, NECA, and the JAC have engaged in a pattern or practice of resistance to the rights which Title VII secures for black and Spanish-surnamed individuals. I find that this pattern or practice constitutes an unlawful employment practice under 42 U.S.C. § 2000e 2(a), (c), and (d). Since the union and the JAC have prevented minority individuals from acquiring membership and experience, the granting of referral priority under the collective bargaining agreement between Local 52 and the Essex Division to union members operates to preserve the advantages gained by whites as a result of the discriminatory practices of the union and the JAC. Thus, as with any practice apparently neutral on its face which perpetuates the effects of past or present discrimination in employment, the referral procedure itself constitutes present unlawful discrimination. United States v. Local 86, Ironworkers, supra, 443 F.2d at 552; United States v. Local 36, Sheet Metal Workers, supra; United States v. Local 38, IBEW, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); Local 53, Asbestos Workers v. Vogler, supra.
ORDER
Because the only proposed decree in this "cluster" was received from *831 the plaintiff, and due to the passage of time since the institution of this action, and particularly because a decree integrated as to all aspects of the parties' practices can best be formulated by the parties themselves now that the court has established the substantive guidelines,
It is hereby ORDERED, ADJUDGED and DECREED that within 45 (forty-five) days of the filing of this opinion, the parties submit (1) a joint proposed decree incorporating their proposals to remedy the violations of Title VII found by the Court to have occurred, and (2) a schedule of those matters and language as to which the parties cannot agree along with their respective contentions. Based on the particular violations and illegal practices referred to in the above opinion, the proposed decree should include specific remedial and corrective action directed in particular to at least the following factors:
(1) Direct Journeyman Membership Procedures
(a) examination of applicants
(b) nepotism
(2) Apprenticeship Selection Procedures
(a) testing (continued use of GATB under the constrictions of 29 C.F.R. § 1607.9 may be permitted).
(b) interviews
(c) residence requirement
(d) high school requirement
(e) experience of applicants
(f) nepotism
(3) Maintenance versus construction classification
(4) Referral procedures.
In addition to any and all other provisions required, the decree should include specific provisions for affirmative action dealing with advertisement of job openings, achieving parity of minority versus white workers, and procedures for reporting the progress of affirmative action programs to the court.
SUPPLEMENTARY OPINION AND FINAL ORDER
(Electricians Cluster)
GARTH, District Judge:
In my opinion filed February 16, 1973, I directed that the parties submit a "joint proposed decree incorporating their proposals to remedy the violations of Title VII found by the Court to have occurred" along with a schedule of those matters upon which the parties could not agree. A consent decree following the guidelines set forth in my opinion has now been submitted. Only one area remains in which no agreement has been reached.[1] This area of disagreement concerns specific relief for individuals found to have been discriminated against in the Opinion and Order filed February 16, 1973. I have reviewed the findings therein and the submissions of all parties, and I have concluded that specific relief is warranted as to individuals who have been rejected as journeymen or denied admission into the apprenticeship program by the application of standards found by the Court to have been unlawful. See Opinion and Order of February 14, 1973, at 9A.1(c), (e)-(h), 9A.2(c), and 10.2(b) with respect to rejected journeymen, and at 9B.2(b)(3), 9B.2(c)(4) and 9B.3(a)-3(b) with respect to those denied admission into the apprenticeship program. No specific relief, however, shall be afforded to those individuals whose journeyman or apprenticeship status may have been delayed, but was not denied, as a result of defendants' practices. (This latter group consists of Joseph Watts, William McCraw, Luther Porter, Junius Copeland, Daniel Jacocks, Edroy Moore, Irvin Binns, William Holland, William Ledford, John Williams, George Fowlkes, Freeman Harris, and Carl Warren.) See 9A.1(e)-(g), 9A.2(c), 9A.2(h) of February 14 Opinion and Order. As to these last individuals, as well as with respect to those who have been rejected outright as apprentices or journeymen, *832 the United States contends that the Court's decree should provide for economic compensation for losses sustained as a result of practices found to be discriminatory and in violation of Title VII. Specifically, plaintiff requests that a special master be appointed by the Court to make factual determinations as to the specific losses (back pay) suffered by individuals identified by the Court as having suffered injury as a result of defendants' employment practices. Defendants oppose the awarding of back pay and the institution of any proceedings pertinent thereto.
The United States in effect requests the Court to reconsider an issue which was determined adversely to it pursuant to a motion for discovery, which was also treated as a motion to amend the complaint, on November 8, 1971. At that time, I determined that § 707 of Title VII, 42 U.S.C. § 2000e 6, under which the Attorney General brought this action, did not authorize the payment of back pay to individuals found to have been discriminated against by the defendants. This conclusion was reached by a comparison of § 707 and § 706 as they then stood: Section 706 (42 U.S.C. § 2000e 5(g)), which authorized suits by private individuals against employers or unions for discriminatory practices, explicitly permitted the court in its discretion to award back pay; in contrast, § 707 (42 U.S.C. § 2000e 6), which at that time alone authorized the institution of an action by the Attorney General, did not specifically so provide. Accordingly, I concluded:
"Both the legislative history, equivocal though it may be, and the statutes themselves fortify me in the view that I take, that if Congress had intended that the Attorney General have in his power the right to assert back pay under Section 707, I think that Congress would have said so."
Tr. of Nov. 18, 1971, at pp. 1-2.
In my determination I found the reasoning of United States v. Georgia Power Co., 3 FEP Cases 767 (N.D.Ga.1971) persuasive. The United States points out that the Fifth Circuit has now overruled the Georgia Power district court opinion with respect to back pay. 474 F.2d 906 (5th Cir. 1973). See also United States v. Lee Way Motor Freight, Inc., 5 FEP Cases 492 (W.D. Okl.1972); United States v. Local 46, Wood, Wire and Metal Lathers, 328 F. Supp. 429, 441 (S.D.N.Y.1971); Davidson, "Back Pay" Awards Under Title VII of the Civil Rights Act of 1964, 26 Rutgers L.Rev. 741, 751 (1973). I have examined the Fifth Circuit's opinion in this regard and do not find its rationale compelling. The legislative history cited therein is, at best, ambiguous. Moreover, the 1972 Amendments to Sections 707 and 706, which now for the first time permit the Attorney General to bring an action under § 706 to enforce the rights of private complainants and therefore to benefit from the back-pay language of that section, suggest that the Attorney General did not possess the right to seek back pay prior to the effective date of the Amendments. (The Amendments apply only with respect to charges pending with the EEOC on or after March 24, 1972. Pub.L. 92-261, §§ 4, 5 and 14, 86 Stat. 104.)
Other considerations dictated against permitting discovery to proceed with respect to back pay in November of 1971. At that time the Court was faced with the need to proceed expeditiously. Motions for severance of parties and issues were pending. From both a statutory and practical standpoint, it was imperative that this case and the issues arising thereunder be given priority and that "the case . . . be in every way expedited." 42 U.S.C. § 2000e 6(b). I did not feel that the substantial issues of discrimination and the ultimate decrees should await determination of back-pay damages.
Further, in order to expedite the trial of this case, I have considered each of the four trades as a separate cluster (see Electricians' Opinion and Order of February 14, 1973, at note 2), and dealt *833 separately with each such cluster. Accordingly the case has progressed in discrete stages. The first decree entered was that of the Operating Engineers (May 8, 1972), the second, that of the Plumbers (July 11, 1972), and the third, that of the Ironworkers (December 22, 1972). Many of the provisions of these decrees were arrived at by negotiations among the parties, as was the case with the Electricians Cluster. If at this time I determine, contrary to my previous ruling, that back pay awards should be made, it is highly conceivable that each consent decree might require renegotiation and each court-ordered decree, reconsideration, thereby disrupting the progress already made by each of these trades in redressing the effects of past practices.
For all of these reasons, even were it within my discretion to award back pay, I would in any event decline to exercise such discretion in favor of a back-pay award. Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3d Cir. filed May 25, 1973). The consent decree which the parties have negotiated and which I shall adopt as the decree of this Court follows the general guidelines set forth in my opinion of February 14, 1973. This decree, along with the specific relief I shall mandate, incorporates sufficient and adequate relief to correct and remedy the discriminatory employment practices found heretofore to have existed in the Electricians' trade.
For the reasons expressed above, and for the reasons expressed in my oral opinion of November 18, 1971,
It is hereby ordered, adjudged, and decreed that the following two paragraphs shall be incorporated into the final decree of this Court as paragraphs 27 and 28 of that decree:
27. Within 30 days of the date of entry of this Decree, Local 52 shall communicate by registered mail and by newspaper publication with all black or Spanish surnamed workmen who are not members of the union and who presently work in referral through Local 52 or who have done so in the past, explaining to them their rights to referral and membership under this Decree. In particular, Local 52 shall communicate, as above, with those persons listed below (List "A") offering to place their names at the top of the Group I referral register and to take them into membership upon satisfaction of the membership requirements of this Decree. Local 52 shall submit all such correspondence to the plaintiff for its approval prior to use. Local 52 shall have no obligation to place any individual listed below on the top of the Group I referral register who does not request such preference within 90 days from the entry of this decree.
List "A"
Allen Smith
Ronald Graham
James Malone, Jr.
Ralph Garvin
David Jackson2
2. The United States seeks to include John Webb, Clifton Plummer, Lawrence Griffin, Thomas Athill, and George Simmons all currently members of Local 164, Jersey City on List "A" as well. As to these five individuals, however, the record reflects only that they were discouraged from applying to Local 52 because of its reputation; no affirmative acts of discrimination by Local 52 against these five have been found. See Opinion and Order of February 14, 1973, at 10.2(b). For these reasons and because of their present job status, these five individuals will not be included on List "A".
28. Within 30 days of the date of entry of this Decree, the JAC shall communicate by registered mail with those persons listed below (List "B") offering to take them into the next apprenticeship class and notifying them that they may qualify for advanced placement if they have electrical experience. The JAC shall submit all such correspondence to plaintiff for its approval prior to use. Those persons on the list below who become indentured as apprentices in accordance with the provisions of this paragraph shall be credited toward the JAC's obligation to indenture 25 minority apprentices for the 1973 Apprenticeship class under paragraph 8 *834 of the Interim Decree entered by this Court on May 9, 1973.
List "B"
Michael Barrett William Lugo
Carl Boyd Ezekiel Maxey
John Bryant Michael Mitchell
Miguel Cardona Nelson Moore, Jr.
Wilfredo Cardona Arthur Rogers
Rufus Daniels Robert Salter
James Dyer Vaughan Scott
Nathan Gallup Kenneth Shearin
Herbert Hogans Samuel Smith
Claborn Hudson Archie Troy
Earl Jones John Whitley
Eugene Jones Henry Williams
Thomas Lollis
It is hereby further ordered, adjudged, and decreed that the consent decree submitted and signed by the parties shall be annexed hereto and incorporated herein as the decree of this court, and that the consent decree along with the provisions for specific relief ordered herein shall constitute the full and final relief in this Electricians Cluster, and that no award of back[3] pay and no proceedings thereto shall be permitted. No costs.
NOTES
[1] 42 U.S.C. § 2000e 6(b).
[2] The "clusters" and respective defendants were designated as follows:
(a) "Electricians" (Local 52, Electricians; the Electricial Joint Apprenticeship and Training Committee of Local 52; the Essex Division, New Jersey Chapter, National Electrical Contractors Association).
(b) "Ironworkers" (Locals 11, 45, 373, 480 and 483, Ironworkers; Ironworker District Council of Northern New Jersey; Ironworkers Joint Apprenticeship Committee; Building Contractors Association of New Jersey; Associated General Contractors of New Jersey; Rigging Contractors of New Jersey; Structural Steel and Ornamental Iron Association).
(c) "Operating Engineers" (Local 825, Operating Engineers; Associated General Contractors; Building Contractors Association; Structural Steel and Ornamental Iron Association; Local 825 Apprentice Training and Re-Training Fund).
(d) "Plumbers" (Local 24, Plumbers; Plumbers Apprenticeship Trade School Joint Committee; Essex and Union County Division, Mechanical Contractors Association of New Jersey).
[3] The Operating Engineers Decree was signed by the Court and filed on May 8, 1972; the Plumbers Decree was signed by the Court and filed on July 11, 1972.
[4] The government sought an Order to Show Cause (returned July 26, 1972) for the entry of the partial stipulated decree and for the addition of a paragraph (46A) supplementing paragraph 46 of the partial decree.
The provisions of the decree (other than paragraphs 33 and 34 pertaining to journeyman membership) with slight modifications had received the consent of all parties in February 1972. No decree was entered at that time pending trial and determination of the journeyman membership requirements.
All parties consented to the relief sought as to the entry of the decree (absent paragraphs 33 and 34), and on July 28, 1972 so much of the Order to Show Cause seeking entry of the partial decree was granted, and the decree was signed by the parties and entered and filed by the Court on that date. The relief sought with respect to supplementing paragraph 46 was denied, but the interpretation of paragraph 46 sought by the Building Contractors Association in a motion returnable at the same time as the Order to Show Cause resulted in the memorandum interpretation which appears at the end of the Ironworkers Opinion of December 22, 1972.
[5] The foregoing restates the procedural history of this case as stated in the Ironworkers Opinion and Decree of December 22, 1972. The trial in this matter was held from June 13 to June 22, 1972.
[6] Article VII of the Collective Bargaining Agreement effective June 1, 1971, incorporates some changes in the referral groups. Most important, for present purposes, is that to qualify for Group I an electrician need only have worked for a period of one year in the last four under the Collective Bargaining Agreement instead of having worked for four such years. (Pl.Ex. 13).
[7] The Union Minutes of July 20, 1961 describe Whitney as follows:
"JULIAN E. WHITNEY before the E.B. seeking membership in L.U. Age 40, H.S. Graduate, 2 year College (Business) Service connected disability, nervous stomach. Three trade schools completed while in service. Worked John Brown, E.O., N.J. for approx. 1 year. Self employed as electrician for 5 years. Picatinny Arsenal as Electricians helper about 6 mo's 1949. Classified as electrician by N.J. State employment office." (Pl.Ex. 5A at 7/20/61).
[8] The Union Minutes of September 6, 1962 describe Jennings as follows:
"R. JENNINGS before the Board to inquire about membership. H.S. equivalency, special courses N.C.E. as Elec., age 37 codes and practices. Experience of 6 years as main. electrician for Dollin Corp., Irvington. Informed that at this time we are not taking new members due to poor employment situation. He inquired about work permits, informed by the Business Manager he would work if work is available. Informed it is necessary to show up daily." (Pl.Ex. 5A at 9/6/62).
[9] The Union Minutes of November 4, 1965 describe Garvin as follows:
"RALPH GARVIN before the E.B. regarding membership. Age 34, Informed new members enter only through the apprenticeship program, no consideration can be given." (Pl.Ex. 5A at 11/4/65).
As to Garvin's competency, see Tr. 104-105.
[10] E. Martin who presented himself before the Executive Board on September 6, 1962 regarding membership for his brother and J. Malone, Jr., inquiring about membership for himself both were informed that the employment situation was poor. J. Malone, Jr., is black. The race of E. Martin and his brother is not known. (Pl.Ex. 5A, 9/6/62; U.F. 77).
[11] In determining liability and entitlement to relief under Title VII of the Civil Rights Act of 1964, the court should focus primarily on the period of time up to the filing of the lawsuit, and the defendant's employment practices at that time. The necessity for affirmative relief may not be eliminated by the fact that a defendant has taken some initial steps toward eliminating discrimination since there may be no assurances that those steps will be continued. United States v. United Association, etc., Plumbers Local Union No. 73, 314 F.Supp. 160 (S.D.Ind.1969); United States v. Local 38, IBEW, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970). The evidence of the increase in the number of blacks hired since March 1971 goes to show only that qualified blacks were available for membership had the union determined to induct them.
[12] The high school graduation requirement was modified in January 1972 so that a high school equivalence certificate is now acceptable. See Finding 9B.3(a).
[13] Prior to August 15, 1963, the Executive Board of Local 52 had no formal standards governing preliminary screening of apprentices. On that date the Board adopted age, residence and education standards. (U.F. 12-15; Tr. 105).
[14] Evidence as to the high school achievements of Warren and Dyer is not proffered for the purpose of demonstrating that high school excellence is necessarily job-related. See Griggs v. Duke Power Co., 401 U.S. at 426, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Rather, it demonstrates that during the period in which the union and the JAC were using a high school degree requirement for apprenticeship admission, black applicants with better high school records than whites were rejected for apprenticeship.
[15] See note 14 supra.
[16] This report became available after trial in this case had been completed.
[17] See note 16 supra.
[18] See note 11 supra.
[19] In proving a pattern or practice of racial discrimination, evidence of the discriminatory reputation of a union and its joint apprenticeship program is relevant and admissible. Such evidence is admissible to show how and why blacks have been discouraged from applying for membership, referral or apprenticeship, and how and why some of those who did apply have been discouraged from pursuing their applications vigorously. Such evidence is also admissible because it has a direct bearing on the nature and extent of the "appropriate relief" to which the government is entitled. United States v. Local 86, Ironworkers, 443 F.2d 544 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed. 2d 367 (1971).
[20] I am not deciding whether or not the exclusionary practices of the union prior to as well as subsequent to July 2, 1965 may constitute a violation of the civil rights of minority group applicants under 42 U.S.C. § 1981 (see Young v. International Tel. & Tel. Co., 438 F.2d 757 (3d Cir. 1971); Guerra v. Manchester Terminal Corp., 350 F.Supp. 529 (S.D.Tex.1972)) since this action is brought by the Attorney General under § 707(a) of the Civil Rights Act of 1964 rather than by a private litigant, and since neither party has raised the § 1981 question.
[21] Although evidence of discrimination against many blacks has been adduced in this case, a finding of discrimination by an employer against a single employee or applicant would suffice to constitute a violation of Title VII, 42 U.S.C. § 2000e-2(a)(1). Marquez v. Omaha Dist. Sales Office, Ford Div., 440 F.2d 1157, 1161 (8th Cir. 1971).
[22] For other examples of discriminatory job classification, see Marquez v. Omaha Dist. Sales Office, Ford Div., supra, 440 F.2d at 1163; United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971); United States v. Local 638, Steamfitters, 337 F.Supp. 217, 219 (S.D.N.Y.1972).
[23] See U.F. 15. In this connection I note that the JAC did not take over apprenticeship selection until November 1965 (see Finding 9B.2(a)). Therefore the Executive Board of Local 52 violated Title VII by discriminating against black applicants for apprenticeship from July 2, 1965, the effective date of Title VII, until the Executive Board relinquished its duties to the JAC in November of 1965.
[1] Inasmuch as the parties have agreed to paragraphs 1-26 inclusive and paragraph 30 of the Decree, review shall be deemed precluded as to these paragraphs. Appeal, if any, is limited to paragraphs 27, 28 and 29 of the Decree as set forth herein.
[3] To preserve numerical continuity, the decision as to back pay will be incorporated as paragraph 29 of the Decree as follows:
"29. No back pay shall be allowed or paid for the reasons expressed in this Court's Supplementary Opinion and Final Order filed August 20, 1973."
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364 F.Supp. 868 (1973)
I. HAAS TRUCKING CORP. et al., Plaintiffs,
v.
NEW YORK FRUIT AUCTION CORPORATION and Auction Delivery Corporation, Defendants.
No. 73 Civ. 4046.
United States District Court, S. D. New York.
October 10, 1973.
*869 *870 Slavin & Hersch, New York City, for plaintiffs; Gilbert M. Hersch, New York City, of counsel.
Cleary, Gottlieb, Steen & Hamilton, New York City, for defendants; James W. Lamberton, George Weisz, George J. Grumbach, Jr., New York City, of counsel.
MEMORANDUM
LASKER, District Judge.
I. Haas Trucking Corp. ("Haas"), L. J.M. Service Inc. ("LJM") and Heyer Forwarding Co. ("Heyer") are small family businesses which, for nearly fifty years, have served in the wholesale fruit and vegetable business either as "Forwarders" or "Loaders" terms which are elaborated below. New York Fruit Auction Corporation ("Auction") has been in the business of auctioning fresh fruit and produce since 1933, located originally at railroad piers on the Hudson and, since May, 1971, because of the substantial demise of railroad operations, at new leased premises in Hunts Point, Bronx, New York.
The forwarders-loaders are independent contractors appointed by "receivers", who in turn act either as agents for growers and shippers or principals in the sale of wholesale fruit. The forwarders-loaders have always carried on their activities on the premises occupied by Auction: until May, 1971, at the railroad piers of which Auction was a permittee only, after that date and until September 17, 1973 at the Hunts Point facility which Auction controlled as lessee. Although in earlier times at least one other fruit auction company carried on business in New York, in the recent past Auction has been the only fruit auctioneer in the city.
On September 12, 1973, without consultation or notice to Haas, LJM and Heyer, Auction addressed a letter to them and the other companies then serving as forwarders or loaders advising the addressees that at the start of the next business week (September 17), forwarding and loading at Auction's premises would be performed exclusively by its new subsidiary, Auction Delivery Corporation ("Delivery"), and that other forwarders would no longer be allowed to perform such services on Auction's premises. The letter offered to employ the principals and employees of the forwarders and loaders.
On September 21, 1973, the plaintiffs instituted this suit for injunctive and declaratory relief and for damages, alleging that the defendants' actions violate Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2) and Section 7 of the Clayton Act (15 U.S.C. § 18). Simultaneously, the plaintiffs moved for a temporary restraining order and a preliminary injunction restraining the defendants from interfering with the conduct of plaintiffs' business or barring them from access to the Hunts *871 Point facility. A temporary restraining order was granted pending disposition of this application for preliminary relief. An evidentiary hearing was held on October 1 and 2, 1973.
I.
The function of a forwarder is to shepherd the fruit owned by the seller, or "receiver", from the time it is unloaded at Auction until, after sale, it is picked up from Auction's floor for the buyer. While forwarders are appointed or retained by the shipper (receiver), they are not paid by him, but rather by the buyer. The significance of this fact becomes apparent in the discussion that follows. In carrying out its role, the forwarder inspects the commodities, makes samples for examination by possible buyers (in this capacity it is known as a sampler or display agent), designates where boxes are to be stacked in accordance with Auction's catalogue provided for each sale by the auctioneer, receives records of the fruit sold from Auction personnel, and sees to it that the proper lots of fruit are picked up by the buyers by issuing a delivery ticket to the buyer which the latter signs as a receipt.
Loaders, like forwarders, are appointed by a shipper-receiver, but paid by the buyer. The job of a loader is physically to transfer packages or boxes of fruit, after sale, from the floor of the auction building to the tailgate of the buyers' (or buyer-hired) trucks.
While the functions of forwarder and loader are also performed indeed, by the necessities of the industry must be performed at other facilities for the sale of fruit, such as the Hunts Point wholesale fruit market, Auction is the only facility at which these functions are carried out by independent contractors such as Haas, LJM and Heyer.
The parties differ sharply as to whether the businesses of forwarding and loading require skill or expertise. Aside from the generalized opinion testimony of the principals of the plaintiffs that the jobs do require skill, and without denigrating the importance of the work to receiver, buyer and Auction, the evidence establishes that forwarding and loading do not demand expertise. Auction does not, of course, dispute the importance of the work. Indeed, as will be seen, it is precisely because it does regard the work as important that it claims to have been impelled to create its own service company to do the work properly. It is true that the job of sorting and sampling requires expertise, however, Auction has not, and does not propose to bar any of the plaintiffs from continuing this work on its premises or from continuing to truck shippers' goods to Auction or buyers' purchases from there. The value of such a continuing opportunity may be questionable, since the plaintiffs assert that their businesses would not be viable if they were no longer able to forward and load at Auction's premises.
Whatever the historic origin and justification for the forwarding-loading system we have described, Auction claims, and the evidence establishes, that by the time Auction took the action which is the subject of this suit, the old system was plagued with inefficiencies which adversely affected Auction's interests.
The first drawback to the system was the lack of accountability of forwarders and loaders. Although the forwarders' responsibility was to shepherd packages of fruit and release them to buyers by whom they were paid, the forwarders were accountable to their receivers, and the receivers were not motivated to assure the buyers rapid and accurate deliveries. The loaders, too, although appointed by receivers were paid by buyers for services performed for the latter. Since forwarders and loaders were paid on a per-package basis, there was a natural tendency for them to handle the most packages with the least men; a tendency which the buyers dependent on them had no power to correct, since the buyer had no power to choose his own forwarder or loader.
*872 A second defect of the system was the lack of centralized control. The various forwarders and loaders competed with each other. They declined to share labor forces on Auction's premises, causing bottleneck delays which a centrally directed labor force could have overcome. That is, e. g., delays at the station of one checker-forwarder whose fruit was being claimed by buyers, could not be alleviated by assigning (as a single employer could) unoccupied personnel employed by other forwarders.
Furthermore, there was evidence that some checkers made deliveries of fruit to the wrong buyers and occasionally purposely switched fruit to favor particular buyers. The lack of centralized direction made it impossible to control these practices.
The cumulative effect of these deficiencies resulted in serious problems for Auction, including (1) the cost of correcting errors committed by forwarders and loaders, a cost which, in the recent past has run at the rate of $30,000 annually; (2) errors in bills from Auction caused by underlying mistakes of checkers or loaders have resulted in buyers' refusal to pay bills (or to pay them in full) which, in turn, brought about a sharp upturn in Auction's accounts receivables at this time of high interest rates. In August, 1973, "short" remittances were twice the previous month and amounted to $31,000; (3) buyers increasingly deserted Auction and instead bought from its competitors, the approximately 300 wholesale fruit merchants and jobbers doing business in the adjacent Hunts Point Wholesale Market. For example, in 1971, Auction handled 13,000 carlots or 12.5% of physical volume, (10% of dollar volume) of the New York fruit and vegetable business. Wholesalers, jobbers and chain store warehouses handled the remaining 87.5% physical (and 90% dollar) volume. In 1973, Auction's physical volume has dropped from 13,000 to 10,500 carlots, a slippage of 15% although total volume in New York has remained stable.
This statistical information is critical not only because it demonstrates that there were sound business reasons for Auction to take action to restructure its operations, but because the record establishes that Auction clearly competes with the wholesalers, jobbers and chain stores, and the relevant market includes all of them, and is not, as plaintiffs contend, restricted to the auction sale of fruit. Indeed, the plaintiffs' own witnesses testified that Auction's buyers also buy from wholesalers and jobbers, are certainly free to use them as alternate sources and that the various segments of the market are in sharp competition with each other.
Faced with these significant business difficulties and losses Auction determined to take control of forwarding and loading on its own premises. Although Auction obviously intended to increase its own overall profits by the reorganization, we do not find, and plaintiffs have failed to demonstrate by a preponderance of the evidence, that Auction intended to profit or profiteer separately from the forwarding and loading operations which it assumed. It is true that simultaneously with the changeover, Auction raised its own prior charge to the buyer of 10¢ per package to 20¢ per package, but we find credible the testimony of Auction's witnesses that, in light of the charges previously (but no longer) paid by the buyers to the forwarders and loaders, the actual increase to the buyer is only 1¢ per package and that this amount is a reasonable hedge against the unknown contingencies of an entirely new system.
II.
The Court of Appeals of this Circuit has most recently articulated the standards for the issuance of a preliminary injunction as follows:
"We repeatedly have emphasized the heavy burden on a party seeking the extraordinary remedy of preliminary injunctive relief. The standard that has evolved is that the moving party *873 `assume[s] the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that [it has] raised serious questions going to the merits and that the balance of hardships [tips] sharply in [its] favor.' Stark v. New York Stock Exchange, 466 F.2d 743, 744 (2 Cir. 1972) (emphasis added); Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2 Cir.), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969). We find that standard to be particularly appropriate here where there is a strong public interest in the outcome of the dispute. See, e. g., Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., 476 F.2d 687, 693, 698-699 (2 Cir. 1973); Exxon Corp. v. City of New York, 480 F.2d 460, 464 (2 Cir. 1973)." Michael & Cynthia Pride v. The Community School Board, 482 F.2d 257 (2 Cir. 1973).
We conclude that the application of these standards requires the denial of a preliminary injunction in the present case.
A. Probability of Success. The plaintiffs have not demonstrated the probability of succeeding on the merits.
(i) The Section 1 Claim.
Plaintiffs' allegation that the defendants acted "in concert and conspiracy" (Complaint, Par. 10) is without merit. Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 81 (9th Cir. 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 1003 (1870). For the purposes of Section 1, the two defendants must properly be regarded as a single entity and therefore incapable, as a matter of law, of concerted activity, conspiracy or contracting with each other. The sole reasons for Auction's creation of Auction Delivery as a separate corporation were that the employees in each operation belong to separate unions and that they enjoy different fringe benefits. They are clearly parts of an integral operation, so unified that they cannot be regarded as separate in any but the most perfunctory and technical manner.
This determination alone might be dispositive of the Section 1 claim, but the claim fails also because plaintiffs have failed to show that Auction's restraint is "unreasonable" within the meaning of the Act. In judging its reasonableness we must consider the special facts of the business or industry, its history and economic evaluation and the "nature of the restraint and its effect, actual or probable". Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918).
The forwarding system in which the plaintiffs claim an undivestible interest is itself a historical peculiarity over which Auction had no power of control until it moved to Hunts Point, since at its prior location it was only a permittee without the ability to deny access to its premises to forwarders or loaders. The lack of economic value of the old system is attested by the fact that no forwarders operate as independent contractors anywhere else in the country whether at the five other auction companies or at wholesalers, jobbers or chain store warehouses. Faced with the genuine business problems resulting from a system which it had not created and over which it previously had no control, it was not unreasonable for Auction to adopt, for the purpose of maintaining its own customers, and with no predatory intent, a system universally used by its competitors.
The case is comparable to that of a manufacturer who permissibly assumes the distribution of his product formerly performed by an independent contractor. Bushie v. Stenocord Corp., 460 F.2d 116 (9th Cir. 1972); Ricchetti v. Meister Brau, Inc., 431 F.2d 1211, 1214 (9th Cir. 1970), cert. denied, 401 U.S. 939, 91 S. Ct. 934, 28 L.Ed.2d 219. Such decisions as United States v. St. Louis Terminal, 224 U.S. 383, 32 S.Ct. 507, 56 L.Ed. 810 *874 (1912) and Gamco, Inc. v. Providence Fruit & Produce Bldg., Inc., 194 F.2d 484 (1st Cir. 1952), cert. denied, 344 U. S. 817, 73 S.Ct. 11, 97 L.Ed. 636 (1952) on which plaintiffs rely are not to the contrary since in those cases the defendants failed to justify their actions, evidence of predatory intent was clear and the persons excluded from the premises of the defendants were their own competitors, persons who performed the very central services performed by the defendants, not ancillary services such as those offered by plaintiffs here. None of those considerations exist in the case at hand.
The holding in Beacon Fruit & Produce Co., Inc. v. H. Harris & Co., Inc., 160 F.Supp. 95 (D.Mass.), aff'd, 260 F. 2d 958 (1st Cir. 1958), cert. denied, 359 U.S. 984, 79 S.Ct. 942, 3 L.Ed.2d 933 (1959) applies. There the court found the imposition of a loading charge by the sole fruit auction company in the city to be reasonable since, as here, its action was prompted by requirements of survival. The court found there, as we do here, that fruit auctioneers were in direct competition with wholesalers and supermarket chains; that the auctioneers had for years been experiencing a serious decline in the volume of business; that the new arrangement was motivated by sound business needs and that the new system strengthened competition rather than weakening it. See also Clark Marine Corp. v. Cargill, Inc., 226 F.Supp. 103 (D.La.1964), aff'd, 345 F.2d 79 (5th Cir. 1965), cert. denied, 382 U.S. 1011, 86 S.Ct. 620, 15 L.Ed.2d 526 (1966).
(ii) The Section 2 Claim.
Section 2 of The Sherman Act proscribes monopolization of or attempts to monopolize "any part of the trade or commerce among the several states". The phrase "any part of the trade or commerce" is construed by the Supreme Court and the Court of Appeals of this Circuit to mean an "appreciable part" of that trade. Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S. Ct. 872, 97 L.Ed. 1277 (1953); Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951); United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); H. E. Fletcher Co. v. Rock of Ages Corporation, 326 F.2d 13 (2d Cir. 1963). It is not probable that the activities here will be shown to constitute or affect an "appreciable part" of interstate trade or commerce.
The services of forwarding and loading are not characterized by the indicia of a market or a part of trade and commerce. They consist solely of checking off fruit, guarding it and moving it on the auctioneer's floor. Such services are nowhere else performed or "sold" by independent contractors. They do not constitute a part of trade and commerce within the meaning of the Act unless the services of a clerk or forklift operator do so; and however worthy such jobs may be, we do not believe they fall within Congress' definition for application of the statute.
Other expected market characteristics are notable by their absence. For practical purposes there is no interchange or competition among the forwarders or the loaders. Receivers are not motivated to choose among them (unless one of them goes out of business), since the receiver does not pay the forwarder or loader, and in any event, the price of the service is fixed and unvaried.
But beyond these factors we must consider whether the record indicates a likelihood of proving monopoly or an attempt to monopolize. We are persuaded that it does not. The relevant market here, defined in terms of available substitutes and cross-elasticity of demand for products (United States v. E. I. duPont de Nemours & Co., Inc., 351 U.S. 377, 393, 400, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), is the wholesale distribution of fruit (Beacon Fruit & Produce Co., Inc. v. H. Harris & Co., Inc., supra). Auction's control of 10% of *875 that market is by definition no monopoly, and it is inconceivable that its assumption of forwarding and loading services on its own premises tends toward monopoly or constitutes an attempt to monopolize the wholesale fruit market.
The mere operation of the only fruit auction facility in New York does not render it a monopoly within the meaning of the statute where the auctioneer competes directly with others who control 90% of the industry's volume. (Beacon Fruit & Produce Co., Inc. v. H. Harris & Co., Inc., supra, Freedman v. Philadelphia Terminals Auction Co., 1957 Trade Cases ¶ 68,612 (E.D. Pa.1956) ).
(iii) The Section 7 Claim.
Section 7 of the Clayton Act provides in relevant part:
"[That] no corporation engaged in commerce shall acquire . . . the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition or to tend to create a monopoly."
Plaintiffs argue that the "line of commerce" appropriate to this case is their business of forwarding and loading. However that may be, since the concept "line of commerce" is equivalent to that of "part of trade or commerce" under § 2 of The Sherman Act (United States v. Grinnell Corp., 384 U.S. 563, 573, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), we conclude, on the authority of the cases cited in reference to the § 2 claim above, that no "line of commerce" exists here within the meaning of § 7 of the Clayton Act. And, even if we admit that forwarding and loading constitute a line of commerce, the line is not "substantial" as is required by the decisions in United States v. E. I. duPont de Nemours, supra, and International Salt Co. v. United States, 332 U.S. 392, 68 S. Ct. 12, 92 L.Ed. 20 (1947). The "line" consists of six forwarders and four loaders. Heyer pays its two principals $25,000. each per year but it is unclear what portion of these payments is attributable to its forwarding business as opposed to its market deliveries and "piggyback" trucking. LJM earned $31,000. in 1972. Haas' president was uncertain whether his company earned a profit or incurred a loss in 1971, 1972 or this year. His salary is $7,800. per year.
In Fortner Enterprises v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969), the court held that a "substantial market" must be one "substantial enough in terms of dollar volume so as not to be merely de minimis" (at 501, 89 S.Ct. at 1258). See also United States v. Yellow Cab Co., 332 U.S. 218, 225, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947) and H. E. Fletcher Co. v. Rock of Ages Corp., supra. We do not believe that under the test of these cases plaintiffs will establish that the line of commerce here involved is "substantial".
(iv) The Tie-in Claim.
Relying on such cases as Fortner Enterprises v. United States Steel Corp., supra, United States v. Loew's Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962), United States v. Jerrold Electronics Corporation, 187 F.Supp. 545 (E.D.Pa.1960), aff'd, 365 U.S. 587, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961), Siegel v. Chicken Delight, Inc., 448 F.2d 43 (9th Cir. 1971) and American Mfrs. M. I. Co. v. American Broadcasting-Para. Th., 388 F.2d 272 (2d Cir. 1967), plaintiffs argue that Auction's assumption of forwarding and loading constitutes an illegal tie-in to its business of auctioning fruit. We cannot agree.
First, since the existence of a tie-in assumes two product or service markets, and since we have already held *876 that neither forwarding or loading constitutes a "market", the proof of a tie-in must fail. Furthermore, where, as in the wholesale fruit industry, services are traditionally sold as a unit, the seller here Auction is not obliged to offer the services piecemeal.
Second, to establish an illegal tie-in a plaintiff must demonstrate that the defendant possesses "sufficient economic power with respect to the tying product to appreciably restrain competition in the market for the tied product". Northern Pacific R. Co. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). See also United States v. Loew's, Inc., supra, 371 U.S. at 45, 83 S.Ct. 97. Here Auction simply does not possess the requisite economic power in the wholesale fruit market of New York.
Third, even under Fortner, on which plaintiffs rely, the court held that to establish a tying arrangement as a per se violation, a plaintiff must prove that "a not insubstantial" amount of commerce in the tied service is involved. We have already held that this test has not been met in the present case.
B. Irreparable Damage.
Each side argues that it will be irreparably damaged if the motion is decided against it. Since we have indicated that plaintiffs have not established the probability of their success on the merits, we need not determine whether they will be irreparably damaged by the denial of preliminary relief. Nevertheless, on examination, we think that they will not. There seems to be no dispute, and, in any event, we find that Auction will be able to meet such money damages as plaintiffs would be entitled to in the event they ultimately prevail. Where money damages are a dependable remedy, the "extraordinary" remedy of preliminary injunctive relief is inappropriate. Furthermore, we believe it entirely possible that if plaintiffs do ultimately prevail, the customers whom they allege to desire their assistance so earnestly, and some of whom testified to that effect, will resume the use of their services. We must consider, too, that, as defendant's Executive Vice President testified without contradiction at the hearing, Auction estimates that its losses would amount to $25,000. per month if it were further restrained from implementing its new system. Under the circumstances, we do not believe that the hardships placed on plaintiffs by denial of the motion, serious though they are, tip so decidedly in their favor that we should grant preliminary relief. Furthermore, although we are not unmindful of or unsympathetic to the social desirability of maintaining small family businesses intact in an economy in which the number of giants grow daily, we are bound by the rulings we have cited, and we cannot disregard the public's interest in rationalizing the practices of fruit auctioning so that competition within the wholesale fruit industry can be sharpened.
This opinion constitutes the findings of fact and conclusions of law required by Rule 52(a), Federal Rules of Civil Procedure.
The motion for a preliminary injunction is denied, and the temporary restraining order shall be dissolved within five days of the filing of this opinion, during which time the plaintiffs may make application to the Court of Appeals for further temporary relief pending the disposition of an appeal.
It is so ordered.
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5 Cal.App.2d 117 (1935)
JOHN E. THOMPSON, as Administrator, etc., Respondent,
v.
M. K. & T. OIL COMPANY (a Corporation), Appellant.
Civ. No. 8870.
California Court of Appeals. Second Appellate District, Division One.
March 5, 1935.
Blackstock & Rogers and Merle J. Rogers for Appellant.
James C. Hollingsworth and Don R. Holt for Respondent.
Edmonds, J., pro tem.
William R. Thompson had judgment against the defendant upon the verdict of a jury. He subsequently died, and his administrator has been substituted as plaintiff. The defendant's principal contention on appeal is that the evidence is insufficient to sustain the *119 verdict. Error is also predicated upon instructions given and refused.
The case arose out of the drilling of an oil well on property near Ventura leased by the defendant. The lease required a well to be started before November 1, 1929. Prior to October 27, 1929, the defendant, whose business was the development and production of oil, had employed Thompson at a salary of $300 per month to supervise the building of a road to the property and the installation of drilling machinery. During the progress of this work Thompson was endeavoring to secure a contract with the defendant to drill the well. Negotiations had proceeded to the point of preparing a written contract which had been signed by Thompson and the company, but had not been delivered because Thompson could not procure the bond required by its terms.
This was the situation the latter part of October. The defendant's lease provided that it must spud in a well before November 1st. Nothing definite had been accomplished toward drilling other than to have the machinery on the ground. A few days before October 27th the secretary of the defendant corporation sent each director a telegram requesting him to come to the company's office at Ventura for a meeting on that day. Every director was present when the meeting or conference convened. Whether this was a legal meeting of the directors or a conference of individuals is a matter of dispute. However, there was considerable discussion of ways and means to drill the well, Thompson being present for a part of the time. The directors went over the situation with him at length, and this suit is upon an oral contract alleged to have been made at that time.
The testimony of Thompson and six of the seven directors of the company as to what occurred that day is in direct conflict. According to Thompson he told them that he would drill the well for $10 a foot including labor and casing, the company to furnish everything else; that he had no capital, and that they must advance the money for labor and material, with $4 per foot to be held back until the well was completed; that he was also to have a drawing account of $300 per month, and to be paid a bonus of $1,000 in the event that the contract was terminated before a depth of 4,000 feet had been reached. Thereupon, Thompson testified, the president said to him, "Well you go back on that *120 mountain and go to work and get that well started before the time expires, on the terms that you will get $10 a foot for your contract and you are to pay the labor and the casing. We will furnish everything else." Thompson further testified that three of the other directors expressly assented to this, and that the president also said, "We want you to go up and start this well, and we are now going to authorize Judge Brady to draw this up in writing and have it signed." This was substantially corroborated by one of the then directors, although the others testified that this director was not present at the time Thompson conferred with them.
Each one of the other six directors positively denied that any contract other than that Thompson was to continue working for the company was agreed upon. They testified that Thompson was told to get the well spudded in and superintend the drilling of it, and several said it was expressly stated that he was to continue at the same salary of $300 per month. All six stated that at the meeting every director had expressed the opinion that no drilling contract at a stated rate per foot would be entered into unless a satisfactory bond was given.
No vote was taken by the directors, no minutes of the meeting were written up by the secretary and no written contract embodying any agreement made on October 27th was prepared. Thompson immediately started work drilling the well, and continued for twenty-one days at which time the defendant ordered drilling stopped. During this time Thompson hired and discharged men, ordered casing and approved bills for material. The defendant paid these bills and also all of the payrolls. Thompson did not pay out any money at any time, either for labor, casing or any other expense connected with drilling operations on the lease. He estimated that the defendant corporation paid out $4,425 during this time. Also, three days after drilling was stopped Thompson was given a check for $300 on which the following appears: "This check is issued in payment of items as per statement following. The endorsement of payee on back will constitute a receipt in full. For Labor in Full to Date Oct. 31." Thompson indorsed the check and received the money thereon, although he testified he said at the time it was given to him: "This does not apply to my contract; it is only for my drawing allowance." *121
Drilling was stopped at a depth of 1465 feet and the first cause of action is on the alleged contract for drilling the well at the rate of $10 per foot, less the $300 paid. A second cause of action is under the common count for the same amount, as the reasonable value of the services alleged to have been rendered. The verdict of the jury was for $10,834.50, $1,000 of which was remitted by the plaintiff on motion for a new trial.
[1] Appellant asserts that the evidence is insufficient to sustain the verdict, upon the ground that there is a variance between the terms of the contract alleged in the complaint and as testified to by plaintiff. No objection was made in the trial court to the admission of evidence upon this ground, nor was any motion for nonsuit presented. [2] "It is well settled that if a defendant desires to take advantage of a variance, it must be done either by objecting to the admission of the testimony or by motion for a nonsuit, and when such action has not been taken in the trial court, the objection is deemed waived and cannot be raised for the first time on appeal." (Cousin v. Mason, 78 Cal.App. 111, 113 [248 P. 299].) [3] Also, no variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice. (See Code Civ. Proc., sec. 469.) No prejudice has been either claimed or shown.
[4] Defendant cannot claim that the contract is too indefinite and uncertain to constitute a contract. The parties acted upon it and, so far as the record shows, no question arose during the entire drilling operations concerning the rights or duties or either. Thompson supervised the drilling and the defendant paid the bills. It has not claimed that any expense was incorrectly incurred by Thompson or paid by it, nor that the well was not properly drilled.
[5] Appellant urges that two instructions given to the jury are conflicting and erroneous. It was instructed that plaintiff had the burden of proving "that the agreement pleaded in the complaint was entered into by plaintiff and defendant, by and with the consent of both parties; and ... that plaintiff did each and every act in said agreement provided on his part to be done". The jury was also instructed that "if you believe, by a preponderance of the evidence, that plaintiff and defendant entered into a contract whereby defendant agreed to pay plaintiff ten ($10.00) dollars *122 a foot for every foot of well drilled by plaintiff" with a bonus of $1,000 if the contract was terminated at less than 4,000 feet, and that if plaintiff substantially complied with his contract, and was prevented from completely fulfilling it by the defendant, they should find for plaintiff. It is true that the first instruction refers to an agreement as pleaded in the complaint, and that the second authorized a verdict for the plaintiff if the jury found that a contract was entered into as shown by the evidence in the case. But in view of the fact that no objection was made at the trial to the variance between the pleading and the evidence, and the case was tried on the assumed issue as to whether or not a contract to drill the well for $10 a foot had been entered into between the parties, the jury could not have been misled. The defendant never admitted that it entered into a contract with Thompson for drilling the well on a footage basis. It at all times denied that he did any work for the corporation other than as an employee at a salary of $300 per month. Under these circumstances any such conflict in the instructions could not have prejudiced the defendant.
[6] The defendant particularly criticises what is termed a formula instruction, principally upon the ground that it does not contain all of the elements necessary for such a charge to a jury. The jury was told that "if you believe from the testimony that a contract existed between the plaintiff and defendant, as contended by plaintiff, and that plaintiff was entitled to a bonus or additional sum in the amount of $1,000 in event the same was terminated by defendant after plaintiff had drilled the hole in question to a depth of 1456 feet, and if you further believe that plaintiff performed all of the terms and conditions of said contract on his part to be performed and that there was expended by defendant under the terms of said contract, the sum of $4,725.50, and that there was no accord and satisfaction between said parties, then in that event the said sum of $4,725.50 should be deducted by you from the total contract price of $10.00 per foot for the drilling of said 1456 feet of hole, together with said additional sum of $1,000.00, and your verdict should then be in favor of the plaintiff for the difference between $4,725.50 and $15,560.00, to-wit, in the amount of $10,834.40." It may be noted that the verdict was for the exact amount stated in this instruction. *123
Conceding this to be a formula instruction, it was erroneous to the extent that it included as an item of damage the sum of $1,000, shown by plaintiff's evidence to have been part of the contract, but not pleaded in the complaint, and failed to mention the sum of $300 which the plaintiff admitted having received on account. As $1,000 was remitted by plaintiff after judgment the defendant has suffered no prejudice by mention of that item in the instruction. Three hundred dollars should have been allowed as a credit to the defendant, and the trial court will be directed to reduce the judgment by that amount. If the jury believed that any contract had been made as shown by the plaintiff's evidence he was entitled to payment for 1456 feet of well at $10 per foot less $4,725.50 expended by the defendant and $300 paid to the plaintiff. Before defendant can successfully challenge a misleading instruction it must show the evidence to be such that upon a proper instruction there might have been a verdict in its favor. (Hamlin v. Pacific Electric Ry. Co., 150 Cal. 776 [89 P. 1109].) It has not done so here.
[7] The jury was instructed: "If you believe from the testimony in this case that a contract existed between the plaintiff and defendant as contended by plaintiff, then it becomes immaterial whether or not the meeting of the officers and directors, or any of them, on October 27, 1929, was a special meeting, regular meeting, ex-officio meeting or a so-called gathering." If a contract was in fact made, the kind of a meeting by which it was authorized is immaterial. If all of the directors of a corporation are present when the terms of a transaction are agreed to, the corporation cannot deny the contract upon the ground that it was not made at a legal meeting. In the case of Scott v. Superior Sunset Oil Co., 144 Cal. 140, 143 [77 P. 817], it was said: "A majority of defendant's board of directors, including both Crosland, who was its secretary and treasurer, and the vice-president, actively participated in employing plaintiff and counseling with him concerning the care and treatment of the patient. And all this was done avowedly on behalf of defendant. This was sufficient to charge the corporation. It was not necessary that the employment should be made or ratified by action of the board at a regular meeting. The separate assent of a majority of the board was all that ought to be required under the circumstances presented by the *124 evidence." The same conclusion was reached in Brown v. Crown Gold Milling Co., 150 Cal. 376, 387 [89 P. 86, 87], where the court said: "The majority of the board having knowledge of the facts, it was not necessary, to conclude the company defendant in favor of plaintiff, that his employment should be ratified at a regular meeting of the board. It was sufficient that the majority of the board individually were advised of the terms of the employment of plaintiff by Mr. Doe, and took no measures to disaffirm as directors that employment."
[8] The jury was also instructed: "You are instructed that in determining whether or not a contract in fact existed between the plaintiff and defendant in this case that it is immaterial whether or not the minutes of the meeting of the board of directors at which said contract is alleged to have been entered into was reduced to writing and entered in the minute book of the corporation."
The contract, if made, could not have been avoided by the corporation by its failure to write up any minutes of the meeting at which it was agreed upon. One contracting with a corporation is not required to ascertain that the corporate minutes show the transaction. "If a corporation allows its officers to conduct its business and third persons act upon the apparent authority thus shown, it cannot defeat the rights of such persons arising from transactions done and completed under such ostensible authority by failing to enter upon its minutes any order giving its officers authority to act." (Fowler Gas Co. v. First Nat. Bank, 180 Cal. 471, 477 [181 P. 663, 666].) By this instruction the jury was only told that if the contract was made by Thompson and the board of directors of the corporation, it was immaterial whether or not the minutes showed the transaction.
None of the other instructions complained of present anything approaching reversible error, and the substance of the one refused was sufficiently covered by other instructions given. The following statement from Douglas v. Southern Pac. Co., 203 Cal. 390, 396 [264 P. 237], applies to the instructions in this case. "Jurors are presumed to be persons of common intelligence and capable of comprehending the ordinary use of language as applied to the particular proposition under consideration and in reference to which it is employed. We will not assume that they may not have understood the charge as we understood it. The instructions *125 tions must be considered in their entirety, and if, as so considered, they state the law of the case fairly and clearly, then they are, as a whole, unobjectionable, even though by selecting isolated passages from single instructions they may in some respects be amenable to just criticism."
Appellant makes the further point that the evidence is insufficient to support a judgment on the second cause of action. Even if this were true, it is ample for a verdict and judgment on the first. The case presents one of the usual situations of sharply conflicting evidence upon which a jury might have found for either of the parties. Under such circumstances an appellate court cannot disturb the verdict.
The trial court is directed to reduce the judgment by deducting therefrom the sum of $300, with corresponding deduction of interest, and as so reduced the judgment is affirmed, respondent to recover costs on appeal.
Conrey, P. J., and Houser, J., concurred.
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2 U.S. 335 (____)
2 Dall. 335
The UNITED STATES
versus
The INSURGENTS of Pennsylvania.
Supreme Court of United States.
*341 PETERS, Justice:
I have considered the objections made to the pannels, and do not conceive these objections relevant.
Although in ordinary cases it would be well to accommodate our practice with that of the State, yet the Judiciary of the United States should not be fettered and controuled in its operations by a strict adherence to State regulations and practice. But I see not that in a liberal view and construction of the laws of the United States, on this subject, a rigid adherence to all the local and conomical regulations of the State, is directed or necessary. It should seem, that the most pointed reference was had to the designation and qualification of jurors, 2nd not to the exact numbers of which the pannel should consist. The Legislature of a State have in their consideration a variety of local arrangements, which cannot be adapted to the more expanded policy of the nation. It never could have been in the contemplation of Congress, by any reference to State regulations, to defeat the operation of the national laws. Now, there are cases, which have been stated, in which some of the criminal laws of the United States may be rendered impracticable, by an adherence to the rule of numbers prescribed as to jurors, in criminal cases, by the State law; and especially if there must be but one pannel, as has been contended. Yet, the most substantial requisites, to wit, the qualifications of jurors and mode of selection, may be adhered to. As to the clause in the law of the United States, directing, that "the laws of the States (with great exceptions) shall be regarded as rules of decision, in trials at common law in the Courts of the United States," I do not think it applies to the case before us.
All the arguments founded on the inconveniences to the defendants, if in this case particularly any such exist (of which I much doubt) weigh lightly when set against the delays and obstructions which the objection would throw in the way of the execution of the laws of the nation.
PATTERSON, Justice:
The objections that have been suggested on this occasion, are principally founded on the 29th section of the judicial act of Congress, which refers the Federal Courts to the State laws, for certain regulations respecting juries. But the words of this reference are clearly restricted to the mode of designating the jury, by lot, or otherwise; and to the qualifications which are requisite for jurors; according to the laws and practice of the respective States. Since, therefore, the act of Congress does not itself fix the number of jurors; nor expressly adopt any State rule for the purpose, it is a necessary consequence that the subject must depend on the common law; and, by the common law, the Court may direct any number *342 of jurors to be summoned, on a consideration of all the circumstances under which the venire is issued. There are instances, indeed, where five juries have been summoned upon a trial for High Treason, in order that, after the allowance of the legal challenges, a competent number might still be ensured. In the present instance, the precept requires the Marshall to return at least 48 jurors; and he has not, in my opinion, been guilty of any excess, in the exercise of that discretion for returning a greater number, with which he is legally invested.
Neither is the mode of making his return justly exceptionable. As the act of Congress directs that 12 jurors shall be summoned from the County, in which the offence was committed, I cannot conceive any more proper, or more legal, way of proceeding, than by issuing a venire in each case; and then there must, of course, be a separate pannel returned, in conformity to every writ. Thus, likewise, the act of Congress and the State act have been reconciled, and both put into operation; 12 jurors being returned in pursuance of the former, and 60 jurors being returned in pursuance of the latter, law.
With respect to the objection, that a copy of the caption of the indictment has not been furnished to the prisoners, it may be observed, that, although the practice of Pennsylvania has been different, yet, the caption and the indictment seem naturally to form but one instrument; and copies of both should, therefore, be delivered under the provisions of the act of Congress. There can be little inconveniency in adopting this rule; and it is calculated to avoid much difficulty and controversy.
The objection, that the place of abode of the jurors and witnesses, has not been sufficiently designated, in the lists furnished to the prisoners, is, likewise, in our opinion, a valid one. The object of the law was to enable the party accused to prepare for his defence, and to identify the jurors who were to try, and the witnesses who were to prove, the indictment against him. It is contrary to the spirit and intent of such a provision, that the whole range of the State, or of a County, should be allowed, as descriptive of a place of abode; and it is the duty of the Judges so to mould the practice and construction of statutes, as to render them reasonable and just. With regard to the place, therefore, we think the townships in which the jurors and witnesses respectively reside, should be specified; but the act of Congress does not require a specification of their occupations, and the niceties of the State act, are not, in that respect, incorporated into the Federal system.
In consequence of this decision, the trials were suspended, in order to give the Attorney of the District the three days required by the act of Congress, for delivering to the prisoners, amended copies of the caption and indictment, and of the lists of jurors and witnesses.
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5 Cal.App.2d 175 (1935)
HENRY BARNETT et al., Respondents,
v.
THE UNITED OIL COMPANY (a Corporation), Appellant.
Civ. No. 1528.
California Court of Appeals. Fourth Appellate District.
March 7, 1935.
Gibson, Dunn & Crutcher, Forgy, Reinhaus & Forgy and Bruce Wallace for Appellant.
Holton & Schuelke, Rutan & Mize and Walter E. Schuelke for Respondents.
Jennings, J.
The United Oil Company, a defendant in the above-entitled action, appeals from an order denying its motion for a change of venue from Orange County, where the action was instituted, to the county of Los Angeles. The notice of motion specified that the ground therefor would be the convenience of witnesses and that it would be based upon the records and files of the action and upon an affidavit attached to said notice. At the time the motion was heard the files of the action comprised the verified complaint of the plaintiffs and a verified answer filed by the above-named defendant. In addition to the affidavit which was presented by the defendant in support of the motion a counteraffidavit in opposition thereto was filed by the plaintiffs.
It is conceded that a trial court in passing upon a motion of this character is vested with a wide discretion and that a reviewing court is justified in reversing the order only when it is made to appear that the trial court has committed a plain abuse of such discretion. It is, however, contended that the record herein sufficiently shows an abuse of discretion in the denial of the motion and that the order should therefore be reversed. Proper consideration of the contention thus advanced requires some reference to the pleadings and demands careful analysis of the affidavit filed in support of the motion.
The complaint is entitled "Complaint for Accounting of Royalties from Oil and Gas Lease". It purports to state a cause of action against the appellant as assignee of the original lessees under an oil and gas lease executed by the predecessors in interest of respondents for an unknown sum of money claimed to be due as royalties from the sale of gasoline and resulting dry gas derived from natural gas produced from the leased premises. The Signal Hill Gasoline Company is joined as a party defendant to the action *177 under allegations that it was, during part of the time for which an accounting is demanded, under joint ownership and control with the appellant. The prayer of the complaint is that appellant be required to render a true and correct accounting to respondents with respect to all natural gas, gasoline, gas and other hydrocarbon substances (except oil) produced from the leased premises and in particular that appellant be required to show fully and accurately the amount of gasoline produced and the actual cost of extracting gasoline from the natural gas and the price obtained from the sale of such gasoline and that from such accounting the amount of money due from appellant to respondents as royalties be determined and that judgment for such amount be rendered in favor of respondents.
The principal defense alleged by the answer is that appellant is not the assignee of the lease described in the complaint, but that it is the assignee of a sublease executed by an assignee of the original lessee and is therefore not bound by the provisions of the original lease, but is only accountable in accordance with the terms of the sublease. It is, however, further alleged that appellant has voluntarily accounted correctly to respondents for all amounts due and has regularly paid such amounts. The answer contains a specific denial that appellant and its codefendant were at any time for which an accounting is demanded under joint ownership and control. A number of special defenses are also pleaded. One of these is entitled to particular mention because of its bearing upon the question of the convenience of certain witnesses named and described in appellant's supporting affidavit.
This special defense is based upon an alleged defectiveness in the complaint because of the nonjoinder of a necessary party defendant to the action. The material allegation of the special defense in this regard may be epitomized as follows: That the complaint is defective for the reason that there has been omitted therefrom the name of a defendant essential to a complete and final determination of the issues presented by the complaint and answer, to wit, William C. McDuffie, as receiver of the Richfield Oil Company of California, who is a necessary party to the action for the reason that appellant and its codefendant, Signal Hill Gasoline Company, are subsidiary corporations of the Richfield Oil *178 Company of California, for which latter corporation the aforesaid William C. McDuffie was appointed receiver on January 31, 1931, by the United States District Court for the Southern District of California in a certain action pending before said court and the said receiver was ordered and directed to operate all of the properties, inter alia, of appellant and its codefendant jointly and as a unit with all other properties of the receivership estate of the Richfield Oil Company of California. It is further alleged that the subleasehold estate owned by appellant was, on the date on which the receiver was appointed, property of appellant, and that in obedience to the aforementioned order of the United States District Court, the receiver has at all times subsequent thereto maintained, preserved, and operated said subleasehold estate of appellant and has received all proceeds derived from its operation and has paid all expenses incurred in its operation, such proceeds being placed in and such expenditures for operation being taken from the joint assets of the receivership estate of the Richfield Oil Company of California and of its subsidiaries, among whom are appellant and its codefendant. It is further alleged that by reason of the operation of said subleasehold estate of appellant by the aforementioned receiver any wrongful acts in connection therewith which may have occurred subsequent to the appointment of the receiver have been the acts of the receiver and not the acts of appellant or its codefendant and the said receiver is therefore primarily and ultimately liable for such acts and a complete and final determination of the issues raised by the pleadings cannot be had unless the said receiver is made a party to the action.
[1] Appellant particularly maintains that the counter-affidavit filed by respondents in opposition to the motion was entirely insufficient to warrant the trial court in retaining jurisdiction of the action and in denying the motion for change of venue. This may here be conceded. The concession does not, however, alone justify reversal of the order since it is appellant which sought a change of venue on the ground of convenience of witnesses. Upon appellant, therefore, was imposed the burden of making a satisfactory showing that the convenience of witnesses demanded a change of place of trial and unless it is apparent from such showing *179 that the court arbitrarily abused its discretion in denying the motion the order must stand.
Appellant's supporting affidavit alleges that the facts which it expects to prove will be established by the testimony of nine witnesses who are named and described in the affidavit. One of these witnesses is the affiant, who is stated to be an active officer of the appellant. Two other witnesses are shown to be employed in some capacity by appellant's codefendant Signal Hill Gasoline Company. We do not understand that it is here contended that the trial court in passing upon the motion was required to consider the convenience of these three witnesses. [2] Such contention, if made, would be unavailing, since the rule is well settled that the convenience of employees of a party to an action need not be consulted in passing upon a motion for change of venue (Security Investment Co. v. Gifford, 179 Cal. 277, 278 [176 P. 444]). Of the remaining six witnesses mentioned in the affidavit, five of them are shown to be employed by the receiver of Richfield Oil Company of California. The last-named corporation is not a party to the action. However, in the counteraffidavit which was filed by respondents it is alleged that appellant and its codefendant are admitted by their answer on file to be subsidiary corporations of the Richfield Oil Company of California and are therein alleged to be under the direct supervision of the last-mentioned corporation. The allegation of the answer to which reference is thus made has heretofore been outlined. Since the notice of motion specified that it would be based on the records and files of the action in addition to the supporting affidavit, the trial court was justified in considering the various allegations contained in the answer. This pleading contains a direct attack upon the complaint on account of the misjoinder of a party defendant who is specifically alleged to be a necessary party to the action. It is therein explicitly alleged that appellant and its codefendant are subsidiary corporations of the Richfield Oil Company of California and that a receiver has been appointed for this last-named corporation who was ordered and directed to operate all properties of the appellant and its codefendant jointly and as a unit with all other properties of the receivership estate aforesaid. It is further specifically alleged that the said receiver has, subsequent to his appointment, operated the property *180 as to which an accounting is here sought and received all proceeds derived from such operation and has paid all costs of said operation from the joint assets of the receivership estate of the Richfield Oil Company of California and its subsidiaries. It is our conclusion that the trial court may not be convicted of an abuse of discretion in having refused to consider the alleged inconvenience of the five witnesses who are described as employees of a person who is thus so clearly and emphatically declared to be a necessary party to the action. We entertain the opinion that the above-mentioned rule which renders it unnecessary for the trial court to consult the convenience of employees of a party to an action may properly be extended to include employees of one who is specifically asserted to be a necessary party and for whose nonjoinder the complaint is directly attacked.
The remaining witness mentioned in the affidavit filed in support of the motion for change of venue is T. L. Taggart. As to this witness the showing made by the affidavit is as follows:
"T. L. Taggart is manager of the Contract Department of Standard Oil Company. Mr. Taggart is a resident of the city of Palos Verdes, Los Angeles County, and has had wide experience in the processing and treatment of natural gas on behalf of landowners and lessees of oil and gas producing properties. Mr. Taggart will testify concerning the market value of natural gas at the casing head of the wells and the common and general practices of the natural gas treating industry concerning the basis on which natural gas is treated by gasoline companies. Mr. Taggart will also testify concerning the cost of manufacturing gasoline and dry gas from natural gas."
The question of whether or not the trial court was entitled to consider this witness' convenience in passing on the motion was raised by the counteraffidavit filed by respondents wherein it is alleged that "it is evident that defendants intend to qualify T. L. Taggart as an expert witness; that it is not alleged in said affidavit that said T. L. Taggart has any personal knowledge of the facts in this cause".
[3] The rule with respect to the convenience of expert witnesses is stated in Security Investment Co. v. Gifford, supra, as follows: *181
"Neither the convenience of experts nor of employees should be considered in determining the question of convenience of witnesses, except where the experts also have personal knowledge of the facts upon which their testimony is to be based."
Appellant does not here contend that the above-named witness will not be called to testify as an expert, but maintains that the witness comes within the stated exception to the general rule that the convenience of expert witnesses is not to be considered. In other words, it is contended that the affidavit filed by appellant in support of the motion shows that the witness has personal knowledge of the facts upon which his testimony will be based. This contention is entitled to consideration. The showing made by the affidavit is, first, that the witness has had wide experience in the processing and treatment of natural gas on behalf of land owners and lessees of oil and gas producing properties; second, that he will testify concerning the market value of natural gas at the casing head of the wells and the common and general practices of the natural gas treating industry concerning the basis on which natural gas is treated by gasoline companies; third, that he will also testify concerning the cost of manufacturing gasoline and dry gas from natural gas. The only intimation that the witness has any personal knowledge of the particular facts involved in this action arises from the use of the article "the" qualifying the word "wells" in the phrase "of the wells". It may be argued that the inclusion of the article limits the phrase to the particular wells mentioned in the complaint and that therefore the affidavit contains a sufficient showing of personal knowledge of the wells mentioned in the complaint to bring the witness within the exception. The argument is ingenious, but lacks impressiveness. A reading of the entire showing made with respect to this witness impels the conclusion that it is not suggested that he has any personal knowledge regarding the particular wells which are most generally referred to in the complaint, but that his knowledge is a general knowledge based on his wide experience in the processing and treatment of natural gas and that the testimony which he will give will relate to the value of natural gas at the casing head of wells generally. *182
It is, however, urged that, irrespective of any question of the insufficiency of the showing as to personal knowledge possessed by the witness as to the particular facts involved in this action, it does appear from the language of the affidavit that the witness possesses personal knowledge of the facts upon which his testimony will be based. It must be observed that it is declared that the testimony of this witness will relate to three matters. These are, first, the market value of natural gas at the casing head of wells; second, the general practices of the natural gas treating industry concerning the basis on which natural gas is treated by gasoline companies; third, the cost of manufacturing gasoline and dry gas from natural gas. The foundation for this testimony is the wide experience which the witness has had in the processing and treatment of natural gas. The statement that the witness has had wide experience along the line mentioned necessarily carries the implication that he is familiar with and has personal knowledge of the details which form a part of the industry of treating natural gas. [4] Unquestionably, it may be conceded that the affidavit shows that the witness possesses personal knowledge of the details of the industry derived from personal observation and training. But we fail to discover any showing that the witness has any personal knowledge of the facts which are involved in this action. That this is the test to be applied in giving consideration to the alleged convenience of an expert witness is announced in Wrin v. Ohlandt, 213 Cal. 158, 160 [1 PaCal.2d 991], where it is said: "Furthermore, there is no showing that this remaining witness has any personal knowledge of any of the facts in the case. If called, he will testify simply as an expert witness as to the value of the services rendered by the assignors of the plaintiff. In the case of Security Inv. Co. v. Gifford, 179 Cal. 277 [176 P. 444], this court held that the convenience of expert witnesses having no personal knowledge of any facts in the case should not be considered in determining the question of the convenience of witnesses." (Italics ours.) So here we may say that this witness, if called, will testify simply as an expert as to the value of natural gas at the casing head of wells from which it is extracted. Such testimony involves no personal knowledge of the particular facts of this action. *183
[5] It is therefore our conclusion that appellant has failed to demonstrate that the trial court was guilty of an abuse of the wide discretion with which it was invested in refusing to grant the motion for change of venue on the ground stated.
The order from which this appeal has been taken in therefore affirmed.
Barnard, P. J., and Marks, J., concurred.
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2 U.S. 55 (____)
2 Dall. 55
COWPERTHWAITE,
versus
JONES, et. al.
Supreme Court of United States.
SHIPPEN, President:
The motion for a new trial in this cause has been made on several grounds: 1st. Because the jury have misbehaved, in adopting an improper mode of estimating the damages; by setting down each the particular sum he thought just, and then dividing the aggregate by the number of jurymen. 2d. Because the damages are said to be excessive. 3d. Because the verdict was contrary to the evidence. And, 4th. Because it was founded on a mistake in point of law; the jury supposing that, on payment of the damages, the Negro, (whose freedom was in question) would be emancipated.
New trials are frequently necessary, for the purpose of attaining complete justice; but the important right of trial by jury requires they should never be granted without solid and substantial reasons; otherwise the province of jurymen might be often transferred to the judges, and they instead of the jury, would *56 become the real triers of the facts. A reasonable doubt, barely, that justice has not been done, especially in cases where the value or importance of the cause is not great, appears to me to be too slender a ground for them. But, whenever it appears with a reasonable certainty, that actual and manifest injustice is done, or that the jury have proceeded on an evident mistake, either in point of law, or fact, or contrary to strong evidence, or have grossly misbehaved themselves, or given extravagant damages; the Court will always give an opportunity, by a new trial, of rectifying the mistakes of the former jury, and of doing complete justice to the parties.
The first objection, as to the manner of the jury collecting the sense of its members, with regard to the quantum of damages, does not appear to us to be well founded, or at all similar to the case of casting lots for their verdict. In Torts and other cases, where there is no ascertained demand, it can seldom happen that jurymen will, at once, agree upon a precise sum to be given, in damages; there will necessarily arise a variety of opinions, and mutual concessions must be expected; a middle sum may, in many cases, be a good rule; and though, it is possible, this mode may sometimes be abused by a designing juryman, fixing upon an extravagantly high, or low sum, yet unless such abuse appears, the fraudulent design will not be presumed.
The 2d and 3d objections may be considered together.
The action is brought upon a bond, given to the sheriff, upon his executing a writ of Homine replegiando. The condition is for prosecuting with effect, and for making a return, if awarded. The plaintiff discontinued his suit, and no return has been made; of course, if the case was divested of its particular circumstances, the defendants would be liable for the payment of damages, equal to the value of the thing replevied. The question then, upon the trial, was; whether the circumstances were such as, in justice and equity, ought to discharge the defendants, from the legal obligation they were under, to return the Negro, or pay the price of him.
Many circumstances were given in evidence; but the most material one in favour of the defendants, was, that when the writ of Homine replegiando was delivered to the sheriff to be executed, he was instructed by the defendants, or their counsel, not to take the Negro out of the possession of the matter; but to leave him in his hands, during the dispute; that he was accordingly left in his possession, and from thence it was concluded that he, the matter, and not the sureties, became responsible for him. The evidence upon this point comes from the sheriff himself; who, by consent, was sworn as a witness; he proved the leaving the Negro in his master's house, when he executed the writ, and that he did not either take charge of him, or deliver him *57 from his confinement; but he says that some short time afterwards, the master brought the Negro to his office, to deliver him up, and he refused to take him; and ordered him to return to his master. There is some evidence of his being afterwards seen at his master's house; but he was finally abandoned, and has never since returned. In the charge to the jury, the Court told them, that though this was an irregular way of executing the writ, yet if they were satisfied, from the evidence, that the Negro was actually left in the hands of the master, with his own consent, and that he had either expressly, or impliedly, engaged to take charge of the Negro, during the dispute, it would be unjust to make the defendants answerable for him, contrary to the master's own stipulation and agreement; and, in that case, they ought to give damages only in proportion to the actual loss of service the master had sustained, through the fault of the defendants. The evidence, in my opinion, preponderated in favour of the master's acquiescence in the directions given to the sheriff; but the jury appear to have thought otherwise; they probably considered, that when the sheriff went to execute the writ, he did not find the master himself at home; but mentioned his business only to his wife; that there was consequently no express acquiescence on the part of the master; that, as to the time he kept the Negro, after the service of the writ, from whence an implied acquiescence might be presumed, there was some uncertainty in the evidence; the sheriff, who spoke to the time which had elapsed before he was brought to his office, expressing himself with great caution, and not being able to ascertain it with any degree of precision, although he rather thought it might be about a month or six weeks; and that notwithstanding what had passed, he had actually returned, that he had replevied the Negro. They might likewise have balanced the testimony of Israel Jacobs, with that of Thomas Harrison; although I own I should have put more reliance on the positive evidence of the latter, than the negative evidence of the former. However, as in this case there was no direct proof of an acquiescence, but the evidence of it arose from presumption, and inferences drawn from the circumstances attending the case, we think it was properly with the jury to decide upon those circumstances, and that their verdict cannot be said to have been given contrary to that plain evidence, which ought to induce us to set it aside; although we might not have drawn the same inferences which they did.
As to the supposed mistake in the jury, it must be observed, that as the Homine replegiando was not prosecuted with effect, the plaintiff having discontinued it, and the Negro never returned, the defendants were legally answerable upon their bond; and as the jury were of opinion, there were no such equitable *58 circumstances, as ought to discharge them from their obligation, the price of the Negro was, in that view of the evidence, the proper measure of damages; which, if accepted by the master, will in equity, and perhaps by operation of law too, emancipate the Negro; he having been a party to the Homine replegiando, and a full satisfaction, equal to his value, made by his sureties for him.
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455 Pa. Superior Ct. 186 (1996)
687 A.2d 1123
COMMONWEALTH of Pennsylvania, Appellant,
v.
Gloria HIGHHAWK, Appellee.
Superior Court of Pennsylvania.
Argued October 1, 1996.
Filed December 16, 1996.
Reargument Denied February 19, 1997.
*188 Rita D. Hathaway, Assistant District Attorney, Greensburg, for the Commonwealth, appellant.
John D. Ceraso, New Kensington, for appellee.
Before KELLY, JOHNSON and OLSZEWSKI, JJ.
OLSZEWSKI, Judge:
In the early morning hours of June 13, 1995, appellee Gloria Highhawk brought heroin to the residence of Steve Wilson for recreational use. She injected the drug into Wilson, a quadriplegic, at his request. Shortly thereafter, Wilson became *189 unresponsive and medical personnel were summoned. Wilson was taken to Citizen's General Hospital where he was later pronounced dead as a result of acute heroin toxicity. Highhawk was subsequently arrested and charged by information with drug delivery resulting in death pursuant to 18 Pa.C.S.A § 2506.
On October 23, 1995, Highhawk filed a petition seeking to quash the information. Following a hearing, the Honorable Gary P. Caruso of the Court of Common Pleas of Westmoreland County entered an order dated January 5, 1996, stating that the information would be quashed unless it was amended to substitute the existing charge with a charge of general criminal homicide, 18 Pa.C.S.A. § 2501. In support of this order, Judge Caruso found the section of the Crimes Code under which Highhawk was originally charged, 18 Pa.C.S.A § 2506, to be no more than a sentencing statute pursuant to which it was improper to charge her with a crime. The Commonwealth appeals this decision asserting that this order substantially impairs the prosecution. See Pa.R.A.P. 311(d). In advancing its claim, the Commonwealth argues that 18 Pa.C.S.A. § 2506 defines a substantive crime and that the trial court erred in holding it to be a mere sentencing provision.
The statutory provision of the Crimes Code at issue states:
§ 2506. Drug delivery resulting in death
(a) General rule. A person commits murder of the third degree who administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act,1 and another person dies as a result of using the substance.
(b) Mandatory minimum sentence. A person convicted under subsection (a) shall be sentenced to a mandatory minimum term of imprisonment of five years and a fine of *190 $15,000, or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.
(c) Proof of sentencing. Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(d) Mandatory sentencing. There shall be no which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act2 shall not be available to a defendant to which this section applies.
(e) Appellate review. If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
(f) Forfeiture. Assets against which forfeiture has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.
*191 1 35 P.S. § 780-113(a)(14), (30).
2 35 P.S. §§ 780-117, 780-118.
18 Pa.C.S.A. § 2506.
We are called upon to interpret, for the first time, the meaning of this statutory provision.[1] In doing so, it is necessary for us to employ the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. Commonwealth v. Henderson, 444 Pa.Super. 170, 177-79, 663 A.2d 728, 732 (1995) (en banc). "In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words." Commonwealth v. Lopez, 444 Pa.Super. 206, 210, 663 A.2d 746, 748 (1995) (citing 1 Pa.C.S.A. § 1903(a)). A presumption exists that in drafting a statute, the General Assembly intended the entire statute to be effective. Id. Consequently, when interpreting one subsection of a statute, courts must read that subsection not by itself, but with reference to, and in light of, the other subsections. Id. See also Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994). Reading the statute at issue in the case sub judice consistent with these guidelines, it is evident that it is unclear and ambiguous.
The plain language of subsection (a) of 18 Pa.C.S.A. § 2506 appears to define the crime of third-degree murder in the context of certain violations of the Controlled Substance, Drug, Device and Cosmetic Act. This reading is corroborated by subsection (b) which refers to a "convict[ion] under subsection (a)" and thereafter imposes a mandatory minimum sentence for such. Confusion occurs, however, when attempting to reconcile subsection (c) with these earlier subsections. The initial inconsistency arises with the language contained in the first sentence of subsection (c) which states that the "[p]rovisions *192 of this section shall not be an element of the crime."[2] It is a fundamental notion of our law that any statute that defines a substantive crime must inform an individual as to what behavior is prohibited and, therefore, set forth the elements constituting such proscribed conduct. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987), alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987). Further inconsistencies are presented by the remainder of subsection (c). Specifically, subsection (c) states that "reasonable notice of the Commonwealth's intention to proceed under [section 2506] shall be provided after conviction and before sentencing" and "[t]he applicability of [section 2506] shall be determined at sentencing . . . by a preponderance of the evidence." The applicability of a section under which an individual is charged with a substantive crime must be determined prior to prosecution for violation of such. Westcott, supra. If section 2506 did indeed define a new crime under which prosecution was appropriate, it would not be necessary to determine the applicability of the section at the time of sentencing by a preponderance of the evidence since the crime would already have been proven beyond a reasonable doubt.
Due to the ambiguity of 18 Pa.C.S.A. § 2506, we must look beyond the statutory language to determine the intent of the General Assembly in enacting such. Commonwealth v. Wooten, 519 Pa. 45, 53-55, 545 A.2d 876, 880 (1988). At the outset, we note that "courts are to strictly construe penal statutes, and . . . any ambiguity contained in such acts must be interpreted in favor of the accused and against the prosecution."[3]Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (citing 1 Pa.C.S.A. § 1928(b)(1)). Nevertheless, we are not required to interpret the words of a criminal statute in their narrowest sense or disregard evident legislative intent. Wooten, 519 Pa. at 51-53, 545 A.2d at 879; *193 Westcott, 362 Pa.Super. at 194, 523 A.2d at 1149 ("strict construction of penal statutes should not be allowed to defeat the policy and purpose underlying [the] enactment"). "Indeed, it is a clear principle of our jurisprudence that where a statute is unclear on its face, resort must be taken to the intent of the General Assembly in enacting the provision." Id. (citing 1 Pa.C.S.A. § 1921(a)). In so doing, we are to presume that the General Assembly did not intend a result that is absurd, impossible of execution, or unreasonable. Commonwealth v. Stewart, 375 Pa.Super. 585, 593, 544 A.2d 1384, 1388, alloc. denied, 520 Pa. 604, 553 A.2d 967 (1988). Further, in construing legislative intent, the Court may look to the following factors:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S.A. § 1921(c). See also Henderson, 444 Pa.Super at 177-79, 663 A.2d at 732. Comments made by legislators during the enactment of a statute may also be considered while examining the contemporaneous legislative history. Id.; Commonwealth v. Berryman, 437 Pa.Super. 258, 267-69, 649 A.2d 961, 966 (1994) (en banc), alloc. denied, 541 Pa. 632, 663 A.2d 685 (1995). Reviewing section 2506 in light of this precedent, we find that it does indeed define the substantive crime of third-degree murder in those cases where death results from certain conveyances of controlled substances or counterfeit controlled substances in violation of The Controlled Substance, Drug, Device and Cosmetic Act.
In determining the intent of the General Assembly, we begin with an examination of the legislative history of 18 *194 Pa.C.S.A. § 2506. This section originated in the House of Representatives in 1989 as House Bill 1280 and, initially, contained only subsections (a) and (b). Upon consideration by the Senate, however, Senator D. Michael Fisher proposed amendment No. A4141 entitled "An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, defining the offense of drug delivery resulting in death; and providing penalties." 1989 Pa. Legislative Journal-Senate, at 1531. Subsequently, the House considered and concurred with this Senate amendment which resulted in the addition of subsections (c) through (f) to the pending legislation. During such consideration, Representative Allen G. Kukovich addressed the House as follows:
Mr. KUKOVICH. Again, Mr. Speaker, this is part of the drug package and the House bills that have come back for concurrence. There has been a Senate amendment which does not violate the spirit of what the House did when they passed this legislation. There has been language added that is considered to be boilerplate language for mandatory minimum sentences, and by that, I mean there is a certain burden of proof for that type of sentencing. It was not in this bill when it passed the House. This is simply corrective.
I would ask for a "yes" on concurrence.
1989 Pa. Legislative Journal-House, at 2195.
This legislative history establishes that, consistent with the clear language of subsections (a) and (b) standing alone, as discussed above, the original House Bill intended to set forth a new crime. Representative Kukovich's comments, while not dispositive, aid us in finding that amendment No. A4141 sought merely to provide guidelines, collateral to the newly defined crime, relating to asset forfeiture, limitations on a sentencing court's exercise of discretion, and appellate review of a sentencing court's refusal to apply the section. See Berryman, supra. The addition of language pursuant to the amendment was not, therefore, intended as a change in legislative intent. Compare Meier v. Maleski, 670 A.2d 755, 759 (1996) ("A change in the language of a statute ordinarily *195 indicates a change in legislative intent."). In addressing the various issues incident to the creation of the new offense, however, the amendment added boilerplate language which, as demonstrated supra, inadvertently resulted in an unclear and ambiguous statute. The cause of the resulting lack of clarity in the statute is evident from a review of various other statutes dealing with mandatory or enhanced sentences which contain language similar to that added to section 2506 by the amendment. See, e.g., 18 Pa.C.S.A. § 7508 (drug trafficking sentences and penalties); 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms); 42 Pa.C.S.A. § 9713 (sentences for offenses committed on public transportation); and 42 Pa.C.S.A. § 9714 (sentences for second and subsequent offenses). The crimes for which these provisions provide mandatory or enhanced sentences appear in sections of the Crimes Code separate from those sections which define the criminal conduct itself. Accordingly, the boilerplate language of subsection (c) which is presently adding confusion to the reading of section 2506 is necessary in these other provisions to ensure their integrity as no more than sentencing provisions.
A review of other factors pertinent to establishing the intent of the General Assembly supports our finding that 18 Pa. C.S.A. § 2506 was intended to set forth a new crime. Foremost, we find our interpretation to be in accord with the objective to be attained and the mischief to be remedied by the General Assembly upon enactment of 18 Pa.C.S.A. § 2506 in 1989. See 1 Pa.C.S.A. § 1921(c)(3), (4). Section 2506 clearly represents an attempt to control the number of deaths related to controlled substances.[4] This is substantially accomplished by establishing a mandatory minimum sentence of five years for an individual convicted of third-degree murder under section 2506. In the absence of such a directive, the sentence to be imposed for third-degree murder is subject to the discretion of the sentencing court. See, e.g., Commonwealth v. *196 Smith, 543 Pa. 566, 568-70, 673 A.2d 893, 894 (1996) (in applying the sentencing guidelines to a conviction of third-degree murder, the sentencing court departed from the mitigated range and imposed a sentence of two-to-four years to be followed by ten years of probation); Commonwealth v. Scales, 437 Pa.Super. 14, 16-18, 648 A.2d 1205, 1206 (1994) (trial court sentenced defendant to four-to-ten years' imprisonment for third-degree murder), alloc. denied, 540 Pa. 640, 659 A.2d 559 (1995).
The title of the amendment to House Bill 1280, "An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania consolidated statutes, defining the offense of drug delivery resulting in death; and providing penalties [for such]", is corroborative of our finding. The use of the words "defining the offense of" in this title clearly evidence an intent to establish a new criminal act. See Boring v. Erie, 434 Pa.Super. 40, 641 A.2d 1189 (1994) (in cases where the language of a statute is ambiguous, the title may be considered in resolving the uncertainty) (citing Commonwealth v. Magwood, 503 Pa. 169, 176-77, 469 A.2d 115, 119 (1983)). See also 1 Pa.C.S.A. § 1924. Finally, we note that our interpretation of section 2506 is consistent with that of the Pennsylvania Commission on Sentencing.[5] This Commission adopted sentencing guidelines, see 42 Pa.C.S.A. § 9721, wherein section 2506 was included as a substantive crime classified as a felony of the first degree. See 1 Pa.C.S.A. § 1921(c)(8).
"[Having ascertained] the intent of the General Assembly[,] that intent cannot be ignored, rather, it must be given effect."[6]Commonwealth v. Besch, 544 Pa. 1, 10, 674 A.2d 655, *197 659 (1996); 1 Pa.C.S. § 1921(a). Accordingly, we hold that 18 Pa.C.S.A. § 2506 defines a substantive crime and sets forth the penalties for a violation of the prohibited conduct.
In response to the Commonwealth's appeal, Gloria Highhawk argues that to the extent section 2506 sets forth a new crime, it is constitutionally void for vagueness. At the outset, we note that "[i]n ascertaining the legislative intent of a particular statute[,] it is presumed, inter alia, that the legislature did not intend a result that is . . . violative of the United States Constitution or the Constitution of this Commonwealth." Pennsylvania Fin. Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 430-31, 664 A.2d 84, 87 (1995). Additionally, "a legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution. All doubts are to be resolved in favor of constitutionality." Westcott, 362 Pa.Super. at 196, 523 A.2d at 1150.
With these standards in mind, we turn to a review of the merits of Highhawk's claim.
It is well settled that "[a] criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Commonwealth v. Heinbaugh, 467 Pa. 1, 5, 354 A.2d 244, 246 (1976). See also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985).
Westcott, 362 Pa.Super. at 195, 523 A.2d at 1149. "[T]o survive a challenge of denial of due process[,] a statute may not be so vague that men of common intelligence must necessarily guess at its meaning. . . ." Commonwealth v. Trill, 374 Pa.Super. 549, 589, 543 A.2d 1106, 1126 (1988), alloc. denied, 522 Pa. 603, 562 A.2d 826 (1989).
However, the constitutional prohibition against vagueness does not invalidate every statute which could have been *198 drafted with greater precision. Due Process requires only that individuals may conform their conduct so as to avoid that which the law forbids. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).
Westcott, 362 Pa.Super. at 196, 523 A.2d at 1149-50. Employing this precedent, we find that 18 Pa.C.S.A. § 2506 is void for vagueness.
In attempting to define third-degree murder to include that conduct which is prohibited by subsection 2506(a), the legislature set forth the elements of the offense therein.[7] For example, subsection 2506(a) contains a provision requiring the administration of a controlled substance that causes the death of the user of such.[8] As we have already established, however, the plain language of subsection (c) prevents these provisions from becoming elements of the crime and renders section 2506 relevant only upon conviction. As a result of this patent contradiction in section 2506, the statute in question fails to provide fair notice of the prohibited conduct and is, *199 therefore, unable to withstand constitutional scrutiny.[9]See Trill, supra; Westcott, supra.
Since we declare 18 Pa.C.S.A. § 2506 to be unconstitutional, the order of the Court of Common Pleas of Westmoreland County requiring amendment of the information charging Gloria Highhawk is affirmed. See Lincoln Ave. Indus. Park v. Norley, 450 Pa.Super. 621, 630, 677 A.2d 1219, 1223 (1996) ("On appeal, our Court will affirm a trial court's Order if it is correct on any legal ground or theory, regardless of the reason or theory relied on below.") (quoting In re Barnes Foundation, 443 Pa.Super. 369, 376, 661 A.2d 889, 893 (1995)).
Order affirmed.
JOHNSON, J., files a concurring and dissenting opinion.
JOHNSON, Judge, concurring and dissenting:
The Honorable Gary P. Caruso determined that conflicts between subsections (a) and (c) of 18 Pa.C.S. § 2506 makes the statute impossible to apply. With this finding, I agree. When read as a whole, the statute is fatally confusing, in part *200 because subsection (c) clearly prohibits subsection (a) from providing the additional elements needed to create a new offense. Judge Caruso went on to conclude that the statute creates a mandatory minimum sentence for a person convicted of third degree murder when the death is caused by the administration of a controlled substance. I believe Judge Caruso was also correct in this conclusion. I therefore join so much of my colleagues' decision as finds that § 2506(a) cannot withstand constitutional scrutiny to the extent that it attempts to set forth a new, substantive crime. However, I am unable to agree that the entire section must be declared unconstitutional.
Our general severability statute reads as follows:
§ 1925. Constitutional construction of statutes
The provisions of every statute shall be severable. If any provisions of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
1 Pa.C.S. § 1925.
There is a clearly expressed legislative preference to retain the viability of the legal portions of a statute, if reasonably possible. See Commonwealth, Dep't of Educ. v. First School, 471 Pa. 471, 478, 370 A.2d 702, 705 (1977). Thus, if a statute is partially valid and partially invalid, and "if the provisions are distinct and not so interwoven as to be inseparable ..., courts should sustain the valid portions." Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A.2d 664, 666 (1964).
*201 I now turn to applying the severability principle to 18 Pa.C.S. § 2506. Considering, first, whether the provisions are distinct, I find that subsection (a), on its face, is physically distinct from the balance of the section. More importantly, the content of subsection (a), dealing with the definition of the crime, drug delivery resulting in death, stands apart in its function from the remaining subsections that deal with sentencing, subsections (b), (c) and (d), appellate review, subsection (e), and forfeiture, subsection (f).
The question next to be answered is whether the invalid subsection, (a), is so interwoven with the valid provisions as to be inseparable. Subsection (a) does nothing more than set forth a definition for a "new crime", third degree murder where the defendant has delivered a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act and another person dies as a result of using the substance. I would conclude that our legislature would have enacted the sections setting forth the penalties for this activity, even if it had known that its attempted definition of the crime itself was incomplete. When read as a mandatory minimum sentencing statute, all the subsections following subsection (a) remain viable and capable of full application without regard to the continuing vitality of subsection (a). Accordingly, I would conclude that subsections (b) through (f), since they are distinct from, and not interwoven with, subsection (a), remain intact.
While not stating so explicitly, my colleagues' analysis makes it clear that they would find error in Judge Caruso's failure to declare the entire statute unconstitutional. I disagree. Judge Caruso applied the correct principles of statutory construction in declining to find the entire statute unconstitutional, while finding that the statute can be read as a sentence enhancement provision. Since I believe this is the mandate of statutory construction as laid down by our General Assembly in 1 Pa.C.S. § 1925, supra, I must respectfully dissent.
I would affirm the order of Judge Caruso that directed the Commonwealth to amend their complaint upon pain of dismissal *202 of the information. The order we here review does not require that we find Act No. 109 of 1989, in its entirety, unconstitutional. Hence this dissent.
NOTES
[1] Our research reveals that no appellate courts of this Commonwealth have previously interpreted 18 Pa.C.S.A. § 2506 or reviewed a conviction thereunder.
[2] We note that the plain reference in subsection (c) to "this section" causes its terms to apply to the entire statute at issue. See Lopez, supra.
[3] Penal statutes are those which define criminal offenses and specify their corresponding punishment. Henderson, 444 Pa.Super. at 179-81, 663 A.2d at 733.
[4] In 1988, the year prior to enactment of 18 Pa.C.S.A. § 2506, approximately 25,000 persons were charged with drug related crimes. Bureau of Research and Development, Pennsylvania State Police, Uniform Crime Report A15 (1988).
[5] The Pennsylvania Commission on Sentencing is an 11-person agency of the General Assembly. 42 Pa.C.S.A. § 2151.
[6] Highhawk argues that the trial court was correct in finding section 2506 to be a sentencing provision. In urging us to hold similarly, Highhawk cites 1 Pa.C.S.A. § 1933 which states that "whenever, in the same statute, several clauses are irreconcilable, the clause last in order of date or position shall prevail." Based thereon, Highhawk argues that sections (c) through (f) should be determinative of the meaning of section 2506. We disagree since the application of this rule "would result in a construction inconsistent with the manifest intent of the General Assembly." 1 Pa.C.S.A. § 1901.
[7] An "element of an offense" is defined as follows:
§ 103. Definitions
* * *
"Element of an offense." Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense;
(2) establishes the required kind of culpability[.]
18 Pa.C.S.A. § 103.
[8] The Commonwealth contends that section 2506 eliminates the mens rea requirement in that a defendant can be found guilty of violating such regardless of his intent as it relates to the death of the victim. In light of our ultimate disposition of this case, we decline to address the issue of the degree of culpability required to support a conviction under section 2506. If we were to decide this matter, we would be rendering an advisory opinion. See Sedat, Inc. v. Fisher, 420 Pa.Super., 469, 477, 617 A.2d 1, 4 (1992) ("An advisory opinion is one which is unnecessary to decide the issue before the court, and it is true that the courts of this Commonwealth are precluded from issuing such advisory opinions."). We do note, however, that certain other states such as New Jersey have adopted strict liability statutes to protect society from death caused by the distribution of illegal drugs. See, e.g., N.J.S.A. 2C:35-9.
[9] We pause to address the applicability of 1 Pa.C.S.A. § 1925 which concerns the severability of statutory provisions in the constitutional construction of statutes. This section states:
§ 1925. Constitutional construction of statutes
The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed that the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and incapable of being executed in accordance with legislative intent.
1 Pa.C.S.A. § 1925. We find that this provision is not applicable to section 2506. Section 1925 concerns statutes which are "partially valid and partially invalid" and allows for the separation of statutory provisions so as to effectuate those which are valid. Heller v. Frankston, 504 Pa. 528, 536-38, 475 A.2d 1291, 1296 (1984). See also Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 318-20, 196 A.2d 664, 666 (1964). The unconstitutionality of 18 Pa.C.S.A. § 2506, however, arises from inconsistencies among the provisions of this statute. As a result, the entire statute is inherently invalid leaving no valid provisions to sever.
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687 A.2d 594 (1996)
Oliver A. COWAN, et al., Appellants
v.
Farouk YOUSSEF, et al., Appellees.
Farouk YOUSSEF, et al., Appellants
v.
Oliver A. COWAN, et al., Appellees.
Nos. 93-CV-1637, 94-CV-2, 94-CV-318.
District of Columbia Court of Appeals.
Argued April 18, 1995.
Decided December 30, 1996.
*596 Richard W. Luchs, with whom Roderic L. Woodson was on the brief, Washington, DC, for Oliver A. Cowan, et al. (landlords).
Steven M. Schneebaum, with whom Robert K. Taylor was on the brief, Washington, DC, for Farouk Youssef, et al. (tenants).
Before TERRY, KING, and RUIZ, Associate Judges.
TERRY, Associate Judge.
Before us are three consolidated appeals arising out of a protracted landlord-tenant dispute. The Rittenhouse Limited Partnership (RLP) owns the Rittenhouse Apartments on Sixteenth Street, N.W., which is managed by United Management Company. Oliver A. Cowan is the general partner in RLP. Nineteen residents of various apartments within the building (collectively "the tenants") filed this suit against Cowan, RLP, and United Management (collectively "the landlords"),[1] stating several claims related to what is known as a "Seventy Percent Voluntary Agreement." The second amended complaint, which eventually went to trial, contained four counts alleging breach of contract, breach of implied warranty of habitability, negligence, and fraud. Only the first two counts went to the jury, which returned a verdict for the tenants on the first count and for the landlords on the second.
On appeal, the landlords challenge the trial court's denial of their motion for directed verdict on the tenants' claim of breach of contract, as well as the court's imposition of a monetary sanction against Mr. Cowan for failure to comply with certain of the tenants' discovery requests. The tenants contend that the court erred in denying their pre-trial motion for class certification, in instructing the jury on the calculation of damages for breach of contract, and in directing a verdict in favor of the landlords on the fraud claim. Additionally, the tenants maintain that the jury's verdict against them on the count alleging breach of the implied warranty of habitability was contrary to the evidence. We reject both the landlords' and the tenants' claims of error and affirm the judgment.
I. THE FACTS
In 1986 the landlords and the tenants entered into a "Seventy Percent Voluntary Agreement"[2] which provided that the landlords would replace the Rittenhouse's central heating and cooling system with individual units in each apartment. Up to that time, the landlords had paid all costs associated with climate control and hot water in the building. Once this system was installed, however, the tenants agreed to assume the utility costs for the heating and cooling of their individual apartments. In addition, the landlords promised: (1) that the new individual units would operate quietly, efficiently, and effectively upon installation; (2) that the kitchen and bathroom vents in each apartment would be in proper operating condition; and (3) that the windows surrounding the heating and cooling units would be properly adjusted and caulked to prevent drafts and leaking. As a further enticement to the tenants, the landlords also agreed to renovate the building's elevators, to install a gymnasium and exercise room, and to construct a *597 large water fountain in the front courtyard of the building. After the approval of this agreement by seventy percent of the tenants, the landlords began the conversion of the heating and cooling system in August 1987.
Between 1988 and 1990, several tenants of the Rittenhouse who had initially objected to the agreement unsuccessfully pursued various administrative remedies to prevent it from being carried out. Those remedies were exhausted, however, when this court rejected all the tenants' challenges to the Voluntary Agreement in Davenport v. District of Columbia Rental Housing Commission, 579 A.2d 1155 (D.C.1990). Dissatisfied with the now-completed conversion process, the tenants filed this suit on July 31, 1991. Exactly a year later, on July 31, 1992, the tenants filed a motion for class certification of all persons who lived at the Rittenhouse during the three years immediately preceding the filing of the complaint. The landlords opposed the motion for class certification, and the court denied it without a hearing (none was requested).
In due course the case came to trial before a jury. Four issues were litigated: (1) whether the landlords had installed substandard climate control units in the building, in violation of the Voluntary Agreement; (2) whether the landlords had negligently installed these units; (3) whether the installation of these units violated the warranty of habitability implied in the tenants' leases; and (4) whether the landlords had committed fraud in performing the Voluntary Agreement.
The tenants presented extensive testimony that the heating and cooling units installed in their apartments failed to comply with the terms of the Voluntary Agreement. In sum, the tenants' evidence showed that the units lacked sufficient power to heat or cool all the rooms, were noisy, and lacked automatic temperature settings; that their installation left spaces around the units in many apartments where cold air and water leaked in from the outside; that the promised ventilation of the kitchens and bathrooms was virtually non-existent; and that the regulation of the hot water temperature throughout the building was erratic and generally unsatisfactory. The tenants also testified that the additional promises made by the landlords regarding the planned exercise room and the fountain were never fulfilled. The allegations concerning the heating and cooling units were supported by the testimony of two experts, who said that the units in the Rittenhouse were substandard models, that they had been negligently installed, and that they had insufficient power to regulate effectively the temperature inside the apartments.
In response, the landlords offered testimony to the effect that the requirements of the Voluntary Agreement were satisfactorily performed in good faith, that the heating and cooling units were appropriate for the apartments, and that they were properly installed. The landlords also asserted that any problems resulting from the installation of the units which were communicated to the Rittenhouse management and staff were promptly, and consistently, investigated and corrected. An expert witness testified that the units installed in the Rittenhouse were of better quality in design, energy efficiency, and heating capability than other units on the market. This expert also said that the units operated at a low decibel level.
During trial, it became apparent that Mr. Cowan had not fully complied with previous requests for production of documents made by the tenants during pre-trial discovery. Consequently, the court imposed a monetary sanction against Cowan in the amount of $10,000. The next day, however, the court sua sponte reduced this amount to $6,000, stating that the earlier sanction was "excessive."
After the close of all the evidence, the court dismissed two counts of the complaint: Count III, alleging the negligent installation of the heating and cooling units, and Count IV, alleging fraud in the performance of the Voluntary Agreement. The case went to the jury on the two remaining counts. The jury found in favor of the tenants on Count I of the complaint, which alleged breach of the express terms of the Voluntary Agreement, and awarded them a partial rent abatement amounting to approximately $80,000. The jury found in favor of the landlords on Count II, which alleged breach of the implied warranty of habitability.
*598 When the verdict was reduced to judgment a few days later, the court failed to incorporate into the judgment its earlier decision to impose a $6,000 sanction on Mr. Cowan for his discovery violations. The tenants filed a timely motion under Super. Ct. Civ. R. 60(a) to amend the judgment by correcting this omission. The landlords then filed a notice of appeal from the judgment (No. 93-CV-1637), and the tenants noted a cross-appeal (No. 94-CV-2). About ten days later, the court entered an order granting the tenants' motion to amend the judgment. Cowan then filed a motion for reconsideration of that ruling, which the court denied in a two-page order; Cowan filed a notice of appeal (No. 94-CV-318) from that denial. This court later consolidated all three appeals.
II. THE LANDLORDS' CLAIMS OF ERROR
A. The Denial of the Motion for Directed Verdict
In their motion for a directed verdict on the breach of contract claim, the landlords argued that the tenants had failed to produce any evidence of economic loss suffered as a result of the alleged breach of the Voluntary Agreement. Initially, the court granted the landlords' motion, but after reconsideration the court decided to allow this claim to go to the jury. The court ruled that a reasonable jury, given the amount of rent paid by each individual tenant plaintiff (which the tenants had proved in the course of the trial), could use those amounts as a basis for calculating damages if it found the landlords liable.
On appeal, the landlords contend that the trial court erred in denying their motion for a directed verdict on the breach of contract claim. They make two arguments: (1) that the Voluntary Agreement was a contract separate from the tenants' leases, and therefore that an abatement of the rent, the amount of which was stated in those leases, could not properly be awarded as damages for any breach of the agreement; and (2) that, in any event, there was no evidence that the breach resulted in any economic loss to the tenants. We review a ruling on a motion for directed verdict in the light most favorable to the prevailing party. E.g., District of Columbia v. Cassidy, 465 A.2d 395, 397 (D.C. 1983). Applying that standard, we affirm the trial court's ruling.
1. The Nature of the Voluntary Agreement
The Rental Housing Act was enacted, in part, to protect tenants in the District of Columbia from potential economic abuses by their landlords, while at the same time enabling landlords to obtain a reasonable return on their investments. See D.C.Code § 45-2502 (1996). Relevant to the present case is section 45-2525(a) of the Act, quoted in part in note 2, supra, which authorizes landlords and tenants to enter into Voluntary Agreements of the sort at issue here. The Act further provides that, "[i]f approved by the Rent Administrator, [a voluntary] agreement shall be binding on the [landlord] and on all tenants." D.C.Code § 45-2525(b).
In this jurisdiction, leases of residential units are interpreted under general provisions of contract law rather than property law. See Javins v. First National Realty Corp., 138 U.S.App. D.C. 369, 373-375, 428 F.2d 1071, 1075-1077, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970). "Contract principles established in other areas of the law provide a more rational frame-work for the apportionment of landlord-tenant responsibilities. . . ." Id. at 378, 428 F.2d at 1080. Thus it is beyond dispute that the leases between the landlords and the tenants in this case are to be treated as contracts, and that the rights of the parties are contractual rights. What we must decide here is whether the Voluntary Agreement had any effect on those rights, so that a remedy for a breach of the Voluntary Agreement may be devised by looking to the lease.
We know of no case exactly like this one, but a close analogy may be found in Vicki Bagley Realty, Inc. v. Laufer, 482 A.2d 359 (D.C.1984). In that case a prospective purchaser of a house agreed, in the contract of sale, to rent the house for three months before actually buying it. A separate lease was drawn up for a three-month term, and the purchaser moved into the house. After two of the purchaser's checks bounced, however, the homeowners filed suit for possession, and the tenant/purchaser moved out *599 soon thereafter. The homeowners then sued the two real estate agencies which had brokered the deal for breach of their fiduciary duties. Addressing the issue of damages, this court held that the sale contract and the three-month lease together constituted a single contract because each referred to specific provisions within the other. "When a written agreement incorporates a second writing, the two documents must be read together as constituting the contract between the parties.. . . We must also read the two documents in a manner that gives a reasonable, lawful, and effective meaning to all their terms." Id. at 366 (citations omitted). We therefore held that a liquidated damages clause in the sale contract limited the damages available under the lease as well, which had no comparable provision.
Although a Voluntary Agreement is a creature of statute and requires administrative approval before it may take effect, it is also a modification of an existing lease. In the case at bar, for example, the tenants' original leases provided for central heating and air conditioning, paid for by the Rittenhouse management. The Voluntary Agreement modified this lease provision by making the tenants themselves responsible for the costs of heating and cooling their apartments. Thus the two agreements must be read together as one because the second altered the mutual obligations of the parties as set forth in the first, and the second cannot be properly understood without reference to the first. The landlords' assertion that the Voluntary Agreement "has an existence separate and apart from the leasehold relationship" denies the very nature of a Voluntary Agreement as an alteration of the rights and duties of landlord and tenant under the lease. See D.C.Code § 45-2525.
We hold, therefore, that Voluntary Agreements are not contracts separate from leases. Rather, once approved by the Rent Administrator, a Voluntary Agreement becomes an integral part of the now-modified lease, and the courts must read the two agreements together "in a manner that gives a reasonable, lawful, and effective meaning to all their terms." Laufer, supra, 482 A.2d at 366; cf. North Lincoln Park Neighborhood Ass'n v. Alcoholic Beverage Control Board, 666 A.2d 63, 66-67 (D.C.1995) (voluntary agreement which settled prior license renewal dispute became part of license, and breach of that agreement must be taken into account in future license renewal proceedings). Since a rent abatement is an accepted form of damages imposed upon a landlord for violating the terms of a lease,[3] we further hold that a rent abatement may also be awarded as damages for breach of a Voluntary Agreement.
2. Damages
The landlords do not seriously contend, nor could they, that there was no evidence of a breach of the Voluntary Agreement. The tenants and two expert witnesses testified in some detail that, contrary to the express terms of the Voluntary Agreement, the new heating and cooling units lacked sufficient power to heat or cool apartment rooms, were noisy, and had no automatic temperature controls. There was also evidence that the installation of many of these units left spaces around the edges where cold air and water leaked in from the outside. In addition, the tenants testified that the additional promises made by the landlords in the Voluntary Agreement (installation of an exercise room, the fountain in the courtyard, etc.) were never carried out. The landlords argue instead that the tenants failed to prove that they suffered any cognizable economic damage, since the Voluntary Agreement also provided for a three-year rent freeze and a minimal rent increase for two years thereafter, and those terms were fulfilled.
It is settled law that a plaintiff in a civil action is not required to prove the exact amount of damages, but need only provide "some reasonable basis on which to estimate damages." Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982); see Bedell v. Inver Housing, Inc., 506 A.2d 202, 205 (D.C. 1986). If such a reasonable basis is shown, *600 this court will not disturb a jury's award of damages. Columbus Properties, Inc. v. O'Connell, 644 A.2d 444, 447 (D.C.1994). This court has also held that the value of an apartment in good repair may be established by proof of the amount of the monthly rent. Bernstein v. Fernandez, supra note 3, 649 A.2d at 1072. Consequently, evidence that an apartment is not in good repair e.g., that its heating and cooling system does not work properly is sufficient to allow a jury to find a decrease in the value of that apartment, which would provide a basis for assessing damages. See Hsu v. Thomas, 387 A.2d 588, 589 (D.C.1978); Javins v. First National Realty Corp., supra, 138 U.S.App. D.C. at 378, 428 F.2d at 1080.
In the instant case, several tenants and two experts testified to a variety of deficiencies in a number of apartments in the Rittenhouse in violation of the Voluntary Agreement, and documentary proof of the tenants' rents under the lease was introduced as evidence of the value of their apartments when in good repair. This combination of evidence, we hold, was sufficient to permit the jury to determine the proper amount of damages under the court's instructions, in which we can discern no error.
The landlords maintain nevertheless that our recent opinion in Twyman v. Johnson, 655 A.2d 850 (D.C.1995), supports their contention that claims for damages under Voluntary Agreements approved by the Rental Housing Commission may be awarded only in the limited context of an administrative proceeding before that agency. We hold that Twyman is inapposite.
In Twyman we had to decide whether the Rental Housing Act's anti-retaliation section, D.C.Code § 45-2552, which prohibits "any retaliatory action against any tenant who exercises any right conferred upon the tenant by [the Rental Housing Act], or by any other provision of law," created for tenants an affirmative cause of action for civil damages in addition to a defense against an action for possession. We held that it did not, concluding that the language of section 45-2552 conferred on tenants an entitlement to damages only through an administrative proceeding before the Rental Housing Commission. Id. at 856-858. In the case at bar, however, the tenants' cause of action is rooted in common law. Unlike the tenant in Twyman, who argued that she had a statutorily based cause of action (because she had no common law claim, id. at 855), the tenants in this case alleged and proved that the landlords had breached their lease, as modified by the Voluntary Agreement, by failing to provide various promised and paid-for services. As we stated earlier, the Voluntary Agreement was itself a contract, and upon its ratification by the Rental Housing Commission, it became a modification of their original lease another contract. Thus, upon the breach of the Voluntary Agreement, the tenants could properly seek common law damages by bringing an action for breach of contract, which is exactly what they did. The landlords' reliance on Twyman is misplaced.
B. The Imposition of Discovery Sanctions
During the period of pre-trial discovery, Mr. Cowan was requested to produce copies of all maintenance logs and service contracts for the Rittenhouse covering the years from 1986 through 1989. In response, he turned over a large number of records, and thereafter, through counsel, he assured the tenants that all extant maintenance documents had been produced. At trial, however, testimony from a maintenance worker employed by the Rittenhouse, as well as from Mr. Cowan himself, revealed that several maintenance records and service contracts in fact had not been provided. In response to a request from the tenants' counsel, the trial court directed Cowan to turn over any relevant documents that had been requested but not yet delivered.
The next day, after the remaining documents had been produced, the court levied a monetary sanction against Cowan in the amount of $10,000, ruling that Cowan's "willful" and "reckless" failure to comply with the discovery request had hindered the development and preparation of the tenants' case. On the following day, however, the court sua sponte lowered this sanction to $6,000, stating that the amount originally imposed had been "excessive." On appeal, Cowan contends that the imposition of any monetary *601 sanction for his violation of the tenants' discovery request was error. In essence, Cowan argues (1) that the documents he did turn over during discovery were of the same character as the documents he failed to produce until trial; (2) that none of these documents were used by the tenants in their case in chief; and (3) that the trial court failed to give an adequate explanation for both the initial sanction and the later reduction of the amount.
The tenants contend that Cowan failed to file a timely notice of appeal challenging the court's imposition of the discovery sanction. The order granting the tenants' Rule 60(a) motion to correct the judgment was docketed on January 21, 1994. Cowan had thirty days from that date within which to note an appeal,[4] but instead he chose to file a "motion for reconsideration" on January 31. That motion was denied on February 18, and from that denial he noted an appeal on March 18. Because the motion for reconsideration does not state the rule on which it is based indeed, it cites no rule at all the tenants argue that Cowan's time for noting an appeal expired thirty days after January 21, and that the notice of appeal filed on March 18 was therefore untimely.
This court has repeatedly held that the denial of a motion for reconsideration is not an appealable order and that, absent specific authority, such a motion does not toll the time for noting an appeal. See Taylor v. United States, 603 A.2d 451, 458-459 (D.C.) (citing cases), cert. denied, 506 U.S. 852, 113 S.Ct. 155, 121 L.Ed.2d 105 (1992). Thus the tenants maintain that the notice of appeal was filed too late, and that this court lacks jurisdiction to entertain Cowan's second appeal. We are satisfied, however, that we do have jurisdiction.
Because the amount of the discovery sanction was not set forth in any judgment or order until January 21, it was the January 21 order that was final and appealable, at least as to that sanction. See Dyer v. William S. Bergman & Associates, 635 A.2d 1285, 1287-1288 (D.C.1993); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d 34, 36 (D.C.1979). Cowan's motion for reconsideration was filed on January 31, ten days after the January 21 order, and thus it was timely under Super. Ct. Civ. R. 59(e). The motion asserted that the tenants had not made a sufficient showing of prejudice to justify a sanction, and also argued that the court had not adequately explained its reasons for imposing the sanction and had thereby abused its discretion. We therefore treat Cowan's motion as a motion under Rule 59(e) to alter or amend the January 21 order, even though the motion does not cite Rule 59(e) or, indeed, any rule at all. See In re Tyree, 493 A.2d 314, 317 n. 5 (D.C.1985); Wallace v. Warehouse Employees Union Local 730, 482 A.2d 801, 804 (D.C.1984) ("The nature of a motion is determined by the relief sought, not by its label or caption").[5] Because it was timely, it "terminated" the time for filing a notice of appeal.[6] When the motion was denied on February 18, the full time for noting an appeal thirty days began to run again. See D.C. Ct.App. R. 4(a)(2). Cowan's second notice of appeal was timely filed on March 18, twenty-eight days after February 18. We conclude, therefore, that we have jurisdiction to consider Cowan's second appeal and accordingly turn *602 to the merits of that appeal, which challenges only the discovery sanctions.
A party's non-compliance with a pre-trial discovery request allows the trial court, in its discretion, to impose a variety of sanctions under Super. Ct. Civ. R. 37(b)(2) and (d). See Perry v. Sera, 623 A.2d 1210, 1217 (D.C.1993); Lyons v. Jordan, 524 A.2d 1199, 1201 (D.C.1987); Braxton v. Howard University, 472 A.2d 1363, 1365 (D.C.1984). When reviewing the imposition of such sanctions, this court will reverse only if the trial court has abused its discretion by "imposing a penalty too strict or unnecessary under the circumstances." Dodson v. Evans, 204 A.2d 338, 341 (D.C.1964) (citation omitted). We can find no such abuse in this case. The court carefully explained its reasons for imposing the sanction and found, in addition, that Cowan's non-compliance was willful, a fact that weighs heavily in the tenants' favor. See Braxton, supra, 472 A.2d at 1365 & n. 3. In its order denying the motion for reconsideration, the court said that Cowan had "offered no acceptable excuse for failure to comply with the [tenants'] legitimate discovery request" and reiterated its finding of willfulness. Rejecting Cowan's argument that the tenants had failed to show prejudice, the court said:
[Cowan's] argument that the [tenants] showed no prejudice has no merit inasmuch as the mid-trial production of the voluminous documents requested made it impossible for [the tenants] to show prejudice. To have shown prejudice, [the tenants] would have had to undertake mid-trial examination of the documents, an exercise that would have unduly disrupted the trial.
The record amply supports this ruling and the court's imposition of a sanction. We find no abuse of discretion and hence no ground for reversal.
III. THE TENANTS' CLAIMS OF ERROR
A. The Denial of Class Certification
Before trial, the tenants sought class certification of all persons who lived in the Rittenhouse between July 31, 1988, and July 31, 1991. Upon certification, the tenants planned to assert their claim for breach of the implied warranty of habitability (Count III of the complaint) on behalf of the entire class. Additionally, the tenants asked the court to certify as a subclass all tenants residing at the Rittenhouse when the Voluntary Agreement was approved in 1987. If certified, the subclass would have asserted all four of the claims set forth in the complaint.
When seeking class certification, a plaintiff must meet each of the four requirements of Super. Ct. Civ. R. 23(a).[7] Moreover, since the tenants in this case sought certification under Rule 23(b)(3), they were required by that rule to demonstrate, first, that the questions of law or fact common to the members of the proposed class "predominate over any questions affecting only individual members," and second, that a class action would be "superior to other available methods for adjudication of the controversy." The party seeking certification has the burden of showing that the request for class certification complies with the requirements of the rule. Whether that burden has been met is a matter entrusted to the trial court's discretion, and its decision will not be reversed unless that discretion has been abused. Yarmolinsky v. Perpetual American Federal Savings & Loan Ass'n, 451 A.2d 92, 94 (D.C.1982). Indeed, when the trial court conducts a thorough review of the request for class certification, as it did here, we will not reverse its decision even if we would have ruled differently. McCarthy v. Kleindienst, 239 U.S.App. D.C. 247, 251, 741 F.2d 1406, 1410 (1984).[8]
The trial court agreed initially that the tenants had made a sufficient showing under Rule 23(a). Turning to the requirements of *603 Rule 23(b)(3), however, the court ruled that the issues in the case did not present questions of fact common to all members of the proposed class because "applications of the law in all of the counts will turn largely on individual factual determinations concerning the individual heating and air-conditioning systems in each apartment." The court noted that questions regarding the effectiveness and efficiency of the units in each apartment were likely to depend on the individual needs and desires of each tenant. For the same reasons, the court found that the tenants had failed to establish that a class action would be superior to other methods of deciding the case.[9]
On appeal, the tenants have offered no argument sufficient to refute the trial court's conclusion that neither requirement of Rule 23(b)(3) was met. In fact, the trial testimony of the nineteen tenant plaintiffs confirmed the court's prediction that the heating and cooling units presented problems specific to each apartment. For example, some tenants testified that the new units failed to heat or cool their apartments, or were noisy, and had no automatic temperature settings. Others testified that the installation of the units left spaces around the edges where cold air and water leaked in from the outside. Still others testified that the ventilation of the kitchens and bathrooms, promised in the Voluntary Agreement as an additional modification to the building, was inadequate or even non-existent. Given this record, and given the tenants' failure even on appeal to show that the requirements of Rule 23(b)(3) were met, we hold that the trial court did not abuse its discretion in denying the motion for class certification.
B. The Directed Verdict on the Fraud Claim
At the close of all the evidence, the trial court directed a verdict for the landlords on Count IV of the tenants' complaint, alleging "fraud in the performance" of the Voluntary Agreement.[10] The court expressed some doubt about whether such a cause of action, sounding in tort,[11] was even recognized in the District of Columbia. See United States ex rel. DMI, Inc. v. Darwin Construction Co., 750 F.Supp. 536, 541 (D.D.C. 1990). But even assuming that such a claim was viable, the court ruled, inter alia, that the tenants had presented no evidence of the landlords' specific intent to defraud them, nor had they proved their reliance on any of the landlords' allegedly fraudulent assertions.
The tenants contend that this ruling was erroneous because they presented evidence that the landlords' non-performance of the Voluntary Agreement was deliberate and motivated by a desire to enhance their financial status at the expense of the Rittenhouse tenants. Even assuming the correctness of their description of the evidence, that is not enough to prove fraud. Although there was plenty of evidence that the landlords had breached the Voluntary Agreement, there was none showing that this breach was motivated by a specific fraudulent intent. Fraud "must be established by clear and convincing evidence, which is not equally consistent with either honesty or deceit." Bennett v. Kiggins, 377 A.2d 57, 59 (D.C.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978). The evidence at trial, even when viewed in the light most favorable to the tenants, did not pass this test. The tenants offered testimony that the heating and cooling units were among the cheapest on the market, that they were improperly installed and were never maintained according to the manufacturer's specifications, and that the landlords realized an immediate saving of almost $250,000 a year after they were installed *604 (which was, after all, one of the main purposes of the conversion to individual units). But simply being a cheapskate is not fraud. This evidence showed, at most, that the landlords were penny-pinchers who did not want to spend as much money on the new units as the tenants might have preferred. No reasonable trier of fact could have found by clear and convincing evidence, as Bennett and other cases require, that these actions reflected an intent on the part of the landlords to defraud the tenants. Permitting the jury to consider the tenants' fraud claim on these facts would have been an invitation "to cross the bounds of permissible inference and enter the forbidden territory of conjecture and speculation." Shelton v. United States, 505 A.2d 767, 771 (D.C.1986). We hold that the fraud claim was properly taken from the jury.
C. The Court's Instructions on Damages
When instructing the jury on the calculation of damages for breach of the Voluntary Agreement, the trial court said that the jury should quantify the damages award as a percentage of the rent paid by each tenant. The tenants also assert that the court gave the jury an erroneous and highly prejudicial special verdict form. Instead of providing a blank space followed by a percentage sign, the verdict form allegedly contained instead a blank space preceded by a dollar sign (i.e., "$___" rather than "___%"). This error, the tenants maintain, confused the jury and ultimately led to an award of damages inconsistent with the trial court's instructions.
Initially, we note that the verdict form is not in the record, a fact which would normally prompt us to reject the tenants' argument out of hand. "[I]t is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred." Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (citations omitted). "[W]e cannot base our review of errors upon statements of counsel which are unsupported by [the] record." D.C. Transit System, Inc. v. Milton, 250 A.2d 549, 550 (citations omitted). Moreover, since the tenants raise this issue for the first time on appeal, this court can reverse only upon a finding of plain error. E.g., District of Columbia v. Wical Limited Partnership, 630 A.2d 174, 182 (D.C.1993).
From the limited record before us, we can find no error at all in the court's instructions on damages, let alone plain error. The evidence established the exact amount of rent paid by each tenant plaintiff, and the judge carefully instructed the jury how to calculate the damages as a percentage of that rent. The jury never told the court that it was confused or in need of further instructions; on the contrary, the jury followed the court's instructions exactly. There is nothing in the record to suggest any confusion on the part of the jury or any instructional error on the part of the trial court.
D. The Verdict on the Implied Warranty Count
The jury returned a verdict in favor of the landlords on the second count of the complaint, alleging a violation of the implied warranty of habitability in the tenants' leases. The tenants now urge us to reverse the judgment on the second count and to enter a judgment in their favor because they presented uncontroverted evidence that, in breaching the Voluntary Agreement, the landlords also violated the District of Columbia housing regulations.
The implied warranty of habitability entered our jurisprudence in Javins v. First National Realty Corp., supra, which extended to tenants contractual remedies for a landlord's breach of the lease. Javins held that "by signing the lease the landlord [assumes] a continuing obligation to the tenant to maintain the premises in accordance with all applicable law." 138 U.S.App. D.C. at 379, 428 F.2d at 1081. In fulfilling this duty, a landlord must remain in substantial compliance with the housing regulations, which, as they pertain to the warranty of habitability, require that a rented residence be maintained so as to provide decent living conditions for its occupants. Id. This duty, the court concluded, allowed tenants to assert the breach of this particular warranty as a defense to a landlord's suit for possession based on non-payment of rent. Id. at 380, 428 F.2d at 1082.
*605 In George Washington University v. Weintraub, 458 A.2d 43 (D.C.1983), we extended the Javins holding, "ruling that the implied warranty of habitability `may be used as a sword (to collect damages) as well as a shield (to contest the obligation to pay rent).'" Id. at 46 (quoting the trial court's memorandum opinion). We held accordingly that a tenant could rely on the landlord's breach of the implied warranty of habitability as the basis of an affirmative action for damages. Id. at 47. In so ruling, however, we recalled the warning of Javins that reliance on this warranty could not provide a basis for relief if the tenant failed to show more than a de minimis violation of the housing regulations. Id. at 47 n. 5 (citing Javins, 138 U.S.App. D.C. at 380 n. 63, 428 F.2d at 1082 n. 63). Thus we limited our holding in Weintraub by stating that "a landlord must exercise reasonable care to maintain rental premises in compliance with the housing code in order to fulfill the implied warranty of habitability." 458 A.2d at 49 (emphasis added).
In the case at bar, viewing the evidence in the light most favorable to the prevailing party, as we must,[12] we conclude that the tenants' claim of error is without merit. At trial, both Mr. Cowan and maintenance personnel testified that whenever they were notified of any problems caused by the installation of climate control units, Ritten-house employees were promptly dispatched to investigate and make necessary repairs. Further, at no point during the conversion process, or thereafter, were the tenants hindered from using their apartments because of the failure of the new units to operate or any problems arising from their allegedly poor installation. From this and similar evidence, the jury could reasonably find that the landlords had exercised reasonable care to maintain the building in compliance with the housing regulations, and that any arguable violations of the regulations were de minimis and hence, under Weintraub and Javins, provided no basis for a finding of a breach of the warranty of habitability.
IV. CONCLUSION
For the foregoing reasons, the judgment of the trial court is in all respects
Affirmed.
NOTES
[1] Two limited partners were also named as defendants, but they were dismissed from the case by stipulation before trial.
[2] Under D.C.Code § 45-2525(a) (1996), seventy percent or more of the tenants in a particular building may enter into a voluntary agreement with the landlord:
(1) To establish the rent ceiling;
(2) To alter levels of related services and facilities; and
(3) To provide for capital improvements and the elimination of deferred maintenance (ordinary repair).
[3] See Bernstein v. Fernandez, 649 A.2d 1064, 1072 (D.C.1991); Novak v. Cox, 538 A.2d 747, 751 (D.C.1988).
[4] This court's Rule 4(a)(1) states that a notice of appeal must be filed "within thirty days after entry of the judgment or order from which the appeal is taken," and Rule 4(a)(3) provides that a judgment or order "is deemed to be entered when it is entered on the civil docket...."
[5] The difference between a Rule 59(e) motion to alter or amend a judgment and a Rule 60(b) motion for relief from judgment is often subtle and elusive. We have said that if the motion presents new facts and circumstances, it is properly considered under Rule 60(b); if it claims only an error of law, it is more appropriately regarded as a Rule 59(e) motion. See Wallace, supra, 482 A.2d at 804 (citing cases). Cowan's motion in the instant case fits more comfortably within Rule 59(e), for it offers no new facts but merely asserts legal errors.
[6] D.C.Ct.App.R. 4(a)(2) provides in part:
The running of the time for filing a notice of appeal is terminated as to all parties by the timely filing, pursuant to the rules of the Superior Court, of [a motion] ... to vacate, alter, or amend the judgment.... The full time for filing a notice of appeal fixed by this section (a) shall begin to run from the entry on the Superior Court docket of an order fully disposing of any of the foregoing motions. . . .
[7] Rule 23(a) provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
[8] We are not saying, of course, that we would have ruled differently in this case.
[9] In addition, the court concluded that, unlike similar cases in which tenants seeking class certification were residents of low-income housing, the tenants in this case had made no showing that they lacked the economic resources to bring individual actions.
[10] A claim of fraud in the inducement of the Voluntary Agreement had previously been litigated and resolved in the landlords' favor.
[11] It appears that the tenants, by basing this claim on a tort theory, were hoping to obtain an award of punitive damages, which are not available in an action for breach of contract. See Bernstein v. Fernandez, supra note 3, 649 A.2d at 1073 (citing cases).
[12] E.g., Lewis v. Washington Metropolitan Area Transit Authority, 463 A.2d 666, 669 (D.C.1983); Ceco Corp. v. Coleman, 441 A.2d 940, 944 (D.C. 1982).
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128 Cal.Rptr.2d 430 (2002)
104 Cal.App.4th 406
AMERICAN HOME ASSURANCE COMPANY et al., Plaintiffs and Respondents,
v.
SOCIÉTÉ COMMERCIALE TOTÉLECTRIC, Defendant and Appellant.
No. A093974.
Court of Appeal, First District, Division Three.
December 17, 2002.
Rehearing Denied January 13, 2003.
Review Denied April 9, 2003.[*]
*432 Thelen Reid & Priest; Curtis A. Cole, Los Angeles; Richard A. Lapping, San Francisco; Torgny Nilsson, Los Angeles; Aaron Danzer, San Francisco; Eumi Lee; Counsel for Appellant and Defendant: Societe Commerciale Toutelectric.
*433 Lewis, D'Amato, Brisbois & Bisgaard; David E. Reynolds; Kenneth D. Watnick; Los Angeles, Counsel for Plaintiff and Respondent: American Home Assurance Company and AIU Insurance Company.
Hellring, Lindeman, Goldstein & Siegal; Stephen L. Dreyfuss; John A. Adler, Laguna Beach; Counsel for Amicus Curiae: French-American Chamber of Commerce in the United States, Inc.
*431 PARRILLI, J.
In Soc. Nat. Ind. Aero. v. U.S. Dist. Court (1987) 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (Aerospatiale), the United States Supreme Court rejected the idea that discovery in a foreign country subscribing to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("the Hague Convention") must first proceed under the Hague Convention before discovery is attempted under federal rules. The court deemed such a requirement both unwise and inconsistent with the text of the Hague Convention. (Id. at pp. 542-543, 107 S.Ct. 2542.) It held that the interests of international comity demanded a "more particularized analysis" involving "prior scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to [Hague Convention] procedures will prove effective." (Id. at p. 544, 107 S.Ct. 2542.)
We hold that the rule of first resort to the Hague Convention announced in Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, 858, 176 Cal.Rptr. 874 (Volkswagenwerk) has been superseded by the balancing test provided in Aerospatiale. We also conclude that the Aerospatiale court's interpretation of the Hague Convention has nullified the holding of Pierburg GmbH & Co. KG v. Superior Court (1982) 137 Cal.App.3d 238, 244, 186 Cal.Rptr. 876 (Pierburg) that a litigant cannot waive the requirement of first resort by failing to demand compliance with the Hague Convention. In this case, the tactics of the party responding to discovery were so inconsistent with Hague Convention procedures that the trial court properly found the party had waived the right to insist on those procedures.
Société Commerciale Toutélectric ("Toutélectric"), a French corporation, appeals from a default judgment requiring it to pay $25,343,720.58 to the American Home Assurance Company and AIU Insurance Company (collectively, "American Home"). The court entered Toutélectric's default after striking its answer to American Home's complaint, as a discovery sanction for Toutélectric's failure to produce three witnesses for deposition. Toutélectric contends the court erred by refusing to apply Hague Convention discovery procedures. We affirm the judgment.
BACKGROUND
1. The Complaint
The first amended complaint alleged the following scenario: Electric Engineering Company ("EEC"), a Florida corporation wholly owned by Toutélectric, obtained payment and performance bonds from American Home in connection with a contract providing for EEC to construct a power plant in California. Toutélectric guaranteed EEC's obligations on the bonds. When EEC and Toutélectric realized that EEC was not going to be able to complete the construction project, they developed a strategy to shift their liability to American Home. Without informing American Home of the problems with the project, they asked it to issue security riders that would raise the amount of the bonds. American Home did so, increasing its exposure to $2,543,800.
When EEC was declared in default and terminated from the project, it misled *434 American Home about the merits of the claims against EEC by subcontractors and suppliers, and about its defenses to those claims. EEC filed suit against American Home, among others, taking the position that American Home had no obligation to complete the project or pay the obligees on the bonds. EEC and Toutélectric then conspired with various lawyers, who represented both American Home and EEC despite the parties' conflict of interest, in an extended effort to avoid indemnifying American Home. American Home was persuaded to take over EEC's claims against the bond obligees, after EEC dropped its lawsuit. American Home filed its own declaratory relief action, which was transferred to bankruptcy court.
A subcontractor filed a lawsuit known as the Valley Engineers action against EEC and American Home in Yuba County Superior Court. EEC removed that case to federal district court. The lawyers representing EEC and American Home persistently acted against American Home's interests in this litigation, concealing relevant information from American Home, refusing to produce documents during discovery, and unsuccessfully attempting to conceal damaging information by inking out portions of notes of a key meeting. As a result of this suppression of evidence, American Home's answer and defenses were stricken, and the Valley Engineers case went to trial on damages alone. Faced with the prospect of consequential and punitive damages as a result of the fraudulent conduct of its attorneys, orchestrated by EEC and Toutélectric, American Home settled the case for an amount substantially exceeding its obligations under the payment and performance bonds.
In October 1996, American Home served Toutélectric with the first amended complaint, in accordance with the service requirements of the Hague Convention. In December 1997, the trial court denied Toutélectric's motion to quash for lack of personal jurisdiction. Writ petitions to this court and the California Supreme Court were denied in February and April 1998. The United States Supreme Court denied certiorari in June 1998.
2. The Discovery Proceedings
While Toutélectric was still contesting the trial court's jurisdiction, the court directed American Home, EEC, and Francis Royer, an individual defendant and officer of EEC and Toutélectric, to brief the issue of whether the Hague Convention governed discovery propounded to Royer. American Home relied on Aerospatiale, supra, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461, for the proposition that Hague Convention procedures are merely optional. It contended Royer had not met his burden of showing that discovery under the Hague Convention would be effective, noting his claim that France had exercised its right under the Hague Convention to bar the production of documents in discovery. American Home claimed its ability to depose Royer would be severely restricted under the Hague Convention, because Royer could refuse to attend, a diplomatic officer rather than counsel would ask the questions, and no follow-up questioning would be permitted. American Home also argued that the Hague Convention, which required the involvement of the French government in the discovery process, would create substantial delays.
In their initial briefing, EEC and Royer argued that Volkswagenwerk, supra, 123 Cal.App.3d 840, 176 Cal.Rptr. 874, required first resort to the Hague Convention. However, in response to American Home's brief, EEC and Royer conceded that Aerospatiale was controlling, and "[t]here is no automatic blanket rule that *435 the Hague [Convention] should, or should not apply." They claimed the balancing of interests contemplated in Aerospatiale favored application of the Hague Convention. While document requests were not permitted, they noted that requests for admission were allowed, and asserted that many of the documents sought by American Home could be obtained elsewhere. Regarding depositions, they stated: "All that is required of Plaintiffs is careful drafting of their required questions for submission to Mr. Royer."
At a hearing on the matter in December 1997, counsel for EEC and Royer said she now believed French law permitted "very specific" document requests, although she was not certain. She was trying to get authority from a French attorney on this point. The court applied the Aerospatiale test, and decided the sovereign interests of the United States and France concerning discovery were "a wash." Royer had repeatedly participated in discovery "when to do so was productive to his interest," noted the court. While the court believed the Hague Convention might or might not prove an effective means of discovery, it anticipated frequent discovery disputes based on the parties' behavior to date, and deemed the Hague Convention procedures "cumbersome." The court concluded that California discovery procedures would apply, but with court supervision to prevent discovery from becoming "broad and abusive." It ordered American Home to translate its discovery requests into French.
The court decided its ruling on the Hague Convention would not apply to Toutélectric, which had yet to appear in the case. However, the court commented: "Anybody have a pretty good idea as to what I'm going to do with Toutelectric? But of course there may be other concepts that you will call to my attention."
American Home served Toutélectric with a first request for production of documents in July 1998. Toutélectric objected that the request exposed it to criminal and civil sanctions under French law, and stated that France had not adopted the Hague Convention provisions permitting the service of document production requests. Evidently the court overruled the Hague Convention objections in an unreported telephone conference hearing, and found that the sanctions contemplated by French law were limited to documents containing financial, technical, or trade secret information. On September 4, 1998, Toutélectric produced six pages of documents.
On September 3, 1998, Toutélectric's counsel faxed a letter to the discovery referee regarding the deposition of Francis Royer. Counsel expressed concern about the manner in which the deposition would proceed, because it "may serve to set a precedent for the later depositions of employees of [Toutélectric]." Counsel stated that French law required Royer's deposition to be taken pursuant to the Hague Convention. He argued that Aerospatiale, Volkswagenwerk, and Pierburg all supported application of the Hague Convention, and noted that Volkswagenwerk and Pierburg had not been expressly overruled. Counsel asked the referee to order that the Convention would govern the depositions of all French resident defendants and their employees. Otherwise, counsel said he would seek an expedited telephone conference with the trial court.
Counsel did not bring his objections to the court, however. On September 12, 1998, he appeared for Royer's deposition, representing both Royer and Toutélectric. Counsel for EEC, who had previously represented Royer, also attended the deposition. Hague Convention procedures were not followed, and the deposition went on for four or five days. At the deposition, *436 the referee ordered American Home to translate the request for production of documents for the benefit of Toutélectric's employees. On October 20, Toutélectric served a supplemental response restating its objections and responding individually to each request by claiming that "French law does not permit the public release of private business information in litigation." It provided no further documents. On November 2, the discovery referee ordered Toutéelectric to produce all nonprivileged documents as required by the Code of Civil Procedure.
In November 1998 Toutélectric moved for an emergency protective order, arguing it was unable to produce documents under a French statute known as the Law of 1980. Toutélectric explained that this law prohibited the production of "economical, commercial or technical documents" outside of the Hague Convention, that other kinds of documents could only be produced through the discovery methods provided in the Convention, and that violation of these requirements was subject to criminal penalties. At the hearing on the motion, Toutélectric's counsel stated that financial documents other than those publicly released in France were simply "not producible." He offered to make the publicly released documents available to American Home in France. The court declined to rule on the motion for a protective order, instead instructing the parties to "make your best efforts." The court anticipated that Toutélectric's claims would come before it if Toutélectric were sanctioned by the referee for discovery violations.
In December 1998, the parties participated in a hearing by conference call with the referee. Toutélectric's counsel confessed that he had been mistaken when he said that public documents would be made available in France. The French government had informed him that he could not comply with American Home's request for documents. Thus, according to counsel, it was not a matter of compliance with the Hague Convention. Toutélectric was simply unable to produce the documents. Counsel suggested that American Home might submit its request directly to the French Ministry of Justice, without going through Hague Convention protocols, and the Ministry would determine what Toutélectric could produce. In closing, counsel stated he was not arguing that American Home was required to abide by French law in seeking documents, or that the court was required to order the parties to follow the Hague Convention. He argued only that Toutélectric's failure to provide discovery was not willful, which was a factor that should mitigate any sanction imposed by the court. The referee took the matter under submission.
Later in December 1998, American Home noticed the continued deposition of Francis Royer, and the depositions of Genevieve Royer, Pierre Royer, and Jacques Massat, to begin January 11,1999. Genevieve Royer was the wife of Francis Royer. Pierre Royer and Jacques Massat were officers of Toutélectric.
On January 5, 1999, the referee issued a recommended ruling denying Toutélectric's request for a protective order. The referee rejected Toutélectric's objections based on the Law of 1980 and the Hague Convention, and recommended that the court strike Toutélectric's answer if it did not comply in full with American Home's document request within 7 days. The next day, counsel for American Home sent a letter to Toutélectric's counsel memorializing conversations in which Toutélectric had been unable to confirm that its clients would appear for the noticed depositions. Counsel for both sides agreed that depositions should not proceed until there *437 was a resolution of the referee's recommendation that Toutélectric's answer be stricken.
Toutélectric produced no documents. At a hearing on January 29, 1999, the trial court was reluctant to impose terminating sanctions. Toutélectric's counsel apologetically told the court he had been mistaken at the last hearing when he said documents would be provided in France. Counsel again suggested that American Home could write the French Ministry of Justice and seek a ruling on what Toutélectric could produce. The court ignored this suggestion, and advised Toutélectric that if it failed to produce documents, it would be precluded from disputing any issues related to those documents. Toutélectric's counsel did not mention the Hague Convention.
Regarding the depositions, Toutélectric's counsel said he did not yet know whether Pierre Royer or Jacques Massat would appear, though he said, "I have been told prior to this that they would appear in the depositions." He noted that French law prohibited employers from compelling employees to appear for deposition. He had no reason to believe Francis Royer would not complete his deposition, but Genevieve Royer was under a doctor's orders not to be deposed. Again, counsel did not mention the Hague Convention. American Home's counsel was willing to go to France for the depositions, but expressed some concern over letters from the French government produced by Toutélectric, which suggested that conducting discovery in violation of French law would expose counsel to prosecution. The court responded that this problem could be avoided by conducting the depositions at the American Embassy.
At a hearing in March 1999, Toutélectric's counsel told the court that after conferring with his clients and their French counsel, he would be able to compile and provide certified financial documents that were a matter of public record in France, as well as financial documents that had already been made public in other litigation. However, confidential communications with French counsel and internal financial documents could not be produced. The court asked counsel to provide the referee with a log of all documents claimed to fall under the attorney-client privilege. Counsel said he would have to ask for advice on whether he could do that. The court decided to wait until after the public financial documents were released to see whether there was a need for further discovery of internal documents. American Home's counsel pointed out that some internal documents had been chosen by Toutélectric for use in support of its motion to quash. Toutélectric's counsel explained that French law permitted his client to voluntarily disclose documents outside of discovery, but not to be compelled to disclose anything outside of the Hague Convention.
Regarding depositions, Toutélectric's counsel stated that Francis and Pierre Royer and Jacques Massat would appear, but he asked the court to order the depositions to be taken at the American Embassy in order to avoid French jurisdiction. He also asked for a protective order precluding the deposition of Genevieve Royer, and said he would provide letters from her doctors. The court was amenable to these arrangements.
At a hearing in April 1999, Toutélectric informed the court that it had produced 2,800 pages of documents that were in the public domain. Toutélectric's counsel declared that other financial documents simply could not be produced "in response to discovery, regardless of the situation." Counsel reaffirmed his understanding that Toutélectric could provide documents voluntarily to assist in its defense, but could *438 not be compelled to produce those documents through discovery. The court again warned Toutélectric that it could be barred from producing any evidence on certain issues if it failed to comply with discovery.
At the April hearing, the parties also discussed a request for assistance from the court to the French Ministry of Justice, regarding the depositions of Francis Royer, Pierre Royer, Genevieve Royer, and Jacques Massat. After making certain modifications in the request at Toutélectric's behest, the court signed the document, which stated the depositions would be taken "in accordance with the laws of the State of California." The request contemplated that depositions would take place "as soon as reasonably practicable, hopefully" by June 15, 1999. Toutélectric's counsel confirmed that this arrangement was acceptable to his client.
On May 3, 1999, Toutélectric filed a supplemental response to the request for production of documents, reasserting its claim that the French Law of 1980 prohibited the production of some documents. On May 15, Toutélectric filed a "privilege log" consisting of a single page listing general categories of documents.
On May 24, 1999, American Home noticed the depositions of Francis Royer, Pierre Royer, Genevieve Royer, and Jacques Massat beginning June 21, 1999 at the American Embassy in Paris. On June 4, the French Ministry of Justice wrote the trial court, stating that the discovery referee was authorized to take the depositions of the Royers and Massat pursuant to and in accordance with the Hague Convention. Also on June 4, the trial court disclosed that an insurer in the same group of companies as American Home had undertaken the defense of the San Francisco Superior Court and its judges in a federal lawsuit. On June 15, the court stayed all discovery in American Home's case due to conflict of interest objections raised by Toutélectric. The next day, American Home notified the embassy in Paris that the depositions scheduled for June 21 would not proceed due to the stay.
On June 17, 1999, the French Ministry of Justice sent another letter to the trial court, stating that a representative of one of the defendants had informed the ministry that the discovery referee had "supposedly declined" to serve at the depositions, and that some of the involved persons may not have been summoned in the manner specified by French law. The Ministry asked for confirmation whether the referee's assignment would be maintained and for copies of the summons served on the deponents. Also on June 17, American Home filed a motion to compel Toutélectric to provide a privilege log specifically identifying documents withheld on a claim of privilege. American Home sought sanctions for Toutélectric's failure to produce all responsive nonprivileged documents.
On June 23, 1999, Toutélectric filed a motion to disqualify the trial court. On June 25, the motion was denied. On July 28, the court lifted the discovery stay, directing that "all discovery in this action shall proceed in accordance with the recommendations of the Discovery Referee."
The parties returned to the subject of depositions at a hearing in January 2000. The court told American Home to renotice the depositions. American Home's counsel said he would prefer the deponents come to California, at American Home's expense. Toutélectric's counsel said the deponents would not come. The parties agreed to hold the depositions in France. The court told American Home to notice the depositions, and any objections would be handled on a motion to compel or for a protective order.
*439 At a hearing in February 2000, Toutélectric's counsel expressed optimism that counsel could work out a deposition schedule amongst themselves. American Home's counsel asked for a ruling on its July 17, 1999 motion for a specific privilege log and for sanctions. The court ordered counsel to refile, with separate motions for sanctions and for the privilege log. American Home filed its motions on March 1.
On March 16, 2000, Toutélectric's counsel informed his counterpart that Pierre and Francis Moyer and Jacques Massat, on the advice of French counsel, would only appear for deposition at the American Embassy in Paris and in accordance with the Hague Convention. Genevieve Royer was "medically unable" to undergo deposition.
On March 22, 2000, Toutélectric filed its opposition to the sanctions motion. Toutélectric argued it was unable to produce further documents under the Law of 1980, unless American Home proceeded under the Hague Convention. It attached letters it had received from the French Ministry of Justice in October and November of 1998, stating that no exemption could be allowed for the bar against disclosure of economic or commercial documents, but that the prohibition might be lifted if a request were made in accord with the Hague Convention. Toutélectric contended first resort to the Hague Convention was required under Volkswagenwerk and Pierburg.
American Home filed a reply brief contending (1) Toutélectric was estopped from relying on the Hague Convention because it had not challenged the court's rejection of the Hague argument in the hearing by teleconference in September 1998; (2) in any event, Volkswagenwerk and Pierburg had been superseded by Aerospatiale; and (3) it would be unfair to require American Home to conduct discovery through the Hague Convention, when Toutélectric had been freely pursuing discovery from American Home under California law.
On March 29, 2000, in response to an inquiry from American Home regarding the scheduling of depositions in Paris, Toutélectric stated that American Home was required to proceed under the Hague Convention. It suggested waiting until the court ruled on Toutélectric's Hague Convention arguments at the sanctions hearing.
At the hearing on March 31, 2000, the court rejected Toutélectric's claims under the Hague Convention for three reasons: (1) the Hague Convention was not a mandatory first step, for the reasons stated in American Home's reply brief; (2) Toutélectric had waived the protection of French law by producing the financial records it had already provided; and (3) Toutélectric's view that it was entitled to voluntarily produce whatever records it wished to use in its defense, but not be compelled to produce other records, "can't possibly be acceptable to an American court." The court observed that Toutélectric had already violated the Law of 1980 by producing documents outside the Hague Convention. It told Toutélectric it was going to have to choose whether to produce the requested financial information or face issue preclusion sanctions, and gave Toutélectric until April 27 to produce the documents.
Regarding the depositions, Toutélectric denied insisting on the Hague Convention procedure, though it said it did believe that procedure was required and would be seeking relief in the Court of Appeal from the trial court's ruling. Toutélectric claimed that all it was asking was "we need to apply to the American Embassy to do it, just like we did last time and we'll do everything we can to assist you in reapplying and going forward." However, *440 Toutélectric also informed the court that the referee was "out of the case, he's expressed to me that he doesn't want anything to do with the case. We don't want to pay him to be in the case." On May 1, 2000, Toutélectric filed a writ petition seeking relief from the court's ruling that the Hague Convention did not apply to the document request.
At a hearing on May 12, 2000, Toutéelectric confirmed that it had not and would not produce any more documents. It claimed it wanted to produce the documents sought by American Home, but could not unless the request was made through the Hague Convention. Observing that Toutélectric had repeatedly told the court it could voluntarily provide any documents, the court invited Toutélectric to bring the documents to court and file them as exhibits, not in response to any discovery request. Toutélectric's counsel suggested he had not clearly understood French law, and said the documents could only be provided under Hague Convention procedures.
The court inquired as to exactly what was required under the Hague Convention. Counsel for Toutélectric was unsure, but believed the document request would be translated into French and submitted to the Ministry of Justice, which would review the request and decide whether to allow production. Counsel for American Home agreed with this general description of the procedure. Toutélectric's counsel pointed out that if the Hague Convention procedure did not result in sufficient discovery, California law and sanctions would then properly apply. The court declined to revisit its Hague Convention ruling, and asked for briefing on issue preclusion sanctions.
On June 12, 2000, the court sanctioned Toutélectric for its failure to produce documents. The court reviewed the discovery proceedings, and noted that Toutélectric had failed to provide the court with a clear enough explanation of the applicable French law to provide legitimate grounds for a protective order. The court barred Toutélectric from presenting evidence of its financial records at trial.
On June 29, 2000, this court summarily denied Toutélectric's writ petition.
On July 13, 2000, American Home noticed the depositions of Francis Royer, Pierre Royer, Genevieve Royer, and Jacques Massat, to be taken at the American Embassy in Paris beginning August 14.
On July 24, 2000, Toutélectric filed a writ petition challenging the trial court's sanctions order, and asking this court to prohibit the imposition of sanctions without first resort to Hague Convention procedures. We denied the petition on July 27, noting the issues raised by Toutélectric had already been considered in connection with our June 29 ruling. On August 3, Toutélectric filed a petition for Supreme Court review of our July 27 ruling. Our Supreme Court denied this petition on September 20, 2000.
Meanwhile, on July 26, 2000, Toutélectric moved for a protective order to prevent the deposition of Genevieve Royer, claiming she was "physically unable to be subjected to oral examination."
On August 1, American Home's counsel wrote the American Embassy in Paris, requesting assistance in scheduling depositions during the week of August 14. On August 3, the embassy replied that no space was available before October, due to repair work. It advised American Home that the French Ministry of Justice usually authorized depositions to be taken outside the embassy in such circumstances. American Home postponed the depositions.
*441 At a hearing on August 18, 2000, the court denied the motion for a protective order for Genevieve Royer, because Toutélectric had failed to provide competent evidence supporting a medical excuse. The parties discussed the French depositions, and whether the September 25 trial date would have to be postponed. The court advised American Home to seek the embassy's assistance in finding an alternate site for the depositions. The court deferred making a decision on the trial date.
On August 21, 2000, American Home faxed the embassy a request for advice and assistance with the depositions. The embassy replied the next day that it would forward a letter to the Ministry of Justice, with a cover letter of its own explaining why the embassy was unavailable. However, since it would take least two or three weeks to get a response, the embassy suggested simply going ahead with the depositions in a hotel without the ministry's authorization, if the witnesses were willing to appear. "We do not officially recommend it but sometimes there is no other option and even the people at the ministry know it." In this case, since a referee had been commissioned to "take the depositions and administer the oath, it should be fine." American Home replied that the parties had agreed the referee's attendance was not necessary. It asked again for the embassy's assistance. The embassy responded that it could only be involved if "a consular officer is commissioned by the court." American Home forwarded a copy of this reply to Toutélectric, and asked whether it would prefer to seek the referee's attendance, to proceed at a hotel in Paris without the referee, or to produce its witnesses somewhere else, such as New York. Toutélectric's counsel replied that his clients were no longer willing to pay for the referee's fees, and said he would ask them about alternative locations.
At a status conference on September 7, 2000, Toutélectric's counsel told the court that American Home had failed to notice depositions at any alternate location after finding the embassy was unavailable. Counsel affirmed that "[t]hey've asked us will our clients appear at different places, we've said they will not." The court asked if the embassy's unavailability meant that his clients should not be deposed, and counsel said "[absolutely not." He proposed scheduling the depositions for as soon as the embassy opened in October. American Home's counsel said he would do what he could to accommodate that request, but anticipated that Toutélectric would object on the ground that no judicial officer was commissioned to preside over the depositions. The court, after ascertaining that Genevieve Royer was no longer an employee of Toutélectric, ordered Toutélectric to produce Pierre and Francis Royer and Jacques Massat for deposition either in France or in the United States. Toutélectric's counsel said it wouldn't matter whether the deponents were ordered to appear in New York or Atlanta.
As the court began discussing the trial date, Toutélectric's counsel asked the court for enough time to ensure the deponents could be served as required by the Hague Convention. The court denied the request, saying "we've been through that. You've waived it. And it doesn't apply." Toutélectric's counsel asked what the harm would be in complying with the Hague Convention. The court stated, "[I]n my judgment the procedures required to comply with the Hague Convention are unduly cumbersome and prejudicial to the plaintiffs being able to get the information they're entitled to. I will not explain that further.... [¶] Not only that, as I said, your clients have repeatedly, when it was to their advantage, provided information to this Court and other courts I've been told, but certainly to me, which in my judgment *442 would be in violation of the laws that they're complaining about. Therefore they have waived the arguments." The court also noted Aerospatiale's holding that Hague Convention procedures are not mandatory. The court postponed the trial date to December 1.
The next day, September 8, American Home's counsel wrote the embassy asking if it would be available for depositions during the first two weeks of October. The embassy responded that it would be available, if American Home had received approval from the Ministry of Justice, and "assuming that the deposition will be conducted under the terms of the Hague Convention." American Home replied that the court had ruled out the Hague Convention, and asked whether the embassy would be available under these circumstances. On September 25, American Home wrote Toutélectric, informing it that the embassy was apparently not available, and asking where the Royers and Massat would be produced for deposition. On October 3, 13, 18, and 19, American Home repeated its inquiry as to the availability of these witnesses for deposition. On October 18, Toutélectric's counsel advised that "he was waiting for word from his clients regarding their depositions. On November 13, Toutélectric informed American Home that Francis Royer was available for deposition in Paris "at a mutually convenient time and place," but that Pierre Royer and Jacques Massat would not appear for their depositions.
On November 16, 2000, American Home moved for terminating sanctions against Toutélectric due to its failure to comply with the order requiring it to produce the Royers and Massat for deposition. Toutélectric responded by reaffirming its reliance on the Hague Convention. At the hearing on the motion, Toutélectric informed the court that French counsel had advised all three witnesses not to appear, because they would be violating the Law of 1980 if the Hague Convention were not followed. Francis Royer, however, after "a good bit of discussion," decided that he could and would appear for deposition. Counsel explained that he had not meant to promise during the last hearing that his witnesses would appear in Atlanta or New York.
The court ruled that Toutélectric, but not its counsel, had willfully disregarded the order to produce witnesses for deposition. The court found that each of the three witnesses had personal, material knowledge of facts central to American Home's case. The court concluded that Toutélectric's failure to produce these witnesses, coupled with its earlier failure to produce financial records, "demonstrate] a persistent, willful and unjustified refusal by Toutélectric to comply with its legitimate discovery obligations in this case." Issue sanctions would only further Toutélectric's scheme to withhold evidence, reasoned the court. Therefore, the court struck Toutélectric's answer, entered its default, and subsequently entered a default judgment.
Toutélectric moved for a new trial, arguing that compliance with the Hague Convention was required by California law, and that the terminating sanction imposed by the court was unduly severe. The motion was denied.
DISCUSSION
1. Aerospatiale Has Superseded the Rule of First Resort to the Hague Convention
Toutélectric relies on the "rule of first resort" developed in Volkswagenwerk, supra, 123 Cal.App.3d 840, 176 Cal.Rptr. 874. The French-American Chamber of Commerce in the United States, Inc., *443 has filed a brief as amicus curiae, urging us to reaffirm the holding in Volkswagenwerk. In that case, Division Four of this District discussed the comity analysis governing international discovery as follows:
"Federal cases which have dealt with procedures tantamount to international discovery have generally recognized that what is required is a case-by-case process of balancing the interests of the respective sovereignties to reach an appropriate `accommodation of the principles of the law of the forum with the concepts of due process and international comity.' [Citations.] The same federal cases also generally affirm in the first instance the jurisdictional power of federal courts to order a party to give discovery in another country, and generally apply the `balancing approach' only when the responding party has failed to give full discovery and seeks to avoid sanctions by asserting the conflict of sovereign demands upon it. [Citations.]
"We agree with the approach suggested in the federal cases. But we add a qualification which we deem an appropriate reconciliation of local jurisdiction and international comity: If the initial discovery order is to be validated, and if consideration of conflicts of sovereignty is to be postponed until after the responding party has failed to give the ordered discovery, then at least the initial discovery order must appear to take into account the ascertainable requirements of the foreign state and to adopt those procedures which are least likely to offend that state's sovereignty. It may be that no such accommodation is possible; if so, then arguably the order should be validated to the extent that it complies with local law, upon the assumption that the respondent party will do everything within its power to induce the foreign government to permit the discovery. But if a channel more apt to elicit the cooperation of the foreign government is plainly available but is not used, then in our view insufficient account of the requirements of international comity had been taken and the order should be set aside in the first instance." (Volkswagenwerk, supra, 123 Cal.App.3d at pp. 857-858, 176 Cal.Rptr. 874, italics in original.)
The Volkswagenwerk court decided that in the case before it, "the Hague Convention provides an obvious and preferable alternative means of obtaining evidence from within West Germany." (123 Cal. App.3d at p. 858, 176 Cal.Rptr. 874.) It stated: "We regard our conclusion as an exercise of judicial self-restraint designed to serve what we regard as important international goals. We could perhaps read the Hague Convention, broadly, as a preemptive and exclusive rule of international evidence-gathering, binding upon us as the supreme law of the land under clause 2 of article VI of the federal Constitution. But we prefer to believe that the Hague Convention establishes not a fixed rule but rather a minimum measure of international cooperation; our reading of article 27 of the convention encourages us to conclude that this is, indeed, what the ratifying states intend." (Id. at p. 859, 176 Cal.Rptr. 874.)[1]
In Aerospatiale, supra, the United States Supreme Court also ruled that the Hague Convention is not the exclusive means of obtaining evidence abroad. "[A] rule of exclusivity would subordinate the *444 court's supervision of even the most routine of these pretrial proceedings to the actions or, equally, to the inactions of foreign judicial authorities." (482 U.S. at p. 539, 107 S.Ct. 2542, 96 L.Ed.2d 461.) The court noted the Hague Convention itself includes no statement declaring a preemptive intent. (Ibid.) However, the Aerospatiale court rejected any notion that the Hague Convention establishes a "minimum measure of international cooperation," as the Volkswagenwerk court believed. To the contrary, "the text of the [Hague] Evidence Convention, as well as the history of its proposal and ratification by the United States, unambiguously supports the conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad. [Citations.]" (Id at p. 538, 107 S.Ct. 2542, italics added.)
Furthermore, the Aerospatiale court specifically rejected the rule of first resort contemplated in Volkswagenwerk, supra. The Supreme Court declared that "such a general rule would be unwise. In many situations the Letter of Request procedure authorized by the Convention would be unduly time consuming and expensive, as well as less certain to produce needed evidence than direct use of the Federal Rules.[2] A rule of first resort in all cases would therefore be inconsistent with the overriding interest in the `just, speedy, and inexpensive determination' of litigation in our courts. See Fed.Rule Civ.Proc. 1." (Aerospatiale, supra, 482 U.S. at pp. 542-543,107 S.Ct. 2542.)
Regarding the comity considerations that moved the Volkswagenwerk court to require first resort to the Hague Convention, the Aerospatiale court observed: "[T]he concept of international comity [fn. omitted] requires in this context a more particularized analysis of the respective interests of the foreign nation and the requesting nation than petitioner's proposed general rule would generate.[3] We therefore decline to hold as a blanket matter that comity requires resort to Hague Evidence Convention procedures without prior scrutiny in each case of the particular facts, sovereign interests, and likelihood that resort to those procedures will prove effective." (Aerospatiale, supra, 482 U.S. at pp. 543-544,107 S.Ct. 2542.)
The court concluded that comity concerns can be addressed by a heightened level of judicial alertness to the circumstances of foreign litigants: "American courts, in supervising pretrial proceedings, should exercise special vigilance to protect *445 foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. For example, the additional cost of transportation of documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence. Objections to `abusive' discovery that foreign litigants advance should therefore receive the most careful consideration. In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation. [Citation.] American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state. We do not articulate specific rules to guide this delicate task of adjudication. [Fn. omitted.]" (Aerospatiale, supra, 482 U.S. at p. 546, 107 S.Ct. 2542.)
Toutélectric and amicus curiae contend the Aerospatiale decision is not binding on us, and advocate maintaining Volkswagenwerk's rule of first resort. We are not persuaded. Treaties such as the Hague Convention are "the supreme law of the land," and the United States Supreme Court's interpretation is authoritative. (U.S. Const, art. VI, cl. 2 & art. III, § 2, cl. 1; see Sandsend Financial Consultants v. Wood (1988) 743 S.W.2d 364, 366 [Aerospatiale deemed controlling over former Texas rule of first resort]; Scarminach v. Goldwell GmbH (1988) 140 Misc.2d 103, 531 N.Y.S.2d 188, 190 [following Aerospatiale ].) While it is arguable that states are free to require more generous recourse to the Hague Convention's optional procedures than was contemplated in Aerospatiale (see, e.g., Husa v. Laboratoires Servier SA (1999) 326 N.J.Super. 150, 740 A.2d 1092, 1095), we are not inclined to do so.
Aerospatiale provides persuasive reasons for rejecting the rule of first resort that the Volkswagenwerk court added as a "qualification" to the federal approach. First, the rule grew out of the Volkswagenwerk court's mistaken view of the Hague Convention as imposing a "minimum measure of international cooperation" (Volkswagenwerk, supra, 123 Cal. App.3d at p. 859, 176 Cal.Rptr. 874) rather than "a permissive supplement ... [to] other means of obtaining evidence located abroad" (Aerospatiale, supra, 482 U.S. at p. 536,107 S.Ct. 2542).
Second, the rule requires implementing the more cumbersome procedures of the Hague Convention, involving requests directed to judicial or other governmental authorities in the foreign country, before attempting the more direct discovery methods provided by California law. (See Volkswagenwerk, supra, 123 Cal. App.3d at p. 852, 176 Cal.Rptr. 874; Aerospatiale, supra, 482 U.S. at p. 535,107 S.Ct. 2542.) Our statutes, like the federal rules, were designed to make discovery a "simple, convenient, and inexpensive" means of revealing the truth and exposing false claims. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal. Rptr. 90, 364 P.2d 266; Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107-1108, 68 Cal.Rptr.2d 883, 946 P.2d 841; cf. Aerospatiale, supra, 482 U.S. at p. 543, 107 S.Ct. 2542.) There is *446 little justification for engaging the efforts of foreign officials in pursuit of discovery under the Hague Convention if such measures turn out to be unnecessary, whether by agreement of the party from whom discovery is sought or by order of the court after conducting a comity analysis.
Moreover, if the party seeking discovery must resort first to Hague Convention procedures, the case-by-case balancing of facts, sovereign interests, and the likelihood of successful discovery prescribed by Aerospatiale would occur only in those cases where the attempt to obtain discovery under the Hague Convention has failed, and the court becomes involved in efforts to enforce discovery. The Volkswagenwerk court viewed this as the normal procedure in federal courts. (Volkswagenwerk, supra, 123 Cal.App.3d at pp. 857-858, 176 Cal.Rptr. 874.) Aerospatiale, however, has made it clear that the suitability of Hague Convention discovery procedures requires "prior scrutiny in each case." (Aerospatiale, supra, 482 U.S. at p. 544, 107 S.Ct. 2542.) We believe the comity analysis is better conducted in advance, without the distorting effects that would inevitably flow from an unsuccessful resort to the Hague Convention.
For all these reasons, we conclude that Volkswagenwerk's rule of first resort has been superseded by the more particularized approach outlined in Aerospatiale. The French Law of 1980, purporting to criminalize discovery outside the scope of the Hague Convention, does not change our analysis. The Aerospatiale court considered this same "blocking statute," and held: "It is well settled that such statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute. [Citation.] Nor can the enactment of such a statute by a foreign nation require American courts to engraft a rule of first resort onto the Hague Convention, or otherwise to provide the nationals of such a country with a preferred status in our courts. It is clear that American courts are not required to adhere blindly to the directives of such a statute." (Aerospatiale, supra, 482 U.S. at p. 544, fn. 29, 107 S.Ct. 2542.)
We are sensitive to the concerns raised by amicus curiae regarding the mutual interests of France and California in preserving good relations. We believe California courts will protect these interests when performing the Aerospatiale comity analysis, which requires careful consideration of the "sovereign interests" and other "important interests" of both jurisdictions. (482 U.S. at p. 544, and fn. 28, 107 S.Ct. 2542.) We note that French businesses such as Toutélectric must reasonably expect to comply with California law when they embark on business ventures in this state. And California businesses will be more likely to engage in enterprises with French citizens if they know that any discovery disputes that may arise will be handled by the courts with a balanced approach, rather than a mandatory application of French procedures in every case.
As stated in Aerospatiale: "[A] rule of exclusivity would enable a company which is a citizen of another contracting state to compete with a domestic company on uneven terms, since the foreign company would be subject to less extensive discovery procedures in the event that both companies were sued in an American court. Petitioners made a voluntary decision to market their products in the United States. They are entitled to compete on equal terms with other companies operating in this market. But since the District Court unquestionably has personal jurisdiction over petitioners, they are subject to the same legal constraints, including *447 the burdens associated with American judicial procedures, as their American competitors. A general rule according foreign nationals a preferred position in pretrial proceedings in our courts would conflict with the principle of equal opportunity that governs the market they elected to enter." (482 U.S. at p. 540, fn. 25, 107 S.Ct. 2542.)
2. The Party Invoking the Hague Convention Has the Burden of Persuasion
The Aerospatiale holding did not specify which party bears the burden of persuasion on whether considerations of comity favor application of the Hague Convention in a particular case. However, the court's view on this question was suggested by a statement at the end of the majority opinion that the foreign litigant should not be denied "a full and fair opportunity to demonstrate appropriate reasons for employing Convention procedures in the first instance, for some aspects of the discovery process." (Aerospatiale, supra, 482 U.S. at p. 547, 107 S.Ct. 2542.)
The majority of the courts addressing the issue have decided the burden falls on the party proposing discovery under the Hague Convention. (In re Vitamins Antitrust Litigation (D.D.C.2000) 120 F.Supp.2d 45, 51 and fn. 7 [citing cases]; Scarminach v. Goldwell GmbH, supra, 531 N.Y.S.2d at p. 190.) We agree with this approach. It is consistent with California law generally requiring the party seeking a protective order or resisting discovery by way of objection to establish the necessity of the requested relief. (Emerson Electric Co. v. Superior Court, supra, 16 Cal.4th 1101, 1110, 68 Cal.Rptr.2d 883, 946 P.2d 841; West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 422, 15 Cal.Rptr. 119, 364 P.2d 295; Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145, 84 Cal.Rptr.2d 350.) It also conforms with our choice-of-doctrine rule that the party proposing use of a foreign law must identify the applicable rule and show it is appropriate in the case before the court. (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906, 919, 103 Cal.Rptr.2d 320, 15 P.3d 1071; Hurtado v. Superior Court (1974) 11 Cal.3d 574, 581, 114 Cal.Rptr. 106, 522 P.2d 666.)
3. The Hague Convention Can Be Waived
Toutélectric and amicus curiae contend the court erred by finding that Toutélectric had waived the right to insist on compliance with Hague Convention discovery procedures. They claim the Hague Convention cannot be waived by a litigant's failure to invoke its provisions during prior discovery, under Pierburg, supra, 137 Cal.App.3d 238, 186 Cal.Rptr. 876. We conclude that Pierburg, like Volkswagenwerk, is no longer good law.
In Pierburg, a case arising from an automobile accident, the plaintiffs contended that Pierburg could not rely on the Hague Convention to avoid answering interrogatories, because it had voluntarily answered interrogatories propounded by a codefendant without insisting on Hague Convention procedure. The plaintiffs' interrogatories were numerous and inquired in great technical detail about Pierburg's carburetor, whereas the codefendant's interrogatories related solely to the location of photographs of the car involved in the accident. (Pierburg, supra, 137 Cal.App.3d at pp. 240-241, 186 Cal.Rptr. 876.) The Pierburg court quoted extensively from the two Volkswagenwerk cases (see footnote 1, ante), with particular emphasis on the holding requiring first resort to the Hague Convention. (Pierburg, supra, 137 Cal. App.3d at pp. 241-244, 186 Cal.Rptr. 876.)
The Pierburg court concluded: "In view of [these] cases ... no elaborate analysis is needed to conclude that a civil litigant *448 ... cannot `waive' the applicability of the Hague Evidence Convention by failing to assert noncompliance with that convention as to prior discovery by other parties to the action. ¶ The foundation of the convention is to avoid international friction where a domestic state court orders civil discovery to be conducted within the territory of a civil law nation that views such unilateral conduct as an intrusion upon its judicial sovereignty. The failure of one litigant in the domestic action to demand compliance with the convention cannot divest the foreign nation of its sovereign judicial rights under the convention. The convention may be waived only by the nation whose judicial sovereignty would thereby be infringed upon." (Pierburg, supra, 137 Cal.App.3d at pp. 244-245, 186 Cal.Rptr. 876.)
The Aerospatiale decision has thoroughly undermined the premises on which Pierburg rested. Because Hague Convention procedures are only an optional method of pursuing discovery abroad, it stands to reason they may be waived. The Supreme Court rejected the notion that the Hague Convention enshrines the "judicial sovereignty" of signatory nations: "Petitioners contend that if performed on French soil ... by an unauthorized person, such evidence-gathering [outside the Hague Convention] might violate the `judicial sovereignty' of the host nation. Because it is only through the Convention that civil-law nations have given their consent to evidence-gathering activities within their borders, petitioners argue, we have a duty to employ those procedures whenever they are available. [Citation.] We find that argument unpersuasive. If such a duty were to be inferred from the adoption of the Convention itself, we believe it would have been described in the text of that document." (Aerospatiale, supra, 482 U.S. at p. 543,107 S.Ct. 2542.)
We note the French Ministry of Justice appears to recognize that a party may waive rights implicating France's "judicial sovereignty," according to a letter from the ministry presented to the trial court by Toutélectric.[4] This letter from a ministry official, dated October 22, 1998, and addressed to Pierre Royer, states in part: "[S]ubject to the sovereign appreciation of Courts, it appears to me not to be conceivable that a foreign decision, pronounced while disregarding international commitments of our country and French Law, or which would not comply with the rights of defense, [would] be likely to be recognized and executed in France, on the grounds that it would be contrary to our public order." The writer adds that a French Civil Code provision grants French courts "a general and exclusive jurisdiction intended for rejecting the validity of a judgment issued by an incompetent foreign court with respect to French international law, unless it is specified that [the] relevant French party waived the advantage of such text [citation]. [¶] ... [A] tacit waiver by [the] French Defendant of the advantage of the Court privilege ... might be deduced from his behavior, if he appeared before the foreign court and if he defended himself without contesting the jurisdiction of such Court [citations]." (Italics added.)
Furthermore, as discussed in Part 2, ante, the party seeking to utilize Hague Convention procedures has the burden of convincing the trial court that they are justified by considerations of international comity. It necessarily follows that a party may indeed waive the claim that discovery must proceed under the Hague Convention, *449 by failing to properly raise the issue. Amicus curiae argues that waiver is inappropriate where principles of comity are involved. However, the cases amicus curiae cites for this proposition concern failure to raise a legal issue in the trial court, resulting in waiver of an argument on appeal. (Nat. Ass. of Soc. Workers v. Harwood (1st Cir.1995) 69 F.3d 622, 628; Hoover v. Wagner (7th Cir.1995) 47 F.3d 845, 852.) This authority does not suggest that a party may not waive a procedural protection in the trial court whenever considerations of comity are involved. Our discussion of the particulars of this case in Part 4, post, makes it clear that barring a waiver of Hague Convention procedures would open the door to serious abuses of the discovery process.
We emphasize, however, that a waiver of the Hague Convention should never be lightly implied. A due regard for the interests of comity requires the courts to exercise caution and show courtesy to the foreign jurisdiction. Courts should dispense with the balancing of interests described by the Aerospatiale court only in those cases where the party relying on the Hague Convention has clearly abandoned the claim in prior proceedings. Just as disclosure of a privileged communication must be "significant" for the privilege to be waived (Evid.Code, § 912, subd. (a)), a party's neglect of its right to request the application of Hague Convention procedures must be substantial to support a finding of waiver.
In Pierburg, for instance, the defendant's response to a very limited inquiry by a codefendant would not have supported the plaintiffs claim that the defendant had waived the right to object under the Hague Convention to a comprehensive set of interrogatories. It does not serve the interests of any party to insist on strict compliance with Hague Convention procedures for every discovery request, however incidental. We are confident that counsel, by seeking stipulations where appropriate, and the courts, by applying a rule of reason, can preserve for consideration on the merits all good faith claims that discovery should proceed under the Hague Convention.
4. The Court Properly Found that Toutélectric Waived the Hague Convention
The record in this case amply supports the trial court's finding that Toutélectric waived the discovery procedures available under the Hague Convention. A finding of waiver requires clear and convincing evidence of intentional relinquishment of a known right with awareness of the relevant facts. The waiver may be express, based on the party's words, or implied from conduct indicating an intent to relinquish the right. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31, 44 Cal.Rptr.2d 370, 900 P.2d 619.) Toutélectric's waiver of the right to insist on discovery under the Hague Convention was both express and implicit in its conduct. We first consider Toutélectric's responses to American Home's efforts to depose witnesses, which led directly to the terminating sanction underlying the judgment on appeal. We then review Toutélectric's responses to the document production requests, which led to issue preclusion sanctions but were also mentioned by the court as part of a persistent pattern of misconduct justifying the terminating sanctions.
Toutélectric's counsel demonstrated a clear awareness of his client's Hague Convention rights at the earliest stage of the discovery proceedings. His fax to the discovery referee on September 3, 1998 reviewed the three Hague Convention methods of discoveryletters of request, the taking of evidence by diplomatic officers or consular agents, and the taking of *450 evidence by commissioners. Counsel noted the French Law of 1980 criminalizing discovery outside the Hague Convention. He discussed the Aerospatiale holding, as well as the Volkswagenwerk and Pierburg cases. Nevertheless, counsel did not seek a protective order, or make a formal objection of any kind. He merely "requested" the referee to proceed with Francis Royer's deposition "in a manner consistent with the directives of the Hague Convention or in a fashion which will provide those Defendants [Royer, Toutélectric, and its other employees] protection from the requirement that they engage in criminal conduct to comply with the court's Order."
Counsel stated that if this request were denied, he would seek an expedited telephone conference with the trial court to raise these concerns. Nevertheless, counsel made no attempt to bring the matter to the court's attention. Instead, he appeared with Royer for the deposition at a Paris hotel. This early compliance with discovery outside the Hague Convention was substantial; the transcript of Royer's deposition occupies at least five volumes. In its reply brief, Toutélectric insists that Royer appeared solely in his individual capacity. Nothing in the record suggests a specially limited deposition appearance. Counsel appeared for the deposition jointly representing Toutélectric and Royer, who was a corporate director of Toutélectric. Certainly Royer's testimony was available to American Home for use in its case against Toutélectric, and Toutélectric could have objected to the manner of his deposition.
Counsel's fax to the referee demonstrates his awareness of the court's order requiring the deposition to go forward under California law. Counsel clearly understood that Toutélectric, which had not yet appeared in the case when the court rejected EEC's claims under the Hague Convention, was entitled to invoke the Convention on its own behalf. The day the fax was sent, counsel was meeting with EEC's attorney, who had represented Royer at the hearing on EEC's claim that the Hague Convention should be followed. It is fair to assume Toutélectric's counsel was aware that the court had specifically declined to rule on Toutélectric's rights under the Hague Convention.
When American Home served notice of Francis Royer's continued deposition, and of the depositions of Pierre Royer and Jacques Massat, Toutélectric initially raised no objection under the Hague Convention. Instead, it asked the court for a "limited protective order" requiring the depositions to be taken at the American Embassy. Counsel explained: "Quite frankly, your Honor, what they're trying to do here, I'm sure you can appreciate this, they are trying to reserve their rights in France. In other words, not violate the law, and comply with what you've ordered them to do, they're trying very hard to do that. Their argument here obviously is, look, by testifying on U.S. soil I've not committed a crime in France." Thus, rather than relying on the Hague Convention, Toutélectric expressly asked the court to help it circumvent the Convention and proceed with discovery under California rules.
Toutélectric made no objection to the statement that depositions would be taken under California law in the request to the Ministry of Justice for assistance in scheduling depositions. When discovery resumed after the delay occasioned by Toutélectric's unsuccessful attempt to disqualify the trial court, Toutélectric did not raise the Hague Convention during court hearings in January and February 2000, at which the parties discussed rescheduling the depositions. However, in March 2000, Toutélectric informed American *451 Home that the Royers and Massat had been advised by French counsel only to appear for depositions in accordance with the Hague Convention.
In a court hearing at the end of March, American Home complained "[t]hey're claiming now that we have to go through [the] Hague [Convention] for the French deposition. That was dealt with by your Honor years ago." Toutélectric's counsel responded: "That's not what we said. We do believe you have to go through the Hague. We're going to writ that, we'll find that out. That's beside the point. [¶] What we said was we need to apply to the American Embassy to do it, just like we did last time and we'll do everything we can to assist you in reapplying and go forward." Thus, although counsel stated he was going to file a writ petition challenging the court's ruling that the Hague Convention did not apply to the document requests, he did not insist on Hague Convention procedures for the depositions. Instead, he was willing to proceed "just like we did last time"that is, depositions at the embassy under California rules.
At a hearing in August 2000, the parties and the court discussed the problems that had arisen with scheduling depositions at the embassy. Toutélectric did not mention the Hague Convention. Again at a hearing in September, Toutélectric did not raise the Hague Convention in connection with setting the depositions. Toutélectric's counsel told the court he and his clients had no preference between Atlanta and New York as a deposition site. However, when discussing the trial date counsel asked for enough time that deposition notices could be served in accordance with the Hague Convention, as the complaint had been. Counsel made no argument on the law governing the depositions themselves, which the court had ordered to take place either in France or the United States.
In November 2000, Toutélectric informed American Home that Francis Royer would appear for deposition in Paris, but neither Pierre Royer nor Massat would appear. When American Home moved for terminating sanctions, Toutélectric for the first time presented the court with a written argument that the depositions should be taken under the Hague Convention. However, Toutélectric's inconsistent posture in this regard was concisely reflected in its statement of facts: "Throughout the current litigation, [Toutélectric] has asserted that any deposition for these individuals must be conducted in accordance with the provisions of the Hague Convention for the Taking of Evidence Abroad ("the Hague Convention"). In particular, [Toutélectric] consistently sought a manner in which depositions can be taken outside the Hague Convention and requested the depositions be taken at the United States Embassy in France." Toutélectric did not explain to the trial court, nor has it explained to this court, how seeking to take depositions outside the Hague Convention is consistent with a claim that depositions must be conducted in accordance with Hague Convention procedures.
At the hearing on the sanctions motion, Toutélectric advised the court that all three witnesses had been told by French counsel they would violate the Law of 1980 if they appeared for deposition without being summoned pursuant to the Hague Convention. However, Francis Royer, having already appeared for four or five days of deposition, was nevertheless willing to continue his deposition. When asked by the court to put on the record how the witnesses would be violating French law, Toutélectric's counsel responded that his understanding of French *452 law was limited: "I can't stand here ... and tell you what French law is." Counsel believed the deposition notices had to be served in accordance with the Hague Convention, and the Law of 1980 precluded evidence from being given except through Hague Convention procedures. Toutélectric did not explain to the trial court, nor has it explained to this court, why Francis Royer was available for deposition outside the Hague Convention, but the other witnesses were not.
This record provides clear and convincing evidence that Toutélectric waived its right to rely on the Hague Convention. It contended the Convention applied, but long refrained from seeking a protective order or raising any formal objection based on the Convention, and participated in Francis Royer's deposition outside the Convention. It actively sought to arrange for depositions outside the Convention and eventually agreed to produce Francis Royer to complete his deposition outside the Convention, but raised the Convention as a bar to the deposition of other witnesses.
The record reveals a similarly inconsistent response in American Home's document requests. Toutélectric first took the position that even under the Hague Convention, it could not be compelled to produce documents.[5] Toutélectric then claimed that document disclosure was barred by the Law of 1980 unless American Home proceeded under the Hague Convention. Toutélectric later told the referee that it was not attempting "to have French law take deference [sic ] over U.S. law," but rather to use its inability to respond to the document request as a defense to sanctions. It claimed the Hague Convention was "not the issue," and suggested pursuing document discovery through the French Ministry of Justice, outside of the Hague Convention.
At a court hearing in January 1999 on American Home's motion for sanctions stemming from Toutélectric's failure to produce documents, Toutélectric did not raise the Hague Convention. In March 1999, Toutélectric told the court that after discussion with French counsel, it would be able to produce public documents and those documents that had been disclosed in other litigation. Toutélectric asserted it could provide any documents voluntarily, but was prohibited from producing documents in a discovery setting unless the Hague Convention were followed. The next month Toutélectric told the court it had produced 2800 pages of public documents and those already released in litigation. But Toutélectric insisted that other financial documents simply could not be produced in discovery "regardless of the situation." Toutélectric's counsel admitted that his understanding of French law might be faulty, but maintained his view *453 that there were no restrictions on voluntary document disclosure. In March 2000, Toutélectric responded to American Home's sanctions motion by arguing that it could not produce documents unless American Home followed Hague Convention procedures. Toutélectric now claimed first resort to the Hague Convention was required under Volkswagenwerk, supra.
Again, the court's finding that Toutélectric had waived the Hague Convention was supported by clear and convincing evidence. Toutélectric originally claimed no document discovery was available under the Convention. It suggested pursuing documents through the Ministry of Justice outside the Convention. At times it claimed it was unable to comply with the document request regardless of the Convention, and at other times insisted it could comply only if the Convention were followed. It conceded it could provide any documents it wished to release voluntarily. Eventually, Toutélectric produced boxes of documents outside the Convention. Toutélectric did not explain to the trial court, nor has it informed this court, why it was able to produce 2800 pages of documents even though American Home failed to follow Hague Convention procedures. Nor could Toutélectric's counsel answer with any certainty when the court asked him, at a late stage in the discovery proceedings, to "[s]tep by step, succinctly, without adjectives, adverbs, or argument, list for me what would be the steps for getting these documents produced under the Hague Convention."
5. The Terminating Sanction Was Within the Court's Discretion
Toutélectric makes a series of claims in an attempt to show that the court abused its discretion by striking Toutélectric's answer and entering a default. None of these arguments is meritorious. The court's discretion to impose discovery sanctions is broad, subject to reversal only for manifest abuse exceeding the bounds of reason. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388, 97 Cal.Rptr.2d 12; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545, 51 Cal. Rptr.2d 311.)
First, Toutélectric claims it acted in good faith by relying on the French Law of 1980, which limits discovery to what is permitted by the Hague Convention. Toutélectric relies on Societe Internationale v. Rogers (1958) 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255, for the proposition that terminating sanctions are improper when failure to comply with a discovery order is due to a party's inability to produce documents under the criminal law of a foreign nation. In Rogers, however, the petitioner had promptly and consistently maintained that the documents at issue were not under his "control" due to the effect of Swiss penal law governing disclosure of bank records. The Swiss Federal Attorney confiscated the documents, preventing their transmission to third parties. The special master appointed by the federal District Court investigated the matter, concluding that the Swiss government had acted in accordance with its established doctrines, and the petitioner had sustained the burden of proving a good faith effort to comply with discovery. (357 U.S. at pp. 200-201, 78 S.Ct. 1087.)
Here, by contrast, Toutélectric's reliance on French law was inconsistent from the beginning to the end of the discovery process. (See Part 4, ante.) The discovery referee did not find that Toutélectric had acted in good faith. To the contrary, he recommended terminating sanctions if Toutélectric failed to comply in full with the document request. There is ample support in the record for the court's conclusion that Toutélectric's failure to *454 meet its discovery obligations was "persistent, willful and unjustified."
Toutélectric's related arguments under California law are equally ineffective. It contends the terminating sanction was unduly punitive, because its failure to comply was not willful. It suggests it should have been given further opportunities to comply. It claims it would have complied, if only the court had ordered discovery to proceed under the Hague Convention. However, nothing suggests Toutélectric would have complied with the orders the trial court did make, if given more time. Had Toutélectric consistently and properly presented its Hague Convention claims to the trial court, this would be a very different case. Instead, Toutélectric first actively recommended and participated in discovery outside the Hague Convention, before standing on its rights under the Convention at a late stage of the discovery proceedings. The shifting character of Toutélectric's responses to discovery requests supported the court's finding that its obstructive conduct was willful.
Toutélectric blames American Home for delays in discovery. Delay did not cause the sanctions in this case; Toutélectric's failure to comply with discovery orders did.
Toutélectric complains that the sanctions in this case effectively rewarded American Home for its own misconduct in the federal Valley Engineers action. According to Toutélectric, American Home was forced to settle in that case after committing discovery abuses of its own. Toutélectric asserts the court's orders placed American Home in a better position than American Home would have occupied had Toutélectric provided discovery. It also contends the discovery sought by American Home did not relate to the errors that caused American Home to settle the Valley Engineers case. These arguments are irrelevant. American Home's alleged misconduct in the Valley Engineers action was not at issue during the discovery proceedings below. American Home sought to recover evidence supporting its allegations that Toutélectric had schemed with EEC to shift liability for the failed construction project to American Home. Toutélectric could have had a trial on the merits if it were willing to meet its discovery obligations. It does not challenge the sufficiency of the evidence of damages presented at the prove-up hearing. None of these claims involving the Valley Engineers action tends to show an abuse of discretion by the trial court.
DISPOSITION
The judgment is affirmed. American Home shall recover its costs on appeal.
We concur: McGUINESS, P.J., and CORRIGAN, J.
NOTES
[*] Chin, dissented.
[1] In refraining from giving mandatory effect to the Hague Convention, the Volkswagenwerk court implicitly disagreed with an earlier Court of Appeal decision in a case with an identical title. In Volkswagenwerk Aktiengesellschaft v. Superior Court (1973) 33 Cal. App.3d 503, 508, 109 Cal.Rptr. 219, the Third District Court of Appeal held that "courts ordering discovery abroad must conform to the channels and procedures established by the host nation."
[2] "We observe, however, that in other instances a litigant's first use of the Hague Convention procedures can be expected to yield more evidence abroad more promptly than use of the normal procedures governing pre-trial civil discovery. In those instances, the calculations of the litigant will naturally lead to a first-use strategy."
[3] "The nature of the concerns that guide a comity analysis is suggested by the Restatement of Foreign Relations Law of the United States (Revised) § 437(1)(c) (Tent.Draft No. 7, 1986) (approved May 14, 1986) (Restatement). While we recognize that § 437 of the Restatement may not represent a consensus of international views on the scope of the district court's power to order foreign discovery in the face of objections by foreign states, these factors are relevant to any comity analysis:
`(1) the importance to the ... litigation of the documents or other information requested;
`(2) the degree of specificity of the request;
`(3) whether the information originated in the United States;
`(4) the availability of alternative means of securing the information; and
`(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.' Ibid."
[4] We grant Toutélectric's motion to submit additional evidence authenticating correspondence from the French government.
[5] Amicus curiae explains that Toutélectric's counsel was mistaken when he informed the court that France had not adopted the Hague Convention provisions permitting document discovery. However, amicus curiae suggests the trial court had an "independent duty" to "familiarize itself with foreign law." In support of this proposition, amicus curiae cites Gallegos v. Union-Tribune Publishing Co. (1961) 195 Cal.App.2d 791, 16 Cal.Rptr. 185. That case, however, stands for the unremarkable proposition that when the court takes judicial notice of the law of a foreign state, it is for the court, not the jury, to independently determine what foreign law applies. (Id. at pp. 797-798, 16 Cal.Rptr. 185.) Insofar as it discussed conflict-of-law principles, Gallegos was long ago superseded by the current rule requiring the litigant to timely invoke foreign law and demonstrate its applicability. (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1465, 1467-1468, 48 Cal.Rptr.2d 235.) Nothing in Gallegos suggests that a litigant may shift to the court the duty to investigate the law of a foreign jurisdiction, even when the litigant misinforms the court regarding that law.
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/2258999/
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687 A.2d 609 (1996)
Carroll COLFORD
v.
CHUBB LIFE INSURANCE COMPANY OF AMERICA.
Supreme Judicial Court of Maine.
Argued May 7, 1996.
Decided August 13, 1996.
Reissued December 3, 1996.
*610 Daniel G. Lilley (orally), Mark L. Randall, Daniel G. Lilley Law Offices, P.A., Portland, for Plaintiff.
William J. Kayatta, Jr. (orally), Catherine R. Connors, Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, for Defendant.
Jack H. Simmons, Paul F. Macri, Berman & Simmons, P.A., Lewiston, for University Scholars and Law Professors.
Paul R. Dumas, Jr., Joyce, Dumas David and Hanstein, P.A., Mexico, for Consumer Federation of America.
*611 Edward W. Gould, Gross, Minsky, Mogul & Singal, P.A., Bangor, for Maine Trial Lawyers Association.
Christopher C. Taintor, Norman, Hanson & Detroy, Portland, for UNUM, American Council of Life Ins., Health Ins. Assoc. of America.
Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.
CLIFFORD, Justice.
Chubb Life Insurance Company of America (Chubb) appeals from a judgment entered in the Superior Court (Somerset County, Kravchuk, J.) awarding plaintiff Carroll Colford compensatory and consequential damages for the breach of an insurance contract. Chubb contends that the court erred as a matter of law in concluding that two conditions of the contract issued to Colford, conditions that Colford did not meet, did not preclude contract recovery. Colford cross-appeals from the judgment notwithstanding the verdict in favor of Chubb on Colford's claim for intentional infliction of emotional distress and an award of punitive damages. Colford contends that Chubb did not properly preserve the contract issue, that in any event the court correctly construed the contract, that there was sufficient evidence to support the emotional distress claim and, therefore, the court erred in setting aside the jury's verdict and assessment of emotional distress and punitive damages. We conclude that Chubb properly preserved the issue of the validity of the contract. The formation of a binding insurance contract with Colford was contingent on Colford being "acceptable on that date under the Company's rules ... for the [plan] and benefits... applied for." Because those conditions were not satisfied, there was no contract in effect and thus there was no breach of contract. Accordingly, we vacate the judgment on the breach of contract claim. Because Chubb's conduct does not rise to the level of outrageousness necessary to support a claim of intentional infliction of emotional distress, we affirm the judgment notwithstanding the verdict on that claim and on the award of punitive damages.
Carroll Colford was a self-employed insurance sales agent who sold policies for a number of insurance carriers, including Chubb. On April 22, 1991, Colford applied for disability insurance with Chubb. Colford applied for coverage providing a benefit amount of $2000 per month, payable in the event he became permanently disabled.[1] Colford also applied for the additional "own occupation" benefit available under the plan, which covers the insured if he becomes disabled and unable to perform his listed occupation, even if he is not disabled for purposes of other types of work. On that date, Colford was given a one-page "Receipt and Conditional Insurance Agreement." The conditional receipt states in pertinent part:
1. DATE INSURANCE BEGINS. The insurance will begin on the latest of the date of the Receipt, the date of the Application, or the date of the last Medical Application, Part II, required by the Company on all persons proposed for insurance SUBJECT TO THESE TERMS AND CONDITIONS AND THOSE OF THE POLICY APPLIED FOR.
a. An advance payment at least equal to one month's premium must be made in exchange for the completed receipt which bears the same date and number as the application; it cannot be less than $50.00; and
b. All persons proposed for insurance are acceptable on that date under the Company's rules for standard rates for the plan, benefits and amounts applied for.
2. DATE INSURANCE ENDS. Insurance will end on the earliest of these dates, if it begins under the Conditional Insurance Agreement:
a. 60 days after the date of the receipt;
. . . .
*612 c. The date the advance payment is mailed to the Owner;
d. The date the policy is issued and delivered to the Owner on a standard basis; the first premium must be paid in full.
3. PREMIUM REFUND. Return of the advance payment will be made to the Owner, if insurance is declined, or the policy, if any, as issued is not taken. If the policy is taken, the advance payment will be a credit toward the first year's premium due under the policy.
(Emphasis added.) An integration clause at the bottom of the receipt provides: "This Agreement states all the terms and conditions of your agreement with the Company for Conditional Insurance."
As of April 25, 1991, Colford had completed the application, tendered one month's premium, and submitted to the required medical examination. On April 30, 1991, Colford fell down a flight of stairs and seriously injured his back. The pain and stiffness resulting from his injury was aggravated by sitting, thus rendering prolonged driving intolerable. As a self-employed insurance sales agent, Colford drove approximately one thousand miles per week.
Colford did not immediately inform Chubb of his injury. On May 3, Philip Wolfe, the Chubb underwriter responsible for evaluating Colford's eligibility for a permanent insurance policy, informed Colford that he was not eligible for the "own occupation" benefit because this extra rider was not available for the job classification "insurance agent." On May 20, Wolfe offered Colford a permanent insurance plan at standard rates, but with two changes from Colford's initial application: (1) the "own occupation" benefit rider would not be included; and (2) there would be an exclusion rider for back injuries. Colford was not offered "whole body" coverage because his medical history revealed a 1989 diagnosis for scoliosis and a spinal dislocation/misalignment known as "subluxation." Pursuant to Chubb's underwriting policies and guidelines, this pre-existing condition precluded coverage for back injuries. Colford did not file a claim for his injury until June 4.[2] Because Chubb had already determined that the conditions stated in the conditional insurance agreement had not been satisfied, Chubb denied Colford's claim for lack of any existing coverage in effect.
Colford filed this action in March 1992. Colford's final amended complaint asserts three claims: (1) breach of contract on the part of Chubb for failure to pay benefits due under the temporary, conditional insurance agreement (Count I); (2) intentional infliction of emotional distress based on actions Chubb took in the course of its investigation and in denying coverage to Colford, and other actions of Chubb (Count III); and (3) negligent infliction of emotional distress (Count IV).[3] In addition, Colford seeks punitive damages for Chubb's allegedly malicious conduct toward him.
By agreement of the parties, the court reserved for itself the question whether a binding contract for insurance existed as of the date of Colford's injury. The court determined that the contract was valid and in effect on the date of the injury. The jury was told that there was a contract and was instructed to determine whether Chubb acted in good faith in denying coverage under the contract, whether Colford was in fact disabled so as to trigger Chubb's obligation to pay benefits, whether Colford, by virtue of his prior income, was eligible for the $2000 monthly coverage amount he had applied for, and whether Colford had fraudulently overstated his yearly income on his initial application. *613 The parties agreed that the court would calculate the present value of all past and future disability payments, and the jury would determine the amount of any consequential contract damages arising from the failure to pay benefits. All elements of Colford's tort claims, Counts III and IV, were to be determined by the jury.
At the close of the plaintiff's case, Chubb moved pursuant to M.R.Civ.P. 50(a) for judgments as a matter of law on Counts III and IV. The court granted Chubb's motion on Count IV, the negligent infliction of emotional distress claim.[4] At the close of all the evidence, Chubb's renewed motion pursuant to M.R.Civ.P. 50(b) for judgment as a matter of law on Count III, the intentional infliction of emotional distress claim, was denied. The court denied Chubb's request to allow the jury to determine whether Colford was eligible for the "own occupation" benefit and for whole body coverage.
The jury returned a special verdict form, answering the interrogatories in favor of Colford on all the questions: that Chubb had refused to issue a permanent policy to Colford in bad faith, that Colford had not misrepresented his income, that he was in fact disabled, and that Chubb's actions satisfied all of the elements of the tort of intentional infliction of emotional distress. The jury awarded Colford consequential breach of contract damages in the amount of $1 million,[5] and compensatory damages in tort for emotional distress in the amount of $500,000. In addition, the jury found that Chubb had acted with malice. Subsequently, after a second hearing, the jury awarded Colford punitive damages for the emotional distress claim in the amount of $24,002,000.
Prior to the court's entry of a judgment, Chubb filed a motion for judgment as a matter of law pursuant to M.R.Civ.P. 50(d) as to Count I. On Count I, the court determined the value of past and future disability benefits to be $465,350 and entered a judgment for Colford on Count I in the amount of $1,465,350 (the $465,350 plus the $1 million in consequential damages found by the jury). The court later reduced the jury's consequential damages award from $1 million to $352,000, and entered a final judgment on Count I in the amount of $817,350 ($465,350 disability damages plus consequential damages of $352,000). The court granted Chubb's renewal of its Rule 50(b) motion for a judgment as a matter of law on Count III, setting aside the jury's verdict because the elements of the tort of intentional infliction of emotional distress had not been proved. The court also set aside the award of punitive damages. These appeals by both parties followed.
I. The Breach of Contract Claim
A.
Colford contends that Chubb has not preserved the breach of contract issue because it failed to move for a judgment as a matter of law on that issue prior to the jury's retiring for deliberations. We disagree. Chubb's Rule 50(d) motion was directed primarily at the issue that the court, with the consent of the parties, reserved to itself, i.e., the construction of the conditional contract. Although the court tentatively had decided that issue during the trial and before the jury answered the interrogatories presented to it, the court addressed the issue again following the filing of the Rule 50(d) motion and prior to the entry of a judgment on Count I. Rule 50(d) allows a motion for judgment as a matter of law to be made at any time on any claim in an action tried to a court. Although this was a jury trial, the issue that was the subject of the Rule 50(d) motion was for the court, and no one has asserted that evidence could have been presented or any further legal argument made that would have had a bearing on the court's determination. Even were Rule 50(d) to be read narrowly so as not to apply here where the case was not tried entirely to the court, *614 Colford did not object to the timing of Chubb's Rule 50(d) motion and, accordingly, failed to preserve the issue of timeliness. See Whelan v. Abell, 48 F.3d 1247, 1251 (D.C.Cir.1995) (defendant's failure to raise defense at pre-verdict motion does not preclude consideration of that defense in post-verdict motion when plaintiff failed to object).
B.
In reserving to itself the construction of the conditional contract, the court correctly concluded that the contract is unambiguous and that its interpretation is a question of law. Globe Indem. Co. v. Jordan, 634 A.2d 1279, 1282 (Me.1993). A contract is ambiguous only if it is reasonably susceptible to two or more interpretations. Fitzgerald v. Gamester, 658 A.2d 1065, 1069 (Me.1995). If the contract is ambiguous, it will be construed against the insurer so as to comply with the objectively reasonable expectations of the insured. Peerless Ins. Co. v. Brennon, 564 A.2d 383, 386-87 (Me.1989) (citations omitted). This is not to say, however, that every time an insurer and an insured disagree on the meaning of the contract, the insured's interpretation must prevail. Mere hope of coverage by the insured, or inability of the insured to understand the policy, does not render the contract ambiguous. Patrons Oxford Mut. Ins. Co. v. Marois, 573 A.2d 16, 19 (Me.1990) ("There are many words, phrases or paragraphs in a standard insurance contract that a first time reader does not understand. That circumstance does not justify excising such provisions from the contract.") (footnote omitted); see also Peerless, 564 A.2d at 386 (overruling Baybutt Constr. Corp. v. Commercial Union Ins. Co., 455 A.2d 914 (Me.1983), stating that "the Court in Baybutt mistook complexity for ambiguity and thus erred in" ruling in favor of the insured).[6]
The trial court concluded that the insurance contract provided coverage to Colford on a temporary basis for the plan for which Colford applied and that the conditions relied on by Chubb to preclude coverage that there was no "own occupation" total disability coverage for an insurance agent, and that "whole body" coverage was not available to Colford because of his preexisting medical condition could apply only to the permanent insurance that was to be effective after Colford's injury. The court relied on language in Palmer v. Mutual Life Ins. Co. of New York, 324 F.Supp. 254 (D.Me.1971), to conclude that Chubb's receipt and conditional insurance agreement was an "approval" type of receipt and created insurance that was temporary.
It is true that if Chubb's receipt and conditional insurance agreement were an "approval" type of receipt, i.e., one in which coverage depends on the subjective approval of the insurer and becomes effective only at the subjective discretion of the insurance company, then such an agreement likely would have created only temporary insurance. Gaunt v. John Hancock Mut. Life Ins. Co., 160 F.2d 599, 601-03 (2d Cir.1947). The rationale for finding temporary coverage in such cases is that the subjective condition of approval creates an ambiguity, an illusionary promise on the part of the insurer, so that enforcement of the condition would be unconscionable. Id. at 602-03. Indeed, a few jurisdictions mandate that temporary coverage be in effect on nearly all conditional insurance agreements unless the insurance company returns the premium and rejects the application. See Smith v. Westland Life Ins. Co., 15 Cal.3d 111, 123 Cal.Rptr. 649, 658, 539 P.2d 433, 442 (1975). That rule, however, has been adopted in only a few states and fails to give effect to the clear language appearing in Chubb's receipt.[7]
*615 Chubb's receipt and conditional insurance agreement is not an approval type receipt. Coverage for the plan for which Colford applied did not depend on the subjective acceptance of the insurer. Rather, Colford's eligibility for the insurance plan for which he applied, disability insurance as an insurance agent, depended on certain criteria that were objectively reviewable: "own occupation" plans were offered only for certain occupations, and "insurance agent" was not one of those occupations,[8] and whole body coverage was not available for persons with certain medical histories, including Colford's.[9] The rejection of Colford's application based on these objective criteria was conveyed to Colford prior to Chubb's knowledge of his injury.
These provisions of the receipt and conditional insurance agreement are unambiguous. Paragraph b of Part 1 is a condition precedent to the formation of a binding contract for temporary insurance. Contrary to Colford's interpretation that paragraph b is an affirmative statement that all applicants are acceptable, it clearly provides as a condition that applicants be acceptable based on Chubb's criteria. Paragraph b must be read in conjunction with and as an integral and essential part of the entire agreement. As we stated in Peerless:
[I]n determining whether an insurance contract is ambiguous, the long-standing rule in Maine requires an evaluation of the instrument as a whole.
"A contract of insurance, like any other contract, is to be construed in accordance with the intention of the parties, which is to be ascertained from an examination of the whole instrument. All parts and clauses must be considered together that it may be seen if and how far one clause is explained, modified, limited or controlled by the others."
Peerless, 564 A.2d at 384-85 (quoting Swift v. Patrons Androscoggin Mut. Fire Ins. Co., 125 Me. 255, 256, 132 A. 745 (1926)).
Paragraph b requires that an applicant be acceptable for the plan applied for in order to form a binding contract for temporary coverage.[10] An insurance policy is nothing more than the sum of its parts, including the benefits it provides and the injuries or accidents it excludes; any variation in these characteristics produces a qualitatively different policy. The plan for which Colford applied a plan with "own occupation" coverage and without any exclusion for back injuries was one for which he did not qualify and was not the plan he was offered. The fact that the advance premium paid was sufficient and did not constitute the reason why Colford was not acceptable does not convert the conditional receipt into temporary insurance without regard to the conditions.
Whether the conditions precedent to the formation of a binding contract have been satisfied ordinarily is a question of fact for determination by the jury. Haworth v. Feigon, 623 A.2d 150, 160 (Me.1993). In this case, however, the parties agreed that the contract is unambiguous and that its interpretation is a question of law. Under the terms of this conditional contract, Colford was not eligible for the plan and benefits for which he applied, and therefore Chubb was entitled to a judgment as a matter of law.
*616 II. Intentional Infliction of Emotional Distress
Colford also contends that the trial court erred in setting aside the jury verdict in his favor on the intentional infliction of emotional distress claim. To prevail on a claim of intentional infliction of emotional distress, the plaintiff must show that:
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so "extreme and outrageous" as to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community;" (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was "severe" so that "no reasonable man could be expected to endure it."
Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me.1979) (quoting RESTATEMENT (SECOND) OF TORTS § 46 (1965)) (comments and internal citations omitted).
"To challenge a jury's verdict on appeal, the appellant must demonstrate that, taking all evidence in the light most favorable to the plaintiff, together with any justifiable inferences, there was no credible evidence upon which a rational jury could have found the facts as it did." Latremore v. Latremore, 584 A.2d 626, 630 (Me.1990) (citing Gurski v. Culpovich, 540 A.2d 764, 767 (Me.1988)).[11]
In the context of an intentional infliction of emotional distress claim, we have stated that
[i]t is for the Court to determine, in the first instance whether the Defendant's conduct may reasonably be regarded as so extreme and outrageous to permit recovery, or whether it is necessarily so. Where reasonable [people] may differ, it is for the jury, subject to the control of the Court, to determine whether, in a particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
Rubin v. Matthews Int'l Corp., 503 A.2d 694, 699 (Me.1986) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. h, at 77 (1965)). Thus, while the jury must determine whether the elements of the tort were in fact satisfied, the court must first determine whether, as a matter of law, the facts alleged are sufficient to satisfy the elements. See also Gray v. State, 624 A.2d 479, 484 (Me.1993) ("The determination of extreme and outrageous conduct from undisputed facts is an issue for the court.").
In order to secure emotional distress and punitive damages in this action, Colford must demonstrate that Chubb committed independently tortious conduct beyond the denial of Colford's disability claim.[12]See Drinkwater v. Patten Realty Corp., 563 A.2d 772, 776 (Me.1989). Colford relies on evidence that Chubb engaged in the following conduct: (1) In the defense of the contract claim, Chubb required Colford to submit to a medical examination, see M.R.Civ.P. 35, that the evidence showed was painful, was performed by a rude and sarcastic doctor, and upset Colford; (2) Chubb's attorney attended a hearing on Colford's cliam for workers' compensation benefits[13] and communicated with the attorney for the insurance company (not Chubb) defending the claim. Such action upset Colford, who had been an agent for *617 Chubb for a number of years; (3) despite having told Colford not to worry about his securities registration which he used to sell securities through Chubb Securities, a wholly-owned subsidiary of Chubb, Chubb Securities canceled the registration after hearing of Colford's disability and suit against Chubb Life; and (4) after initially waiving Colford's life insurance premiums because of the disability, Chubb subsequently revoked the waiver on the basis that Colford did not qualify for the waiver, and Colford subsequently lost his life insurance coverage for failure to pay his premiums. Colford presented evidence that he suffered emotional distress, citing a loss of sleep, bleeding ulcers, coughing up blood, depression and withdrawal from friends.[14] Additionally, at trial, Chubb witnesses invoked the attorney/client privilege and refused to answer questions concerning Chubb's pretrial conduct. Colford argues that such conduct on the part of the witnesses allowed the jury to infer that Chubb acted with improper motives.
Although Colford presented evidence of a cumulative number of acts and circumstances that adversely affected him in a substantial way, he must demonstrate that Chubb's actions arose independently of its denial of the disability claim, were intentionally or recklessly inflicted, and were so "extreme and outrageous" as to exceed "all possible bounds of decency," and be regarded as "atrocious" and utterly intolerable in our civilized society. Vicnire, 401 A.2d at 154. The attitude and conduct of the physician who examined Colford, on this record, cannot be attributable to Chubb. Chubb's attorney's attendance at the workers' compensation hearing and communication with one of the attorneys for the employer's insurer does not constitute the kind of conduct that supports a cause of action in tort for intentional infliction of emotional distress. Neither do Chubb's actions concerning Colford's securities registration and Colford's life insurance premiums rise to the level of extreme and outrageous, or exceed all possible bounds of decency. Nor do they support a verdict of punitive damages. The court acted without error and within its discretion by entering a judgment notwithstanding the verdict on Colford's tort claim.[15]
The entry is:
Judgment as to Count I vacated. Remanded for entry of a judgment for the defendant on Count I. Judgment affirmed in all other respects.
All concurring.
NOTES
[1] The coverage was referred to as the Professional Protector Plan.
[2] Colford argues that Chubb may have become aware of Colford's fall prior to its determination that Colford was not eligible for the "own occupation" coverage or for whole body coverage, and therefore Chubb's decision was tainted by such knowledge. There is insufficient evidence in the record to support a finding that Chubb became aware of Colford's fall prior to its determination as to the "own occupation" benefit rider and the back injury exclusion.
[3] Count II, alleging civil conspiracy to defraud, was dismissed by an earlier motion. The dismissal is not challenged on appeal.
[4] Colford does not challenge this decision on appeal.
[5] The consequential damages were based on Colford's loss of his income-producing real estate, which he attributed to Chubb's wrongful denial of disability coverage.
[6] Chubb since has issued a revised version of its "conditional receipt" that more clearly explains that coverage is contingent on the applicant being acceptable for the plan, benefits, and amounts for which he or she applied. Colford argues that this revised version is proof that the older version, issued to Colford, provides him coverage. We disagree. The fact that a term or phrase can be made clearer by the addition of more explicit language does not necessarily render that term or phrase ambiguous. All statements can be made more explicit to some degree.
[7] For a helpful discussion on the meaning and effect of conditional premium receipts, see Hildebrand v. Franklin Life Ins. Co., 118 Ill.App.3d 861, 74 Ill.Dec. 280, 455 N.E.2d 553 (1983).
[8] Chubb's underwriting manual makes clear that "insurance agent" is an identifiable occupation and that an "own occupation" rider is available only to certain specified occupations; the manual's list does not include insurance agents.
[9] Colford's medical records, available to Chubb before it learned of Colford's injury, disclose that he had been diagnosed with a medical condition, subluxation of the spine, indicating a dislocation or misalignment of the vertebrae. Chubb's medical underwriting manual required a rider excluding disabilities resulting from the middle or lower back when an applicant was diagnosed with subluxation of the spine.
[10] If the applicant does meet the conditions of paragraph b and is acceptable, the coverage is effective from the date of the receipt or the date of the application.
[11] Although the analytical standard essentially is the same when considering a motion for a judgment as a matter of law, M.R.Civ.P. 50, we have expressed a strong preference for the entry of a judgment notwithstanding the verdict, which avoids the need for a second trial should the trial court's decision be vacated on appeal. Bedard v. Pellon, 606 A.2d 205, 207 (Me.1992); Reed v. Rule, 376 A.2d 445, 446 (Me.1977) (citing Moore v. Fenton, 289 A.2d 698, 700 n. 1 (Me.1972)). Accordingly, the denial of a motion for a judgment as a matter of law and the subsequent grant of a judgment notwithstanding the verdict does not reveal confusion or waffling on the part of the trial court but, rather, demonstrates a wise use of judicial resources.
[12] The jury in this case concluded that Colford had proven the elements of intentional infliction of emotional distress in the context of their being told that there was a contract and after having found that Chubb had breached its contractual duty to pay Colford's disability claim in bad faith. As discussed in the opinion herein, because no such duty existed, no breach occurred.
[13] Colford was found to be totally disabled for workers' compensation purposes.
[14] In addition, Colford was unable to meet the mortgage payments of his commercial and rental properties and subsequently lost both to foreclosure. The loss of this real estate was the basis for the consequential damages found by the jury to have been suffered by Colford on his breach of contract claim.
[15] Because we conclude that Chubb is entitled to a judgment on all counts, we do not address other contentions of the parties.
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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/2259001/
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128 Cal.Rptr.2d 418 (2002)
104 Cal.App.4th 388
Danny EVERETT, Petitioner,
v.
The SUPERIOR COURT of Los Angeles County, Respondent,
Premier Parks, Inc., et al., Real Parties in Interest.
No. B157432.
Court of Appeal, Second District, Division Four.
November 14, 2002.
*419 David Greifinger, Santa Monica; Howard A. Goldstein, Beverly Hills; Carlos Mendoza, Houston, TX; Esner & Chang and Stuart B. Esner, Los Angeles, for Petitioner.
No appearance for Respondent.
Prindle, Decker & Amaro, Michael A. Amaro, William M. Hake, Long Beach, and Grace C. Mori, Pasadena, for Real Parties in Interest.
EPSTEIN, J.
Plaintiff claims that the trial court wrongfully granted real parties' motion for summary adjudication as to his cause of action for violation of the Unruh Civil Rights Act, Civil Code Section 51 et seq.[1] We agree, grant the writ, and mandate the trial court to vacate the order.
FACTUAL AND PROCEDURAL SUMMARY
The following factual summary is taken from evidence referenced by petitioner/plaintiff in his separate statement offered in opposition to the summary adjudication motion.
On September 26, 1998, plaintiff Danny Everett, an African-American man, visited Magic Mountain amusement park with his wife Tiarzha Taylor, his sister-in-law Khara Taylor, her daughter Anya Taylor, and her daughter's two friends. After spending a full day at the park, the group decided to make the Colossus roller coaster their last ride. Everett and his sisterin-law went ahead of his wife and the three girls, all under twelve years old, to stand in line at Colossus.
Everett and his sister-in-law were halfway through the line in the Colossus queue house when Tiarzha and the girls arrived. Everett motioned to them and stepped approximately ten feet out of line to help them join the group. Shortly thereafter, a Magic Mountain employee approached Everett and told him that he was not allowed to cut in line. He said that he did not cut. The guests standing in front and behind Everett told the employee that he had been in line. Then two other employees approached Everett's wife and took her out of line for questioning. Everett continued to move forward in the queue until he boarded the roller coaster.
Everett was then told to get out of the roller coaster. He did so, and he and his wife were escorted away from the queue house while the rest of the group went on *420 the roller coaster. Everett asked to speak with a supervisor. The supervisor told him that he would have to leave the park for the day because he violated the park's line cutting policy. Magic Mountain's line cutting policy provides that "`Line cutting for the purposes of joining other members of a group or family is generally prohibited, but can be allowed in the following circumstances: (A) the persons(s) trying to enter the line are small children under the age of 12 years and are joining their adult supervision; (B) When one person has left a ticketed line to use the restroom.... (E) When the Line Patrol Officer determined that the circumstances for the line cutting are justified and that removing the guests from line would present an unfair hardship to the guests involved.'"
Ten to fifteen seconds after Everett was asked to leave, the girls and Khara exited Colossus. The supervisor then put his open hand on the small of Everett's back and told him to keep moving. Everett asked him to remove his hand and stepped away. Everett then saw a man in a straw hat who could vouch for his presence in line. He attempted to yell to the man, but a supervisor told the security guards to "Get him out of here." A security guard firmly grabbed Everett's arm, and he reacted by pulling it forward to the front of his body to get free. As a result, at least four other security guards jumped on Everett, threw him to the ground, and punched and kicked him. The guards placed Everett under citizen's arrest and chained him to a bench for about two hours while other employees taunted him and directed derogatory statements toward him.
The district attorney filed a criminal complaint against Everett for battering a guard in violation of Penal Code sections 242 and 243, subdivision (a); for trespassing and refusing to leave private property in violation of Penal Code section 602, subdivision (n); and for obstructing or intimidating business operators or customers in violation of Penal Code section 602.1, subdivision (a). A jury acquitted Everett on the battery charge. The jury was unable to reach a verdict on the obstruction or intimidating business operators or customers charge, which ultimately were dismissed.
Danny Everett, Tiarzha Taylor, and Khara Taylor sued Premier Parks, Inc., Six Flags Theme Parks, Inc., Six Flags Magic Mountain, Inc, and six Magic Mountain employees personally for battery, assault, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and violation of the Unruh Civil Rights Act, Civil Code Section 51 et seq. Defendants moved for summary adjudication of Mr. Everett's causes of action for malicious prosecution and violation of the Unruh Act. The court denied the motion as to the malicious prosecution cause of action and granted summary adjudication on the Unruh Civil Rights Act cause of action.
DISCUSSION
I
We review the grant of summary adjudication de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 66-67, 99 Cal. Rptr.2d 316, 5 P.3d 874.) When reviewing a summary judgment or summary adjudication ruling, we apply the same legal standard as the trial court. (California Aviation, Inc. v. Leeds (1991) 233 Cal. App.3d 724, 731, 284 Cal.Rptr. 687.) If a triable issue of material fact exists, summary adjudication must be denied. (Code Civ. Proc. § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Summary adjudication is a severe remedy and should be used with caution; thus, *421 doubts about the propriety of granting the motion should be resolved in favor of the opposing party. (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1094, 59 Cal.Rptr.2d 547.) In examining the sufficiency of declarations filed in connection with a summary adjudication motion, the declarations of a moving party are strictly construed and those in opposition are liberally construed. (Ibid.)
The Unruh Civil Rights Act, section 51, provides in part: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." Similarly, section 51.5 mandates that, "No business establishment of any kind whatsoever shall discriminate against ... any person in this state because of the [person's] race, creed, religion, color, national origin...." Finally, section 51.7 of the same act states that, "All persons within [California] have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin..."
In opposition to defendants' motion for summary adjudication on the Unruh Civil Rights Act cause of action, plaintiff relied on statistical information that shows African-Americans are more than eight times as likely to be held and removed from the park for line cutting than members of other ethnic groups. He presented evidence that in 1998, 7.5 percent of the park's guests were African-American, but 55.7 percent of the individuals removed from the park for line cutting were African-Americans. In 1997, African-Americans made up 7.2 percent of the guests and 41.3 percent of the people removed from the park for line cutting. During the same years, African-Americans were arrested by the Magic Mountain security force at seven times the combined rate for all other racial groups. Of all the individuals arrested in the park in 1997 and 1998, 35.4 and 49.3 percent, respectively, were African-Americans.
The trial court granted summary adjudication on plaintiffs' cause of action under the Unruh Civil Rights Act, calling the plaintiffs' evidence "speculative." This was error.
In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 278 Cal.Rptr. 614, 805 P.2d 873, the Supreme Court held that the introduction of statistics to prove a disparate impact claim is appropriate when based on the "proper foundation and subject to the general rules of evidence." (Id. at p. 1175, 278 Cal.Rptr. 614, 805 P.2d 873.) The court reasoned that "[statistical] evidence may be probative of intentional discrimination in some cases, [thus] a blanket rule of exclusion cannot be justified." (Ibid.)
Plaintiff correctly argues that courts regularly have employed statistics to support an inference of intentional discrimination. (Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 [200 Chinese individuals denied permits to operate laundry business, but permits granted to 80 of the 81 non-Chinese applicants]; Castaneda v. Partida (1977) 430 U.S. 482, 495, 97 S.Ct. 1272, 51 L.Ed.2d 498 [county population of Mexican-Americans (79.1 percent) twice as large as the percentage of Mexican-Americans summoned for grand jury service (39 percent) ]; Turner v. Fouche (1970) 396 U.S. 346, 359, 90 S.Ct. 532, 24 L.Ed.2d 567 [county population of black citizens (60 percent) far exceeded the percentage on grand jury lists (37 percent) ]; Whitus v. Georgia (1967) 385 U.S. 545, 552, 87 S.Ct. *422 643, .17 L.Ed.2d 599 [number of black citizens on the tax digest (27.1 percent) at least three times the number of blacks on the grand jury venire (9.1 percent) and the petit jury venire (7.8 percent) ].)
Defendant argues that even if statistics are admissible to establish an inference of intentional discrimination, the statistics introduced by plaintiff are inadequate because they lack support from an underlying statistical theory. Under Harris, statistical evidence is proper to establish intentional discrimination if the statistics are introduced with "proper foundation and subject to the general rules of evidence." (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at p. 1175, 278 Cal.Rptr. 614, 805 P.2d 873.) In some cases, statistical analysis does require an expert. (People v. Morganti (1996) 43 Cal.App.4th 643, 668, 50 Cal.Rptr.2d 837 [expert required for statistical analysis of DNA]; Frazier v. Consolidated Rail Corp. (D.C.Cir.1988) 851 F.2d 1447, 1452 [expert required to perform Z test in that circumstance].) All numerical evidence, however, does not mandate an expert witness. (Yick Wo v. Hopkins, supra, 118 U.S. at pp. 373-374, 6 S.Ct. 1064; Castaneda v. Partida, supra, 430 U.S. at p. 495, 97 S.Ct. 1272; Turner v. Fouche, supra, 396 U.S. at p. 359, 90 S.Ct. 532; Whitus v. Georgia, supra, 385 U.S. at p. 552, 87 S.Ct. 643; Frazier v. Consolidated Rail Corp., supra, 851 F.2d at p. 1452 [trial court should determine on case by case basis if expert is required].) Expert testimony is required only for opinions "related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid.Code § 801, subd. (b).) A simple comparison of percentages does not exceed the "common experience" of the trier of fact, and hence, does not mandate use of an expert.
Defendants also argue that a statistical analysis would have undermined the plaintiffs numerical argument under the "fourfifths rule" used by the Equal Employment Opportunity Commission, a federal agency. (See 29 C.F.R. § 1607.4D (2002).) Putting aside the defendants' failure to provide an expert's declaration explaining why plaintiffs statistical showing is wanting, their assertion fails on a more fundamental ground, as the plaintiff correctly points out: they failed to make this showing in the trial court. It is too late to raise it on appeal. {Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 8 fn. 2, 74 Cal.Rptr.2d 248, 954 P.2d 511.) We need not consider the argument further.
We conclude the trial court's grant of summary adjudication against plaintiff in his Unruh Civil Rights Act cause of action was improper. Plaintiff presented evidence sufficient to support an inference that Magic Mountain's facially neutral line cutting policy is applied in a discriminatory manner. Plaintiff has raised a triable issue of material fact on the issue. That is sufficient to defeat this motion for summary adjudication.
DISPOSITION
The petition for writ of mandate is granted. Respondent court is directed to vacate its order granting summary adjudication to defendants on plaintiffs Unruh Civil Rights Act cause of action and to enter a new and different order denying this motion. Plaintiff is to have his costs on this appellate review.
We concur: CHARLES S. VOGEL, P.J., and HASTINGS, J.
NOTES
[1] All further statutory references are to the Civil Code unless otherwise stated.
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128 Cal.Rptr.2d 380 (2002)
104 Cal.App.4th 748
In re the MARRIAGE OF Rosemary and Jaime De PRIETO.
Rosemary Corbin, Appellant,
v.
Jaime De Prieto, Respondent.
No. D038136.
Court of Appeal, Fourth District, Division One.
December 20, 2002.
*381 William M. Henrich, San Diego, for Appellant.
Richard R. Leuthold, San Diego, for Respondent.
Certified for Partial Publication.[1]
HALLER, J.
When an obligor under a child support order is delinquent in payment, Family *382 Code[2] section 4722 allows the obligee to file and serve a notice of delinquency and provides for a 6 percent monthly penalty to accrue for up to 12 months if the arrearages are not paid. Section 4726 allows the obligor to request that penalties not be imposed if he or she files a timely motion after service of the notice of delinquency.
Rosemary Corbin challenges the trial court's discretionary reduction of penalties imposed on her former husband, Jaime De Prieto, pursuant to sections 4722 and 4726. Corbin contends the trial court erred in: (1) granting De Prieto relief from a penalty judgment under Code of Civil Procedure section 473's mandatory attorney fault provision; (2) finding a section 4726 motion was timely; and (3) reducing the penalty below the 6 percent monthly statutory amount. We hold these rulings were not in error, and uphold the judgment reducing the penalty.
FACTUAL AND PROCEDURAL BACKGROUND
After dissolution of their marriage, Corbin obtained a 1996 court order which established child support arrearages of $80,377.73, plus interest and other items. The order included a wage assignment for ongoing child support. In November 1997, Corbin filed a section 4722 notice of delinquency for $100,000.61 arrearages plus interest, and personally served it on De Prieto on December 1, 1997. The notice warned that if the arrearages were not paid within 30 days a penalty may be charged. De Prieto's counsel at the time (Richard Prantil) was not served with the notice of delinquency, and no action was taken at that time to respond to the notice.
During 1998 and 1999, Corbin pursued and obtained several child support modifications, as well as a writ of execution on the arrearages, but did not request the court to enter judgment on the penalty. According to attorney Prantil, during his representation of De Prieto from January 1996 to June 1998,[3] Corbin's attorneys verbally communicated with him, served him pleadings, and sent him correspondence, but they never gave him any type of notification of the delinquency notice.
By letter dated May 18, 1999, De Prieto's newly-retained attorney (James Scott) received Corbin's attorney's calculations of the amount owed for arrearages, plus his calculation of a $72,001.16 penalty which had accrued in 1998 because of De Prieto's failure to pay the arrearages.
In May 1999, attorney Scott filed a motion to appoint a special master to calculate disputed arrearage amounts and to develop a payment schedule for the arrearages. At the July 1999 hearing, attorney Scott raised the issue of "the problem" of the $72,001.16 penalty requested by Corbin, and urged the trial court to make findings as to the penalty after the special master reported on the disputed arrearage issues. In its oral and written rulings, the court stated attorney Scott was not precluded from filing "some sort of motion" to get relief from the penalty, but orally opined it did not think it could make the requisite findings for relief from imposition of the penalty under section 4726. The court also observed it might be difficult for De Prieto to prevail, but noted the penalty was "pretty stiff." Concluding the parties were apart in their arrearage calculations (Corbin's calculations were about $111,000 and De Prieto's were about $101,000), the trial court appointed a special master, with the caveat that arrearages could not go below $101,000.
*383 The special master utilized the 1996 court-ordered arrearage amount which was not subject to challenge, and then calculated arrearages and accrued interest since that time, finding arrearages as of September 30, 1999, totaled $101,026.55. De Prieto paid these arrearages shortly after the special master's report.
In April 2000, Corbin filed a section 4725 motion for a judgment on the penalty. In May 2000 De Prieto filed an opposition to the request for penalty judgment, asserting the May 1999 motion to set arrearages was a timely response to the notice of delinquency. At the June 2000 hearing on this and other motions, the trial court ordered entry of a $72,001.16 penalty judgment under section 4725. In doing so, the court found that although imposition of penalties is discretionary upon a proper motion for relief, De Prieto failed to file a section 4726 motion to show cause why penalties should not be imposed. The court also found that even if De Prieto's May 1999 motion to establish arrearages could constitute a section 4726 motion for relief, it was not timely. At the hearing, the court noted the penalty was "very, very harsh," "draconian," and "drastic," and it would impose a lesser penalty if it could, but it did not have the discretion to do so.[4]
In August 2000, De Prieto filed a motion for relief from the penalty judgment under the mandatory attorney fault provision of Code of Civil Procedure section 473, subdivision (b). In support of this motion, attorney Scott declared his belief that filing opposition papers to Corbin's April 2000 motion for judgment on the penalty adequately complied with the section 4726 motion requirement. Attorney Scott explained that when he became aware of the notice of delinquency two years after its service, he filed the May 1999 motion to appoint a special master to set a firm number for the arrearages and to establish a monthly payment schedule on the arrearages. Thereafter, De Prieto was able to pay the arrearages in full. Attorney Scott then planned to show the court why no penalty would apply. When Corbin filed her April 2000 motion for judgment on the penalty, Attorney Scott thought it prudent to formally oppose the motion, rather than file a second motion as to why the penalty should not be assessed.
The trial court concluded the circumstances of the entry of the penalty judgment resembled a default, and thus granted the request for mandatory relief from the penalty judgment. The court found that although the penalty was mentioned in declarations and correspondence during the litigation, it was never actually adjudicated. Likewise, at the June 2000 hearing on the motion for penalty judgment, there was no litigation on the merits of De Prieto's request for relief from imposition of the penalty since no section 4726 motion had been brought. The cause of the failure to bring the section 4726 motion was attorney misfeasance: i.e., attorney Scott mistakenly thought that filing an opposition to Corbin's motion for judgment on the penalties was equivalent to filing a section 4726 motion. The court ordered attorney Scott to pay Corbin's counsel's attorney fees and costs.[5]
*384 In October 2000, De Prieto filed a section 4726 motion requesting the penalties not be imposed. The trial court reduced the penalty from $72,001.16 to $30,000, finding: the October 2000 motion was filed in a timely fashion after the December 1997 service of the notice of delinquency; the court's earlier untimeliness finding as to the May 1999 motion to set arrearages was nonbinding dictum; and even though De Prieto's conduct was an egregious instance of noncompliance, it would not be in the interests of justice to impose the entire penalty.
Explaining these findings, the trial court orally stated it took into consideration that attorney Scott did everything he could to get the case resolved; De Prieto went to the special master to get the arrearages established and then paid everything; it would have been helpful if the notice of delinquency had been served on counsel; and one-third of the requested sanctions was reasonable.
Corbin argues the trial court improperly granted relief from the June 2000 penalty judgment under Code of Civil Procedure § 473(b)'s mandatory provision for attorney fault, and abused its discretion by ruling the section 4726 motion requesting penalties not be imposed was timely and then reducing the penalty. First, in the published portion of this opinion, we will evaluate the section 4722 penalty statutory scheme and the trial court's reduction of the penalty, and then, in the unpublished portion, we will address the court's granting of Code of Civil Procedure § 473(b) relief from the first (unreduced) penalty judgment.
DISCUSSION
I. Statutory Scheme
Corbin contends: (1) unless the obligor makes a timely section 4726 motion to show cause why penalties should not be imposed, the 6 percent monthly penalty begins accruing 30 days after service of the notice of delinquency, and thereafter imposition of the penalty by the court is merely a ministerial act; (2) the trial court abused its discretion in finding the section 4726 motion was timely; and (3) the trial court had no discretion to reduce the penalty but had to impose all of it. As we shall explain, we agree that under the statutory scheme the penalty is mandatory absent a timely motion requesting penalties not be imposed. However, we hold that in ruling on a section 4726 motion, the statute does not require the court to choose between the entire penalty or no penalty, but allows for discretionary reduction of the penalty in the interests of justice. Further, we hold that under the particular circumstances of this case, the trial court did not abuse its discretion in finding the section 4726 motion was timely and then reducing the penalty.
In interpreting statutes, we look first to the language of the statute, giving the words their ordinary meaning. (People v. Rizo (2000) 22 Cal.4th 681, 685, 94 Cal.Rptr.2d 375, 996 P.2d 27.) We construe the statutory language in the context of the statute as a whole and the overall statutory scheme, with a view to effectuating their purpose and intent and harmonizing their provisions. (Ibid.; People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 428, 92 Cal. Rptr.2d 829.) In addition to relying on the plain language of the statute as a whole, we are mindful of the general rule that although subject to the constraints of statutory requirements, family law courts are otherwise vested with wide discretion in decision making. (See In re Marriage of Hargrave (1985) 163 Cal.App.3d 346, 354-355, 209 Cal.Rptr. 764; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312, 111 Cal.Rptr.2d 755.)
*385 The statutory scheme for enforcement of child support orders via a notice of delinquency and imposition of penalties was enacted to apply to "egregious instances of noncompliance with child support orders." (§ 4721, subd. (b).) Section 4722 states: "(a) Any person with a court order for child support, the payments on which are more than 30 days in arrears, may file and then serve a notice of delinquency, as described in this chapter. [¶] (b) Except as provided in Section 4726, and subject to Section 4727, any amount of child support specified in a notice of delinquency that remains unpaid for more than 30 days after the notice of delinquency has been filed and served shall incur a penalty of 6 percent of the delinquent payment for each month that it remains unpaid, up to a maximum of 72 percent of the unpaid balance due." (Italics added.)[6]
Addressing relief from penalties, section 4726 provides: "No penalties may be imposed ... if, in the discretion of the court, all of the following conditions are met: [¶] (a) Within a timely fashion after service of the notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed, [¶] (b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following: [K] ... [H] (4) It would not be in the interests of justice to impose a penalty."[7] (Italics added.)
After 30 days from service of the notice of delinquency, section 4725 permits the obligee to file a motion to obtain a judgment for the penalty. Additionally, section 4728 allows the obligee to obtain a writ of execution to enforce the penalty, except that payment of penalties may not take priority over payment of current or past due child support.[8]
*386 This statutory scheme provides a punitive mechanism to financially motivate support obligors to fulfill their court-ordered child support obligations. Section 4722 states "[e]xcept as provided in Section 4726," a 6 percent penalty "shall incur" 30 days after service of the notice of delinquency. Section 1 of the Family Code defines "shall" as meaning mandatory. Thus, under section 4722 the penalty begins accruing 30 days after service of the notice. However, the trial court retains discretion not to actually impose accrued penalties based on section 4726, which allows discretionary relief from imposition of a penalty if a motion is filed "in a timely fashion" after service of the delinquency notice and if it would not be "in the interests of justice" to impose a penalty. Consistent with this statutory scheme, the Judicial Council form for a notice of delinquency advises the obligor that if the arrearages are not paid within 30 days of service, "a penalty of 6% per month may be charged on the unpaid balance." (Judicial Council Notice of Delinquency Form (rule 1296.90), rev. July 1, 2001 (Judicial Council Form 1296.90), italics added.)[9]
A. Timeliness
Section 4726 does not set a specific time limit other than "a timely fashion" after service of the delinquency notice. The undefined language suggests the Legislature left the timeliness determination to the trial court to be made on a case-by-case basis. (See In re Marriage of De Guigne (2002) 97 Cal.App.4th 1353, 1366, 119 Cal.Rptr.2d 430.) A determination of what is a reasonable time depends upon the circumstances of the particular case, and the trial court has broad discretion in making this determination. (See Carrasco v. Craft (1985) 164 Cal.App.3d 796, 805, 210 Cal.Rptr. 599.) A trial court's exercise of discretion will not be disturbed on appeal unless, as a matter of law, considering all of the relevant circumstances and drawing all inferences in favor of the judgment, the court has exceeded the bounds of reason. (In re Marriage of De Guigne, supra, 97 Cal.App.4th at p. 1366, 119 Cal.Rptr.2d 430; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178,110 Cal.Rptr.2d 111.)
As Corbin acknowledges in her reply brief, attorney Scott's May 1999 motion to set arrearages can be deemed a constructive filing of a motion for relief from the section 4722 penalties. Although about 17 months passed between the December 1997 service of the notice of delinquency and the May 1999 constructive filing, and *387 almost three years passed between the delinquency notice and the October 2000 actual section 4726 motion, the trial court had a sufficient factual basis to conclude the motion was timely under the circumstances.
The court was cognizant of circumstances that indicated the delay was not the result of De Prieto or his counsel simply ignoring the penalty hoping it would "go away," as contended by Corbin. Specifically, the trial court could reasonably infer the initial delay was largely attributed to Corbin's failure to serve De Prieto's counsel with a courtesy copy, even though Corbin and her counsel were well aware that De Prieto was represented by counsel at that time. Further, in 1998 and 1999, even though Corbin returned to court several times to pursue child support modifications, Corbin did not move to obtain a judgment on the penalty, but waited until April 2000 to do so. In May 1999, well before Corbin's April 2000 motion for penalty judgment, attorney Scott verbally raised the issue of the penalty, presenting his view that findings on the penalty should not be made until the special master resolved the arrearages issue. The special master's report was not adopted by the court until the June 2000 hearing on Corbin's penalty judgment motion. At both the July 1999 and June 2000 hearings, the trial court believed it had very little discretion under the statutory scheme, and then later changed its mind by the time of Attorney Scott's August 2000 Code of Civil Procedure § 473(b) motion for relief from the penalty judgment and subsequent October 2000 section 4726 motion.
This record indicates there was a significant amount of legal activity, and no small amount of legal confusion, occurring between the December 1997 service and the eventual section 4726 motion for relief. There were no published appellate decisions interpreting the penalty statutory scheme, and thus both the trial court and counsel did not have the benefit of judicial interpretation to guide their decisions. Although attorney Scott was not pursuing relief in perfect compliance with the penalty statute, the record shows he was trying during the course of the proceedings to address the penalty issue.
Certainly the time frame and manner in which relief from the penalty was obtained in this case is not the preferred method. As suggested by Judicial Council Forms form 1296.90, the better practice would be for the obligor to file a motion to show cause why the penalties should not be imposed, before the obligee moves for a judgment on the penalty.[10] Judicial Council form 1296.90 also states: "A form for filing the motion for a court hearing to establish your possible exemption was served on you with this Notice of Delinquency." The referenced form, Judicial Council Forms form 1296.91, includes, on a single form, both an application to determine arrearages and a request that no penalties be imposed.[11]
*388 Notwithstanding De Prieto's procedurally circuitous pursuit of relief, the delay, whether calculated from a constructive May 1999 filing or the actual October 2000 filing relied upon by the trial court, does not compel a finding of untimeliness as a matter of law. Given the failure to serve De Prieto's counsel with a courtesy notice, the indications attorney Scott was raising the issue during the course of the proceedings, Corbin's own delay in pursuing judgment on the penalty, the lack of judicial interpretation of the statutory scheme, and the absence of a showing of prejudice to Corbin, the lapse of time was not unreasonable as a matter of law.
Our conclusion is not meant to countenance delay in responding to notices of delinquency, nor to minimize the importance of following the motion procedures and forms pertinent to section 4726. Our role is confined to evaluating the correctness of the particular ruling before us, and because the trial court's exercise of discretion is not erroneous as a matter of a law, we will not disturb it.
B. Reduction of the penalty
We find unavailing Corbin's argument that section 4726 requires the trial court to choose between the entire 6 percent monthly penalty or no penalty at all.
Section 4726 states: "No penalties may be imposed ... if, in the discretion of the court, all of the following conditions are met: ... [ (1) The obligor brings a motion] to show cause why the penalties ... should not be imposed; [¶] ... [¶] [and (2) ] It would not be in the interests of justice to impose a penalty." (Italics added.) Although the initial reference to "[n]o penalties" could be construed as an all-or-nothing mandate, the later reference to "a penalty" suggests the monthly penalties could properly be evaluated as separate components. Section 4726's directive that the trial court consider whether imposition of a penalty serves the "interests of justice" indicates that the Legislature contemplated not a rigid all-or-nothing decision, but rather an evaluation of the circumstances with a view to reaching a balanced, reasonable result. Because a 6 percent penalty accrues each month, the nature of the penalty is that multiple penalties will be accruing. Reading the statute as a whole, we interpret it to mean the trial court can examine the monthly penalties to determine if any of them should not be imposed. The trial court can properly evaluate the circumstances of the case to determine if the interests of justice would be served by imposition of all, part, or none of the penalty.
The record here includes findings that support a reduction of the penalty. The bulk of the arrearages accumulated when De Prieto was unemployed or underemployed, and once the special master calculated the arrearage balance, it was paid forthwith. We see no abuse of discretion.
Finally, because the Legislature chose a broad "in the interests of justice" standard in section 4726, we are not persuaded by Corbin's argument that any reduction must be based on a more precise standard.
II. 473(b) Relief from the Penalty Judgment[**]
DISPOSITION
The judgment is affirmed. Costs to De Prieto on appeal.
WE CONCUR: HUFFMAN, Acting P.J., and McDONALD, J.
NOTES
[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.
[2] Subsequent statutory references are to the Family Code unless otherwise specified.
[3] In June 1998, De Prieto retained attorney Gary Pike in place of Prantil.
[4] At this June hearing, the trial court also found service of the notice of delinquency complied with the statute; found the 1996 order for about $80,000 in child support arrearages was the law of the case; adopted most of the special master's report determining arrearages; and found child support had been overpaid by $2,126.49 as of June 2000.
[5] The court also noted that the bulk of the arrearages occurred when De Prieto was unemployed or underemployed, and that De Prieto immediately paid the arrearages after the special master's calculation.
[6] Section 4731 allows the obligee to file more than one notice of delinquency, stating: "A subsequent notice of delinquency may be served and filed at any time. The subsequent notice shall indicate those child support arrearages and ongoing installments that have been listed on a previous notice."
In the event more than one notice of delinquency is filed, section 4727 addresses the calculation of the penalty based on the original amount due, stating: "Any penalty due under this chapter shall not be greater than 6 percent per month of the original amount of support arrearages or support installment, nor may the penalties on any arrearage amount or support installment exceed 72 percent of the original amount due, regardless of whether or not the installments have been listed on more than one notice of delinquency"
[7] Section 4726 states in its entirety: "No penalties may be imposed pursuant to this chapter if, in the discretion of the court, all of the following conditions are met:
(a) Within a timely fashion after service of notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed.
(b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following:
(1) The child support payments were not 30 days in arrears as of the date of service of the notice of delinquency and are not in arrears as of the date of the hearing.
(2) The support obligor suffered serious illness, disability, or unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order.
(3) The support obligor is a public employee and for reasons relating to fiscal difficulties of the employing entity the obligor has not received a paycheck for 30 or more days.
(4) It would not be in the interests of justice to impose a penalty."
[8] Section 4725 states: "If the child support owed, or any arrearages, interest, or penalty, remains unpaid more than 30 days after serving the notice of delinquency, the support obligee may file a motion to obtain a judgment for the amount owed, which shall be enforceable in any manner provided by law for the enforcement of judgments."
Section 4728 states: "Penalties due pursuant to this chapter may be enforced by the issuance of a writ of execution in the same manner as a writ of execution may be issued for unpaid installments of child support, as described in Chapter 7 (commencing with Section 5100), except that payment of penalties under this chapter may not take priority over payment of arrearages or current support."
[9] Judicial Council Forms, form 1296.90 states:
"The child support payments listed on this form are more than 30 days in arrears on the date of filing this notice. If they are not paid within 30 days of the date of service of this notice on you, a penalty of 6% per month may be charged on the unpaid balance. The penalty may accumulate to a maximum of 72% of the original amount of the unpaid support.
"California law provides that `Within a timely fashion after service of the Notice of Delinquency the [obligor may file] a motion to determine arrearages' and show the court why the 6% penalty should not be imposed. A form for filing the motion for a court hearing to establish your possible exemption was served on you with this Notice of Delinquency. You should file the motion as soon as possible, before the support obligee obtains a court order or writ of execution."
[10] The Judicial Council form for the notice of delinquency advises the obligor to file "`a motion to determine arrearages' and show the court why the 6% penalty should not be imposed ... as soon as possible, before the support obligee obtains a court order or writ of execution." (Judicial Council Forms, form 1296.90, italics added.)
[11] Corbin's proof of service for the notice of delinquency refers to service of a "Blank Notice of Motion to Determine Arrearages," thus presumably De Prieto did receive Judicial Council Form 1296.91 when he was served with the notice of delinquency. When making its timeliness ruling, the trial court considered the fact that his attorney at the time was not served with a courtesy copy. Attorney Scott did not use the Judicial Council form when filing the motion to set arrearages.
[**] See footnote 1, ante.
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447 Mich. 567 (1994)
527 N.W.2d 434
PEOPLE
v.
LINO
PEOPLE
v.
BRASHIER
Docket Nos. 92352, 95687, (Calendar Nos. 4-5).
Supreme Court of Michigan.
Argued December 1, 1993.
Decided December 28, 1994.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Susan L. LeDuc, Deputy Chief Assistant Prosecuting Attorney, for the people in Lino.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Robert C. Williams, Assistant *570 Prosecuting Attorney, for the people in Brashier.
James D. Lovewell for Lino.
Theodore H. Friedman for Brashier.
Amici Curiae:
Mark Brewer (Paul Denenfeld, of counsel), for Criminal Defense Attorneys of Michigan and ACLU Fund of Michigan.
Thomas F. Coleman and Rudolph A. Serra for Spectrum Institute, Triangle Foundation, and American Association for Personal Privacy.
MEMORANDUM OPINION.
I
These consolidated cases require us to decide the following questions: (1) whether MCL 750.338; MSA 28.570, is unconstitutionally vague, (2) whether the common-sense-of-the-community definition of gross indecency should be overruled, (3) whether oral sexual conduct committed in a public place constitutes gross indecency, and (4) whether the specific sexual conduct alleged in People v Brashier constitutes gross indecency because it was committed with a person under the age of consent.
A majority of the justices are of the opinion that
(1) MCL 750.338; MSA 28.570 is not unconstitutionally vague as it is applied to the conduct in Lino (CAVANAGH, C.J., and LEVIN, BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ.), and that the statute is not unconstitutionally vague as applied to the alleged conduct in Brashier. *571 (CAVANAGH, C.J., and LEVIN, RILEY, GRIFFIN, and MALLETT, JJ.)
(2) To the extent the Court of Appeals in Brashier interpreted People v Carey to leave to the jury's assessment of the common sense of the community the definition of gross indecency, the Court of Appeals is reversed. (CAVANAGH, C.J., and LEVIN, BRICKLEY, BOYLE, and MALLETT, JJ.)
(3) Oral sexual conduct committed in a public place is grossly indecent under MCL 750.338; MSA 28.570. (CAVANAGH, C.J., and LEVIN, BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ.)
(4) Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public. (CAVANAGH, C.J., and LEVIN, RILEY, GRIFFIN, and MALLETT, JJ.)
In Lino, we reverse the decision of the Court of Appeals and we affirm the defendant's conviction. Fellatio performed in a public place clearly falls within the ambit of MCL 750.338; MSA 28.570.
In Brashier, we reverse the decision of the Court of Appeals in part and affirm in part. Defendant Brashier's case is remanded to the trial court so that he may stand trial. Procuring or attempting to procure the specific sexual conduct alleged in Brashier with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public.
II
A. PEOPLE v LINO
On August 23, 1988, several officers, including *572 officers Smith and Ferguson, were investigating complaints of prostitution in the Michigan Avenue and Larch Street area of Lansing. Smith and Ferguson noticed defendant Lino walking on Larch, waving at passing cars. Lino was dressed as a woman; however, from past experience the officers knew that Lino was a man. The police followed a tan pickup truck that picked up Lino. The pickup eventually came to a stop in the overflow parking lot at DeMarco's restaurant.
The overflow parking lot was enclosed by a six- to eight-foot tall wooden fence on the north and east sides. The south side of the lot is open to the street. There is also an opening on the north side of the fence that allows pedestrian traffic. Although DeMarco's was open for business at the time of the incident (approximately 12:30 A.M.), there were no other vehicles in the overflow lot.
Officer Ferguson testified that, while he was behind the fence to the north, he saw the driver of the truck lean back in his seat and the defendant's head moving over the driver's lap. It was not until the officer climbed up three feet on the fence that he witnessed the defendant performing oral sex (fellatio) on the driver of the pickup truck.
Officer Smith testified that from his vantage point at the pedestrian opening on the north fence, approximately twenty feet away from the vehicle, he saw the driver sitting in the driver's seat while the defendant bent down out of sight. Officer Smith approached the vehicle and observed the defendant performing oral sex on the driver.
The driver of the truck testified that when he picked up the defendant, the defendant offered to perform oral sex for money. After arriving at the parking lot, the driver paid the defendant twenty dollars and the events, as described, occurred.
Judge Peter Houk presided at the defendant's *573 jury trial. Following the state's proofs, the defense moved for a directed verdict, claiming that the prosecution failed to present sufficient evidence that the act was committed "openly and in a public place." Judge Houk denied the motion. The jury found the defendant guilty of gross indecency between males, MCL 750.338; MSA 28.570, under the standard announced by the plurality opinion in People v Howell, 396 Mich. 16; 238 NW2d 148 (1976).
On appeal, the defendant claimed that (1) there was insufficient evidence that the act took place in a public place, (2) the gross indecency statute is unconstitutionally vague as applied, and (3) the trial court erred by not instructing the jury under the "common sense of the society standard." The Court of Appeals reversed the defendant's conviction using the Howell test and reasoning that the prosecution failed to present sufficient evidence that the act occurred in a public place. 190 Mich. App. 715, 721; 476 NW2d 654 (1991).
This Court initially denied the prosecutor's application for leave to appeal, but the prosecutor's motion for reconsideration was granted. 443 Mich. 882 (1993). We ordered that Lino be submitted with People v Brashier.
B. PEOPLE v BRASHIER
Brashier was charged in four separate informations. In each, a fourteen- or fifteen-year-old boy was victimized by Brashier and codefendant Goike. These events occurred in November and December of 1989.
The details varied, but the basic theme was the same. Defendant Brashier would strike up a conversation with the minor victim, eventually asking whether the victim was interested in earning some *574 money by "beatin' up a queer." Defendant Brashier would buy the minor victims lunch and then take them to a hotel room where codefendant Goike was waiting.
With Brashier directing the proceedings, the minors would physically and verbally abuse Goike, while Goike masturbated. The minors would hit Goike with a stick, urinate on him, vomit on him, pour syrup on him, and force him to consume combinations of these materials. All the while, Goike would continue to masturbate, eventually to climax.
For the most part, defendant Brashier's participation was limited to directing the activities. At times, he would actively participate in the abuse of Goike. At the end of these sessions, the minors were paid and threatened with harm if they ever revealed what happened.
There was never any direct physical sexual contact between the victims and either Brashier or Goike.
In separate informations corresponding to the four minors, these defendants were charged with one count of procuring or attempting to procure the commission of an act of gross indecency between the male minor victim and another male (the codefendant). In the circuit court, the defendant filed a motion to quash. Oakland Circuit Court Judge Fred Mester denied the motion.
The Court of Appeals reversed on interlocutory appeal, holding that the adoption of the Howell test by the Lino panel compelled the result. On the prosecutor's petition, the Court of Appeals agreed to convene a special panel to resolve the conflict between the Howell standard and the common-sense-of-the-community standard.
The special panel issued a per curiam opinion rejecting the Howell standard for gross indecency *575 and adopting the common-sense-of-the-community standard. 197 Mich. App. 672, 679; 496 NW2d 385 (1992). The three concurring judges would have adopted the Howell test; however, they agreed that this defendant nevertheless could be bound over. This Court granted leave to appeal, 443 Mich. 882 (1993).
III
A
Defendants challenge MCL 750.338; MSA 28.570,[1] as being unconstitutionally vague.[2] In order to pass constitutional muster, a penal statute must define the criminal offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v Lawson, 461 U.S. 352, 357; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983) (citations omitted). Vagueness challenges that do not implicate First Amendment freedoms are examined in light of the facts of each particular case. Howell at 21. When making a vagueness determination, a court must also take into consideration any judicial constructions of the statute. Kolender at 355.
Thus, there are at least three ways a penal *576 statute may be found unconstitutionally vague: (1) failure to provide fair notice of what conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) being overbroad and impinging on First Amendment freedoms.[3]Howell at 20-21, n 4.
Defendant Lino's vagueness challenge fails because it is clear that a number of cases hold that the public act of fellatio between males is encompassed within the scope of the gross indecency statute. See Howell at 22, and People v Kalchik, 160 Mich. App. 40, 45-46; 407 NW2d 627 (1987). Lino had fair notice that public fellatio between males is prohibited by the statute, and, correspondingly, the statute does not create a risk of arbitrary and discriminatory enforcement.
Nor is the statute vague as it applies to Mr. Brashier. He cannot plausibly claim that he could not have known his conduct was prohibited. In McSherry v Block, 880 F2d 1049 (CA 9, 1989), cert den 499 U.S. 943 (1991),[4] the United States Court of Appeals for the Ninth Circuit, rejected a vagueness challenge brought by a defendant convicted of "loiter[ing]" under a California statute that provides in pertinent part:
Every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or *577 comes upon such school or place within 72 hours, after being asked to leave ... is a vagrant.... [Cal Penal Code, § 653g.]
Although it was undisputed that the petitioner had not been asked to leave, "[t]he evidence at trial consisted of highly incriminatory observations of the appellant at five different schools, other relevant observations of his behavior, and his prior convictions for kidnapping a minor and lewd conduct with a girl under the age of eighteen." 880 F2d 1051. The court noted that "[i]n applying the rule against vagueness or overbroadness something ... should depend on the moral quality of the conduct." Freund, The supreme court and civil liberties, 4 Vand L R 533, 540 (1951), quoted with approval in Bouie v City of Columbia, 378 U.S. 347, 362, n 9; 84 S. Ct. 1697; 12 L. Ed. 2d 894 (1964).[5] The court stated that it was placing "considerable emphasis on this factor," in rejecting the petitioner's vagueness challenge. 880 F2d 1055.
In Rose v Locke, 423 U.S. 48, 51; 96 S. Ct. 243; 46 L. Ed. 2d 185 (1975), the United States Supreme Court said: "[A]lthough [Wainwright v Stone, 414 U.S. 21; 94 S. Ct. 190; 38 L. Ed. 2d 179 (1973)] demonstrated that the existence of previous applications of a particular statute to one set of facts forecloses lack-of-fair-warning challenges to subsequent prosecutions of factually identical conduct, it did not hold that such applications were a prerequisite to a statute's withstanding constitutional attack." In that case, the United States *578 Supreme Court upheld a conviction for forced cunnilingus under a Missouri statute proscribing "crime[s] against nature," despite the fact that Missouri courts had never applied the statute to the precise facts of the defendant's case. Brashier was therefore on notice that sexual activity involving persons under the age of consent could constitute the statutory crime of gross indecency.
B
With respect to defendant Lino, fellatio performed in a public place clearly falls within the ambit of the gross indecency statute.
With respect to defendant Brashier, we remand his case to the trial court so that he may stand trial. If proven true, Brashier's alleged conduct in orchestrating the conduct of the minors, to facilitate Goike's sexual arousal and masturbation in the presence of the minors would constitute the offense of procuring, or attempting to procure, an act of gross indecency even though it was not committed in a public place. Procuring or attempting to procure an act of gross indecency with a person under the age of consent can support a conviction under MCL 750.338; MSA 28.570, regardless of whether the conduct is performed in public.
C
This memorandum opinion is signed by the seven participating justices. There are separate concurring and dissenting opinions. However, at least four justices concur in every holding, statement, and disposition of this memorandum opinion.
LEVIN, J. (separate opinion).
We all agree that Luciano Lino was subject to prosecution for the *579 offense of gross indecency between male persons[1] on presentation of sufficient evidence that he performed oral sex (fellatio) with another man in public.[2]
*580 I agree with the majority[3] that Edward Brashier is subject to prosecution for gross indecency between male persons on presentation of sufficient evidence that he procured minors to perform fetishes to arouse Paul Goike sexually while Goike was masturbating to climax, even though the conduct was not in public and the minors and Goike did not touch each other.[4]
*581 I
The question shrouded under the sheets, and veiled behind the pages, of the several opinions, is whether it constitutes the felony of gross indecency for consenting adults to engage in oral, anal, or manual sex in private.
A
Lino is subject to prosecution, if at all, on presentation of sufficient evidence that a sexual act was committed in public, not because oral sex between consenting adults itself is grossly indecent. A married man and woman would be subject to prosecution for gross indecency between a male and a female person[5] if they were to engage in "normal" heterosexual intercourse in public.
*582 I would hold, following the lead of the Court of Appeals of Maryland in Schochet v Maryland, 320 Md 714; 580 A2d 176 (1990), that it does not constitute the felony of gross indecency for adults to engage in oral sex (fellatio, cunnilingus) or anal sex, or manual sex, including masturbation or other manual penetration or arousal, as long as the activity is consensual and in private.[6]
*583 Schochet had been acquitted by the jury of rape, anal intercourse, sodomy, and fellatio of the complaining witness by force or threat of force against her will and without her consent, but convicted of committing "a certain unnatural and perverted sexual practice," namely fellatio, with the complaining witness. Id., p 718.
Schochet alleged that the statute criminalizing "unnatural and perverted sexual practice" on evidence of fellatio was unconstitutional as applied to private and noncommercial sexual acts between consenting heterosexual adults.
*584 Maryland's highest court said that the principle that a statute should be construed to avoid constitutional questions[7] was applicable, and that, to avoid deciding whether criminalizing fellatio was unconstitutional, it would hold that the statute did not encompass consensual, noncommercial heterosexual activity between adults in the privacy of a home. Schochet's conviction was reversed, with the direction that a judgment of acquittal be entered.
B
Instructions to a jury should be clear that the accused cannot be convicted of the offense of gross indecency because it might be thought by some or many members of the community that oral, anal, or manual sex is grossly indecent, or that sex between a transvestite[8] and another man, or between persons who are not married to each other, or in exchange for the payment of money or other consideration,[9] is grossly indecent.
After the superpanel decision of the Court of Appeals in People v Brashier, 197 Mich. App. 672; 496 NW2d 385 (1992), a new standard criminal jury instruction, replacing an instruction based on the definition of gross indecency set forth in the plurality opinion in People v Howell, 396 Mich. 16; 238 NW2d 148 (1976),[10] was promulgated by the *585 Michigan State Bar Standing Committee on Standard Criminal Jury Instructions, which was established under the authority of this Court.
The new standard instruction allows a jury to decide whether the sexual act charged in the information constitutes an act of gross indecency. The new standard instruction reads:
(1) The defendant is charged with the crime of committing an act of gross indecency with another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant voluntarily committed a sexual act with another person.
(3) Second, that this sexual act was an act of gross indecency. An act is grossly indecent if it is of such a character that the common sense of society regards it as indecent and improper. [CJI2d 20.31. Emphasis added.]
This new standard instruction shows the deficiency of the common-sense-of-the-community[11] definition, *586 absent further direction from this Court. This new standard instruction does not, in contrast with the former instruction, state that where consenting adults are the only persons involved, the accused may be convicted of gross indecency only if the jury finds that the sexual act was committed in public.
Nor does the new standard instruction state as the old instruction in effect provided that an oral, anal, or manual sexual act between consenting adults in private is not an act of gross indecency. Nor does the new standard instruction state as the old instruction in effect provided that whether a sexual act is grossly indecent does not depend on whether the act is heterosexual or between gays or lesbians.
C
Unless a majority of this Court is prepared to affirm a jury verdict finding that oral, anal, or manual sex in private between consenting adult heterosexuals, or gays or lesbians, is grossly indecent, a majority of this Court should preclude such a prosecution or conviction by providing an alternative standard instruction that does not permit the prosecution or conviction of consenting adults under any such circumstances for the commission of such acts in private.
Even if a prosecutor knows that he might not be able to obtain a conviction, he may ruin a person, such as an elected official, by bringing the prosecution. Permitting a prosecutor to commence a prosecution and cause arrests for, and conduct a preliminary examination concerning, and the trier of fact, generally a jury, to decide whether sexual acts committed by consenting adults in private *587 constitute acts of gross indecency, poses a substantial risk of abuse.[12]
This Court should not wait until long after a prosecutor in one of the eighty-three counties files an information against gays or lesbians or heterosexuals for consensual sexual acts committed in private to rein in unstructured prosecutorial/jury discretion.
D
Penalties are provided by the criminal sexual conduct act to cover nonconsensual sexual behavior, or sexual behavior with a person under the age of consent.[13] In addition to the gross indecency charge, Brashier was charged with contributing to the delinquency of a child under the age of seventeen,[14] with accosting, enticing, or soliciting a child under the age of sixteen years to commit an immoral act,[15] and with conspiracy to commit an offense prohibited by law.[16]
It, therefore, appears that there is little, or at least less, need to continue to include within the definition of gross indecency sexual acts committed *588 without consent, or with a person under the age of consent,[17] or, indeed, for a definition of gross indecency stating what constitutes gross indecency.
There is, however, clearly a need to avoid conferring unstructured discretion on the prosecutor/trier of fact to determine whether an offense has been committed for this Court to state what does not constitute gross indecency, and specifically for this Court to state that oral, anal, or manual sexual acts committed in private by consenting adults are not grossly indecent. As in People v Myers, 161 Mich. App. 215; 409 NW2d 788 (1987), and People v Emmerich, 175 Mich. App. 283; 437 NW2d 30 (1989), this Court should state what does not constitute gross indecency.[18]
*589 II
I agree with the majority that the gross indecency statutes are not void for vagueness as applied to Lino and Brashier. Because of the manner in which the gross indecency statutes have been construed,[19] Lino and Brashier cannot claim that the statutes failed to "define the criminal offense [of gross indecency] with sufficient definiteness *590 that ordinary people can understand what conduct is prohibited...."[20]
Although the gross indecency statutes are not void for vagueness as applied to Lino and Brashier, this Court has an obligation to construe them to remedy the vagueness of "gross indecency."
In Hamling v United States, 418 U.S. 87, 110-116; 94 S. Ct. 2887; 41 L. Ed. 2d 590 (1974), the United States Supreme Court held that the defendant had notice, through earlier decisions, that a federal obscenity statute applied to the materials he circulated, and thus the statute was not void for vagueness as applied to him. The Court nevertheless then construed the statute so that it would be consistent with the obscenity definition set forth in Miller v California, 413 U.S. 15; 93 S. Ct. 2607; 37 L. Ed. 2d 419 (1973).
In Commonwealth v Balthazar, 366 Mass 298; 318 NE2d 478 (1974), the Supreme Judicial Court of Massachusetts held that a statute barring unnatural and lascivious acts was not vague as applied to the defendant, but nevertheless narrowed an earlier construction of the statute to remedy vagueness.
In Pryor v Municipal Court of Los Angeles, 25 Cal 3d 238, 253; 158 Cal Rptr 330; 599 P2d 636 (1979), a statute prohibiting solicitation of "lewd" and "dissolute" conduct, was held not to be vague as applied to the defendant. The California Supreme Court nevertheless adopted a narrowing construction to remedy vagueness, and said: "The judiciary bears an obligation to `construe enactments to give specific content to terms that might otherwise be unconstitutionally vague.'"[21]
*591 III
A criminal statute must provide fair warning of the conduct it prohibits, and may not vest law enforcement officials and juries with unbridled discretion to determine the conduct that is prohibited. Kolender v Lawson, 461 U.S. 352, 357; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983). The "common sense of the community" definition fails both prongs of this proscription.
A
An average citizen would not be able to determine the conduct that offends the "common sense of the community." "In the final analysis, each individual has his own moral codes, private and public, and what acts [sexual acts in this case] might be considered as injurious to public morals are as numerous as the opinions of man."[22] The common-sense-of-the-community definition specifies "no standard of conduct ... at all." Coates v Cincinnati, 402 U.S. 611, 614; 91 S. Ct. 1686; 29 L. Ed. 2d 214 (1971).
The common-sense-of-the-community definition is vague in much the same way as the ordinance in Coates that prohibited "three or more persons to assemble ... on any of the sidewalks ... and there conduct themselves in a manner annoying to persons passing by...." In striking down the ordinance, the United States Supreme Court said:
Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no *592 standard of conduct is specified at all. [Coates, supra, p 614.]
A legislature, thus, may not enact a standard for criminal liability that depends on the varied and constantly changing sensibilities of the public.[23]
In Commonwealth v Balthazar, supra, the court reconsidered its earlier decision in Jaquith v Commonwealth, 331 Mass 439, 442; 120 NE2d 189 (1954), in which it had defined the term "unnatural and lascivious acts" as signifying "irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners." (Emphasis added.) The court, to remedy vagueness, held that the "unnatural and lascivious acts" statute would no longer apply to private consensual sexual relations between adults. The court said:
In light of these changes [developments in the right to privacy] and in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic as the Jaquith case suggested they were in 1954, we conclude that [Mass Ann Laws, ch 272, § 35] must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific sexual conduct, which is inherent in § 35, requires such an interpretation. [Balthazar, supra, p 302. Emphasis added.]
The court held, however, that because Balthazar *593 had been convicted of forcing a woman to engage in sexual relations, the statute could be applied to him.
When Balthazar sought a writ of habeas corpus, the federal courts joined Massachusetts' highest court in recognizing the impermissible vagueness of a criminal statute that bases liability on community standards. The United States District Court for the District of Massachusetts said:
While a state may have a legitimate interest in protecting community sensibilities, criminal liability should only attach to clearly delineated transgression. Currents of community standards are constantly shifting. These changes are sometime subtle. Standards are apt to vary from generation to generation without the specific awareness of either generation. This is true in the area of private sexual conduct, among others. [Balthazar v Superior Court of Massachusetts, 428 F Supp 425, 433 (D Mass, 1977).]
On appeal to the United States Court of Appeals for the First Circuit, the court said that the "District Court was rightly concerned that the use of constantly shifting community standards, as the test of what conduct falls within the terms of a criminal statute, places the public `at its peril to anticipate a judicial pronouncement that public standards of morality have changed.'"[24]Balthazar v Superior Court of Massachusetts, 573 F2d 698, 701 (CA 1, 1978).[25]
*594 B
The "common sense of the community" definition vests the community law enforcement officials and juries with discretion to criminalize sexual behavior it finds offensive. This discretion conflicts with the United States Supreme Court's recent statement "that the more important aspect of the vagueness doctrine `is not actual notice, but *595 the other principal element of the doctrine the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender, supra, p 358. Where the legislature fails to enact such guidelines, the Court explained, "a criminal statute may permit `a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'"
Under the "common sense of the community" definition, police, prosecutors, and especially juries make the sort of standardless sweep of sexual behavior prohibited in Kolender. As stated by the Supreme Court of Alaska, in holding that a statute proscribing the "crime against nature" was void for vagueness: "[w]e cannot allow criminality to depend only upon the moral sentiment or idiosyncracies of the tribunal before which a defendant is tried." Harris v State, 457 P2d 638, 641 (Alas, 1969).
In a gross indecency prosecution under the common sense of the community definition, the prosecutor is not required to call "expert" witnesses to provide evidence concerning the common sense of the community. The prosecutor simply presents proof of the allegedly indecent act. The judge then instructs the jury that if it finds that the defendant committed the act and that the act offends the common sense of the community, it should convict. The jury thus becomes the arbiter of what constitutes the common sense of the community.[26]
There is no fixed yardstick against which to measure the jury's conclusion that the act in *596 question violates the "common sense of the community." Because the jury is "the community," its determination that an act offends the common sense of the community would ordinarily decide the matter. Under the "common sense of the community" definition, a reviewing court would find it difficult to decide that the "community" misapplied its own "common sense."
The United States Supreme Court's obscenity jurisprudence[27] shows the importance of substantive limitations ("fixed yardsticks") in criminal statutes. In Jenkins v Georgia, 418 U.S. 153, 159; 94 S. Ct. 2750; 41 L. Ed. 2d 642 (1974), the Court reversed a decision of the Georgia Supreme Court that affirmed the defendant's obscenity conviction for showing the movie "Carnal Knowledge." In the United States Supreme Court, the State of Georgia argued that the question whether the film was obscene was "a question of fact for the jury, and that the jury having resolved this question against appellant, and there being some evidence to support its findings, the judgment of conviction should be affirmed." The Court unanimously rejected Georgia's argument that the jury's verdict must be affirmed simply because there was some evidence to support it, and the implication that an obscenity conviction must be affirmed whenever a jury determines that the material violated "community standards."[28]
*597 The Jenkins decision[29] shows that an obscenity *598 conviction cannot rest on a jury's ad hoc, ad hominem application of community standards.[30] An obscenity conviction must be consistent with "substantive constitutional limitations." Id., p 160.
The common sense of the community definition is devoid of substantive limitations. The common sense of the community definition is the Miller definition for obscenity minus any substantive limitations like those found in Miller. It is, in short, the test for obscenity squarely rejected in Jenkins.
The Supreme Court of California recently observed:
The obscenity test as developed in Supreme Court decisions was not framed to measure non-communicative conduct; with no audience to be aroused pruriently or redeemed socially, all that is left of the test is the appeal to contemporary community standards. That appeal is the vaguest part of the test and, standing alone, does not provide a sufficient standard to judge the criminality of conduct. [Pryor, supra, p 250.]
IV
In Lino, the jury was instructed that the prosecutor must prove beyond a reasonable doubt that the act was "committed openly and in a public place," and, apparently, so found.[31]
*599 We all agree, that a person, man or woman, who commits fellatio, in public has committed an "act of gross indecency."
A
The meaning of "public" is not, however, self-evident. The New York Court of Appeals explained that, "[b]ecause the term `public place' has no cut-and-dried meaning, it is necessary to interpret and apply the statute [banning lewd public conduct] in a manner that comports with its purpose." People v McNamara, 78 NY2d 626, 633; 585 NE2d 788 (1991).
The New York Court of Appeals held that New York's public lewdness statute applies only where the "objective circumstances" establish that lewd acts "can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect." McNamara, supra, pp 634-635. In the words of New York's highest court:
That a member of the public may pass by is certainly part of the essence of a public place, and the harm to such a person's sensibilities is precisely that aimed at by the statute. Conversely, where no such harm is likely, the statute is not violated. [Id., p 633.]
The Supreme Judicial Court of Massachusetts and the California Supreme Court have similarly defined the term "public place" as set forth in *600 public lewdness statutes. The Supreme Judicial Court of Massachusetts held that to establish the "public place" element of public lewdness, "[t]he Commonwealth must prove that the likelihood of being observed by a casual passerby must have been reasonably foreseeable to the defendant or, stated otherwise, that the defendant acted upon an unreasonable expectation that his conduct would remain secret." Commonwealth v Ferguson, 384 Mass 13, 16; 422 NE2d 1365 (1981). In Pryor, supra, p 256, the California Supreme Court held that its public lewdness statute prohibited only a limited range of conduct, and only when "the actor knows or should know of the presence of persons who may be offended by his conduct."
This Court should follow the lead of the highest courts of New York, Massachusetts, and California, and hold that, to establish the "public place" element of gross indecency, the prosecutor must prove that when the sexual act was committed, the objective circumstances indicated that the conduct could have been seen, and was likely to have been seen, by members of the public.[32]
B
The jury in Lino's trial was not properly instructed concerning the "public place" element of *601 gross indecency.[33] After deliberating for approximately one-half hour, the jury asked the judge, "[w]hat constitutes a public place and is being in a personal vehicle the same as being in a public place?" The judge responded that, "[t]here is no exact answer to the questions that you have asked. Those judgments are entrusted to you for your sound judgment. I will tell you generally that a public place is one to which the public has an open view or access." (Emphasis added.)
The judge's response did not inform the jury that a public place, in addition to being open to the public's view, is a place in which one would reasonably expect to find members of the public or casual passersby.[34]
V
One of my colleagues' opinions suggests that Brashier's conduct might be chargeable as a felony punishable by imprisonment for up to twenty *602 years.[35] The penal statute adverted to[36] provides such a penalty on conviction of causing a person who is less than eighteen years of age to engage in "child sexually abusive activity for the purpose of producing any child sexually abusive material...." The term "child sexually abusive material" is defined as meaning a photograph, film, slide, electronic visual image, or sound recording of a child engaging in sexual intercourse, erotic fondling, sadomasochistic abuse, masturbation, passive sexual involvement, sexual excitement, or erotic nudity, as each of those terms is specifically defined in the statute. The record does not, however, indicate that the sexual activity charged in Brashier was photographed or otherwise recorded so that it could be viewed on a subsequent occasion.
The statute also subjects to prosecution with a like penalty "a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material...." There was no "audience" other than Brashier, and it does not appear that the conduct of the minors was for the purpose of Brashier's sexual gratification or stimulation.[37]
That colleague also states that the majority of this Court today defines gross indecency as including "any and all conduct that a jury thinks is indecent,"[38] and "[d]espite contrary protestations, [has] adopt[ed] a broad view of the statute,"[39] and "[f]aced with the unattractive prospect of finding Brashier's conduct outside the reach of the gross *603 indecency statute,"[40] the majority has solved the problem by saying in effect, that gross indecency is what four members of this Court say it is.
In Howell, supra, a plurality of this Court defined gross indecency as including oral and manual sexual acts committed "with" a person under the age of consent. The three concurring judges in the superpanel decision in Brashier read the Howell definition as permitting prosecution of Brashier on the basis that his conduct involved a manual sexual act committed by Goike "with" a person under the age of consent even though the person under the age of consent did not touch Goike.[41]
I would reverse and remand for a new trial in Lino, and join in remanding for trial in Brashier.
BOYLE, J. (concurring in part and dissenting in part).
This case is about the scope of the statute punishing gross indecency. It is my position that the offense is limited to specific conduct. The Court reads the statute as if the Legislature intended it to be general morals legislation. Specifically, the result of today's decision is that the statute will punish the conduct this Court determines to be immoral. Therefore, I dissent.
I agree that defendant Lino's conviction should be affirmed. I write separately, however, because I disagree with the Court's conclusion in Brashier that the gross indecency statute covers the conduct alleged.
The behavior Brashier is alleged to have procured appears to be proscribed by MCL 750.145c; MSA 28.342a,[1] which provides that a person who *604 "finances" any "child sexually abusive activity," specifically defined to include "sadomasochistic abuse, masturbation, [or] passive sexual involvement," is guilty of a felony punishable by up to twenty years imprisonment. It also might have been encompassed by the indecent liberties statute, formerly MCL 750.336; MSA 28.568. This statute was repealed by the Legislature in conjunction with adoption of the criminal sexual conduct statutes. 1974 PA 266.
*605 Whether the conduct is punishable under a different statute, however, is not the issue here. On the proofs submitted,[2] defendant Brashier was not properly bound over on the charge of gross indecency. The statute does not apply to any "unnatural" or immoral sexual act. Rather, it applies only to fellatio between males,[3] of which Brashier is not accused. We are not authorized to create a felony by interpretation. Therefore, although the defendant may be tried on several charges,[4] some of which he currently faces,[5] the bindover on the specific charge of gross indecency was error.
I
The question presented involves the scope of Michigan's gross indecency statute,[6] specifically, *606 whether it applies to immoral acts generally, such as procuring a male to vomit or urinate on another male or masturbate in the presence of a male who is a minor, or only to a specific act or acts.
A. THE PROBLEM ILLUSTRATED THE "CRIME AGAINST NATURE"
Courts have faced this precise question with respect to statutes that proscribe "sodomy" or "the crime against nature." Jurisdictions differ regarding whether such terms are limited to anal intercourse, or are to be broadly interpreted to cover all "unnatural" acts, including bestiality, fellatio, and cunnilingus. In Rose v Locke, 423 U.S. 48, 50-51; 96 S. Ct. 243; 46 L. Ed. 2d 185 (1975), the Supreme Court seemed to agree that "jurisdictions differ as to whether `crime against nature' is to be narrowly applied only to those acts constituting the common-law offense of sodomy, or is to be broadly interpreted to encompass additional forms of sexual aberration." Id. at 50-51. The issue in that case was whether the Tennessee statute the respondent had been convicted of violating applied to cunnilingus, which would not have constituted sodomy at the common law. The Court reinstated the respondent's conviction because Tennessee had adopted the broader version of the statute, id. at 53, which the Court held was not unconstitutionally vague, id. at 52.
Although it was not uncommon in other states, including Tennessee, to add fellatio and cunnilingus to the offense of sodomy by interpretation,[7] Michigan followed the narrow approach by separately *607 proscribing fellatio and sodomy. In People v Schmitt, 275 Mich. 575, 577; 267 N.W. 741 (1936), this Court reversed the defendant's conviction for sodomy because the prosecution proved only "penetration ... per os," or fellatio, not sodomy. The Court found that the Legislature had shown no disposition to depart from the common-law definition, observing that this conclusion was "evidenced further" by the fact that in 1931 the Legislature reenacted 1903 PA 198, which prohibited the offense of fellatio. Id. According to Professors Perkins and Boyce, Michigan's narrower approach
is the logical position since sodomy was not an offense under the common law of England and is an offense under American common law because of the early English statute which did not apply where the act is in the mouth. [Criminal Law (3d ed), p 466.]
Because the scope of the offense is specifically defined, it may not be expanded on the basis of what a judge or jury thinks it ought to encompass. As the Colorado Supreme Court explained in a case with facts identical to Schmitt, "[w]e cannot, because of our belief that the act charged against the defendant is even more vile and filthy than sodomy, stretch the sodomy section of the statute to include it." Koontz v People, 82 Colo 589, 594; 263 P. 19 (1927).
B. THE MICHIGAN GROSS INDECENCY STATUTES
Although sodomy does not as a matter of law *608 include fellatio, People v Schmitt, supra, it does not inexorably follow that gross indecency includes only fellatio. This case hinges on the question whether the term "gross indecency" is to be construed broadly or narrowly.[8]
The answer to this question begins with an examination of the statutory scheme. Gross indecency *609 between males was not proscribed by statute until 1903.[9] See 1903 PA 198, § 1. In 1931, that statute was reenacted as part of the criminal code. See 1931 PA 328, § 338.
The offenses of gross indecency between females and gross indecency between males and females were first enacted in 1939, see 1939 PA 148, only three years after a decision of this Court carrying implications for the original statute. In Schmitt, 275 Mich 577-578, which followed the historical narrow interpretation of the sodomy statute, the Court noted that "the offense of fellatio is now prohibited by [the gross indecency statute]." The fact that the Legislature thereafter employed identical language in the companion statutes lends support to the argument that the statute applies only to oral-genital contact.
The very addition of those two offenses, which meant that "gross indecency" was prohibited regardless of the gender of the participants, provides additional support for the narrow interpretation. If any sexual act could constitute the offense, then the 1939 act would have instituted decency regulation for all sexual behavior. Though this interpretation of the statutes would not necessarily have prohibited all sex, it would seem to mean that any person who had sex could be bound over and tried on a felony charge. The outrageousness of this possibility is stronger evidence that the Legislature intended the statutes to apply only to a specific act or acts.
While there is a textual argument[10] for application *610 of the statute to any "unnatural" or immoral act, that argument is belied by the number and variety of statutes addressing specific sexual behavior.[11] The Legislature's awareness of the numerous offenses, and the distinctions between them, is illustrated in 1952 PA 73, which amended 1948 CL 750.85 to apply to "[a]ny person who shall assault any female with intent to commit the crime of rape, and any person who shall assault another person with intent to commit the crime of sodomy or gross indecency...." Another example is MCL 750.145a; MSA 28.341, which makes it a misdemeanor to "accost, entice, or solicit a child under the age of 16 with intent to induce or force said child to commit an immoral act, or to submit to an act of sexual intercourse, or an act of gross indecency, or any other act of depravity or delinquency...." The statute contemplates an "act of depravity" that is not an act of gross indecency.
Michigan case law also supports this view. Although early opinions of this Court hesitate to provide explicit details, they reflect a certainty *611 that "particular conduct is rendered criminal by it." People v Carey, 217 Mich. 601, 603; 187 N.W. 261 (1922). As illustrated by the Court of Appeals in People v Dexter, 6 Mich. App. 247, 250-251; 148 NW2d 915 (1967):
Appellant raises the question of whether the counts charging gross indecency merged into the sodomy counts. Michigan follows the common-law definition of sodomy. People v Hodgkin (1892), 94 Mich. 27 [53 N.W. 794]. At common law, sodomy covered only copulation per anum. "Penetration per os did not constitute sodomy, or the `crime against nature,'" People v Schmitt (1936), 275 Mich. 575, 577 [267 N.W. 741], and cases therein cited. The legislature has shown no inclination to depart from the common-law definition of sodomy. Penetration per os, fellatio, is prohibited by the gross indecency statute. People v Schmitt, supra. The elements of gross indecency and sodomy differ.
Greater detail was recounted in People v Myers, 161 Mich. App. 215, 219-220; 409 NW2d 788 (1987), in which the Court held that the statute did not apply to the touching of another's genital area over clothing:
[P]ost-Dexter appellate decisions that have construed the gross indecency statute at issue have arisen from a factual background in which fellatio occurred.... No cases were found in which another sexual act, i.e., the massage of fully covered male genitalia, has occurred.
[P]rosecutions brought under other gross indecency statutes which also do not define an "act of gross indecency," namely MCL 750.338a; MSA 28.570(1) (gross indecency between females) and MCL 750.338b; MSA 28.570(2) (gross indecency between a male and a female) have involved acts of fellatio or cunnilingus. People v Livermore, 9 Mich. App. 47, 56-59; 155 NW2d 711 (1967) (sexual *612 conduct between two females); People v McCaleb, 37 Mich. App. 502; 195 NW2d 17 (1972), lv den 389 Mich. 784 (1973) (fellatio); People v Rea, 38 Mich. App. 141; 195 NW2d 809 (1972), lv den 388 Mich. 795 (1972) (cunnilingus); People v Roy Edwards, 58 Mich. App. 146; 227 NW2d 263 (1975), reversed in light of People v Howell, supra, 396 Mich. 825; 238 NW2d 536 (1976) (fellatio); People v Towlen, 66 Mich. App. 577; 239 NW2d 668 (1976), lv den 397 Mich. 831 (1976) (fellatio).
In each of the above cases (except Livermore, which did not involve a determination of whether the sexual act committed constituted gross indecency), the trier of fact determined that the act was grossly indecent in light of community mores.
The only case from this Court to suggest that the gross indecency statutes proscribe "unnatural" acts other than fellatio and cunnilingus was People v Howell, 396 Mich. 16, 24; 238 NW2d 148 (1976). That case and its companion case, People v Helzer actually involved forced fellatio and fellatio with a minor, respectively. The Court held that the statute was not unconstitutionally vague as applied to the defendants because "the statutes have long been applied in the courts of this state to acts of forced fellatio and fellatio with a minor." Id. at 21. However, three justices would have adopted a definition of gross indecency that encompassed acts that had not been previously held to be "acts of gross indecency": "manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." Id. at 24. Because the three other justices did not sign this section, it is not binding precedent.[12]Negri v Slotkin, 397 Mich. 105, 109; 244 NW2d 98 (1976).
*613 The dispute we now face was perpetuated as the Court of Appeals wrestled with the assertion in Howell that the offense of gross indecency encompassed acts that the "common sense" of society test would regard as indecent and improper. See 396 Mich. 23. Some panels read Dexter as impermissibly endorsing a broad common sense of society test and held that the gross indecency statute did not apply to the act of touching a covered groin. See, e.g., People v Emmerich, 175 Mich. App. 283; 437 NW2d 30 (1989). Others noted that the gross indecency statute had only been applied to cases involving oral sexual acts. See, e.g., People v Myers, supra, 161 Mich. App. 221. Still others found in Carey and Dexter a broad common-sense test to find mutual masturbation in public a question "left to the discretion of the jury," and thus chargeable as gross indecency. See, e.g., People v Austin, 185 Mich. App. 334, 340; 460 NW2d 607 (1990).
II
The separate opinion rejects the historical definition of the scope of the statute and asserts that gross indecency has historically been defined by the common sense of the community. Opinion of LEVIN, J., ante at 594-598. The author then rejects the common sense of the community test and holds that gross indecency includes masturbation in the presence of minors. Id. at 580, 594-598.
The suggestion that the scope of gross indecency as defined by this Court[13] was "the common sense of the community" is a straw man. That approach postulates that the requirement of indecency has not simply been an element of the statutory offense, *614 but that it has been the only element, and that the offense has thus included any and all conduct that a jury thinks is indecent. Compare supra, p 608, n 8. The "common sense of the community" test finds no support in Carey.[14] The issue was not the scope of the offense, but the sufficiency of the information. The Court held that it was unnecessary to name the particular conduct involved, and that it was sufficient simply to track the language of the statute: "The information in the language of the statute informed defendant of the crime for which he was to be tried. It should not state the evidence by which it is to be proved, nor should it describe the particular act charged. The gross indecency of the subject forbids it." 217 Mich. 603. The Court cited the passage from Hicks about the test that applied in prosecutions for the distinct offenses of indecent liberties and indecent exposure, as well as the passage from People v Girardin, 1 Mich. 90 (1848), concerning obscenity, merely to support the unremarkable proposition that the charging document need not state all details explicitly to be legally sufficient.
Defining the offense of indecent liberties, as the Court did in Hicks, is a very different matter from defining gross indecency. It appears that the offense of indecent liberties, along with indecent exposure, was defined in terms of the "common sense of the community." See, e.g., People v Healy, 265 Mich. 317, 319; 251 N.W. 393 (1933); People v Visel, 275 Mich. 77, 79; 265 N.W. 781 (1936); People v Noyes, 328 Mich. 207, 211; 433 NW2d 331 (1950) (quoting actual jury instructions). This was possible because the scope of the offense has built-in limitations. Indecent exposure, for example, is limited *615 to cases involving exposure a concept familiar to everyone. Though the term "indecent liberties" may be slightly more amorphous, it seems that it was commonly understood to encompass touching. With that understanding, it is easy to see how society shared, and probably continues to share, a common sense about what exposure or which liberties with children are "indecent."[15] In that sense, those terms need no further definition. Establishing "common sense" as the test only confirms this.
The opposite is true of "gross indecency" or "the crime against nature." These terms are not definitions that limit the type of conduct to which a jury will apply its common-sense judgment. They are euphemisms for the conduct prohibited by them. "Crime against nature" is a euphemism for anal intercourse. As explained in Spence, The law of crime against nature, 32 NC L R 312, 313 (1954), the first English statute on the subject, passed in 1533, prohibited as a felony the "detestable and abominable vice of buggery committed with mankind or beast." Some American states, however, *616 seem to have "found the word `buggery' too offensive to be seen in the code." Id. See also Perkins & Boyce, Criminal Law (3d ed), p 465 (citing states "which have used some such designation in lieu of a name").
The debate regarding the common sense of the community test in the context of gross indecency misfocuses the inquiry and obscures the precise issue in this case. That issue is what the term "gross indecency" is a euphemism for, and whether the statute encompasses the conduct of defendant Brashier. Gross indecency is a euphemism for fellatio and cunnilingus. As noted, the "common sense of the community" has not historically defined the scope of the gross indecency statutes. The holding of the Court in Dexter, 6 Mich. App. 250, for example, as opposed to the dicta regarding common sense of the community, was that "[p]enetration per os, fellatio, is prohibited by the gross indecency statute" and that that offense and sodomy were distinct offenses. Id.
The second flaw in the separate opinion is even more fundamental. Despite contrary protestations, the opinion adopts a broad view of the statute. There is no support in the almost one-hundred-year history of the statute for its application to sadomasochistic activity that involves no sexual contact between the victims and the perpetrators.
To state it differently, the separate opinion would "overrule" the broad interpretation of the statute, only to apply it broadly to conduct that is not even covered by the definition proposed by three justices in Howell.[16] In fact, the sadomasochistic *617 abuse of Mr. Goike is conduct to which the statute has never been applied.
Faced with the unattractive prospect of finding Brashier's conduct outside the reach of the gross indecency statute, the problem is solved by four members of this Court saying that gross indecency is what Brashier did. The result contradicts the rationale of the separate opinion, and assumes authority we do not possess. No matter how reprehensible the alleged conduct, the power to create crimes and establish penalties rests exclusively with the Legislature.
III. CONCLUSION
The common sense of the community does not define the conduct proscribed by the gross indecency statute. The statute covers only oral-genital contact that a jury finds in the circumstances is indecent. Because this conduct was not shown at the preliminary examination, it was error to bind over the defendant on this charge. I dissent, and would remand for further proceedings consistent with this opinion.
BRICKLEY, J., concurred with BOYLE, J.
RILEY, J. (concurring in part and dissenting in part).
*618 I join the memorandum opinion insofar as it finds the statute[1] at issue not unconstitutionally vague as applied, affirms Lino's conviction, and finds Brashier's conduct prohibited by the gross indecency statute. I respectfully dissent, however, because I believe gross indecency is defined by the common sense of the community, i.e., it is a question for the trier of fact.
I
A
MCL 750.338; MSA 28.570 mandates:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony ....
"When construing statutory provisions, the task of this Court is to discover and give effect to the intent of the Legislature. Legislative intent is to be derived from the actual language of the statute, and when the language is clear and unambiguous, no further interpretation is necessary." Storey v Meijer, Inc, 431 Mich. 368, 376; 429 NW2d 169 (1988) (citations omitted). If judicial construction is necessary, the Court must discern the Legislature's intent by examining "the object of the statute, the harm which it is designed to remedy, and apply a reasonable construction which best accomplishes the statute's purpose." In re Forfeiture of $5,264, 432 Mich. 242, 248; 439 NW2d 246 (1989).
*619 B
At issue in the instant case is the definition of "gross indecency." While a majority rejects a definition formed by a common sense of the community, no majority definition emerges. Two justices[2] refuse to define the term. Justice LEVIN would define gross indecency under the People v Howell[3] test and extend the scope of "manual sexual act[s] ... `with a person under the age of consent'" to include manual sexual acts, e.g., masturbation, in the presence of persons under the age of consent, even though this act was not done to or by persons under the age of consent. Ante at 580, n 4. Justice BOYLE, joined by Justice BRICKLEY, would limit gross indecency to oral-genital contact. I believe all three approaches are flawed. In fact, this Court has long held that the phrase gross indecency constitutes behavior offensive to the common sense of the community:[4]
"`Indecent and improper liberties with the person of such child' means such liberties as the common sense of society would regard as indecent and improper. In this case, as in State v Millard, 18 Vt [571] 577 [1846], it may be said that `no particular definition is given by the statute of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the court to state what particular conduct will constitute the offense. The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.'" [People v Carey, 217 Mich. 601, *620 602-603; 187 N.W. 261 (1922), quoting People v Hicks, 98 Mich. 86, 90; 56 N.W. 1102 (1893).][[5]]
Hence, contrary to the approach that refuses to define "gross indecency," the approach adopting and extending Howell, and the approach limited to oral-genital contact, gross indecency is determined by reference to the common sense of the community, i.e., it is a question for the trier of fact.
Certainly many gross indecency cases refer to or deal with oral sexual acts; however, no Michigan court has ever held that gross indecency is limited solely to such acts. Similarly, while this Court has held that sodomy does not constitute gross indecency, see, e.g., People v Schmitt, 275 Mich. 575; 267 N.W. 741 (1936), that finding has not limited the definition of gross indecency. In fact, we simply held that the crime of sodomy (then termed "`the abominable and detestable crime against nature'") did not include penetration per os,[6] but did not hold that gross indecency included only penetration per os. Id. Likewise, the Court in People v Dexter, 6 Mich. App. 247; 148 NW2d 915 (1967), held only that fellatio is prohibited by the gross indecency statute, not by the sodomy statute. The Court did not hold that gross indecency is limited simply to oral sexual acts. Id. at 250-251.
The purpose of the gross indecency act is to prohibit sexual conduct that is offensive to the community. "The word `indecent' is a common and general one. As ordinarily understood, it includes anything which is lewd or lascivious, obscene or grossly vulgar, unbecoming, unseemly, unfit to be *621 seen or heard, or which violates the proprieties of language or behavior." 50 Am Jur 2d, Lewdness, Indecency, and Obscenity, § 2, pp 451-452.
Statutes generally confer authority upon municipalities to preserve and protect the public morals, and to provide for the punishment of persons conducting themselves indecently in the streets and other public places, to the annoyance of the citizens. It has been observed that the decency which is protected by a statute is that which the predominant majority of minds agree upon. [Id. at 452.]
Indeed, even the lead opinion in People v Howell, 396 Mich. 16; 238 NW2d 148 (1976), which would have redefined and narrowly construed the statute, would have encompassed more than merely oral sexual acts. It would have redefined gross indecency to include:
oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. [Howell, supra at 24 (LEVIN, J.).][[7]]
Thus, I agree with the memorandum opinion that the statute includes more than just oral-genital acts. The purpose and history of the statute reveal that while oral sexual conduct may constitute gross indecency, other acts may also violate the statute. However, unlike the memorandum opinion, I leave this latter determination to the trier of fact, i.e., whether gross indecency is conduct *622 violative of the common sense of the community.
II
Lino's conduct could very well be considered gross indecency by a jury. Under the Carey standard, a reasonable jury should be permitted to find that fellatio in a well-lit parking lot next to an open restaurant that is visible by the naked eye offends the common sense of society. Fellatio, as noted by the memorandum opinion, has long been deemed gross indecency by Michigan courts. See, e.g., Howell, supra at 22 (finding forced fellatio and fellatio performed on a nine-year-old boy gross indecency); People v Myers, 161 Mich. App. 215, 220; 409 NW2d 787 (1987).[8] Indeed, even under the Howell standard, fellatio should be understood as an "ultimate" sex act. See, e.g., Howell, supra at 22.
Because Lino's actions constituted gross indecency, I join the memorandum opinion affirming his conviction.
III
Similarly, Brashier's conduct could be found by a jury to constitute gross indecency. Brashier on four separate occasions approached fourteen- or fifteen-year-old boys and offered them money if they would accompany him to "beat up a queer." Brashier would approach the boys, feed them *623 lunch, and take them to a hotel where codefendant Goike would be waiting. Brashier would direct the boys to abuse Goike while Goike masturbated. The boys would, inter alia, hit Goike with a stick, urinate and vomit and pour syrup on him, and force him to eat combinations of these materials. Brashier mostly directed the behavior, but also would partake at times. At no time did either the boys or defendant engage in any sexual touching or acts. At the completion of these "occasions," Brashier would pay the boys and threaten them with serious harm if they revealed what occurred.
A jury certainly would be entitled to find that this behavior constituted gross indecency although it did not constitute oral sex. The common sense of the community is clearly offended by these acts. The exact purpose for enacting the gross indecency statute was to combat such aberrant behavior. The appropriateness of maintaining a purposefully vague statute is also clearly revealed by the circumstances of this case. No legislature can be expected to delineate with laser-like precision all possible offensive sexual predilections. Finding that this conduct could not constitute gross indecency simply would be inconsistent with the common law and the purpose of the statute at issue.[9]
IV
Accordingly, I join the memorandum opinion except insofar as it rejects the common sense of the community definition of gross indecency.
GRIFFIN, J., concurred with RILEY, J.
NOTES
[1] The statute in question provides:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2500.00.... [MCL 750.338; MSA 28.570.]
[2] This constitutional challenge is brought under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
[3] Neither defendant claims that MCL 750.338; MSA 28.570 impinges on any of their First Amendment freedoms; thus, we do not consider the matter further.
[4] See also United States v White, 882 F2d 250, 252 (CA 7, 1989). "Provided that conduct is of a sort widely known among the lay public to be criminal ... a person is not entitled to clear notice that the conduct violates a particular criminal statute. It is enough that he knows that what he is about to do is probably or certainly criminal." (Emphasis in original.)
[5] In Bouie at 362, the Court held that due process notice requirements prevented a previously unannounced interpretation of a trespassing statute from being applied retroactively to civil rights protesters. The Court noted that "[a]pplication of this rule is particularly compelling where, as here, the petitioners' conduct cannot be deemed improper or immoral."
[1] male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.... [MCL 750.338; MSA 28.570.]
[2] Lino is a male prostitute, who, at the time, was dressed as a woman. He was charged with gross indecency on evidence that he was waiving at automobiles, entered a pick-up truck, which drove to an empty, well-lit, overflow parking lot, and was observed by a police officer, standing in an opening in a fence surrounding the lot, performing fellatio on an occupant.
Lino contended that the sexual act was done in private and therefore did not constitute gross indecency under the circumstances that the act took place in an empty parking lot, in a private vehicle where there was a reasonable expectation of privacy, and the arresting officers were able to observe the act only by making a deliberate effort to look into the vehicle.
The Court of Appeals reversed Lino's conviction because there was "insufficient evidence that the act defendant was convicted of occurred in a public place." People v Lino, 190 Mich. App. 715, 721; 476 NW2d 654 (1991). The Court stated "that the better definition of gross indecency is that expressed in the Howell opinion," id., p 720, referring to the plurality opinion in People v Howell, 396 Mich. 16, 24; 238 NW2d 148 (1976), where the plurality said:
Accordingly, we reject the construction of the Court of Appeals in Dexter and construe the term "act of gross indecency" to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public. [Emphasis added.]
People v Dexter, 6 Mich. App. 247, 253; 148 NW2d 915 (1967), referred to in the plurality opinion in Howell, restated the definition of gross indecency set forth in People v Carey, 217 Mich. 601; 187 NW2d 261 (1922), which was based on People v Hicks, 98 Mich. 86, 90; 56 N.W. 1102 (1893), which so defined the offense of taking "indecent and improper liberties with the person of a [female child under the age of 14]."
The Court of Appeals said that there was no light on inside the pick-up truck, and described the other evidence as follows:
The parking lot was enclosed by a six- to eight-foot-tall wooden fence on the north and east sides. Officer Ferguson parked his vehicle and approached the lot where the pickup was parked. The truck was parked in the northeast corner of the lot with its lights off. From behind the fence, Officer Ferguson observed defendant's head moving "in an up-and-down motion on the lap of the driver." Officer Ferguson then stood on a supporting crosspiece of the fence that was about three feet off the ground. From that vantage point, Officer Ferguson also observed the driver's exposed penis. Officer Ferguson and two other officers then approached the vehicle. When one officer identified himself, the driver started his vehicle and drove away at a high rate of speed. The driver was later apprehended.
Lansing Police Officer Clyde Smith was also working surveillance that night, and was riding alone in an unmarked police car. Officer Smith observed the driver of the truck pick up defendant. He then followed the truck to the parking lot, got out of his vehicle, and met with Officer Ferguson, who was observing the truck. Officer Smith was also able to observe defendant performing an act of fellatio on the driver.
The driver of the truck testified that when he picked up defendant, defendant offered him sex for money. After the two arrived in the parking lot, the driver paid defendant, and defendant thereafter performed fellatio upon him. The driver testified that, when he parked in the lot, he intended that the activities in the truck would remain private. [190 Mich App 716-717.]
[3] As set forth in the memorandum opinion signed by all seven justices, this opinion and one of the two dissenting/concurring opinions (see opinion of RILEY, J., post, p 623).
[4] Brashier involves behavior with minors. Brashier procured minors to perform fetishes described in the memorandum opinion and in one of the dissenting/concurring opinions (RILEY, J., post, pp 622-623) that aroused Goike. It appears that the minors observed, and, to the extent so described, assisted and participated in Goike's acts of masturbation, who, aided by the activity of the minors so arousing him, masturbated until he reached orgasm.
In the instant case of Brashier, a superpanel of the Court of Appeals, disagreeing with the panel in Lino (see n 2), restated the definition of gross indecency set forth in People v Carey, n 2 supra. People v Brashier, 197 Mich. App. 672, 679; 496 NW2d 385 (1992).
I agree with the concurring judges in Brashier that a jury could find that what is alleged to have occurred was grossly indecent under the Howell definition of gross indecency. It involved a manual sexual act committed by Goike "with a person under the age of consent" (see n 2 for the Howell definition), even though the persons under the age of consent did not touch Goike. Brashier, supra, p 680, n 1.
The judges said that the Howell definition "is clear, concise, and sufficiently inclusive to include defendant Brashier's grossly indecent conduct." Id., p 680. The concurring opinion explained:
The principal, Goike, performed manual sex acts, masturbation, while defendant encouraged and assisted several persons under the age of consent to abuse Goike until he experienced orgasm. Defendant paid the juveniles; he threatened them; he scripted their actions; he participated in the abuse. He aided and abetted the commission of gross indecency as defined by Howell. [Brashier, supra, p 680, n 1. Emphasis in original.]
In sum, without regard to whether one opts for the definition put forth in Howell or for the "common sense of the community" definition, a person who procures minors to perform the fetishes of a person who is masturbating in their presence, has committed, or aided and abetted, or procured, the commission of an act of gross indecency, even though the activity occurs in private.
[5] male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. [MCL 750.338b; MSA 28.570(2).]
The Penal Code also proscribes, in identical language, the commission of "any act of gross indecency" between female persons:
Any female person who, in public or in private, commits or is a party to the commission of, or any person who procures or attempts to procure the commission by any female person of any act of gross indecency with another female person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.... [MCL 750.338a; MSA 28.570(1).]
[6] In Kentucky v Wasson, 842 S.W.2d 487 (Ky, 1992), the Supreme Court of Kentucky held that a criminal statute proscribing consensual homosexual sodomy violates private and equal protection guarantees of the Kentucky Constitution.
In Texas v Morales, 826 S.W.2d 201 (Tex App, 1992), the Court of Appeals of Texas held that a Texas statute criminalizing private sexual relations between consenting adults of the same sex was unconstitutional, and enjoined enforcement. The court ruled that lesbians and gay men had standing to bring a civil action challenging the statute's constitutionality, the district court had jurisdiction to grant declaratory and injunctive relief, and the statute violated the state constitutional right of privacy. This decision was reversed by the Texas Supreme Court on the basis that the Texas Court of Appeals did not have jurisdiction regarding criminal statutes, and that only the Texas Supreme Court had jurisdiction. State v Morales, 869 S.W.2d 941 (Tex, 1994).
In Bowers v Hardwick, 478 U.S. 186; 106 S. Ct. 2841; 92 L. Ed. 2d 140 (1986), in an opinion by Justice White and signed by Chief Justice Burger and Justices Powell, Rehnquist and O'Connor, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not confer a fundamental right on homosexuals to engage in consensual sodomy, even in the privacy of their home.
Justice Powell concurred, pointing out that Hardwick had not been tried, much less convicted and sentenced, and that this was an action for declaratory judgment challenging the validity of the statute. Justice Powell said that it was conceded during oral argument that there had been no reported decision involving prosecution for private homosexual sodomy for several decades, and added:
The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right. [Id., p 198, n 20.]
Justice Blackmun's dissent, joined by Justices Brennan, Marshall and Stephens, began with the following statement:
This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante, at 191, than Stanley v Georgia, 394 U.S. 557 [89 S. Ct. 1243; 22 L. Ed. 2d 542] (1969), was about a fundamental right to watch obscene movies, or Katz v United States, 389 U.S. 347 [88 S. Ct. 507; 19 L. Ed. 2d 576] (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v United States, 277 U.S. 438, 478 [48 S. Ct. 564; 72 L. Ed. 944; 66 A.L.R. 376] (1928) (Brandeis, J., dissenting). [Id., p 199.]
[7] See part II, pp 589 ff.
[8] Lino, a male prostitute, was clothed as a woman.
[9] If, as I would hold, an act of fellatio or cunnilingus committed by consenting adults in private is not grossly indecent, it does not, in my opinion, become grossly indecent because money is paid.
[10] See n 2 for the definition of gross indecency set forth in the plurality opinion in Howell.
The former instruction, based on Howell, read as follows:
(1) The defendant is charged with having committed an act of gross indecency with [another male/another female/a male/a female]. The defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:
(2) First, the defendant must have voluntarily committed either a manual or an oral sexual act with a [male/female] person.
(3) A manual sexual act means that the defendant handled the sexual organs of the victim.
(4) An oral sexual act means that [the mouth or tongue of one person was placed in contact with the sexual organs of another/the penis of one person entered into or against the mouth of another].
(5) Second, if you find that such an act was committed, then you must further determine that the act was committed [without the consent of the complainant/with the complainant and that the complainant was under the age of sixteen years at the time of the alleged offense/openly in a public place]. [CJI 20:7:01.]
[11] The early cases adverted to in Brashier and by the majority speak of both the "common sense of the community" and the "common sense of society."
[12] Such prosecutions could also again become a weapon in a divorce action, where one spouse employs private detectives, obtains the names of lovers or prostitutes, and demands prosecution of the other spouse for engaging in an act of gross indecency.
[13] CSC of the third degree, a felony punishable by imprisonment for not more than fifteen years, includes sexual penetration with another person where force or coercion is used, or with a person who is at least thirteen and under sixteen. MCL 750.520d; MSA 28.788(4).
Force or coercion includes any of the circumstances listed in § 520b(1)(f)(i) to (v) of the Penal Code. MCL 750.520b; MSA 28.788(2).
CSC of the first degree, a felony punishable by imprisonment for life or for any term of years, includes sexual penetration with another person who is under thirteen years of age. MCL 750.520b; MSA 28.788(2).
[14] MCL 750.145; MSA 28.340.
[15] MCL 750.145a; MSA 28.341.
[16] MCL 750.157a; MSA 28.354(1).
[17] In People v Howell, n 2 supra, a plurality of this Court defined "gross indecency" to include sexual acts committed in public, or without the consent of the other person involved, or with a person under the age of consent.
The criminal sexual conduct act (MCL 750.520a et seq.; MSA 28.788[1] et seq.) became effective after the sexual conduct involved in Howell occurred, a little over a year before Howell was decided.
The CSC act defines "sexual contact" and "sexual penetration" broadly.
(k) "Sexual contact" includes the intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.
(l) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required. [MCL 750.520a; MSA 28.788(1).]
The definition of sexual penetration would include sodomy.
Sodomy, "the abominable and detestable crime against nature, either with mankind or with any animal," continues to be defined in a separate provision of the Penal Code, with a fifteen-year penalty. MCL 750.158; MSA 28.355. See Bowers, n 6 supra.
[18] In Myers, the Court of Appeals held that a male person's grabbing and massaging over clothing the groin area of another male person did not constitute gross indecency. The other male person was a state trooper who, acting in an undercover capacity, was at the entry of a toilet stall in a public restroom at a highway rest area. The two engaged in small talk. The defendant began stroking himself in the groin area and stated he wanted to play with the trooper. When the trooper asked the defendant what he meant, the defendant put his arm around the trooper's shoulder and, with his other hand, grabbed and began to massage the trooper's groin area, stating "let's play." The trooper then arrested the defendant. Id., p 216.
The Court said that since the Court of Appeals, following the "common sense of the community" definition, stated in People v Dexter, n 2 supra, had "consistently applied the gross indecency statute at issue and the other gross indecency statutes to cases involving oral sexual acts, we decline, in this instance, to apply the statute to the fact situation herein involving the defendant's touching of another's genital area over clothing." Myers, supra, pp 220-221.
In Emmerich, as in Myers, an undercover police officer engaged in conversation and then some activity with the defendant, concluding with the defendant placing his leg between the officer's legs, rubbing back and forth, and finally placing his pocketed hand on the officer's groin area, putting pressure on his genitals, with inquiry regarding what the other "liked." Id., p 284. The Court opted for the Howell test, but said that even under the "common sense of the community" definition, the touching of the genital area over clothing was not grossly indecent, citing Myers. Emmerich, supra, p 289.
[19] Before Lino's conduct, the Court of Appeals held that performing fellatio in public constitutes gross indecency. See People v Kalchik, 160 Mich. App. 40, 45-46; 407 NW2d 627 (1987).
In Howell, n 2 supra, p 21, a plurality of this Court held that the gross indecency statutes prohibit oral sexual acts with a person under the age of consent. The Howell test was adopted by at least two panels of the Court of Appeals before Brashier's conduct. People v Emmerich, supra, text accompanying n 18; People v Lynch, 179 Mich. App. 63; 445 NW2d 803 (1989). The phrase "with a person under the age of consent" (see n 2 for definition of gross indecency in the Howell opinion) can fairly be read to cover sexual acts that "involve" the participation of minors although the minors do not touch the person performing the sexual act. See n 4.
[20] Kolender v Lawson, 461 U.S. 352, 357; 103 S. Ct. 1855; 75 L. Ed. 2d 903 (1983).
[21] Similarly, see People v Hayes, 421 Mich. 271, 284; 364 NW2d 635 (1984).
[22] State v Musser, 118 Utah 537, 544; 223 P2d 193 (1950) (Latimer, J., concurring in the result).
[23] The Court in Coates was concerned that the ordinance had the potential to infringe on the First Amendment right of assembly. The decision did not rest, however, entirely on the Court's First Amendment concerns. The Court said that even "conduct clearly within the city's constitutional power to prohibit" could not be prohibited "through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., p 614.
[24] The district court had issued a writ of habeas corpus releasing Balthazar because "unnatural and lascivious acts" was impermissibly vague. The First Circuit affirmed.
[25] In District of Columbia v Walters, 319 A2d 332, 335 (DC App, 1974), the District of Columbia Court of Appeals held that the portion of a district statute that prohibited the commission of any "lewd, obscene, or indecent act" was void for vagueness. The court said:
The statute betrays the classic defects of vagueness in that it fails to give clear notice of what conduct is forbidden and invests the police with excessive discretion to decide, after the fact, who has violated the law.... Opposing segments of the public may well agree as to the lewdness, obscenity or indecency of many acts, to paraphrase the court in Ricks v District of Columbia, 134 US App DC 201, 210-211; 414 F2d 1097 (1968), but they will disagree about many other acts without approaching absurdity. Thus, there is a broad gray area in which the words of the statute will convey substantially different standards to different people. An act that is obscene to one person may be quite innocent to another and by proscribing "any other lewd, obscene or indecent act" the statute is so encyclopedic in its reach that areas of reasonable disagreement are limitless. [Emphasis added.]
In Pryor, supra, the California Supreme Court similarly held that language of a criminal statute that required a citizen to make predictions about his community's moral sensibilities was impermissibly vague. The court said:
Some jurors would find that acts of extramarital intercourse fall within that definition [lustful, lascivious, unchaste, wanton, or loose in morals and conduct]; some would draw the line between intercourse and other sexual acts; others would distinguish between homosexual and heterosexual acts. Thus one could not determine what actions are rendered criminal by reading the statute or even the decisions which interpret it. He must gauge the temper of the community, and predict at his peril the moral and sexual attitudes of those who will be called to serve on the jury. [Id., pp 251-252. Emphasis added.]
The court limited the offense of committing "lewd and dissolute conduct" in public to "conduct which involves the touching of genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense...." Id. at 256. The court adopted this narrowing construction, in part, because it did "not impose vague and far-reaching standards under which the criminality of an act depends upon the moral views of the judge or jury ...." Id., p 257. (Emphasis added.)
[26] In People v Ferguson, 45 Mich. App. 697, 700; 206 NW2d 812 (1973), and People v McCaleb, 37 Mich. App. 502, 507; 195 NW2d 17 (1972), the Court of Appeals explained that, under the "common sense of the community" test, the jury must be instructed that an essential element of the charge is "whether the defendant's conduct measured by their own common sense was indecent and improper." (Emphasis added.)
[27] In Miller v California, 413 U.S. 15; 93 S. Ct. 2607; 37 L. Ed. 2d 419 (1973), the United States Supreme Court held that a trier of fact may convict a defendant under an obscenity statute if it finds that (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; (3) the work as a whole lacks serious artistic, literary, political, or scientific value.
[28] The Court said that it did not
agree with the Supreme Court of Georgia's apparent conclusion that the jury's verdict against appellant virtually precluded all further appellate review of appellant's assertion that his exhibition of the film was protected by the First and Fourteenth Amendments. Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive." Not only did we there say that "the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary," [Miller, supra] 413 U.S. 25, but we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive `hard core' sexual conduct...." Id. at 27.
We also took pains in Miller to "give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced," that is, the requirement of patent offensiveness. Id. at 25. These examples included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "representations or descriptions of masturbations, excretory functions, and lewd exhibition of the genitals." Ibid. While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination. It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty. [418 US 160-161. Emphasis added.]
[29] While the values underlying the First Amendment were important to the Court in Jenkins, the broader teaching of Jenkins is that unbridled discretion to find conduct criminal cannot be confided to the trier of fact.
In State v Henry, 302 Or 510, 513; 732 P2d 9 (1987), an obscenity prosecution that focused on the application of "contemporary standards" to allegedly obscene material, the court said:
The indeterminacy of the crime created by [Oregon Revised Statutes] 167.087 does not lie in the phrase "sexual conduct" that is further defined in ORS 167.060(10). It lies in tying the criminality of a publication to "contemporary state standards." Even in the ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards." In a law censoring speech, writing, or publication, such an indeterminate test is intolerable.
[30] The political, literary, scientific, and artistic value of a work is judged not by community standards, but according to the "reasonable person" standard. Pope v Illinois, 481 U.S. 497, 501; 107 S. Ct. 1918; 95 L. Ed. 2d 439 (1987).
[31] The jury was instructed:
The Defendant is charged with having committed an act of gross indecency with another male. The Defendant pleads not guilty to this charge. To establish this charge the prosecution must prove each of the following elements beyond a reasonable doubt:
First, the Defendant must have voluntarily committed an oral sexual act with another male person. An oral sexual act means that the mouth or tongue of one person was placed in contact with the sexual organs, the penis, of another person. Second, if you find that such an act was committed, then you must further determine that the act was committed openly and in a public place.
[32] The commentary to the public lewdness section of the Model Penal Code states that
the rationale of this provision is to prevent the open flouting of societal conventions, it should not condemn as debauchers of public morality persons who desire privacy and who take reasonable measures to secure it. [American Law Institute, Model Penal Code, § 251.1, p 452.]
A couple who drive out to a secluded "lover's lane" and engages in sexual conduct should not be said to have committed an act of gross indecency in a public place if a lost hiker happens to stumble across them.
[33] No member of the public inadvertently witnessed the sexual act. Nor does it appear that it was likely that a member of the public would have inadvertently witnessed the act.
If an automobile had unexpectedly driven into the overflow parking lot, Lino might have ceased fellating the customer.
When the officer identified himself, the driver started his vehicle and drove away at a high rate of speed.
There is no evidence that the use of the parking lot as a "lover's lane" had become sufficiently notorious that adults or minors congregated near the opening of the fence and vied with each other for an opportunity to stand where the officer stood so that they could observe such sexual activity.
The prosecution presented evidence that, at the time of Lino's conduct, the restaurant connected to the overflow parking lot in which Lino's conduct occurred, was open. This evidence alone is not sufficient to support a finding that it was reasonably likely that members of the public would in fact be present in the overflow parking lot. The parking lot was, after all, an overflow lot.
[34] See McNamara, supra, p 793 where the Court said that an information that failed to "establish that [parked] vehicle was situated in a place where it was likely that respondent's lewd acts would be observed" by a member of the public was insufficient.
[35] Opinion of BOYLE, J., post, pp 603-604.
[36] MCL 750.145c(2); MSA 28.342a(2).
[37] See ns 13-16 and accompanying text.
[38] Opinion of BOYLE, J., post, p 614.
[39] Id., p 616.
[40] Id., p 617.
[41] Brashier, supra, p 680, n 1.
[1] MCL 750.145c(2); MSA 28.342a(2), reads as follows:
A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than 20 years, or a fine of not more than $20,000, or both, if that person knows, has reason to know, or should reasonably be expected to know that the child is a child, or that person has not taken reasonable precautions to determine the age of the child. [Emphasis added.]
"Child sexually abusive activity" means a child engaging in a listed sexual act. MCL 750.145c(1)(f); MSA 28.342a(1)(f). Those acts include not only "sadomasochistic abuse," but also "passive sexual involvement."
As the testimony is understood by the Court "[t]he minors would hit Goike with a stick" while he was masturbating, ante at 574 this case involves "[s]adomasochistic abuse." That term is defined as "[f]lagellation or torture, real or simulated, for the purpose of real or simulated sexual stimulation or gratification, by or upon a person," MCL 750.145c(1)(j); MSA 28.342a(1)(j).
"Passive sexual involvement" is defined by the statute to include any "act ... which exposes another person ... to an act of ... sadomasochistic abuse [or] masturbation ... because of the proximity of the act to that person, for the purpose of real or simulated overt sexual gratification or stimulation of 1 or more of the persons involved." The legal question whether the minor is "engaging" in the "passive sexual involvement" as required by subsection 1(h), by being in "the proximity of the act [masturbation]," has not been answered. However, the evidence indicates that defendant Brashier financed the presence of the minors.
This statute was amended in 1988, specifically eliminating the requirement that child sexually abusive activity be "commercial." See 1988 PA 110, § 1. Thus the suggestion that this statute might not apply to Brashier because "[t]here was no `audience' other than" him, opinion of LEVIN, J., ante at 602, appears to be incorrect.
[2] The proofs at examination show a curiously consistent pattern of denial of any sexual contact. If the proofs at trial indicate that contact in fact occurred, the prosecutor may seek leave to amend the information. MCL 767.76; MSA 28.1016.
[3] Historically the statute has never been applied to consensual sexual activity between two persons in privacy.
[4] The proofs appear to implicate not only the indecent exposure statute, MCL 750.335a; MSA 28.567(1), but also the "disorderly person" statute, MCL 750.167(i); MSA 28.364(i), and the statute that proscribes admitting a person into a place for purposes of lewdness, MCL 750.449; MSA 28.704.
[5] See MCL 750.145; MSA 28.340 (contributing to the delinquency of children); MCL 750.145a; MSA 28.341 (accosting, enticing, or soliciting a child for immoral purposes); MCL 750.157a; MSA 28.354(1) (conspiracy).
[6] These cases involve MCL 750.338; MSA 28.570, which prohibits gross indecency between male persons:
Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.
Nearly identical statutes prohibit gross indecency between female persons, see MCL 750.338a; MSA 28.570(1), and gross indecency between male and female persons, see MCL 750.338b; MSA 28.570(2).
[7] See, e.g., State v Altwater, 29 Idaho 107; 157 P. 256 (1916); Herring v State, 119 Ga 709; 46 S.E. 876 (1904); State v Dietz, 135 Mont. 496; 343 P2d 539 (1959); State v Fenner, 166 NC 247; 80 S.E. 970 (1914); Berryman v State, 283 P2d 558 (Okla Crim App, 1955); Blankenship v State, 289 S.W.2d 240 (Tex Crim, 1956); State v Phillips, 102 Ariz 377; 430 P2d 139 (1967); Hogan v State, 84 Nev 372; 441 P2d 620 (1968).
[8] The Court of Appeals has read the term to protect interests in privacy against the possibility that the statute could be applied to truly private conduct between consenting adults. As explained in People v McCaleb, 37 Mich. App. 502; 195 NW2d 17 (1972), though gross indecency includes acts of fellatio, it does not include all acts of fellatio. The issue in that case was whether it was error requiring reversal "for the trial court to instruct the jury that as a matter of law the act of fellatio is prohibited by the gross indecency statute, rather than leaving that determination to the jury as a basic element of the crime to be ascertained by the trier of fact." Id. at 504. The Court held that it was error:
The jury's function in this case as the trier of fact was to determine that (1) defendant had engaged in fellatio with a female, and (2) fellatio between a male and a female is conduct which the common sense of society regards as indecent and improper. The effect of the trial judge's charge was to eliminate the second element of the crime, "whether the conduct was indecent," from the purview of the jury. [Id. at 507.]
As the second sentence implies, the "common sense test" was a second element of the offense, limiting the scope of the statute to acts of fellatio that are found by a jury to be indecent:
In [People v] Dexter [6 Mich. App. 247; 148 NW2d 915 (1967)], we did not hold that as a matter of law fellatio is prohibited by the gross indecency statute. What this Court did in Dexter was affirm a jury's determination as trier of fact that the act of fellatio violated the gross indecency statute. Dictum from People v Schmitt, 275 Mich. 575, 577 (1936), was cited in Dexter at 250, for the proposition that "fellatio is prohibited by the gross indecency statute." This statement, however, fails to tell us whether fellatio is prohibited as a matter of law or only upon jury determination. This statement in Schmitt relied on People v Swift, 172 Mich. 473 [138 N.W. 662] (1912), for its authoritative basis. Swift, however, was a jury case in which the trier of fact determined in the first instance that the gross indecency statute had been violated. It is to be noted that nowhere in Swift is fellatio mentioned as the type of conduct prohibited by the act. Dexter and Schmitt, resting as they do on Swift, thus fail to resolve the issue posed by the case at bar. [Id. at 505.]
[9] In contrast, the statute proscribing "the abominable and detestable crime against nature" appears to date from Michigan's early years of statehood. A statute practically identical to the current one can be found at 1846 RS, ch 158, § 16. This Court has long held that this statute enacted the common-law offense. See People v Hodgkin, 94 Mich. 27; 53 N.W. 794 (1892).
[10] For example, unlike the sodomy statute, which proscribes "the abominable and detestable crime against nature," MCL 750.158; MSA 28.355, the statute at issue proscribes "any act of gross indecency," MCL 750.338; MSA 28.570.
[11] Consider the different statutes addressing sexual behavior in the 1948 Compiled Laws the last compilation before the enactment of the criminal sexual conduct statutes and accompanying repeal of many older statutes. See, e.g., 1948 CL 750.13 (enticing away a female under age 16); 1948 CL 750.140 (children; exhibition, employ or apprentice for immoral purpose); 1948 CL 750.85 (assault with intent to rape); 1948 CL 750.90 (sexual intercourse under pretext of medical treatment); 1948 CL 750.145a (accosting, enticing or soliciting a child for immoral purposes); 1948 CL 750.145b (same, second offense); 1948 CL 750.158 (crime against nature); 1948 CL 750.333 (incest); 1948 CL 750.335 (lewd cohabitation, gross lewdness or indecent exposure); 1948 CL 750.336 (female child indecent liberties); 1948 CL 750.338a (gross indecency between female persons); 1948 CL 750.338b (gross indecency between male and female); 1948 CL 750.339 (males under 15, debauching by females); 1948 CL 750.340 (debauching by males); 1948 CL 750.341 (female patient in institution for insane, ravish, abuse); 1948 CL 750.342 (female ward, carnal knowledge); 1948 CL 750.520 (rape).
[12] Nor has it been treated as such. See, e.g., People v Kalchik, 160 Mich. App. 40, 44; 407 NW2d 627 (1987); People v Austin, 185 Mich. App. 334, 338; 460 NW2d 607 (1990).
[13] People v Carey, supra, and People v Hicks, 98 Mich. 86; 56 N.W. 1102 (1893).
[14] Nor does the majority cite a single case before the Howell holding that the scope of these statutes is defined by the "common sense of the community."
[15] A good illustration is People v Lakin, 286 Mich. 282; 282 N.W. 149 (1938), in which this Court rejected the defendant's argument that the allegations at the preliminary examination were insufficient to bind him over for trial on the charge of indecent liberties. A twelve-year-old girl had testified that the defendant asked her to engage "in indecent conduct, and offered her a quarter if she would accede to his wishes. He then placed a hand on her knee." Id. at 283.
This Court's explanation for why the alleged conduct could constitute indecent liberties highlights the role that common sense played in defining the offense:
Had the girl's parents or any decent adult been present, there would have been objection not to the touching alone, but to the touching accompanied by defendant's indecent proposal. Under some circumstances a given act may be permissible, yet when that same act is accompanied by improper suggestions or proposals and occurs in surroundings such as are here disclosed, it assumes a new aspect and becomes criminal in character. [Id. at 284.]
[16] The definition proposed by three justices in Howell, 396 Mich. 24, would have prohibited "oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." Particularly in light of the final phrase that mentions "any ultimate sexual act," the limitation of the offense to "oral or manual sexual acts" with minors seems rather definite.
The word "with" parallels language used in the Criminal Sexual Conduct statutes. The csc statutes require "sexual penetration with another person," see, e.g, MCL 750.520b(1); MSA 28.788(2)(1), or "sexual contact with another person," MCL 750.520c(1); MSA 28.788(3)(1). These terms contemplate penetration into the genital or anal openings, and intentional touching of the intimate parts or clothing covering them, respectively. MCL 750.520a(k), (l); MSA 28.788(1)(k), (l). They do not suggest that the act criminalizes sexual intercourse or sexual contact in the presence of a minor. Rather, their common-sense construction suggests quite clearly that, like gross indecency, "with" refers to sexual conduct between persons, not in the presence of them.
[1] MCL 750.338; MSA 28.570.
[2] CAVANAGH, C.J., and MALLETT, J.
[3] 396 Mich. 16, 24; 238 NW2d 148 (1976).
[4] Contrary to Justice BOYLE's limited interpretation of the statute, the Legislature never intended only to prohibit cunnilingus and fellatio.
[5] While the purpose of the statute interpreted by Hicks was to punish male persons who take "indecent and improper liberties with the" persons of female children, the definition eventually defined the gross indecency statute at issue. See, e.g., People v Dexter, 6 Mich. App. 247, 253; 148 NW2d 915 (1967).
[6] Id. at 576.
[7] I reject Justice LEVIN's formulation, however, because it is fashioned from whole cloth. Justice LEVIN's standard, although creating a principled rule, is unprincipled: it is not derived from history, jurisprudence, legislative intent, or the text of the statute. Indeed, the statute prohibits gross indecency "in public or private," but Justice LEVIN has bifurcated the statute to mandate a "public" element in some cases.
[8] In fact, a number of courts have approved instructions which, as a matter of law, instructed that fellatio is gross indecency. People v Edwards, 396 Mich. 825, 826; 238 NW2d 536 (1976) ("The instruction that an assault with intent to perform fellatio upon the victim would constitute an assault with intent to commit gross indecency was not erroneous"); People v McCaleb, 37 Mich. App. 502, 507; 195 NW2d 17 (1972); People v Ferguson, 45 Mich. App. 697, 699; 206 NW2d 812 (1973).
[9] Furthermore, Brashier, while not actually fondling the victims, aided and abetted his partner's gross indecency. As such, he may be found guilty of gross indecency. People v Loveday, 390 Mich. 711; 212 NW2d 708 (1973).
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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/1303532/
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2 U.S. 346 (____)
2 Dall. 346
The UNITED STATES
versus
VIGOL.
Supreme Court of United States.
PATTERSON, Justice.
The first point for consideration, is the evidence, which has been given to establish the case stated in the indictment; the second point turns upon the criminal intention of the party; and from these points (the evidence and intention) the law arises.
With respect to the evidence, the current runs one way: It harmonizes in all its parts: It proves that the prisoner was a member of the party, who went to Reigan's house, and, afterwards, to the house of Wells, in arms, marshalled, and arrayed; and who, at each place, committed acts of violence and devastation.
With respect to the intention, likewise, there is not, unhappily, the slightest possibility of doubt: To suppress the Office of Excise, in the Fourth Survey of this State; and particularly, in *347 the present instance, to compel the resignation of Wells the Excise Officer, so as to render null and void, in effect, an act of Congress; constituted the apparent, the avowed, object of the insurrection, and of the outrages which the prisoner assisted to commit.
Combining these facts, and this design, the crime of High Treason is consummate in the contemplation of the Constitution and Law of the United States.
The counsel for the prisoner have endeavoured, in the course of a faithful discharge of their duty, to extract from the witnesses some testimony, which might justify a defence upon the ground of duress and terror. But in this they have failed; for the whole scene exhibits a disgraceful unanimity; and, with regard to the prisoner, he can only be distinguished for a guilty pre-eminence in zeal and activity. It may not, however, be useless on this occasion, to observe, that the fear, which the law recognizes as an excuse for the perpetration of an offence, must proceed from an immediate and actual danger, threatening the very life of the party. The apprehension of any loss of property, by waste, or fire; or even an apprehension of a flight or remote injury to the person, furnish no excuse. If, indeed, such circumstances could avail, it would be in the power of every crafty leader of tumults and rebellion, to indemnify his followers, by uttering previous menaces; an avenue would be forever open for the escape of unsuccessful guilt; and the whole fabric of society must, inevitably, be laid prostrate.
A technical objection has, also, been suggested in favor of the prisoner. It is said, that the offence is not proved to have been committed, on the day, nor the number of the Insurgent party to be so great, as the indictment states. But both these exceptions, even, if well founded in fact, are immaterial in point of law. The crime is proved, and laid to have been committed, before the charge was presented; and whether it was committed by one hundred, or five hundred, cannot alter the guilt of the defendant. If, however, the Jury entertain any doubt upon the matter, they may find it specially.
Verdict, GUILTY.[*]
NOTES
[*] The Court having waited about an hour for the Jury ('till half past ten o'clock at night) adjourned 'till 11 o'clock the next morning. Just after the adjournment took place, the Jury requested to fee Foster's Crown Law and the Acts of Congress, which, by consent, were accordingly sent to them. I am told, that they remained together 'till between 3 and 4 o'clock in the morning, when they wrote, signed, and sealed up, their verdict and adjourned. On the next morning (the 23d of May 1795) they appeared at the bar; and, being called over, offered the written verdict, sealed up, to the Clerk. But THE COURT said, that the paper could not be received. The foreman then pronounced the verdict, viva voce, and again offered the written verdict; but THE COURT repeated, "We cannot open, or receive it." Nothing was said, publicly, of the Jury's having adjourned. The defendant was eventually pardoned.
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2 U.S. 297 (____)
2 Dall. 297
The UNITED STATES
versus
RAVARA.
Supreme Court of United States.
Present, WILSON, IREDELL and PETERS, Justices.
*298 WILSON, Justice.
I am of opinion, that although the Constitution vests in the Supreme Court an original jurisdiction, in cases like the present, it does not preclude the Legislature from exercising the power of vesting a concurrent jurisdiction, in such inferior Courts, as might by law be established: And as the Legislature has expressly declared, that the Circuit Court shall have "exclusive cognizance of all crimes and offences, cognizable under the authority of the United States," I think the indictment ought to be sustained.
IREDELL, Justice.
I do not concur in this opinion, because it appears to me, that for obvious reasons of public policy, the *299 Constitution intended to vest an exclusive jurisdiction in the Supreme Court, upon all questions relating to the Public Agents of Foreign Nations. Besides, the context of the judiciary article of the Constitution seems fairly to justify the interpretation, that the word original, means exclusive, jurisdiction.
PETERS, Justice:
As I agree in the opinion expressed by Judge Wilson, for the reasons which he has assigned, it is unnecessary to enter into any detail.
The motion for quashing the indictment was accordingly rejected, and the defendant pleaded not guilty; but his trial was postponed, by consent, 'till the next Term.[*]
NOTES
[*] The defendant was tried in April Session, 1794, before JAY, Chief Justice, and PETERS, Justice; and was defended, by the same advocates, on the following points: 1st. That the matter charged in the indictment was not a crime by the Common Law, nor is it made such by any positive Law of the United States. In England it was once Treason; it is now felony; but in both instances it was the effect of positive law. It can only, therefore, be considered as a bare menace of bodily hurt; and, without a consequent inconvenience, it is no injury public or private. 4 Bl. C. 5. 8 Hen. 6. c. 6. 9. Geo. 1. c. 22. 4 Bl, C. 144. 3 Bl. C. 120. 2d. That considering the official character of the defendant, such a proceeding ought not to be sustained, nor such a punishment inflicted. The law of nations is a part of the law of the United States; and the law of nations seems to require, that a Consul should be independent of the ordinary criminal justice of the place where he resides. Vatt. b. 2. c. 2. s. 34. 3d. But that, exclusive of the legal exceptions, the prosecution had not been maintained in point of evidence; for, it was all circumstantial and presumptive, and that too, in so slight a degree, as ought not to weigh with a Jury on so important an issue. 2 Hat. H.P.C. 289. 4 Smol. Hist. Eng. p. 382. in not.
Rawle, in reply, insisted that the offence was indictable at common law; that the Consular character of the defendant gave jurisdiction to the Circuit Court, and did not entitle him to an exemption from prosecution agreeably to the law of nations; and that the proof was as strong as the nature of the case allowed, or the rules of evidence required. In support of his argument he cited the following authorities. 4 Bl. Com. 142. 144. 1 Lev. 146. 1 Keb. 809. 4 Bl. C. 180. Stra. 193. 4. Bl. C. 242. Crown Circ. 376. Fost. 128. Leach 204. 1 Dall. Rep. 338. 1 Sid. 168. Comb. 304. Leach 39. Ld. Ray. 1461. 1 Dall. Rep. 45.
THE COURT were of opinion in the charge, that the offence was indictable, and that the defendant was not privileged from prosecution, in virtue of his Consular appointment.
The Jury, after a short consultation, pronounced the defendant, Guilty; but he was afterwards pardoned, on condition (as I have heard) that he surrendered his commission and Exequatur.
As to the question of jurisdiction, see The United States versus Worral, post.
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2 U.S. 294 (____)
2 Dall. 294
COLLET
versus
COLLET.
Supreme Court of United States.
Present WILSON, BLAIR and PETERS, Justices.
*296 BY THE COURT: The question, now agitated, depends upon another question; whether the State of Pennsylvania, since the 26th of March 1790 (when the act of Congress was passed) has a right to naturalize an alien? And this must receive its answer from the solution of a third question; whether, according to the constitution of the United States, the authority to naturalize is exclusive, or concurrent? We are of opinion, then, that the States, individually, still enjoy a concurrent authority upon this subject; but that their individual authority cannot be exercised, so as to contravene the rule established by the authority of the Union. The objection founded on the word uniform, and the arguments ab inconvenienti, have been carried too far. It is, likewise, declared by the Constitution (art. I. s. 8.) that all duties, imports and excises shall be uniform throughout the United States; and yet, if express words of exclusion had not been inserted, as in a subsequent part of the same article (s. 10.) the individual States would still, undoubtedly, have been at liberty, without the consent of Congress, to lay and collect duties and imposts. Again; when, it is said, that one State ought not to be privileged to admit obnoxious citizens, to the injury of another, it should be recollected, that the State which communicates the infection, must herself be first infected; and in this, as in all other cases, we may be assured, that the principle of self-preservation will inculcate every reasonable precaution.
The true reason for investing Congress with the power of naturalization has been assigned at the Bar: It was to guard against too narrow, instead of too liberal, a mode of conferring the rights of citizenship. Thus, the individual States cannot exclude those citizens, who have been adopted by the United States; but they can adopt citizens upon easier terms, than those which Congress may deem it expedient to impose.
But the act of Congress itself, furnishes a strong proof that the power of naturalization is concurrent. In the concluding proviso, it is declared, "that no person heretofore proscribed by any State, shall be admitted a citizen as aforesaid, except by an act of the Legislature of the State, in which such person was proscribed." Here, we find, that Congress has not only circumscribed the exercise of its own authority, but has recognized the authority of a State Legislature, in one case, to admit a citizen of the United States; which could not be done in any case, if the power of naturalization, either by its own nature, or by the manner of its being vested in the Federal Government, was an exclusive power.
Upon the whole, the Court think that the plea to the jurisdiction has been maintained; and, therefore,
The Bill must be dismissed.[*]
NOTES
[*] It is remarkable that the argument om this case, turned entirely upon the point, whether the Federal power of naturalization was exclusive, or concurrent; and nothing was said by either side respecting the existence and operation of the act of Pennsylvania, which, as it depended in form and spirit on the old Constitution was virtually repealed, when that Constitution was abolished. The ideas of the reporter on that subject, are contained in a note upon the naturalization laws of Pennsylvania, in his edition of the acts of the General Assembly, (1 Vol. p 7. a) It may be proper to add, that there has since been a decision before Judge BIDDLE, in the Common Pleas of Philadelphia County, where the existence of the Pennsylvania law was the gift of the controversy: And in that case, as well as the case of the United States v. Vilatto (post.) the act of Assembly was adjudged to be obsolete.
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319 S.W.3d 461 (2010)
Judith Ann SEGGELKE, Appellant,
v.
Raymond SEGGELKE, Respondent.
No. ED 92857.
Missouri Court of Appeals, Eastern District, Division Five.
August 17, 2010.
*463 Benicia Baker-Livoris, St. Charles, MO, for Appellant.
Jane E. Tomich, St. Charles, Mo, for Respondent.
THOMAS J. FRAWLEY, Special Judge.
Judith Seggelke ("Wife") appeals from a judgment dissolving her marriage to Raymond Seggelke ("Husband"). Wife claims the trial court erred in distributing the marital property and in failing to award her attorney's fees. We reverse and remand.
I. BACKGROUND
Husband and Wife married in 1968; there is one emancipated child of the marriage. Wife filed her petition for dissolution of marriage on July 12, 2006. On October 19, 2006, the trial court entered a consent judgment pendente lite ("PDL"). The PDL, in relevant part, awarded Wife $750 per month in maintenance, retroactive to August 1, 2006, to be paid from the marital funds in her possession. The PDL also stated that Wife's request for attorney's fees would be determined in the dissolution proceeding.
The dissolution trial was spread over two days in April and October, 2008.[1] By the trial's conclusion, the parties had sold the marital residence and the marital farm and farm equipment. All sale proceeds were divided equally between the parties.
At the time of trial, Husband earned approximately $90,000 per year at his job *464 with Boeing. Wife, then age sixty, was unemployed and requested $750 per month in maintenance until she became eligible for Social Security retirement benefits at age sixty-six. Wife further requested a disproportionate share of the marital property due to Husband's misconduct, which included several affairs during the marriage.
The trial court entered its judgment of dissolution of marriage on November 12, 2008. The court awarded each party his or her half of the proceeds from sale of the marital home, marital farm and farm equipment as separate property. The court denied Wife's request for maintenance but ordered Husband to reimburse her for half the maintenance payments made during the pendency of the dissolution proceeding from Wife's share of the proceeds from sale of the marital residence, which the trial court determined to be $6,000.
With respect to Husband's conduct, the trial court did not believe it warranted a disproportionate division of the marital property. The trial court's initial judgment awarded Wife approximately 51%, and Husband approximately 49%, of the marital property valued by the parties. Both parties filed after-trial motions and alleged numerous errors in the division of the marital property. The trial court entered an amended judgment that resulted in Wife receiving approximately 49% of the marital property valued by the parties. Wife filed a second after-trial motion, which was denied by operation of law. Wife appeals.
II. DISCUSSION
We affirm the provisions of a dissolution decree unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declared or applied the law. Woodard v. Woodard, 201 S.W.3d 557, 560-61 (Mo.App. E.D.2006), and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We note that the attorneys involved in the trial of this case are not the attorneys involved in the appeal. We further note that many key exhibits which would have been helpful to our understanding of the case were not provided in the record on appeal.
In her first point on appeal, Wife alleges trial court error with respect to distribution of the marital property in that the trial court failed to (1) adjust its division of the marital property after amending its initial judgment to eliminate the award to Wife of the non-existent GMAC 401(k) account; (2) enter judgment in accord with Husband's request that Wife receive one-half of his Boeing pension; (3) award Husband's stock and stock options received through his employment with APC to either party; and (4) take into account Husband's admitted marital misconduct. We agree not only that the division of marital property must be revisited in light of the court's error in "double counting" the GMAC 401(k) account but also that the value of Husband's pension, Wife's pension, and Seggelke and Pujji, Inc., LLC, must be determined and considered in the division of the marital property. Therefore, we reverse the trial court's judgment and remand for further proceedings.
When dividing marital property, the trial court must consider the factors set out in section 452.330[2] and then divide the property in such proportions as it deems just. Workman v. Workman, 293 S.W.3d 89, 96 (Mo.App. E.D.2009). Per section 452.330.1, the trial court must consider the following relevant factors:
*465 (1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (3) The value of the nonmarital property set apart to each spouse; (4) The conduct of the parties during the marriage ...
"However, the trial court may attach the amount of weight to each of these it deems appropriate, and these factors are not exclusive." Skaggs v. Skaggs, 301 S.W.3d 72, 76 (Mo.App. S.D.2009) (quoting Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App. S.D.2001)). Thus, the trial court is vested with great flexibility in dividing the marital property. Id.
Wife first alleges that the trial court erred when it failed to readjust the distribution of the marital property after it removed the non-existent GMAC 401(k) account from Wife's share of the marital property. We agree.
The trial court's initial judgment included in Wife's share of the marital property a GMAC Fidelity Investments 401(k) account valued at $34,176.00. Wife filed a "Motion to Clarify and or Correct Judgment or in the Alternative Motion for a New Trial" which alleged that the trial court erred when it awarded her the GMAC 401(k) account because she had previously "rolled over" the account into the Allianz Alterity IRA (# DA313211), an asset also awarded to Wife.
In its amended judgment, the trial court admitted it erred in awarding Wife the now "rolled over" 401(k) account and removed it from Wife's share of the marital property. However, the trial court did not amend its judgment to adjust "the distribution of property to match what it had found to be equitable when it thought Wife was receiving approximately $35,000 more than she did."
The trial court is not required to divide marital property equally, Russum v. Russum, 214 S.W.3d 376, 384 (Mo.App. W.D. 2007); rather, the distribution need only be fair and take into account the factors listed in section 452.330.1. Adair v. Adair, 124 S.W.3d 34, 39 (Mo.App. W.D.2004). The trial court found its initial division, which awarded Wife just over 51% of the marital property valued by the parties, to be fair; therefore, a reduction of over $34,000, which resulted in Wife receiving less than 49% of the marital property valued by the parties, due solely to the trial court's own error requires reconsideration of the division of the marital property.
Wife also asserts trial court error in its failure to award to her half of Husband's vested pension at Boeing because Husband asked the court during the trial to award Wife half of his pension and all of her own pension. "[O]ral agreements as to property division are binding when entered into in open court by parties represented by counsel and the agreement is `spread upon the record.'" Morse v. Morse, 80 S.W.3d 898, 904 (Mo.App. W.D. 2002) (citing Carter v. Carter, 869 S.W.2d 822, 829 (Mo.App. W.D.1994)). Herein, as in Morse, the record reveals that the parties did not enter into a written agreement or binding stipulation concerning the division of Husband's pension; rather, Husband merely testified that he agreed to Wife receiving half of his pension at Boeing and all of her own pension at GMAC.
Neither party provided the court with the value of various items of marital property. The dissolution judgment lists several items with a value of "?"; e.g., Husband's pension, Wife's pension, and *466 Seggelke & Pujji, Inc., LLC. We sympathize with the dilemma facing the trial court, which was charged with effecting a fair division of the marital property, when the parties, who had an equal burden to present evidence of the value of the marital property, Nelson v. Nelson, 195 S.W.3d 502, 507 (Mo.App. W.D.2006), failed to present that evidence.
Though not required to assign a specific value to each marital asset absent a properly filed request for findings pursuant to Rule 73.01, the record before the trial court must contain evidence from which the value of the marital property set aside to each spouse can be determined. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo. App. E.D.2003), and Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D.1999). Therefore, the trial court is directed to hold a hearing to determine the value of each party's pension[3] and Seggelke & Pujji, Inc., LLC,[4] and thereafter effect an equitable division of the marital property following the guidelines of Section 452.330. See Hoecker v. Hoecker, 188 S.W.3d 497, 502-503 (Mo.App. W.D.2006).
Wife next asks this Court to name an owner of Husband's APC stock and APC stock options.[5] The record reveals, however, that the trial court awarded the APC stock to Husband.
Husband testified that in 2007 he participated in a stock purchase plan with his employer's parent company which allowed him to buy up to two and a half percent of his salary in stock. The options terminated in 2007, and Husband testified that the stock was transferred to a Fidelity Investments account in his name. The trial court awarded that account to Husband.
Wife also asserts that Husband's misconduct during the marriage and dissolution proceeding justifies a disproportionate division of the marital property. At trial, Husband admitted to an ongoing, two-year affair that began before Wife filed her petition for dissolution, as well as three other affairs during the marriage. Wife claims that, in addition to the extramarital affairs, Husband committed misconduct by dissipating and concealing marital assets. Husband testified to taking his current mistress on a fishing trip to Florida, buying her flowers, paying her utilities and satellite TV for a few months, and paying her 2007 property taxes. Further, Wife asserts that Husband did not take proper care of certain farm implements and allowed them to become damaged and worthless.
Marital misconduct is only one factor for the court to consider in dividing marital property. Martinez v. Martinez, 136 S.W.3d 886, 890 (Mo.App.W.D.2004); section 452.330.1(4). Even if the court believes the evidence of misconduct, it can still divide the property in equal fashion. Martinez, 136 S.W.3d at 890.
Furthermore, misconduct by one spouse cannot be used to punish that *467 spouse by awarding a disproportionate share of the marital property to the other spouse. Wansing v. Wansing, 277 S.W.3d 760, 768 (Mo.App. S.D.2009). Rather, the rationale for considering the misconduct of one spouse in the division of marital property is that, "if one spouse is compelled to contribute more to the partnership endeavor due to the other's misconduct, he or she is entitled to have the errant spouse's misconduct taken into consideration ... in dividing marital property." Id. at 768-69 (quoting In re Marriage of Ballay, 924 S.W.2d 572, 578 (Mo.App. S.D.1996)). Not all marital misconduct, however, requires a disproportionate division of marital property. Id. at 769. "[I]t is only when misconduct of one spouse changes the balance so that the other must assume a greater share of the partnership load that it is appropriate that such misconduct can affect the distribution of property." Id. (quoting Nelson v. Nelson, 25 S.W.3d 511, 519 (Mo.App. W.D.2000)).
Regarding the impact of Husband's misconduct on the division of marital property, the court found as follows:
"Husband further testified he and Wife had not been intimate for the last four years and they have not conversed much in the last five years. Although Husband has spent some marital funds on his current mistress, those funds are de minimus in relation to the size of the marital estate set out above. While not condoning Husband's adulterous behavior, this Court is not persuaded Husband's marital misconduct placed such an undue burden upon the parties' marital relationship as to justify a disproportionate division of the marital estate."
We cannot say the trial court abused its considerable discretion in the weight it assigned to Husband's misconduct in dividing the marital property. This sub-point is denied.
In her second point on appeal, Wife asserts that the Allianz Alterity account (# DA914594), valued at $121,767.73, contains $9,000 she inherited from her aunt and uncle in 1997 and $55,000 she received in 2000 from a bodily injury claim which arose in 1995 when she was hit by a tractor-trailer. Wife first claims the trial court lacked authority to award this account, which is titled in the name of the "J & R Seggelke Liv. Tr., DTD 03-30-95", because the trial court did not join the Trust as a party to the litigation.
Wife is correct that the trustee, not either party individually, holds title to the Allianz Alterity account. Therefore, the trial court does not have authority to award the actual account to Wife or apportion the actual account between Husband and Wife. Dunnagan v. Dunnagan, 239 S.W.3d 181, 188 (Mo.App. S.D.2007). But see Baldwin v. Baldwin, 905 S.W.2d 521, 525 (Mo.App. E.D.1995), in which an award to husband of six investment accounts held in the name of his revocable trust was affirmed. However, the equitable interest in the trust is subject to classification and division by the trial court. See Moore v. Moore, 189 S.W.3d 627, 636 (Mo.App. W.D. 2006).[6]
Wife invited trial court error by requesting in her proposed division of marital property that the Allianz Alterity account be awarded to her. Moreover, neither party listed the "J & R Seggelke Liv. Tru., DTD 3/30/95", on his or her statement of *468 property. Wife's statement of property identifies only two trustsone in the name of Wife, and one in the name of Husband, both created on 3/30/95. Husband's statement of property does not mention any trusts.
Wife also claims the trial court should have awarded her the Allianz Alterity account because it consists of her separate property. Wife initially deposited the inherited funds and bodily injury settlement into an account in joint names at Edward Jones and later transferred the funds into an investment account, also in joint names, at First Financial Planners. Additionally, the statements in the record for the Allianz Alterity account reveal that both Wife and Husband are the trustees of the "J & R Seggelke Liv. Tr., DTD 3/30/95."
Wife is correct that property acquired after marriage by gift, bequest, devise, or descent is not marital property under section 452.330.2(1). While her personal injury settlement could qualify as separate property if the payments compensated for separate, non-marital losses, Blydenburg-Dixon v. Dixon, 277 S.W.3d 815, 820 (Mo. App. W.D.2009), Wife presented no evidence of the breakdown of the settlement. Regardless, when separate property is placed in joint names, as Wife did here when she deposited the inherited funds and settlement proceeds in the accounts in joint names at Edward Jones and First Financial Planners and, in connection with the parties' estate plan, put the Allianz Alterity account in the name of a trust of which both she and Husband were trustees, a presumption is created that the property becomes marital, and clear and convincing evidence is required to show that a gift was not intended. Winter v. Winter, 167 S.W.3d 239, 244 (Mo.App. S.D. 2005). Wife did not overcome this presumption.
Non marital property does not become marital property solely because it has become commingled with marital property. Section 452.330.4. Wife not only testified that the funds in the account with First Financial Planners were commingled but also did not present clear and convincing evidence that an identifiable portion of the funds in the account[7] can be traced to the funds inherited by her in 1997 or received in 2000 in settlement of her bodily injury claim. Meier v. Meier, 306 S.W.3d 692, 702 (Mo.App. E.D.2010). Because the inherited funds and bodily injury settlement were placed in accounts in joint names, both Wife and Husband are the trustees of the "J & R Seggelke Liv. Tr., DTD 3/30/95," and the funds in the Allianz Alterity account are inextricably commingled, the trial court did not err in finding that the Allianz Alterity account (# DA 914594) is marital property in its entirety.
The record contains a statement for an account with Edward Jones which is titled "U/A Dtd 3/30/95 Judith A. Seggelke Liv. Trust" and has a value of $40,000. This account was set aside to Wife as her separate property, and the judgment indicates it contained inherited funds. The judgment makes no mention of a trust in Husband's name, and no value was assigned to such a trust. On remand, the trial court shall receive evidence concerning the existence and value of any trust in Husband's name.[8]
In her third point, Wife argues the trial court erred in failing to revalue *469 the capital loss carryover awarded to her. Wife testified at trial that the remaining capital loss carryover was $22,000, and in its initial judgment, the trial court awarded Wife the capital loss carryover at her value. Wife claimed in her second post-trial motion that her estimation was incorrect and that, at the time of trial, the capital loss carryover had a value of only $9,222; however, the trial court did not amend that portion of its judgment.[9]
Wife expended ample resources in investigating and presenting her case to the trial court, which awarded the capital loss carryover to Wife at her value. Having complied with Wife's request, the trial court did not abuse its discretion when it failed to adjust the award to reflect Wife's new valuation. However, tax consequences, if established with particularity, are a factor a trial court should consider when dividing marital property. Alongi v. Alongi, 72 S.W.3d 592, 597 (Mo.App. W.D. 2002), and Baldwin v. Baldwin, 905 S.W.2d 521, 524 (Mo.App. E.D.1995). Therefore, the trial court may wish to consider Wife's evidence of the actual value of the capital loss carryover at the hearing on remand to determine the value of Husband's pension, Wife's pension, Seggelke and Pujji, Inc., LLC, and any other items for which no evidence of value was presented at trial.[10]
In her fourth point on appeal, Wife argues the trial court erred in classifying the proceeds from the sale of the marital home and the marital farm and farm equipment as separate property. We agree.
The parties sold the marital home in November, 2007 and split the proceeds equally. Husband deposited his share of the sale proceeds, approximately $94,000, at Midwest Bank. During the pendency of the dissolution of proceeding, Wife invaded her share of the sale proceeds to pay from March through October, 2008 the PDL maintenance award and a portion of her attorney fees. By the second day of trial, Wife had expended $31,260.00 from her share of the sale proceeds.
Between the first and second day of trial, the parties sold the marital farm in Osage, Missouri, along with the farm equipment, and split the proceeds equally. Husband deposited his share of the proceeds from sale of the farm, approximately $90,000, in a Section 1031 exchange account, and his share of the proceeds from sale of the farm equipment, approximately $18,700, at Midwest Bank. Wife deposited her share of the proceeds from sale of the farm and farm equipment in a separate certificate at U.S. Bank.
The funds received from sale of the residence, the farm, and the farm equipment, all of which were marital assets, do not become non-marital because of an agreed upon division during the pendency of the dissolution proceeding. Preston v. Preston, 189 S.W.3d 685, 688 (Mo.App. W.D. 2006). Notwithstanding each party's receipt of one-half of the proceeds from sale of the marital home and the marital farm and farm equipment, all sale proceeds must be classified as marital property. *470 Jezewak v. Jezewak, 3 S.W.3d 860, 864 (Mo.App. E.D.1999).
Wife also argues that the trial court failed to recognize in its division of marital property that she expended the marital funds in her possession when the dissolution proceeding commenced to pay the PDL maintenance award through February, 2008 and a portion of her attorney's fees.[11]
Marital property is valued as of the date of trial. Elrod v. Elrod, 144 S.W.3d 373, 379 (Mo.App. S.D.2004), and Morse v. Morse, 80 S.W.3d 898, 905 (Mo. App. W.D.2002). Moreover, funds used for reasonable living expenses are not to be included in the division of the marital property. Elrod, 144 S.W.3d at 379, and Petties v. Petties, 129 S.W.3d 901, 906(Mo.App.2004). On remand, the trial court is directed to classify as marital property the proceeds from sale of the marital home and marital farm and farm equipment and, in determining an equitable division of the marital property, even though Husband may not have expended any of his portion of the sale proceeds, take into account the marital funds expended by Wife to satisfy the PDL maintenance award and for her reasonable living expenses, including attorney's fees. See Kolar v. Kolar, 114 S.W.3d 440, 443 (Mo. App. W.D.2003).
In her fifth point on appeal, Wife argues that the trial court erred in denying her request for attorney's fees. Generally, the parties to a dissolution are responsible for their own attorney's fees. Silcox v. Silcox, 6 S.W.3d 899, 905 (Mo. banc 1999). In determining whether to award attorney's fees, the trial court must consider all relevant factors, including the parties' financial resources, the merits of the case, and the actions of the parties during the course of the litigation. Adair v. Adair, 124 S.W.3d 34, 40 (Mo.App. W.D. 2004). The trial court has great discretion in this area, and its judgment will not be overturned absent an abuse of discretion. Silcox, 6 S.W.3d at 905. "The party challenging the award has the burden to prove an abuse of discretion, which will be found only where the decision is so arbitrary as to shock one's sense of justice." Id.
Wife asserts that she is entitled to attorney's fees because Husband was non-compliant during discovery, and his behavior necessitated multiple orders to compel. Wife also claims that Husband has a greater ability to pay her attorney's fees because she is unemployed and Husband earns $90,000 per year.
There is evidence in the record to support Wife's contention that Husband acted uncooperatively during certain periods of the litigation. Such evidence, however, is not so overwhelming that we may conclude that the trial court abused its considerable discretion in denying Wife's request for attorney's fees. Furthermore, while Wife had amassed approximately $30,000 in attorney's fees as of the second day of trial, she paid $29,000 toward those fees with marital funds, all which may on remand be considered a reasonable living expense. See Kolar v. Kolar, supra. Finally, with respect to the disparity in the parties' incomes, the trial court found that Wife voluntarily terminated her employment with GMAC and "clearly has the ability to support herself through appropriate employment". Therefore, the trial court did not abuse its considerable discretion in *471 denying Wife's request for attorney's fees. Point five is denied.
III. CONCLUSION
The cause is reversed and remanded. The trial court shall hold an evidentiary hearing to determine (a) the value of Husband's pension, Wife's pension, Seggelke and Pujji, Inc, LLC, and any other item of property for which a value was not provided at trial, and (b) the amount expended by Wife from marital funds, including the proceeds from sale of the marital home and marital farm and farm equipment, to satisfy the maintenance obligation under the PDL judgment and for Wife's reasonable living expenses. Thereafter, the trial court shall make the adjustments to the division of marital property necessitated by the (1) erroneous allocation of the non-existent GMAC 401(k) account to Wife; (2) designation of the proceeds from sale of the marital home and marital farm and farm equipment as separate property instead of marital property, (3) failure to value all items of marital property, especially Husband's pension, Wife's pension and Seggelke and Pujji, Inc., LLC, (4) failure to consider the assets in and, therefore, value of Husband's trust, (5) failure to credit against the marital property existing at separation the amounts expended by Wife to satisfy the maintenance obligation under the PDL judgment and pay her reasonable living expenses, and (6) failure to divide between Husband and Wife all marital assets identified in the parties' testimony and exhibits.
ROY L. RICHTER, C.J., and KENNETH M. ROMINES, J., concur.
NOTES
[1] Trial courts are encouraged to hear cases on consecutive days and to confine attorneys to the time the attorneys indicate is necessary for trial. The six month gap between hearing dates may have contributed to the errors discussed herein.
[2] Unless otherwise noted, all statutory citations are to RSMo 2000.
[3] The value of a party's pension may not be required if each party is awarded one-half of the marital share of the monthly benefit received, or to be received, by the other party under his or her pension. See Redlinger v. Redlinger, 111 S.W.3d 413 (Mo.App. E.D. 2003), and Muenz v. Muenz, 99 S.W.3d 4 (Mo.App. E.D.2002).
[4] We are unclear from Husband's testimony whether the airplane, which Husband sold at a significant loss after he was served with Wife's dissolution petition, was an asset of Seggelke & Pujji, Inc., LLC, and, if so, whether there exists a capital loss in the name of Seggelke & Pujji, Inc., LLC.
[5] As with his Boeing pension, Husband asked the court during trial to award Wife half the account holding the APC stock.
[6] The trial court may disregard the trust form for purposes of a dissolution of marriage proceeding if the spouse who is the settlor is also a trustee and has commingled his or her personal finances with those of the trust. See Wisdom v. Wisdom, # 70930, ftnt. 3 (W.D. 2010), which involved the failure of the trial court to join husband's corporation as a party to the dissolution of marriage proceeding.
[7] Dividends and interest earned on separate property during marriage are marital. See Coleberd v. Coleberd, 933 S.W.2d 863, 868 (Mo.App. S.D.1996).
[8] Assets in a trust of which one spouse is the sole trustee can be marital property. See Selby v. Selby, 149 S.W.3d 472, 487-88 (Mo. App. W.D.2004).
[9] We cannot determine with certainty from Wife's post-trial motion or her brief whether Wife's alleged over-estimation is merely a mathematical error or the product of a post-trial expert opinion of the value of the capital loss carryover to Wife.
[10] Wife's brief identifies in the Statement of Facts numerous marital assets not disclosed by Husband prior to the evidentiary hearing, one or more of which the trial court may conclude, in examining on remand the division of the marital property, were not awarded to either party in the initial and amended dissolution judgment.
[11] On the second day of trial, less than $200 remained from the $30,000 withdrawn at separation by Wife from U.S. Bank.
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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/2258927/
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147 N.J. 294 (1997)
687 A.2d 715
DELISHA KEMP, A MINOR, BY HER PARENT AND NATURAL GUARDIAN, DEBRA WRIGHT, AND DEBRA WRIGHT, IN HER OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
STATE OF NEW JERSEY, COUNTY OF BURLINGTON, RIVERSIDE BOARD OF EDUCATION, RIVERSIDE HIGH SCHOOL, DEFENDANTS-RESPONDENTS, AND JOHN DOES MANUFACTURERS (1-10) RICHARD ROES DISTRIBUTORS (1-10); AND ROBERT DOES (1-10) (FICTITIOUS NAMES) INDIVIDUALLY, JOINTLY, SEVERALLY, AND/OR IN THE ALTERNATIVE, DEFENDANTS.
The Supreme Court of New Jersey.
Argued October 21, 1996.
Decided January 14, 1997.
*297 David K. Cuneo, Haddonfield, argued the cause, for plaintiffs-appellants.
Valerie L. Egar, Deputy Attorney General, for respondent State of New Jersey (Peter G. Verniero, Attorney General of New Jersey, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel).
Timothy E. Annin, for respondent County of Burlington (Capehart & Scatchard, attorneys; Alison M. Nissen, on the brief).
Frank G. Basile, for respondents Riverside Board of Education and Riverside High School (Basile & Testa, attorneys; Diane M. Vari, on the brief).
OPINION
The opinion of the Court was delivered by COLEMAN, Justice.
The primary issue in this appeal is whether either of two statutory provisions, N.J.S.A. 59:6-4 of the Tort Claims Act ("TCA") or N.J.S.A. 26:11-12 (now repealed), immunizes defendants from liability for injuries caused by the administration of a rubella vaccine to a pregnant high school student. The Appellate Division, in a published opinion, found the defendants were immune under both statutes. 286 N.J. Super. 549, 670 A.2d 31 (1996). We granted certification, 144 N.J. 586, 677 A.2d 759 (1996), and now reverse.
I
During the spring of 1975, there was an outbreak of measles and rubella that reached near epidemic proportions in Burlington County and in other areas of the State. Burlington County health officials, with the cooperation of the Riverside Board of Education and the assistance of the New Jersey Department of Health, organized and operated a free immunization clinic at Riverside *298 High School to vaccinate students. Plaintiff Debra Wright, a senior at the high school, was given a rubella vaccine at the clinic on April 18, 1975.
The product information in 1973 and 1974 for the live attenuated rubella vaccine specifically recommended that pregnant women should not be given the vaccine and that women of child-bearing age should not be considered for vaccination unless there was no possibility of pregnancy at the time of the injection or in the following two to three months.
A pre-vaccination screening examination of participants in the vaccination clinic consisted of interviews in which questions regarding sexual activity were asked of the students. Defendants' standard practice was to counsel all females of childbearing age about the risks of vaccination and to refrain from inoculating any female who was pregnant or sexually active. Plaintiff Wright was pregnant when she received the rubella vaccine. On December 28, 1975, Wright gave birth to Delisha Kemp, who was born with congenital rubella syndrome. As a result, Kemp is afflicted with severe birth defects and requires continuing medical treatment.
The complaint, filed in October 1992, alleges that defendants were negligent in failing to ascertain whether Wright was pregnant or sexually active prior to her vaccination. Plaintiffs also allege that Wright was not warned that she should not receive the vaccine if she were pregnant or became pregnant within three months because an unborn child could suffer severe birth defects from the vaccine.
Defendants moved for summary judgement on several grounds, including immunity under N.J.S.A. 59:6-4 and N.J.S.A. 26:11-12. The trial court denied summary judgment on the immunity issues, finding that neither N.J.S.A. 59:6-4 nor N.J.S.A. 26:11-12 immunized defendants from liability. The Appellate Division reversed. It concluded that although the plain meaning of the word "treatment" in N.J.S.A. 59:6-4 might have included the examination and inoculation received in this case, the Legislature did not intend a plain meaning interpretation of the treatment exception in the *299 TCA. It found that the Legislature intended to exclude from the broad category of treatment all but the kind of ordinary medical examinations and treatments rendered by a doctor. It concluded that in this case the immunization for measles was not the ordinary care that a doctor would normally render and thus found the immunity was triggered. It also found that the public defendants have immunity under N.J.S.A. 26:11-12 because the statute was not repealed until after the date of the alleged negligence. The court rejected both the implied and the retroactive repealer doctrines as a basis to deny immunity. 286 N.J. Super. at 563, 670 A.2d 31.
II
Plaintiffs contend that defendants are not immune from liability under N.J.S.A. 59:6-4, because they engaged in the affirmative act of injecting the rubella vaccine into Wright without first examining her or properly questioning her regarding whether she was pregnant. Plaintiffs contend that the administration of a vaccine is a preventive measure that constitutes a form of treatment. Thus, plaintiffs argue that N.J.S.A. 59:6-4 immunity is inapplicable to the facts of this case because the pre-vaccination screening examination that defendants allegedly failed to perform properly was for the purpose of administering treatment in the form of the rubella vaccine.
Plaintiffs' argument requires an analysis of N.J.S.A. 59:6-4. It provides:
Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others. For the purposes of this section, "public employee" includes a private physician while actually performing professional services for a public entity as a volunteer without compensation.
[N.J.S.A. 59:6-4.]
As a proposition of law, immunity for public entities is the general rule and liability is the exception. See N.J.S.A. 59:2-1(a); *300 Canico v. Hurtado, 144 N.J. 361, 364, 676 A.2d 1083 (1996); Fielder v. Stonack, 141 N.J. 101, 117, 661 A.2d 231 (1995); Tice v. Cramer, 133 N.J. 347, 355, 627 A.2d 1090 (1993); Bombace v. City of Newark, 125 N.J. 361, 372-73, 593 A.2d 335 (1991). N.J.S.A. 59:6-4 of the TCA is consistent with that policy.
N.J.S.A. 59:6-4 can be divided into two sections. The first section provides absolute immunity for the failure to perform an adequate examination "for the purpose of determining whether [a] person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others." N.J.S.A. 59:6-4. The second section establishes an exception to the general rule of absolute immunity if the examination is "for the purpose of treatment." Ibid.
Plaintiffs maintain that defendants' conduct fell within the exception to the grant of immunity in N.J.S.A. 59:6-4. Thus, the narrow, but complex, question becomes whether the vaccination constitutes treatment within the meaning of the exception.
The plain meaning of "treatment" encompasses the administration of a vaccine. See 2 Roscoe N. Gray & Louise J. Gordy, Attorneys' Textbook of Medicine ¶ 33.12, at 33-4 (3d ed. 1990) ("[t]he most effective treatment of an infectious disease is obviously its prevention" by immunization or vaccination); Black's Law Dictionary 1502 (6th ed. 1990) (defining "treatment" as "broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies"); Stedman's Medical Dictionary Fifth Abridged Lawyers' Edition 1477 (5th ed. 1982) (stating that "treatment" encompasses, among other things, preventive or prophylactic efforts, including "the institution of measures designed to protect a person from an attack of a disease to which he has been, or is liable to be, exposed"). A vaccine is "[a] medicinal material which, when introduced properly into the body, is capable of causing the body to produce certain substances (antibodies) that overcome invading viruses, bacteria, or their poisons. In other words, a vaccine builds up immunity." 3 J.E. Schmidt, Attorneys' Dictionary *301 of Medicine & Word Finder V-1 (1983). Thus, the act of administering a vaccine involves the introduction of foreign matter into the recipient's body with the purpose of causing a specific reaction in the recipient's body. It is that reaction that creates the immunity to the unwanted disease.
The rubella vaccine administered in this case is analogous to the anti-rabies vaccination administered in Calabrese v. Trenton State College, 162 N.J. Super. 145, 392 A.2d 600 (App.Div. 1978), aff'd, 82 N.J. 321, 413 A.2d 315 (1980). In Calabrese, the plaintiff suffered adverse side effects from the administration of a rabies vaccine. Id. at 150, 392 A.2d 600. The plaintiff sued for malpractice, alleging negligence in the administration of the vaccine and for the failure to warn him of its dangerous side effects. Id. at 150-51, 392 A.2d 600. On appeal, the Appellate Division determined that the "administration of a given drug," in that case the rabies vaccine, constituted medical treatment. Id. at 156, 392 A.2d 600; see also Boyd v. Louisiana Medical Mut. Ins. Co., 593 So.2d 427, 428-29 (La. Ct. App. 1991) (equating administration of oral polio vaccine with "medical treatment" in context of determining whether physician adequately disclosed risks of treatment as required by informed consent statute), writ denied, 594 So.2d 877 (La. 1992); In re Christine M., 157 Misc.2d 4, 595 N.Y.S.2d 606, 613 (N.Y. Fam. Ct. 1992) (equating parents' failure to inoculate child against measles with deprivation of "recommended treatment" in violation of statute requiring parents to provide "adequate medical care"); People, on Complaint of Burke v. Steinberg, 190 Misc. 413, 73 N.Y.S.2d 475, 477 (N.Y.Mag.Ct. 1947) (concluding that vaccination against smallpox is "treatment" under statute defining practice of medicine: "Vaccination is a treatment given to a human being, even though no disease is present, to prevent disease.... It is treatment as well as preventive medicine.").
The Appellate Division in this case, however, concluded that the Legislature must have intended to reserve the "treatment" exception for "the type of medical examinations that we normally associate with treatment and care provided by doctors and hospitals *302 the ordinary provision of care." 286 N.J. Super. at 557, 670 A.2d 31. The Appellate Division found that because Wright was vaccinated as part of a public immunization clinic, Wright did not receive "that type of ordinary medical care." Ibid. We find that the Appellate Division's analysis is flawed.
First, the legislative commentary and history relied on by the Appellate Division state that N.J.S.A. 59:6-4's grant of immunity "does not apply to examinations for the purpose of treatment such as are ordinarily made in doctors' offices and public hospitals." See Comment to N.J.S.A. 59:6-4 (emphasis added); Senate Labor, Industry and Professions Committee Statement, No. 524, L. 1983, c. 184. The Appellate Division interpreted that language to mean that the immunity does not apply to "ordinary medical care." 286 N.J. Super. at 557, 670 A.2d 31. The Appellate Division also concluded that "ordinary medical care" does not encompass the administration of a vaccine through a public vaccination clinic, apparently because a public vaccination is something extraordinary. Ibid.
We find that an examination for the purpose of administering a vaccine is precisely the type of examination "such as [is] ordinarily made in doctors' offices." Comment to N.J.S.A. 59:6-4. The administration of a vaccine is a routine and common medical procedure. See Roscoe & Gordy, supra, ¶ 33.12(2). The fact that the vaccine is given in a public clinic, rather than in the privacy of a doctor's office, does not change the essential character of the ordinary act of administering a vaccine.
Second, the court's rejection of a "plain meaning" interpretation was based on its view that such an interpretation would lead to a result inconsistent with the statutory scheme. 286 N.J. Super. at 557, 670 A.2d 31. The Appellate Division concluded that the pre-vaccination screening examination was comparable to other public health examinations described in the Comment to N.J.S.A. 59:6-4. Id. at 555, 670 A.2d 31. The Comment to N.J.S.A. 59:6-4 describes the immunity as applying to
*303 the failure to perform adequate public health examinations, such as public tuberculosis examinations, physical examinations to determine the qualifications of boxers and other athletes, and eye examinations for vehicle operator applicants.
[Comment to N.J.S.A. 59:6-4.]
The Appellate Division reasoned that the pre-vaccination screening was designed to screen out those individuals who should not receive the vaccine, in much the same way as an eye examination might rule out a prospective driver or a physical examination might screen out a prospective boxer. 286 N.J. Super. at 555, 670 A.2d 31.
Although the examples listed in the Comment to N.J.S.A. 59:6-4 were not intended to be exclusive, their general descriptions must be construed to embrace only other illustrations that are similar in nature to those enumerated. If the purpose of the screening examination was to inform Wright whether she had measles, such an examination would have been similar to testing for tuberculosis or visual fitness to operate a motor vehicle, and would fit perfectly into the group of public health examinations articulated in the Comment.
But the public health examinations described in the Comment are simply not analogous to the examination that took place in the present case. The examinations described in the Comment are not conducted for purposes of rendering medical treatment. Once the examination of a prospective driver or athlete is complete, the public entity takes no further action of a medical nature. The same is true in the case of public tuberculosis examinations that are conducted for diagnostic purposes only. In this case, however, the purpose of the screening examination was not to see if Wright and others had measles, but to determine which individuals fell into the high risk category and should not receive the vaccine. The screening examination here served the same purpose as a doctor asking a patient whether he or she is allergic to penicillin before administering an injection of penicillin. The purpose of both interviews is to determine whether to implement the intended treatment. The introduction of the vaccine into Wright's body, or the penicillin into the hypothetical patient's body, to cause the *304 body to react in a certain way, falls within the definition of medical treatment.
That conclusion is consistent with California precedents interpreting California's comparable statute. Cal. Gov't Code § 855.6 (West 1996). That statute is virtually identical to N.J.S.A. 59:6-4. See, e.g., Colome v. State Athletic Comm'n. of Cal., 47 Cal. App.4th 1444, 55 Cal. Rptr.2d 300, 308 (1996) (explaining that public employee is immune under section 855.6 where employee conducts examination for purpose of determining plaintiff's fitness to participate in athletic competition, and neither renders treatment to plaintiff nor suggests any medical procedure to plaintiff), review denied, (1996); Smith v. County of Kern, 20 Cal. App.4th 1826, 25 Cal. Rptr.2d 716, 723 (1993) (explaining that public employee is not immune under section 855.6 where employee's actions "were taken to facilitate the delivery of medical diagnosis or care"), review denied, (1994). Because our TCA was patterned after the California Tort Claims Act of 1963, reference to California precedents interpreting section 855.6 is appropriate. See Kleinke v. Ocean City, 147 N.J. Super. 575, 579, 371 A.2d 785 (App.Div. 1977). We hold that the pre-vaccination examination was an examination for the purpose of treatment, and therefore falls within the exception to the TCA grant of immunity. Consequently, defendants are not entitled to summary judgment on the basis of the absolute immunity provided by N.J.S.A. 59:6-4.
III
Next, we must decide whether N.J.S.A. 26:11-12 should be applied to this case. That statute granted "good-faith immunity" to county boards of health and their agents. To answer that inquiry, we must decide whether our 1972 TCA impliedly repealed N.J.S.A. 26:11-12. If it did not, we must decide the effect the 1976 express repeal of N.J.S.A. 26:11-12 has on this case.
-A-
Prior to its repeal in April 1976, N.J.S.A. 26:11-12 provided:
*305 No member, officer or agent of a county board shall be sued or held liable for any act done or omitted in good faith and with ordinary discretion on behalf of or under the county board or pursuant to its rule or ordinances.
[N.J.S.A. 26:11-12.]
Plaintiffs argue that N.J.S.A. 26:11-12 was repealed in 1972 when the TCA was enacted. To answer that contention, we must ascertain the Legislature's intention regarding the TCA's effect on preexisting statutes. Some indication of this is found in the TCA's repealer provision, N.J.S.A. 59:12-2, which provides for the express repeal of a select group of enumerated statutes, and also purports to authorize the implied repeal of all unenumerated statutes that are "inconsistent" with the TCA. It provides:
All acts and parts of acts inconsistent with this act are, to the extent of such inconsistency, repealed, including without limitation:
P.L. 1971, c. 199, s. 26 (C. 40A:12-26).
N.J.S. 18A:20-35;
N.J.S. 38A:4-9;
N.J.S. 38A:4-10;
R.S. 53:1-22.
[N.J.S.A. 59:12-2 (emphasis added).][1]
It is significant that N.J.S.A. 59:12-2's list of expressly repealed statutes is inclusive rather than exclusive. Thus, the fact that the TCA did not expressly enumerate N.J.S.A. 26:11-12 in its repealer provision does not foreclose the possibility that the TCA repealed N.J.S.A. 26:11-12 by implication. See Tice, supra, 133 N.J. at 369, 627 A.2d 1090 (holding that pre-TCA liability arising out of preexisting statutes not enumerated in N.J.S.A. 59:12-2 was repealed to extent inconsistent with immunity provisions of TCA). *306 Preexisting statutes that are not enumerated in the repealer provision of the TCA may "[n]onetheless ... [have] been impliedly repealed because inconsistent with" other provisions of the TCA. Aebi v. Monmouth County Highway Dep't, 148 N.J. Super. 430, 434, 372 A.2d 1130 (App.Div. 1977); Polyard v. Terry, 148 N.J. Super. 202, 208, 372 A.2d 378 (Law Div. 1977) (stating that TCA supersedes provisions of Joint Tortfeasors Contribution Law only to extent of inconsistency between the two acts), rev'd on other grounds, 160 N.J. Super. 497, 390 A.2d 653 (App.Div. 1978), aff'd, 79 N.J. 547, 401 A.2d 532 (1979); see also New Jersey State Policemen's Benevolent Ass'n v. Town of Morristown, 65 N.J. 160, 165, 320 A.2d 465 (1974) ("A new law altering fundamental assumptions relied upon by the old law will work to supersede earlier inconsistent statutes."); State v. Roberts, 21 N.J. 552, 555, 123 A.2d 1 (1956) (explaining that where later act "covers the whole subject" dealt with by prior act, the "reasonable, indeed inescapable, conclusion" is that later act was intended by Legislature to supplant former: "in that circumstance the later statute, though not expressly saying so, will be held to operate to repeal the earlier law"); Division of Motor Vehicles v. Kleinert, 198 N.J. Super. 363, 369, 486 A.2d 1324 (App.Div. 1985) ("Implied repealers are not favored. Only when a later expression of legislative will is clearly in conflict with an earlier statute on the same subject will courts find a legislative intent to supersede earlier law." (citation omitted)); Mahr v. State, 12 N.J. Super. 253, 261, 79 A.2d 335 (Ch.Div. 1951) ("[W]here the intention to effectuate a repeal is clear and compelling; where there is a clear repugnancy between the two acts, or a manifest intention to cover the same subject matter by way of revision; or where, considering the specific provision in relation to the general object of a statute, the purpose to repeal prior legislation is revealed, it is the judicial function to effectuate it." (citation omitted)); see generally 1A Norman J. Singer, Sutherland Statutory Construction §§ 23.08 to 23.11, at 334-63 (5th ed. 1993). A good rule of statutory construction, which we apply, is:
*307 When a subsequent enactment covering a field of operation coexistent with a prior statute cannot by any reasonable construction be given effect while the prior law remains in existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict.
Conversely, if the inconsistency between a later act and an earlier one is not fatal to the operation of either, the two may stand together and no repeal will be effected.
[Singer, supra, § 23.09, at 338-39 (footnotes omitted).]
-B-
The critical inquiry now shifts to whether N.J.S.A. 26:11-12 is fatally inconsistent with the TCA. Although the question is simply stated, the resolution is made more difficult because of the absence of case law interpreting N.J.S.A. 26:11-12.
Defendants argue that N.J.S.A. 26:11-12 is not fatally inconsistent with the TCA. They maintain that if the administration of the vaccination fell outside of the TCA grant of immunity in N.J.S.A. 59:6-4, N.J.S.A. 26:11-12 would still immunize defendants if they acted in "good faith" and with "ordinary discretion."
An analysis of N.J.S.A. 26:11-12 in light of the TCA as a whole, however, suggests a different conclusion. N.J.S.A. 26:11-12 establishes a generalized grant of qualified immunity to county boards "for any act done or omitted in good faith and with ordinary discretion." N.J.S.A. 26:11-12 (emphasis added).
The TCA includes both general provisions concerning immunity and liability, see N.J.S.A. 59:2-3; N.J.S.A. 59:3-2, and specific provisions that govern in particular factual contexts. See, e.g., N.J.S.A. 59:5-1 to 5-6 ("Correction and Police Activities"); N.J.S.A. 59:6-1 to 6-7 ("Medical, Hospital and Public Health Activities"). The TCA also expressly distinguishes between discretionary acts and ministerial acts. See N.J.S.A. 59:2-3; N.J.S.A. 59:3-2.
N.J.S.A. 26:11-12 is clearly inconsistent with the TCA's general discretionary immunity provisions. Under the TCA's general grant of discretionary immunity, all public entities and *308 public employees are absolutely immune from liability for injury resulting from "the exercise of judgment or discretion." N.J.S.A. 59:2-3(a); N.J.S.A. 59:3-2(a). N.J.S.A. 26:11-12, however, establishes a generalized grant of qualified immunity to county boards and their agents "for any act" performed "in good faith and with ordinary discretion." N.J.S.A. 26:11-12 (emphasis added). We conclude that N.J.S.A. 26:11-12's grant of only qualified immunity for discretionary acts is clearly inconsistent with the TCA's general discretionary immunity provisions which provide for absolute immunity in that context.
N.J.S.A. 26:11-12 is also plainly inconsistent with the TCA's general provisions regarding liability for ministerial acts. The TCA provides that, in general, public entities and employees are not exonerated from liability for injuries resulting from negligence in the performance of ministerial functions. See N.J.S.A. 59:2-3; N.J.S.A. 59:3-2. By definition, ministerial acts do not involve the exercise of discretion. See, e.g., Black's Law Dictionary 996 (6th ed. 1990) (defining "ministerial act" as act which "person or board performs under a given state of facts in a prescribed manner ... without regard to or the exercise of ... judgment upon the propriety of the act being done"). The official comment to N.J.S.A. 59:2-3 explains that, in respect of ministerial duties, "once a public entity does act, then `when it acts in a manner short of ordinary prudence, liability could be adjudged as in the case of a private party.'" Comment to N.J.S.A. 59:2-3 (quoting Fitzgerald v. Palmer, 47 N.J. 106, 109, 219 A.2d 512 (1966)); see also Comment to N.J.S.A. 59:3-2 (stating that the "reasoning contained in the comment to N.J.S.A. 59:2-3 is equally applicable to this section"). Thus, under the TCA, the standard of liability in respect of ministerial duties is the ordinary negligence standard.
By its plain language, N.J.S.A. 26:11-12 applies to "any act" of a county board or its agents, and that includes ministerial acts as well as acts of discretion. Ibid. Thus, under N.J.S.A. 26:11-12, a public entity that performs a ministerial act in good faith, even negligently, would be immune from liability. Under the TCA's *309 general rule, however, an entity that acts negligently in the performance of a ministerial duty is not immune from liability, regardless of good faith. We conclude that N.J.S.A. 26:11-12 is inconsistent with the TCA treatment of ministerial acts.
-C-
Next, we must resolve whether N.J.S.A. 26:11-12 is fatally inconsistent with the TCA. That question is answered by looking to the legislative purpose and design of the TCA. Generally, as we have noted, supra at 299, 687 A.2d at 717, the purpose of the TCA "`was to establish immunities for municipalities; it was not designed to create liability.'" Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 110, 675 A.2d 1077 (1996) (quoting Woodsum v. Township of Pemberton, 172 N.J. Super. 489, 517, 412 A.2d 1064 (Law Div. 1980), aff'd, 177 N.J. Super. 639, 427 A.2d 615 (App.Div. 1981)). Thus, if an immunity existed prior to the TCA, that immunity remained available to the public entity after the TCA's enactment unless totally inconsistent therewith. Ibid.
Applying that principle to N.J.S.A. 26:11-12 reveals that it is fatally inconsistent with the TCA. In the context of discretionary activity, N.J.S.A. 26:11-12 grants only qualified immunity, while the TCA provides a general grant of absolute immunity. N.J.S.A. 26:11-12 "good-faith immunity," therefore, simply cannot coexist with the TCA without undermining the express legislative intent in the TCA to provide a general grant of absolute immunity for the discretionary acts of public entities.
Furthermore, if the preexisting immunities were to remain available to public entities, that would mean that N.J.S.A. 26:11-12's grant of "good-faith immunity" would prevail over the TCA's general provision for liability in respect of negligently performed ministerial acts. Such an anomalous result would defeat the express legislative intent to establish in the TCA a general rule of no immunity for negligently performed ministerial acts.
*310 Moreover, the statutory scheme of the Act reveals that where the Legislature saw fit to grant "good-faith immunity," it did so expressly in a specified context. See N.J.S.A. 59:3-3 ("A public employee is not liable if he acts in good faith in the execution or enforcement of any law."). Similarly, where the Legislature saw fit to confer absolute immunity for ministerial acts, it also did so in specified contexts. See N.J.S.A. 59:6-4 (providing absolute immunity in the context of examination for public health purposes). Thus, a reasonable interpretation of the statutory scheme is that the Legislature did not intend that immunity or liability in general would depend on good faith. We find therefore, that N.J.S.A. 26:11-12's general grant of "good-faith immunity" for "any act" of a county board or its agents is irreconcilably inconsistent with the TCA. It is deemed to have been impliedly repealed in 1972 when the TCA was enacted.
-D-
Further, the express repeal of N.J.S.A. 26:11-12 in 1976 is not inconsistent with our holding that N.J.S.A. 26:11-12 was impliedly repealed by the TCA in 1972. N.J.S.A. 26:11-12 was repealed effective April 1976 as part of the larger repeal of Chapter 11 of Title 26. See N.J.S.A. 26:11-1 to -31, 26:11-33 to -61, repealed by L. 1975, c. 329, § 21. Chapter 11 covered a broad range of subject matter relating to county boards of health. To the extent that the subject matter of the repealed sections was reenacted, it was enacted in N.J.S.A. 26:3A2-1 to -35, the Local Health Services Act and the County Environmental Health Act (Chapter 3A2).
Significantly, the precise subject matter of N.J.S.A. 26:11-12 was not reenacted in Chapter 3A2. The express repeal may indicate that the Legislature deemed N.J.S.A. 26:11-12 inconsistent with the TCA and that it had been impliedly repealed by the TCA's enactment. Conversely, the express repeal could indicate that N.J.S.A. 26:11-12 was still in existence in 1976. See Singer, supra, § 23.11, at 362 ("the later express repeal of a particular statute may be construed as some indication that the legislature *311 did not previously intend to repeal the statute by implication"); Central Constr. Co. v. Horn, 179 N.J. Super. 95, 102, 430 A.2d 939 (App.Div. 1981) (same).
We are convinced that the Horn rule of construction "should be accorded no more weight than is customarily given contemporary interpretation originating from other sources." Singer, supra, § 23.11, at 362. Here, other factors were at play that may explain the subsequent express repeal of N.J.S.A. 26:11-12. The repeal of N.J.S.A. 26:11-12 was not an isolated act. That section was repealed along with a larger group of statutes in anticipation of the enactment of a new chapter concerning local health departments. Thus, regardless of whether N.J.S.A. 26:11-12 was earlier repealed by implication, that section would no doubt have been expressly repealed in 1976 when the entirety of Chapter 11 was repealed. Therefore, the express repeal of N.J.S.A. 26:11-12 in 1976 should be accorded little weight in the analysis of whether N.J.S.A. 26:11-12 was previously impliedly repealed by the TCA.
Additionally, the express repeal of N.J.S.A. 26:11-12 was unaccompanied by a savings clause or other language limiting the effect of its repeal.
In this State it is the general rule that where a statute is repealed and there is no saving[s] clause or a general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as though it had never existed, except as to matters and transactions passed and closed.
[Parsippany Hills Assocs. v. Rent Leveling Bd., 194 N.J. Super. 34, 42, 476 A.2d 271 (App.Div.), certif. denied, 97 N.J. 643, 483 A.2d 169 (1984).]
Because plaintiff Kemp was less than six months old when the statute was repealed in 1976, the present case cannot be regarded as a transaction "passed and closed." Ibid. Furthermore, it is most likely that the Legislature intended that N.J.S.A. 26:11-12 should be considered "as though it had never existed" in view of the passage of the comprehensive TCA. Parsippany Hills Assocs., supra, 194 N.J. Super. at 42, 476 A.2d 271. The subsequent express repeal of N.J.S.A. 26:11-12 unaccompanied by a reenactment of its subject matter and unaccompanied by a savings clause *312 or other language limiting the effect of its express repeal, permits the inference that the Legislature recognized that N.J.S.A. 26:11-12 was inconsistent with, and therefore impliedly repealed by, the TCA.
We hold that N.J.S.A. 26:11-12's generalized grant of "good-faith immunity" is fatally inconsistent with the TCA. Therefore, the trial court was correct in denying summary judgment on the ground of "good-faith immunity" under N.J.S.A. 26:11-12, and on the ground of immunity under the TCA, N.J.S.A. 59:6-4.
IV
The judgment of the Appellate Division dismissing the complaint is reversed.
For reversal Chief Justice PORITZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN and COLEMAN-7.
Opposed None.
NOTES
[1] The subject matter of the repealed statutes expressly enumerated in N.J.S.A. 59:12-2 is varied. N.J.S.A. 40A:12-26 provided immunity for all counties and municipalities for injury to persons from the use of public property. N.J.S.A. 18A:20-35 provided comparable immunity for school districts. N.J.S.A. 38A:4-9 concerned the immunity of members of the organized militia. N.J.S.A. 38A:4-10 concerned security for costs in actions against members of the organized militia. N.J.S.A. 53:1-22 related to the discretionary authority of the Attorney General to defend State police officials in criminal proceedings in the interest of the State.
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687 A.2d 623 (1996)
Kurt FRANK
v.
MANPOWER TEMPORARY SERVICES and
Commercial Union Insurance Co.
Supreme Judicial Court of Maine.
Argued September 4, 1996.
Decided December 24, 1996.
Arthur H. Dumas (Orally) Sanford, for Employee.
*624 Douglas R. Lotane (Orally) Piampiano & Gavin, Portland, for Employer.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.
RUDMAN, Justice.
Kurt Frank appeals from a decision of the Workers' Compensation Board granting his petition for award and calculating his average weekly wage as a seasonal employee pursuant to 39-A M.R.S.A. § 102(4)(C) (Supp.1996). Frank contends that because he was hired through his employer, a temporary agency, to work for Unico for an indefinite period of time immediately prior to his injury, it was error for the Board to treat his employment as seasonal. We agree and vacate the decision of the Board.
Twenty-three years of age at the time of his injury on February 3, 1993, Frank had a history of sporadic, short-term employment. From 1990 to 1992, he had been employed as a construction worker for Talbot Construction. Because he was paid "under the table," he had no documentary proof of his earnings. Although he had sought employment through Manpower since 1991, his employment opportunities were limited because he had no access to transportation. He was given his first work assignment through Manpower in January, 1993, when he was employed as a factory worker for less than two weeks. Approximately one week after this temporary assignment ended, Frank was assigned to Unico, where he worked full-time earning $6.00 an hour. He was informed by Unico at the time of the assignment that the duration of the job was "indefinite."
Frank suffered a work-related injury on February 22, 1993, after working for Unico for approximately one-to-two weeks. Unico accepted the injury pending investigation and filed a wage statement showing a weekly wage of $151.30. Manpower unilaterally revised its determination of the wage to $11.64 to reflect seasonal worker status. In 1995 the Board awarded Frank short-term total benefits ending in June 1993. The Board concluded "the employee did not meet his burden of proving average weekly wage and exclusion from seasonal worker status," and therefore that Manpower had correctly calculated his average weekly wage as a seasonal employee. We granted Frank's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1996).
As the Board observed in its decision, "the initial issue presented by the parties is a calculation of the average weekly wage." The term "average weekly wages" is statutorily defined in Subsection 102(4) of Title 39-A.[1] The Board unnecessarily directed its *625 attention to Paragraph C. Paragraphs A, B and C of the statute refer to the type of employment the injured employee is engaged in. Calculation of the employee's average weekly wage is thereby mandated by the type of employment for which the employee was hired. The average weekly wage for employees who have been employed on a full time basis is to be calculated pursuant to Paragraph A. The average weekly wage for an employee whose employment continued for less than 200 working days is calculated pursuant to Paragraph B. The average weekly wage for a seasonal employee is calculated pursuant to Paragraph C. When Paragraphs A, B or C are not appropriate, the average weekly wage is to be calculated pursuant to Paragraph D.
The purpose of the average weekly wage calculation is to arrive at an estimate of the "employee's future earning capacity as fairly as possible." Fowler v. First Nat'l Stores, Inc., 416 A.2d 1258, 1260 (Me.1980) (quoting Landry v. Bates Fabrics, Inc., 389 A.2d 311, 313 (Me.1978)). The Board found not only that Frank did not meet his burden of proving his average weekly wage but also imposed on him the burden of proving exclusion from seasonal worker status. Though we agree the employee must offer evidence to establish his or her average weekly wage, White v. Monmouth Canning Co., 228 A.2d 795, 801 (Me.1967), the statute does not place a burden on the employee to prove that he is not a seasonal employee.
There is nothing seasonal about Frank's employment. The word "seasonal" implies the work must have some relation to the seasons. According to Webster's Dictionary, the word "seasonal" means "[o]f, pertaining to, occurring at, or affected by the season or seasons; as, seasonal storms; seasonal industries." Webster's New Collegiate Dictionary 763 (2nd ed.1959). Seasonal employment is employment that is inherently seasonal in nature, and not merely employment that is less than 26 weeks in duration.[2] As Professor Larson states, pursuant to ordinary seasonal wage statutes, "it is the inherent seasonal nature of the employment that controls, not the claimant's seasonal connection with it." See 2 A. Larson, The Law of Workmen's Compensation, § 60.22(a), n. 39 (1993). Subparagraph 1 in Paragraph C is an "exclusion" to the definition of a "seasonal worker." The word "exclusion" suggests that the employee must first qualify as a "seasonal worker" and then meet the additional criteria of having worked less than 26 weeks in a calendar year.
The record reflects in the instant situation that Frank did offer evidence of his prior work history, as well as his employment at the time of his injury and the fact that he was informed by Unico at the time of his employment that the duration of the job was "indefinite." As we said as early as 1920, the methods of computing the average weekly wage described in Paragraphs A, B and C are not to be applied in the alternative as a matter of choice, but are to be applied in the order stated, to the facts as they exist in the particular case, on the principle of resorting to the best evidence obtainable in determining the employee's average wage. Thibeault's Case, 119 Me. 336, 338, 111 A. 491 (1920). The Board erred by its failure to follow the statutory mandate. To the extent the Board determined Paragraph A was not applicable, it should then have proceeded to calculate Frank's average weekly wage on the basis of Paragraph B, and to the extent that the methods set out in Paragraphs A or B could "not reasonably and fairly be applied," the Board should have invited evidence and determined Frank's average weekly wage on the basis of Paragraph D. Accordingly, we vacate the decision of the Board.[3]
*626 The entry is:
Decision of the Workers' Compensation Board vacated and remanded for further proceedings consistent with the opinion herein.
WATHEN, C.J., ROBERTS, GLASSMAN, and DANA, JJ., concurring.
LIPEZ, Justice, with whom CLIFFORD, Justice joins, dissenting.
I respectfully dissent. The Board first had to determine the nature of Frank's employment for the purpose of arriving at his earning capacity. The Board concluded that Frank's temporary work assignment at Unico could not be regarded as his employment for the purpose of determining his average weekly wage. I would affirm that conclusion. In Fowler v. First Nat'l Stores, Inc., 416 A.2d 1258, 1259-60 (Me.1980), an employee who had been with the company for six months was promoted from a grocery store clerk to a produce manager one week prior to her injury. We held that the Commission should have regarded the employee's promotion to produce manager as the acquisition of a new occupation and calculated the average weekly wage according to her higher salary at the time of her injury. Id. at 1261. As the former Workers' Compensation Commission Appellate Division stated in Silvius v. Manpower Temp. Servs., Me.W.C.C.App. Div. 3835, 3836-37 (Me.1989), however, every work assignment obtained through a temporary agency will not automatically constitute the acquisition of a new occupation for purposes of Fowler.
The Board was not compelled in this case to find that Frank had acquired a new occupation after working at Unico for less than two weeks. As the Court states, Frank had been informed that the duration of the Unico assignment was "indefinite." Such a characterization does not necessarily mean that the Unico employment would continue "indefinitely" in the absence of an injury, and we should not substitute our interpretation of the facts for that of the hearing officer. Moreover, Frank was an employee of Manpower, a temporary agency, at the time that he went to work with Unico.[1] He had only received two short-term jobs through Manpower during his three year association with the agency and neither job lasted longer than two weeks. Given these facts, the Board reasonably concluded that Frank's employment at the time of his injury included his temporary position at Unico and other shortterm jobs. Therefore, to consider only his earnings at Unico, and to extend those wages over a 52-week period, would result in an excessively high average weekly wage.
I must also disagree with the Court's suggestion that subsection C is not implicated in this case. 39-A M.R.S.A. § 102(4)(C) (Supp. 1996). The Court states that "[t]o the extent the Board determined Paragraph A was not applicable, it should then have proceeded to calculate Frank's average weekly wage on the basis of Paragraph B, and to the extent that the methods set out in Paragraphs A and B could `not reasonably and fairly be applied,' the Board should have invited evidence and determined Frank's average weekly wage on the basis of Paragraph D." Although subsections (A), (B) and (D) should be applied in the order they appear, an employee's seasonal status, and therefore subsection *627 C, could be considered in any case when the duration of employment does not meet the standard of 200 full working days, the requirement of Paragraph A. This is so because, contrary to the Court's statement that "Paragraphs A, B and C of the statute refer to the type of employment the employee is engaged in," subsections A and B focus only on the duration of the employment. The subsections that address the type of employment are subsection C, dealing with seasonal employment, and subsection E, dealing with concurrent employment. Both of these situations, seasonal employment or concurrent employment, must be considered in conjunction with the subsection A or B durational requirement. Indeed, as I interpret the Court's analysis, the Court applies subsection C to conclude that Frank's part-time employment at the time of his injury, i.e., his temporary assignment with Unico, was not seasonal.
Because Frank's temporary work assignment with Unico did not constitute the acquisition of a new occupation pursuant to Fowler, the Board was permitted to examine Frank's recent employment history as a construction worker for Talbot Construction from 1990 to 1992 to determine if that employment was seasonal. I agree with the Court that "seasonal employment" pursuant to subsection 102(4)(C) should be defined as employment that is inherently seasonal in nature, and not merely employment that is less than 26 weeks in duration. To the extent that the Court concludes that Frank's construction work for Talbot was not seasonal in nature, however, I disagree.
The Court cites Professor Larson, who states that "it is the inherent seasonal nature of the employment that controls, not the claimant's seasonal connection with it." 2 A. Larson, The Law of Workmen's Compensation, § 60.22(a), n. 39 (1993). Professor Larson refers in this note to the case of a student who works only in the summer months, but whose employment is not inherently seasonal in nature. Id. (citing May v, James H. Drew Shows, Inc., 576 S.W.2d 524 (Ky.Ct.App.1978)). Frank's employment differed from that of a student employee. Based on Frank's testimony, the Board found that Frank worked for Talbot "when there was construction work available," that the work "was dependent upon the weather and that there generally was a slow season between October and February." The inherent nature of the work made the job seasonal.
Because the Board reasonably concluded that Frank's construction work was seasonal in nature, the Board was then required to determine whether Frank was "customarily" employed for more than 26 weeks in a calendar year. 39-A M.R.S.A. 102(4)(C)(I). As the Board stated, Frank presented evidence concerning the nature of his employment with Talbot, but did not provide evidence to show "how many weeks he worked [for Talbot] or how much he earned during that time." Based on the nature of his employment with Talbot and Frank's inability to provide any evidence of the number of weeks he worked for Talbot, the Board did not err in determining that Frank's employment was seasonal in nature for purposes of subsection 102(4)(C) and that he was "customarily employed" for less than 26 weeks in a calendar year. Moreover, because Frank failed to show any earnings from his employment with Talbot, the Board did not err in excluding those earnings from the calculation of his seasonal wage.
Finally, I also disagree with the Court's statement of the burden of proof in this case. The issue for purposes of the subsection 102(4)(C)(1) exclusion is whether the employee is "customarily" employed for more than 26 weeks in a calendar year. Subsection (C)(1) provides that the employee "need not be employed by the same employer during this period" to fall within the 26 week exclusion. 39-A M.R.S.A. 102(4)(C). It is implicit from this language that the Board may consider the employee's overall work-history, including work for other employers, to determine whether an employee is customarily employed, full-time or part-time, for more than 26 weeks in a calendar year. Because the employer does not ordinarily have access to employment records from other employers, the Board did not err in requiring Frank to bear the burden of proving his employment history with Talbot. Accordingly, I *628 would affirm the decision of the Workers' Compensation Board.
NOTES
[1] Subsection 4 of Section 102 of Title 39-A provides in part:
The term "average weekly wages" or average weekly earnings or salary is defined as follows:
A. "Average weekly wages, earnings or salary" of an injured employee means the amount that the employee was receiving at the time of the injury for the hours and days constituting a regular full working week in the employment or occupation in which the employee was engaged when injured: ...
B. When the employment or occupation did not continue pursuant to paragraph A for 200 full working days, "average weekly wages, earnings or salary" is determined by dividing the entire amount of wages or salary earned by the injured employee during the immediately preceding year by the total number of weeks, any part of which the employee worked during the same period....
C. Notwithstanding paragraphs A and B, the average weekly wage of a seasonal worker is determined by dividing the employee's total wages, earnings or salary for the prior calendar year by 52.
(1) For the purpose of this paragraph, the term "seasonal worker" does not include any employee who is customarily employed, full time or part time, for more than 26 weeks in a calendar year. The employee need not be employed by the same employer during this period to fall within this exclusion.
(2) Notwithstanding subparagraph (1), the term "seasonal worker" includes, but is not limited to, any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products.
D. When the methods set out in paragraph A, B or C of arriving at the average weekly wages, earnings or salary of the injured employee can not reasonably and fairly be applied, "average weekly wages" means the sum, having regard to the previous wages, earnings or salary of the injured employee and of other employees of the same or most similar class working in the same or most similar employment in the same or a neighboring locality, that reasonably represents the weekly earning capacity of the injured employee in the employment in which the employee at the time of the injury was working....
[2] One employed as a ski instructor or a summer camp counsellor is a seasonal employee.
[3] The Appellate Division of the former Workers Compensation Commission considered a similar issue in Silvius v. Manpower Temp. Servs., Me. W.C.C.App.Div. 3835, 3836-37 (Me.1989). In Silvius, the employee was also a temporary employee of Manpower and had "worked several different job assignments during [the] year and was paid different wages." The Commission calculated the employee's average weekly wage pursuant to Subsection B (39 M.R.S.A. § 22-B) based on his total earnings for Manpower in the immediately preceding year. Id. at 3836. Relying on Fowler, the employee contended that his wage should have been based on his most recent employment with G.T.E. Sylvania. Id. The Appellate Division disagreed, stating that:
The evidence presented in the instant appeal gives no indication that the employee received a promotion when he was assigned to a temporary position at G.T.E. Sylvania. Mr. Silvius had not acquired a new occupation when he went from one temporary position to another; he was merely assigned to a new job when his earlier position ended. It is just as likely that the employee could have been assigned to Manpower to a temporary position which paid the employee less than some of his earlier temporary positions. It is just such a fortuity inherent in temporary service jobs which renders the employee's arguments with regard to Fowler inappropriate. The absence of permanency involved in these successive job assignments is significant because the goal of establishing the injured worker's future earning capacity is gauged by `the length of [the worker's] employment by his employer at the time of injury and the degree to which his weekly wages were constant or variable.'
Id. at 3836-37 (quoting Fowler, 416 A.2d at 1260).
[1] Indeed, his employer for purposes of liability was Manpower, not Unico.
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687 A.2d 1244 (1997)
Attorney General Jeffrey PINE in His Official Capacity on Behalf of the Edward A. Sherman Publishing Company and the Newport Daily News[1]
v.
Francis W. McGREAVY, in His Official Capacity as Town Moderator of the Town of Tiverton.
No. 95-570-APPEAL.
Supreme Court of Rhode Island.
January 15, 1997.
Joseph V. Cavanagh, Jr., Providence, Elizabeth A. Wallace, Asst. Attorney General, for Plaintiff.
Thomas T. Brady, Tiverton, for Defendant.
OPINION
PER CURIAM.
This case came before us for oral argument on December 5, 1996, pursuant to an order that had directed the parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the oral arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The Attorney General appeals from the dismissal of his complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The complaint had been filed against Francis W. McGreavy (defendant) in his capacity as town moderator of the town of Tiverton for violation of the Open Meetings Act, G.L.1956 chapter 46 of title 42 (the Act). The facts of the case insofar as pertinent to this appeal are as follows.
The defendant, while serving as moderator of the financial town meeting for the town of Tiverton held in the high school gymnasium, caused a photographer employed by the Newport Daily News to be ejected from the meeting. He took this action because the photographer did not obey an earlier instruction to be seated in that portion of the gymnasium reserved for members of the press. The gymnasium had been divided into a section for those electors qualified to vote on the annual budget, a section for members of the public who were not qualified electors, and a section area designated for occupancy by members of the press. The designation of sections had been made by the board of canvassers in order to separate voters from nonvoters so as to facilitate vote counting on issues to be presented to the qualified electors and to maintain orderly procedures and decorum among those who were present at the assembly. The photographer, although admonished by the moderator, continued to walk about the general area, taking photographs with a camera that she considered not to be distracting because it did not utilize a flash attachment.
*1245 A justice of the Superior Court dismissed the complaint on the ground that the Act did not apply to a financial town meeting or to the town moderator who presided at such meeting. In essence the trial justice held that a financial town meeting was not included in the definitions contained in § 42-46-2, which defines a public body as follows:
"(c) `Public Body' means any department, agency, commission, committee, board, council, bureau, or authority or any subdivision thereof of state or municipal government. For purposes of this section, any political party, organization, or unit thereof meeting or convening for any purpose is not and should not be considered to be a public body."
We are in agreement with the trial justice that a financial town meeting of the electors qualified to vote on the imposition of a tax and the expenditure of money does not fit within this definitional section. A financial town meeting is a quintessential example of an open meeting. Generally those in attendance will number in the hundreds of qualified electors, and other persons are permitted to attend as observers, also in substantial numbers. Members of the press are invited to attend, subject to the reasonable regulation of the meeting by the town moderator in accordance with the provisions of G.L.1956 § 45-3-18, which authorizes the moderator to manage and regulate the business of each meeting and to maintain peace and good order therein.
The financial town meeting represents the most democratic assemblage of any body that conducts the financial affairs of a municipality. It is a meeting open to all electors qualified to vote on an imposition of a tax or the expenditure of money. In a community like Tiverton thousands of people may be eligible to attend such a meeting, although in practice hundreds will actually attend and take part. The Act was designed to prevent public bodies of a different type from holding meetings in closed sessions. It was not directed at financial town meetings that by their very nature cannot be closed and cannot be other than highly public. The moderator is only the presiding officer of the financial town meeting and cannot in and of himself or herself constitute a public body. Consequently the Act was not applicable to either the financial town meeting or the moderator thereof.
Since the complaint was based on the provisions of the Act that are not applicable to a financial town meeting, the trial justice was correct in holding that the complaint did not state a claim upon which relief could be granted.
Nothing in this opinion should be construed as indicating that financial town meetings are not open to the press or that members of the press may not photograph such meetings so long as their behavior does not violate either § 45-3-18 or § 45-3-19. The trial justice did not reach questions that could have been raised under chapter 3 of title 45 since the issues before him in argument were based solely on chapter 46 of title 42.
For the reasons stated, the appeal of the Attorney General is denied and dismissed. The judgment of the Superior Court dismissing the complaint is affirmed. The papers in the case may be remanded to the Superior Court.
NOTES
[1] The complaint was filed by James O'Neil in his capacity as Attorney General. Since he no longer serves in that capacity, the title has been amended to reflect that fact.
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364 F.Supp. 1379 (1973)
Alverta Hill FRYE et al., Plaintiffs,
v.
William LUKEHARD et al., Defendants.
Civ. A. No. 73-C-9-C.
United States District Court, W. D. Virginia, Charlottesville Division.
September 19, 1973.
Ronald R. Tweel, Albemarle Legal Aid Society, Charlottesville, Va., for plaintiffs.
Karen C. Kincannon, Asst. Atty. Gen., Richmond, Va., for defendants.
*1380 C. W. Allison, Jr., Covington, Va., for Wm. Cole.
OPINION and JUDGMENT
DALTON, Chief Judge.
MEMORANDUM OF AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON RETROACTIVE PAYMENTS
This court in its opinion and judgment in Frye v. Lukehard, 361 F.Supp. 60 (1973) enjoined the defendants from enforcing § 63.1-105(a) of the Virginia Code and Regulation 204.1(A) of the Manual of Policy and Procedures for Local Welfare Departments insofar as they conflict with Title IV of the Social Security Act, 42 U.S.C. §§ 601-604 (specifically 42 U.S.C. §§ 602(a) and 606(a)(2)). The state provisions had prohibited members of the class in this action, sixteen and seventeen year-old children not regularly attending school and the supporting parents of these children, from receiving Aid to Families with Dependent Children (AFDC) benefits.
Following the decision of this court to award retroactive benefits to members of the represented class, the defendants filed a motion for this court to amend its findings of fact and conclusions of law pursuant to Rule 52(b) of the Federal Rules of Civil Procedure, and moved that the court stay the enforcement of its judgment pursuant to F.R.C.P. 62(b).
Defendants contend that the Eleventh Amendment to the United States Constitution prohibits this court from awarding retroactive payments. Defendant also asks, assuming that retroactive payments are appropriate, that the court clarify the time period within which such payments must be made, and whether such payments would be appropriate for an individual who was otherwise eligible at the time of application but is no longer in need of public assistance and who could no longer meet the eligibility criteria.
Counsel for both parties have filed extensive memoranda in support of their respective positions which disclose that this court is far from being the first to address the issue of retroactive benefits, and in view of the fact that the Supreme Court has not yet authoritatively spoken on the issue of retroactive welfare payments, it is unlikely that this court will be the last.
After carefully reviewing the papers submitted by the parties, this court has reached what in its opinion is an inescapable conclusion: that if retroactive payments were to be awarded, under the guise of proceeding against a state officer "stripped of his official or representative character" or otherwise, in the final analysis such a suit would actually have to be one against the state, even though the state is not a named party. The Commonwealth of Virginia is the only real party against which alone in fact the relief is asked, and against which any judgment or decree of this court would effectively operate. Cf. In re Ayers, 123 U.S. 443, 505-506, 8 S.Ct. 164, 31 L.Ed. 216 (1887). It is not pretended that these payments would come from the personal resources of defendants. It is clear that such a suit as this in actuality is one against the state, even though the state is not named as a defendant, and it would involve payment of state funds. Cf. Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742 (1909), Hagood v. Southern, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805 (1886), Louisiana v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1883). See also De Levay v. Richmond County School Board, 284 F.2d 340 (4th Cir. 1960), O'Neill v. Early, 208 F.2d 286 (4th Cir. 1953).
The case of Shepheard v. Godwin, 280 F.Supp. 869 (E.D.Va.1968) (three-judge court; opinion by Bryan, Circuit Judge; Butzner, Circuit Judge, and Hoffman, District Judge, concurring) is one very close in principle to the case at hand. The court in Shepheard ruled that the formula used by the Commonwealth of Virginia for determining state assistance *1381 to local school districts, whereby a sum equal to a substantial percentage of federal "impact" funds receivable by a district was deducted from the share otherwise allowable to the district from the state, was unconstitutional as being violative of the Supremacy Clause of the Constitution. The plaintiff school district asked for an order directing the defendants to retroactively restore to them the amounts of state aid which had been withheld by the state in prior years on account of the federal impact funds. The court held, at 876:
To accomplish this restitution would require an appropriation by the legislature of Virginia. A decree to that effect would be an order to the State to take affirmative political action, and would convert this into a suit against the Commonwealth of Virginia, prohibited by the Eleventh Amendment.
A case square on point is Francis v. Davidson, 340 F.Supp. 351, 370 (D.Md. 1972), aff'd and appeal dismissed, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972) wherein the three-judge court (opinion by Kaufman, District Judge; Winter, Circuit Judge, and Young, District Judge, concurring), in an action brought under § 1983, held the Eleventh Amendment to bar recovery of retroactive AFDC benefits, because the suit was found in actuality to be one against the state. The Eleventh Amendment issue apparently was not at question when the case went before the Supreme Court. See Davidson v. Francis, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972).
The above finding that this suit in actuality is one against the Commonwealth of Virginia necessitates that this court amend its opinion and judgment on the issue of retroactive benefits, since the suit must fail for want of jurisdiction for two reasons.
First, under 42 U.S.C. § 1983 suits may be maintained only against a "person" who under color of state law deprives another of his civil rights. See Monroe v. Pape, 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It is clear that a state is not a person within the meaning of § 1983 where equitable relief is sought, any more than it is when damages are sought. See Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973) (a city is not a "person" under § 1983); Moor v. Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (May 14, 1973) (a county is not a "person" under § 1983); United States ex rel. Gittlemacker v. Pennsylvania, 281 F.Supp. 175 (E.D.Pa.1968), aff'd, 413 F.2d 84 (3rd Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970) (a state is not a "person" under § 1983); Francis v. Davidson, supra, 340 F.Supp., at 370 (state not a "person").
Secondly, defendants have urged most stringently that the Eleventh Amendment,[1] as extended to cover suits against a state by citizens of that state in Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L.Ed. 842 (1890), stands as a bar to any decree of this court ordering "restitution" in the form of retroactive payments, as such would eventually necessitate an appropriation by the Virginia Assembly, and would in effect be an order to the state to take affirmative political action which it cannot be said to have consented to take.
It has, of course, been a familiar principle since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) that the Eleventh Amendment does not prevent a federal court from directing a state official to bring his conduct into conformity with federal law. Indeed, the injunctive relief given by this court against defendants rests upon this doctrine. Plaintiffs insist that this court *1382 may, without colliding with the Eleventh Amendment, go further and include within its decree a direction that defendants shall restore the sums which, under a course of conduct which they are now enjoined from pursuing, were withheld from those entitled to AFDC benefits.
Our reading of Ex parte Young and subsequent cases in which the doctrine enunciated therein has been applied discloses no instance in which the doctrine has been utilized to formulate other than prospective relief[2]usually in the form of an injunction prohibiting a state officer from enforcing a state statute which has been declared unconstitutional. Indeed, the Supreme Court may have expressly intended such a limitation, for it stated in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L. Ed. 1628 (1949) in a much debated footnote:
Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.
337 U.S. at 690, n. 11, 69 S.Ct. at 1462.
If this court were to grant the relief requested by plaintiffs, it would be exercising its equity power. The court would first have to determine if retroactive payments are more like a prospective injunction permissible pursuant to the doctrine of Ex parte Young, or more like an order to take affirmative political action requiring a special appropriation from the state treasury, prohibited by the Eleventh Amendment. We have concluded that this case must be included in the latter category, as it is not wholly federal in character, and if this court were to order retroactive benefits, the Commonwealth of Virginia inevitably would be required to finance at least part of those benefits. The Eleventh Amendment must stand for something; this court is of the opinion that this is one of those instances to which its immunity applies.
While a state may waive the immunity of the Eleventh Amendment, see for example Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), as recently limited by Employees of the Department of Public Health and Welfare v. Department of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), there is nothing in the record of this case indicating that the Commonwealth of Virginia has done so insofar as actions such as the present are concerned indeed, the Commonwealth has vigorously denied having made such a waiver. Mere participation by a state in a federal grant-in-aid program does not amount to a waiver of the Eleventh Amendment.[3] Daye v. Commonwealth *1383 of Pennsylvania, 344 F.Supp. 1337 (E. D.Pa.1972) (in this instance, the Federal-Aid Highway Act was involved). We do not find such a waiver in the mere fact that Virginia has elected to receive federal funds to supplement welfare benefits that it has chosen to provide its citizens.
In concluding that plaintiffs' claim for "restitution" from defendants in their representative capacities as state officials is in effect a suit against the Commonwealth of Virginia of which a federal court does not have jurisdiction, this court is aware that in several recent welfare cases other federal courts have awarded retroactive payments of benefits wrongfully withheld, some of which have been summarily affirmed by the Supreme Court. However, in the most recent decision of the Court on this issue, Edelman v. Townsend, 412 U.S. 914, 93 S.Ct. 2733, 37 L.Ed.2d 141 (1973), the Court vacated and remanded the lower court opinion, sub nom. Alexander v. Weaver, 345 F.Supp. 666 (N.D.Ill. 1972) (three-judge court) which had awarded retroactive AFDC benefits. The Eleventh Amendment question was apparently the only one presented to the Court on appeal. See 41 U.S.L.W. 3559 (April 17, 1973). Edelman v. Townsend, supra, is the same case as Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) upon which this court based its decision of June 11, 1973, after Townsend had been narrowed to the issue of the power of a federal court to order retroactive benefits.
The Court now has the Eleventh Amendment issue before it in another case where retroactive welfare benefits were awarded by a lower court, Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973), cert. granted sub nom., Edelman v. Jordan, 412 U.S. 937, 93 S.Ct. 2776, 37 L. Ed.2d 398 (1973). No decision has yet been rendered.
The Supreme Court has admittedly summarily affirmed judgments awarding retroactive payments. In Zarate v. State Dept. of Health and Rehabil. Service, 407 U.S. 918, 92 S.Ct. 2462, 32 L. Ed.2d 803 (1972), affirming, 347 F. Supp. 1004 (S.D.Fla.1971) (three-judge court) it affirmed a lower court opinion granting retroactive welfare payments. Apparently, the sole issue before the Court was whether the Eleventh Amendment bars a suit for retroactive benefits. See 40 U.S.L.W. 3571 (No. 71-1435) (May 30, 1972). An award of retroactive benefits was also upheld in Sterrett v. Mothers' and Children's Rights Organization, 409 U.S. 809, 93 S. Ct. 68, 34 L.Ed.2d 70 (1972), affirming sub nom. Carpenter v. Sterrett, unreported judgment and order (No. 70 F 138) (N.D.Ind.1972), on remand from, 405 U.S. 971, 92 S.Ct. 1199, 31 L.Ed.2d 246 (1972). The Eleventh Amendment was one of the issues on appeal to the Supreme Court. See 41 U.S.L.W. 3126 (No. 72-83) (Sept. 12, 1972).
In six earlier cases, the Supreme Court summarily affirmed judgments which included awards of retroactive welfare benefits, but the Eleventh Amendment was not brought before the Supreme Court in these cases: Gilliard v. Craig, 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972), rehearing denied, 409 U.S. 1119, 93 S.Ct. 892, 34 L.Ed.2d 704 (1973), affirming, 331 F.Supp. 587 (W.D.N.Car.1971) (three-judge court); Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1971), affirming, Doe v. Swank, 332 F.Supp. 61 (N.D.Ill. 1971) (three-judge court); Rodriguez v. Swank, 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971) affirming, 318 F. Supp. 289 (N.D.Ill.1970) (three-judge *1384 court); Grubb v. Sterrett, 400 U.S. 922, 91 S.Ct. 187, 27 L.Ed.2d 182 (1971), affirming, 315 F.Supp. 990 (N.D.Ind. 1970) (three-judge court); Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L. Ed.2d 38 (1970), affirming sub nom., Gaddis v. Wyman, 304 F.Supp. 717 (S. D.N.Y.1969) (three-judge court) (order at CCH Pov. L. Reptr. Transfer Binder ¶ 10,506). The court in Shapiro v. Thompson, 270 F.Supp. 331, 338 n. 5 (D.Conn.1967) (three-judge court), aff'd, 394 U.S. 618, 89 S.Ct. 1322, 22 L. Ed.2d 600 (1969), did dismiss the Eleventh Amendment argument in a footnote, but the issue apparently was not raised on appeal to the Supreme Court. Numerous other lower court decisions have awarded retroactive benefits, without specific discussion of the Eleventh Amendment issue.
Illustrative of those cases in which retroactive welfare benefits have been denied are Rothstein v. Wyman, 467 F. 2d 226 (2nd Cir. 1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973), rehearing denied, 411 U.S. 988, 93 S.Ct. 2276, 36 L.Ed.2d 966 (1973), wherein the Eleventh Amendment issue was analyzed and specifically held to bar an action similar to that in the case at hand, and Francis v. Davidson, supra, which also set up the Eleventh Amendment as a bar.
RELIEF
For the reasons set forth in this opinion, this court holds that each member of the plaintiff class is entitled to prospective relief only from the date of this court's opinion on June 11, 1973.
This court has earlier enjoined defendants from enforcing § 63.1-105(a) of the Virginia Code and Regulation 204.1(A) of the Manual of Policy and Procedures for Local Welfare Departments insofar as they conflict with paramount federal law. It shall further be the duty of the defendants to determine from their files those persons who have been denied, or had terminated, benefits by cause of § 63.1-105(a) and Regulation 204.1(A) since June 11, 1973 to the present. A notice shall be sent with the next payment from the date of this order which will notify present recipients of their entitlement to these benefits if they were not receiving them on June 11, 1973, and were otherwise eligible, and shall inform them of the procedure to be used in obtaining them, if such has not already been done by defendants. Within sixty days from the date of this order, the defendants will give notice individually in writing, or make all reasonable efforts to give the best notice practicable under the circumstances, to each member of the class who is currently not receiving AFDC payments, either because assistance was denied or terminated, of his entitlement to these benefits and the procedure to be used in obtaining them.[4]
Payments made pursuant to his order will not be affected by current ineligibility if the party was eligible at any time since June 11, 1973. Any payments made pursuant to this order that have accrued since June 11, 1973, to those currently receiving welfare assistance shall not be counted as a cash asset under § 304.3(b) of the Manual of Policy and Procedures for Local Welfare Departments, and such payments shall in no manner otherwise affect current assistance received by any recipient.
If further developments, such as a decision in Edelman v. Jordan, supra, contrary to the holding of this court, lead any member of the plaintiff class to believe that he is entitled to retroactive payments, further application for such relief may be timely made to this court under such circumstances.
*1385 In view of the amendment of findings of fact and conclusions of law made by this court, the court sees no reason why it should grant defendants' motion for a stay of enforcement pursuant to F.R.C. P. 62(b), and, accordingly, the motion is denied. In addition, such a disposition renders unnecessary any opinion by this court as to the applicability of § 8-24 of the Virginia Code, as amended in 1973, which imposes a one-year statute of limitations on all actions brought under 42 U.S.C. § 1983.
It is so decreed and ordered.
Since this opinion was written, the Fourth Circuit has held in Dawkins v. Craig, 483 F.2d 1191 (1973) that the Eleventh Amendment does indeed bar this court from ordering retroactive AFDC payments. The Eleventh Amendment issue was the sole question before the court.
NOTES
[1] The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
[2] Griffin v. County School Board of Prince Edward County, 337 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) admittedly required broad relief, but of a prospective nature only, not encompassing any element of retroactivity in the scope of relief. A similar observation can be made of the other cases cited by plaintiffs, in that while these cases do indirectly require an expenditure from a state treasury, they are cast principally in the form of injunctions requiring state officials to conform their conduct with paramount federal law. Wyatt v. Stickney, 344 F.Supp. 373 (M.D. Ala.1972), for example, required only changes in the operation of state mental institutions, and Jones v. Wittenberg, 330 F.Supp. 707 (N.D.Ohio 1971), aff'd sub nom., Jones v. Metzer, 456 F.2d 854 (6th Cir. 1972) ordered that a different use be made of funds already allocated for supporting the county jails.
[3] This court notes the adoption by Virginia of the so-called "fair hearing" regulations promulgated by the Department of Health, Education and Welfare, which provide a state administrative procedure under which retroactive benefits may be awarded to a person who has been wrongfully refused welfare payments. See 45 C.F.R. 205.10(b)(2) and (3) and § 803.3D of the Virginia Manual of Policy and Procedure for Local Welfare Departments. These regulations, in the court's view, do not afford a jurisdictional base for a federal court to order that such retroactive payments be made. We leave it to plaintiffs to pursue such an avenue of relief if it is indeed available.
HEW has apparently sought a statutory amendment which would permit it to require retroactive payments to eligible persons denied them by a non-conforming state. See Rothstein v. Wyman, 467 F.2d 226, 241 (2nd Cir. 1972), citing H.R. 16311, 91st Cong., 2d Sess. c. 169-170 (Committee print on Nov. 5, 1970 before the Senate Committee on Finance).
[4] The court is aware of the practical difficulties faced by defendants in giving such notice, see the opinion of this court in Lawson v. Brown, 349 F.Supp. 203 (W.D.Va.1972), but is of the opinion that any administrative burden will not be so great as to warrant denial of relief. To borrow a phrase from Alexander v. Weaver, supra, 345 F. Supp., at 674: "Yesterday's physical suffering ought not be written off against tomorrow's administrative distress."
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739 P.2d 854 (1987)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Clifford C. STEWART, Defendant-Appellee.
No. 85SA388.
Supreme Court of Colorado, En Banc.
July 20, 1987.
Barney Iuppa, Dist. Atty., David H. Zook, Chief Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
Tegtmeier & Sears, P.C., Richard L. Tegtmeier, Colorado Springs, Moline, Ottsen, Mauze', Legget & Shostak, Burton H. Shostak, St. Louis, Mo., for defendant-appellee.
KIRSHBAUM, Justice.
The People appeal the trial court's order dismissing a one-count information charging the defendant, Clifford C. Stewart, with felony theft in violation of section 18-4-401, 8B C.R.S. (1986).[1] We vacate the order and remand the case for further proceedings.
I
In late 1983 or early 1984, the defendant and Jack Doyle formed a natural gas supply business denominated Western Hydrocarbons and Development Corporation (Western Hydrocarbons) and began purchasing natural gas products from Petro-Lewis Corporation (Petro-Lewis) for resale. In January 1984, the State of Colorado issued a certificate of incorporation to Western Hydrocarbons indicating that the defendant was the president and treasurer of the company; that the defendant's wife, Donna Stewart, was its secretary; and that Jack Doyle was its executive vice-president.
Initially, Western Hydrocarbons paid Petro-Lewis for its purchases in a timely manner. By October 1984, however, payments from Western Hydrocarbons to Petro-Lewis were approximately $1.3 million in arrears. In November 1984, while these bills were still outstanding, Stewart disappeared.[2] On January 30, 1985, a one-count information alleging felony theft was filed *855 against Stewart in the El Paso County District Court.
A preliminary hearing was conducted during which the prosecution introduced evidence that no corporate stock had ever been issued, that no meetings of directors or shareholders had ever been held, that no bylaws had been adopted and that no federal or state tax identification numbers had been obtained. Other evidence established that during 1984 Western Hydrocarbons made numerous purchases from Petro-Lewis and then sold the natural gas products involved in those purchases to Elgin Petroleum at a loss; that, unknown to Doyle, the money received from Elgin Petroleum was deposited into a Western Hydrocarbons bank account opened in Colorado Springs in February 1984 for which Stewart and his wife, personally, were the sole authorized signatories; that funds in this bank account were used to purchase several automobiles for Stewart and to make large payments to individuals apparently having no business connections with Western Hydrocarbons, including Stewart's brother; that some of the money paid to these individuals was subsequently repaid to Stewart and deposited by him in different bank accounts; and that on several occasions Stewart asked Petro-Lewis employees to delay sending invoices. The trial court ruled that the People failed to establish probable cause to believe Stewart had committed theft because Stewart's removal of funds from a checking account over which he had control could not be characterized as an unauthorized exercise of control over anything of value of another.
II
The People argue that probable cause exists to support the charge that Stewart committed theft by deception in obtaining natural gas products for which he had no intention of paying. We agree.
A preliminary hearing is a screening device used to determine whether probable cause exists to support the charge that an accused person committed a particular crime. People v. Nygren, 696 P.2d 270 (Colo.1985); Miller v. District Court, 641 P.2d 966 (Colo.1982); People v. Treat, 193 Colo. 570, 568 P.2d 473 (1977); Crim.P. 7(h). The probable cause standard requires evidence sufficient to induce a person of ordinary prudence and caution to form a reasonable belief that the defendant committed the crime charged. People v. Nygren, 696 P.2d 270; People v. Holder, 658 P.2d 870 (Colo.1983); People v. Armijo, 197 Colo. 91, 589 P.2d 935 (1979). Evidence sufficient to support a conviction is not necessary at the preliminary hearing stage; rather, the evidence must be viewed in the light most favorable to the prosecution, and all inferences must be resolved in favor of the prosecution. People v. Pedrie, 727 P.2d 859 (Colo.1986); People v. Holder, 658 P.2d 870; People v. Luttrell, 636 P.2d 712 (Colo.1981).
Here, section 18-4-401, 8B C.R.S. (1986), the statute defining the offense with which Stewart was charged, provides in pertinent part as follows:
Theft. (1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit; or
(d) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.
Stewart argues that the facts of this case indicate a debtor-creditor relationship between the parties and that a felony theft charge cannot be sustained on such a basis. Generally, the failure of a debtor to pay his creditors does not constitute theft. E.g., People v. Treat, 193 Colo. 570, 568 P.2d *856 473; Kelley v. People, 157 Colo. 417, 402 P.2d 934 (1965); People v. Hallman, 41 Colo.App. 427, 591 P.2d 101 (1978). However, section 18-4-401 defines theft to include those instances where a person knowingly obtains control over anything of value of another by deception with the intent to permanently deprive the other person of its use or benefit. The offense of theft by deception requires proof that the defendant knowingly or intentionally deprived the victim permanently of something of value, People v. Quick, 713 P.2d 1282 (Colo.1986), by means of misrepresentations upon which the victim relied, People v. Norman, 703 P.2d 1261 (Colo.1985). The intent element may be inferred from the defendant's conduct and the circumstances of the case. People v. Norman, 703 P.2d 1261; Miller v. District Court, 641 P.2d 966.
Here, the trial court concluded that Stewart's depletion of the bank account over which he exercised control could not constitute theft because the withdrawal of the money could not be deemed a withdrawal "without authority." The trial court's conclusion misapprehends one of the principal thrusts of the prosecution's casethat Stewart obtained control over the Petro-Lewis natural gas products by misrepresentation and that Stewart never had any intention of reimbursing Petro-Lewis for the products supplied.[3] Under this theory, the transactions involving the Colorado Springs bank account could be viewed by a trier of fact as evidence supporting the inference that Stewart intended to permanently deprive Petro-Lewis of the value of its natural gas products. This evidence, when viewed in the light most favorable to the prosecution, is sufficient to induce a person of ordinary prudence and caution to form a reasonable belief that the defendant committed the crime of theft by deception. We therefore conclude that the trial court erred.
The trial court's order is vacated and the case is remanded to the trial court with directions to reinstate the information as initially charged and to conduct such further proceedings as may be appropriate.
NOTES
[1] The People appeal pursuant to § 16-12-102, 8A C.R.S. (1986).
[2] For a detailed explanation of the facts, see the related civil case of Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo.1986).
[3] The People argue alternatively that Western Hydrocarbons acted as a broker for Petro-Lewis and that Western Hydrocarbons virtually held in escrow for payment to Petro-Lewis funds collected from Elgin Petroleum. The People also argue that Western Hydrocarbons and Development Corporation, Jack Doyle and possibly even Elgin Petroleum might be characterized as victims of a theft perpetrated by Stewart. Because disposition of this appeal does not depend upon resolution of such issues and because we have concluded that this case should be remanded for further proceedings, we decline to address these issues.
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687 A.2d 942 (1997)
Maximo PIEROLA, Appellant,
v.
Gerasimos MOSCHONAS, Appellee.
No. 94-CV-30.
District of Columbia Court of Appeals.
Argued October 31, 1996.
Decided January 16, 1997.
*943 Richard A. Seligman, Washington, DC, for appellant.
John H. Spaulding, Washington, DC, for appellee.
Before FERREN, STEADMAN and KING, Associate Judges.
STEADMAN, Associate Judge:
This appeal requires us to examine the jurisdictional doctrine of unique circumstances and the affirmative defense of accord and satisfaction. Finding that we have jurisdiction under the unique circumstances of this case and that the trial court misconceived the applicable law in denying appellant's accord and satisfaction defense, we reverse.
I.
Appellant Maximo (Tito) Pierola and appellee Gerasimos (Mike) Moschonas were business associates in the mid 1980s. The precise nature of their association is the subject of this lawsuit. Both men were in the construction business. Moschonas was an experienced bridge painter. Pierola was a general contractor who, by virtue of his Hispanic background, qualified for minority set aside contracts. Pierola and Moschonas first met in April 1985, when Pierola proposed *944 they join forces to obtain contracts from the District of Columbia to scrape and paint bridges and other metal structures. The two men agreed to bid on two such projects: one to paint three water towers at the Lorton Reformatory (tower contract) and one to paint the South Capitol Street Bridge and three smaller bridges (bridge contract). Moschonas prepared the bids, Pierola submitted them, and the contracts were awarded to Pierola's company, Tito Construction.
Originally Pierola and Moschonas were to split the profits 50/50, but because Moschonas couldn't secure the necessary financial backing, the parties entered into a written agreement on September 6, 1985 that split the profits 60/40 in Pierola's favor. At the bench trial below, Pierola claimed the September 6 contract was a fraud, and that he had never signed it. Pierola attempted to explain his signature on the contract by claiming that he was in the habit of signing blank pieces of paper over his typed signature so his employees could make needed purchases in his absence. The trial court found Pierola's assertion "incredible" and made a factual finding on the record that Pierola was lying under oath.
Pierola and Moschonas' working relationship lasted only a few months. Moschonas supervised the tower contract for three weeks, then moved on to supervise the bridge contract. After a few weeks on the bridge contract, Pierola and Moschonas had a falling out over whether to sandblast or manually scrape the South Capitol Street Bridge, and Moschonas walked off the job in November 1985.
During their working relationship Pierola wrote Moschonas several checks drawn on both payroll and non-payroll accounts totaling over $16,000. The last of these checks was issued on Christmas Eve 1985 in the amount of $5,000. The check was written at Pierola's bank on a blank counter check and immediately cashed by Moschonas. Both the canceled check and the microfilm copy indicate that Pierola wrote "paid in full" on the front of the check below the dollar amount. At trial, however, Moschonas insisted that the check did not say "paid in full" when he cashed it. The trial court found Moschonas was not testifying truthfully in this regard.
At a bench trial Moschonas sought damages equal to forty percent of the profits on the tower and bridge contracts based on the September 6 agreement. Pierola raised the defense of accord and satisfaction based on the Christmas Eve check and counterclaimed for fraud. Initially "troubled by the lack of forthrightness of both litigants," the trial court in mid-trial entered judgment for each party on the other's claims and dismissed the case. However, the court later reconsidered, resumed the trial, and entered judgment for Moschonas on the agreement holding that Pierola's accord and satisfaction defense was invalid. Pierola now appeals.
II.
We first address the threshold matter of whether this court has jurisdiction to entertain the appeal. Although the notice of appeal was not filed within the time limit set forth in our rules, we conclude that we have jurisdiction over it pursuant to the equitable doctrine of unique circumstances.
The trial court entered judgment for Moschonas on June 10, 1992. On June 22, 1992, Moschonas filed the first of three motions requesting an enlargement of time in which to file a motion to amend the judgment pursuant to Super Ct. Civ. R. 59(e). All three of Moschonas' motions were granted, and Moschonas finally filed his motion to amend the judgment on September 4, 1992, nearly three months after judgment was entered.[1] The trial court denied the motion over a year later on December 21, 1993. On January 11, 1994, Pierola filed the present appeal, challenging the June 10, 1992 judgment.
It is well settled that "[t]he rules of this court require that a notice of appeal be filed within thirty days of the entry of judgment. D.C.App. R. 4(a)(1). `This time limit is mandatory and jurisdictional.'" Circle Liquors, Inc. v. Cohen, 670 A.2d 381, 385 (D.C.1996) *945 (quoting Frain v. District of Columbia, 572 A.2d 447, 449 (D.C.1990)). A motion to amend the judgment pursuant to Super. Ct. Civ. R. 59(e) tolls the time for filing a notice of appeal until the trial court disposes of the motion, but only if the motion is timely filed. D.C.App. R. 4(a)(2); see also Frain, supra, 572 A.2d at 450. In order to be timely, a Rule 59(e) motion must be filed within ten days after the entry of the judgment being challenged. Super. Ct. Civ. R. 59(e). As we said in Circle Liquors,
this ten-day time limit is jurisdictional and the trial judge has no authority to decide the merits of such a motion if it is untimely. D.D. v. M.T., 550 A.2d 37, 42 (D.C. 1988); Household Finance Corp. III v. First Am. Title Ins. Co., 669 A.2d 703, 705 (D.C.1995). Nor may the trial court extend the time for taking action under . . . Rule 59. Super. Ct. Civ. R. 6(b) (trial court may not extend time for motions filed pursuant to, among others, Rules 50(b), 59(b), and Rule 59(e)).
670 A.2d at 385.
In this case, Moschonas' Rule 59(e) motion was not filed until September 4, 1992, well after the ten-day time limit, and the purported extensions of time by the trial court were inoperative under Circle Liquors. Thus, the Rule 59(e) motion did not toll the time for appealing the June 10, 1992 judgment. Accordingly, we issued an order to show cause why this appeal should not be dismissed as untimely. In response, Pierola made the following assertions, which Moschonas does not contest. On July 2, 1992, Pierola filed a timely notice of appeal from the June 10 judgment. Pierola subsequently learned that the trial court had granted Moschonas' motion to extend the time for filing a Rule 59(e) motion. On July 9, Pierola's counsel wrote to the trial court requesting approval of a supersedeas bond in order to stay execution on the judgment pending appeal,[2] and stating that, "[i]f [the bond request] is moot because the time for appealing is tolled by [Moschonas' motion for enlargement of time], then I apologize for the inconvenience and ask that you . . . return it to me to be refiled at the appropriate time." The trial court then returned the letter and the bond to Pierola. On September 29, 1992, this court granted Pierola's request to dismiss the July 2, 1992 appeal on the ground that it was not ripe.
Pierola argues that he dismissed his July 2, 1992 appeal as unripe in reasonable reliance on the trial court's actions, and thus we should invoke the doctrine of unique circumstances to assert jurisdiction over the present appeal. We agree.[3]
The doctrine of unique circumstances, sometimes referred to as the "lulling" doctrine, see Frain, supra, 572 A.2d at 450, creates "a very narrow equitable exception to the rigorous time requirements applicable to the filing of a notice of appeal." Id. at 451. For the doctrine to apply, there generally must be "some affirmative action or statement by the trial judge which could mislead the [appellant] into believing that he has more time." Id. In addition, the appellant's "reliance on the trial court's erroneous action or statement must be reasonable." Id.; see also Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 285, 9 L.Ed.2d 261 (1962) (per curiam).[4]
*946 For example, in Robinson v. Evans, 554 A.2d 332, 334 (D.C.1989), the trial court granted the appellee's motion for partial summary judgment based on the incorrect understanding that the motion was unopposed. The appellant promptly drew the court's attention to the fact that she had filed an opposition to the motion, but the court failed to vacate the order. Id. The appellant did not learn of the court's failure to vacate until a hearing that the court held on "all pending motions," after the time for appealing the partial summary judgment had expired.[5]Id. At the conclusion of the hearing, the trial court "affirmed" the order, and appellant filed a notice of appeal three days later. Id. at 335. We noted that:
the only proper course for the trial court was to vacate the ... order as soon as it learned of its original error. The procedural fudging in which the court engaged holding a hearing on "all pending motions," but without "formally vacating" the earlier order significantly prejudiced [appellant] by depriving her of an opportunity to seek appellate review of the court's ruling.
Id. at 336. Because the trial court erroneously "allowed the [partial summary judgment] order to remain unvacated and thereby prevented [appellant] from filing a timely notice of appeal," we applied the doctrine of unique circumstances to assert jurisdiction over the untimely appeal. Id.
In Circle Liquors, supra, we declined to apply the doctrine of unique circumstances where the appellant deferred appealing until after the trial court ruled on the appellant's untimely Rule 59 and Rule 50 motions.[6] We concluded that the appellant's deferral of its appeal was not excused by the trial court's acquiescence in appellant's request for an extension of time to file its motions. We noted that "[c]ounsel is responsible for knowing that the motion must be filed within ten days and that the trial judge has no authority to extend the time." 670 A.2d at 387; see also Center for Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm'n, 251 U.S.App. D.C. 82, 88-89, 781 F.2d 935, 941-42 (1986).
In this case, as in Circle Liquors, the trial court purported to extend the time for filing a Rule 59 motion although it had no authority to do so. As Circle Liquors makes clear, a party's deferral of a timely appeal in reliance on such an erroneous trial court action does not warrant application of the unique circumstances exception. Here, however, Pierola did not defer filing a timely notice of appeal from the June 10, 1992 judgment in reliance on the trial court's purported extension of time. Instead, Pierola filed a timely notice of appeal in July 1992, but had it dismissed in reliance on the trial court's return of the supersedeas bond, which erroneously indicated that the appeal had been rendered unripe by the appellee's motion. If appellant's appeal was in fact ripe, he had an absolute right to a stay by providing the supersedeas bond, see note 2 supra, but the trial court acted otherwise by returning the bond. Moreover, unlike in Circle Liquors, here it was appellee not appellant who initiated the problem by requesting extensions of time to file his Rule 59(e) motion. Thus, it can be said that appellant was "lulled" into withdrawing his first appeal. Cf. Circle Liquors, supra, 670 A.2d at 386-87 & n. 12 (appellant that requested an extension of time to file Rule 50 and 59 motions was not "lulled" by trial court into filing too late); Frain, supra, 572 A.2d at 452 (appellants who requested an extension of time to file Rule 59(e) motion *947 were, "if anything, the lullors rather than the lullees").
In these unique circumstances, we think this technically untimely appeal is not barred. The trial court's return of Pierola's supersedeas bond to which he had a right, coupled with the court's purported extension of time for the filing of appellee's Rule 59(e) motion, constituted affirmative steps that misled Pierola into dismissing his initial, timely appeal. We are satisfied that Pierola's reliance on the trial court's actions was reasonable under the circumstances, and we accordingly invoke the equitable doctrine of unique circumstances to assert jurisdiction over this appeal.
III.
Substantively, Pierola claims the trial court committed legal error on this record in holding that Moschonas' act of cashing the December 24 check did not constitute an accord and satisfaction barring Moschonas' claim.[7] We agree and reverse.
We start with a review of the applicable general principles. Accord and satisfaction is a method of discharging and terminating an existing right and constitutes a perfect defense in an action for enforcement of the previous claim. 6 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 1276 (1962). In doctrinal theory, accord and satisfaction requires both a contract, known as the accord, and performance of that contract, known as the satisfaction. Id. Often, accord and satisfaction arises as a defense when one party tenders a check to the other that contains the phrase "payment in full" or other words to that effect. Id. at n. 3. In cases like this, the debtor's act of cashing the check constitutes both the acceptance of the accord and its satisfaction. Id. § 1279. Thus, "[w]here the amount due is in dispute, and the debtor sends cash or check for less than the amount claimed, clearly expressing his intention that it is sent as a settlement in full, and not on account or in part payment, the retention and use of the money or cashing of the check is almost always held to be an acceptance of the offer operating as full satisfaction." Id. Accord and satisfaction is an affirmative defense with the burden of proof on its proponent. Id. § 1280.
As we most recently have articulated the requirements in this jurisdiction, an accord and satisfaction is a valid affirmative defense to a breach of contract claim where there is proof of: (1) a legitimately disputed or unliquidated claim, (2) a mutual agreement that the debtor will pay and the creditor will accept something other than the original amount due in satisfaction of the disputed claim, and (3) the actual giving and taking of the agreed upon substitution. Stinson v. Mueller, 449 A.2d 329, 331-32 (D.C.1982). However, the accord and satisfaction need not be explicit, but will be implied from the silent act of cashing a check containing a notation of payment in full. Rustler's Steak House v. Environmental Assocs., Inc., 327 A.2d 536, 539 (D.C.1974); Westminster Investing Corp. v. Equitable Assurance Soc'y, 143 U.S.App. D.C. 238, 241 n. 2, 443 F.2d 653, 656 n. 2 (1970); Pugh v. Long, 61 U.S.App. D.C. 156, 157, 58 F.2d 882, 883 (1932). In fact, even if the creditor affirmatively rejects the debtor's offer of accord and satisfaction, the accord and satisfaction will still be effective if the creditor proceeds to cash the check. Laganas v. Installation Specialties, Inc., 291 A.2d 187, 189 (D.C.1972). In this sense no "meeting of the minds" is required, because the creditor's "action speaks louder than his words." Id. Thus, we have held that accord and satisfaction operates even when the creditor obliterates the "paid in full" notation before negotiating the check. Id. In short, the creditor cannot have it both ways. If he takes the satisfaction, he is bound by the accord. Where the underlying facts are not in dispute, the existence of an accord and satisfaction is determined as a matter of law. Barrett v. Air Brakes & Controls, Inc., 130 A.2d 310, 311 (D.C.Mun.App.1957).
The trial court found that on December 24, 1985 Pierola wrote Moschonas a check for *948 $5,000. On the front of the check Pierola wrote "paid in full." Moschonas immediately cashed the check. These findings are supported by the record. Moschonas' act of cashing the check is clearly sufficient to meet the second and third prongs of Stinson under our precedent. Therefore, the existence of accord and satisfaction in this case must turn on whether the first prong of Stinson is met, i.e. whether Moschonas' claim was "legitimately disputed or unliquidated."
We have phrased the requirement that a claim be legitimately disputed or unliquidated in a variety of ways over the years. See Stinson, supra, 449 A.2d at 331 ("legitimately disputed or unliquidated"); Town Ctr. Management Corp. v. Chavez, 373 A.2d 238, 243 (D.C.1977) ("unliquidated or honestly in dispute"); Rustler's Steak House, supra, 327 A.2d at 538-39 ("honest dispute," "disputed"); Laganas, supra, 291 A.2d at 188 ("unliquidated or under bona fide dispute"); Voight & McMakin Air Conditioning, Inc. v. Property Redevelopment Corp., 276 A.2d 239, 242 (D.C.1971) ("unliquidated and in dispute," "bona fide dispute"). Whatever its formulation, this prerequisite of accord and satisfaction springs from the basic requirement of consideration in contract formation. An accord is a contract, and like all contracts, a valid accord requires consideration. CORBIN, supra § 1276. Both at common law and today, part payment by a debtor of a total debt fixed in amount and presently and indisputably due is not considered sufficient detriment to support a promise by the creditor to discharge the entire amount due. JOHN D. CALAMARI & JOSEPH M. PERILLO, CONTRACTS § 4-10 (3d ed.1987); Voight & McMakin, supra, 276 A.2d at 241. This is because the debtor's part satisfaction of such a fixed debt cannot constitute consideration under the pre-existing duty rule. CALAMARI & PERILLO, supra § 4-10. Claims that are undisputed as to their existence and where the amount due has been agreed upon or can be precisely determined are considered "liquidated." Id. § 4-11. "On the other hand, if there is a dispute as to liability or the amount due or even as to some other question, for example the method of payment, the claim is generally said to be unliquidated even if a party's assertion is incorrect provided that the assertion is made in good faith." Id. Thus, part payment of a claim is consideration for an accord where the claim is incapable of ready numerical valuation or disputed either as to amount or underlying liability. See id.; Voight & McMakin, supra, 276 A.2d at 242.
The trial court denied Pierola's accord and satisfaction defense because, in its view, in order for the principles of accord and satisfaction to apply "there must be a mutual acknowledgment of the underlying debt and a bona fide dispute as to its amount for the cashing of the check to operate as a settlement." The court apparently denied the accord and satisfaction defense because it treated Pierola's denial of the existence of the September 6 contract as a failure to acknowledge the underlying debt.[8]
However, the trial court's grafting of a requirement that there be "a mutual acknowledgment of the underlying debt" onto the accord and satisfaction analysis was legal error. As already indicated, and contrary to the view of the trial court, it is not necessary for the parties to mutually acknowledge the underlying debt and to dispute only its amount for accord and satisfaction to operate. Accord and satisfaction can operate anytime the underlying claim is disputed either as "to the amount due or as to the debtor's liability." Voight & McMakin, *949 supra, 276 A.2d at 242 (emphasis added); CALAMARI & PERILLO, supra § 4-11. Accordingly, Pierola could avail himself of the affirmative defense of accord and satisfaction despite the fact that he denied the existence of the underlying profit-splitting contract of September 6, 1985: indeed, the fact that he denied liability under that contract actually manifested a dispute as to "the debtor's liability."[9]
We turn then to the further requirement that the claim be "legitimately" disputed, or, as we have said elsewhere, that the dispute be bona fide or honest. Moschonas argues that accord and satisfaction cannot operate on the facts of this case because the trial court found that Pierola had lied in his testimony at trial regarding the profit-splitting contract.[10] However, the requirement that a dispute be legitimate, bona fide or honest focuses not on the propensity of the parties to prevaricate, but rather on the basis for disputing the claim at the time the accord and satisfaction operates. As Professor Corbin puts it:
When a claim is disputed in good faith by the obligor, its validity may properly be described as doubtful, at least in most cases. But the existence of such a dispute does not make the claim any the less a valid one. A money debt is due even though the debtor thinks he has paid it. Yet the honest dispute is sufficient to cause a part performance of the obligor's duty to be operative as full satisfaction, if so received by the obligee. In order to have this effect, however, it is necessary that the obligor's denial of the validity of the claim shall be made in good faith. If so denied, the claim is described as doubtful and unliquidated. But the debtor's mere refusal to pay the claim does not make it an unliquidated claim, if his refusal is arbitrary and known by him to have no just basis. In such a case his payment of less than the amount claimed does not operate as accord and satisfaction, even though it is so tendered and received. The reason for this is that he has acted in bad faith and that social policy is better served by denying full satisfaction. It is generally said that his payment, under these circumstances, is not a sufficient consideration for the creditor's agreement.
CORBIN, supra § 1287. The good faith requirement thus is concerned not so much with the subjective moral character of the debtor but rather the requirement of consideration. If there is an objective reasonable basis for the debtor's disputing his obligation to pay, whether in liability or amount, he is giving up something by making a part payment in full satisfaction of the disputed claim and thus provides objective consideration. In such a case, the inquiry need go no further; the dispute is "legitimate." Where there is no reasonable basis for the debtor's disputing his duty to pay the full claimed amount, where the debtor's refusal is objectively arbitrary, then subjective good faith may come into play. If the debtor honestly but completely in error believes that a just basis exists for his refusal to pay, that belief is sufficient to provide the requisite consideration. If, on the other hand, the debtor's refusal is objectively arbitrary and in addition "known by him to have no just basis," then the debtor gives up nothing by partial payment in performance of a known pre-existing duty and the attempted accord and satisfaction fails for want of consideration. The claim in that case is not "legitimate" in any sense.
We deal here with the issue of consideration and the making of a contract, where the law has been particularly wary about entering into an examination of motives and other subjective elements. For example, courts have long refused to inquire into the fairness of a bargain by examining the adequacy of consideration. See CALAMARI & PERILLO, supra *950 § 4-4. Instead of relying on vague and subjective notions of good faith, courts have instead insisted on objective evidence of fraud, duress, overreaching, undue influence or mistake before setting aside allegedly unfair contracts. Id.
With these considerations in mind, we turn to the case before us and its claim of accord and satisfaction. Here, Moschonas asserts that Pierola acted in bad faith because he merely "feigned disagreement" in order to assert an otherwise baseless accord and satisfaction defense. Because the essential facts are undisputed or resolved by the trial court, we decide the issue as a matter of law. Barrett, supra, 130 A.2d at 311. At the time of the Christmas Eve check the parties had been in a business relationship for several months. During the period from August to November Moschonas had received over a dozen checks totalling over $16,000 drawn on both payroll and non-payroll accounts, despite the fact that a profit-splitting contract was entered into in early September. The parties had had a heated disagreement regarding whether to sandblast or scrape the South Capitol Street Bridge, and as a result of that disagreement Moschonas had walked off the job before it was completed and not returned. These facts gave Pierola a legitimate basis to dispute Moschonas' claim to a flat 40% of the profits on both the bridge and tower contracts. Moreover, Moschonas himself admitted that when Pierola gave him the check on December 24, 1985 "[I was] trying to negotiate with him to show me how much money I had coming to me." That Pierola may have later lied about the contract is not controlling. There was at the time of the alleged accord and satisfaction a legitimate basis for the dispute. Accordingly, applying the legal principles set forth above the record here compels the conclusion that at the time of the Christmas Eve check the extent of Pierola's obligation to Moschonas was legitimately disputed, and that Moschonas' act of cashing the $5,000 check marked "paid in full" constituted a valid accord and satisfaction.
Moschonas also argues that even if the Christmas Eve check constituted an accord and satisfaction, it is unclear that it covered all Pierola's obligations under both the tower and bridge contracts. Moschonas suggests that the check resulted in him being "paid in full" on only one of the contracts or only on payroll obligations. Moschonas' argument is refuted by his own testimony at trial, however, where he acknowledged that the Christmas Eve check was "payment on the agreement that we have from the monies he had coming to him" on "the water tanks and the bridges." Thus, it seems clear that at the time the check was tendered Moschonas understood that it covered Pierola's obligation under both the tower and bridge contracts.
Accordingly, the judgment of the trial court must be
Reversed.
NOTES
[1] Moschonas' motion to amend the judgment requested sanctions, attorney's fees, pre-judgment interest, and punitive damages.
[2] When an appeal is taken from a money judgment, the appellant may obtain a stay of proceedings to enforce the judgment by posting a supersedeas bond. Super. Ct. Civ. R. 62(d); 62-I. The stay, which becomes effective when the trial court approves the bond, see Super Ct. Civ. R. 62(d), is a matter of right. See American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 3, 17 L.Ed.2d 37 (1966) (memorandum opinion of Harlan, J., Circuit Justice) (interpreting Fed.R.Civ.P. 62(d), which is identical to Super. Ct. Civ. R. 62(d)); United States v. Wylie, 730 F.2d 1401, 1402 n. 2 (11th Cir.1984) (same); 11 CHARLES ALAN WRIGHT ET AL, FEDERAL PRACTICE AND PROCEDURE, § 2905 (2d ed.1995) (same).
[3] Therefore, we do not address Pierola's argument that his first appeal should be reinstated, or that Moschonas' first motion for enlargement of time should be construed as a motion to amend the judgment under Rule 59(e).
[4] Subsequent to our decision to hear oral argument on the merits of this appeal, our sister federal court issued its opinion in Moore v. South Carolina Labor Board, 321 U.S.App. D.C. 346, 100 F.3d 162 (1996). In that opinion the court stated that the unique circumstances doctrine can apply only where a party is lulled into missing the deadline by a "formal court order or ruling, containing specific assurances that action which extends or postpones the deadline has properly been taken." Id. 100 F.3d at 162. The court rejected a claim that erroneous information from the clerk's office staff was sufficient to justify application of the doctrine, id. at 163, and we see no occasion at this point to consider how Moore's particular articulation of the requirement of "affirmative action or statement by the trial judge," Frain, supra, 572 A.2d at 451, might be applied in the very different circumstances presently before us.
[5] The partial summary judgment was immediately appealable as an order "changing or affecting the possession of property" under D.C.Code § 11-721(a)(2)(C). Robinson, 554 A.2d at 335 n. 11.
[6] The motions at issue in Circle Liquors were filed pursuant to Super. Ct. Civ. R. 50(b) (judgment as a matter of law) and Super. Ct. Civ. R. 59(b) (new trial), both of which, like a Rule 59(e) motion, must be filed within ten days after the judgment. 670 A.2d at 384-85.
[7] Pierola also alleges several other errors which we need not reach in light of our disposition on this issue.
[8] In a subsequent order denying Pierola's motion for reconsideration, the trial court appears to suggest that it was impermissible for Pierola to take the alternate positions that (1) there was no contract, and (2) that even if there was, it was discharged by accord and satisfaction, because the first position was based on a falsehood. This suggestion appears to be basically a restatement of the court's previous holding that a valid accord and satisfaction requires an acknowledgment of liability on the underlying debt, and because Pierola denied such liability, he could not properly claim accord and satisfaction. As a general matter, parties are permitted to take inconsistent positions under our rules. See Super. Ct. Civ. R. 8(e)(2); 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1283 (2d ed.1990). Appellee does not argue to us or in any Rule 11 motion or the like that this cannot be the case when one of the alternate positions turns out to be based on a falsehood. Accordingly, we express no opinion on that issue here.
[9] Operation of this general principle may be seen in the familiar example of tort claim settlement agreements where the alleged tortfeasor denies any admission of liability. Cf. CORBIN, supra § 1278.
[10] In the case before us, both parties were untruthful in testifying about matters relating to the accord and satisfaction. Indeed, Moschonas' untruth was more directly related to the immediate events related to that issue than Pierola's. In light of our resolution of the issue, we need not explore the effect of the mutual lack of truthfulness on the application of the good faith requirement.
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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/2258983/
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364 F.Supp. 1071 (1973)
CONSOLIDATION COAL COMPANY, Plaintiff,
v.
UNITED STATES STEEL CORPORATION, Defendant.
Civ. A. No. 72-315.
United States District Court, W. D. Pennsylvania.
August 30, 1973.
*1072 Daniel L. Stickler, Rose, Schmidt & Dixon, Pittsburgh, Pa., for plaintiff.
William S. Lerach, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.
MEMORANDUM and ORDER
McCUNE, District Judge.
The within case was tried non jury and this is written to explain why we have entered judgment for defendant in the claim of plaintiff Consolidation Coal Company v. United States Steel Corporation and judgment for United States Steel Corporation in the counterclaim of United States Steel Corporation v. Consolidation Coal Company.
On November 13, 1970, Consolidation Coal Company (herein Consol) owned and operated a landing on the Monongahela River at Maidsville, West Virginia, known as the Humphrey Landing where coal from Consol's mines was loaded into barges for transportation up river. On this date a barge (No. 683) owned by United States Steel (herein USS) was delivered by USS to the landing so that it could be loaded with coal for use at the mills of USS. The barge was placed in the empty fleet to await loading. On November 18, 1970, the barge was loaded with about 900 tons of coal and then moved by Consol to the area where the loaded fleet rested to await transportation. The barge then sank despite efforts to keep it afloat and Consol was forced to raise the barge in order to clear the area for the movement of other barges and the carrying on of its normal operations. The cost of the salvage operation was $7769.00 and depreciation of cargo was $2206.11, for which this suit was brought.
Consol alleged in its complaint that the barge was unseaworthy when placed in its hands for loading and that since the barge was unseaworthy, USS must pay Consol for the salvage operation and the damage to the cargo.
USS answered that the barge was seaworthy in all respects when delivered and the sinking was not due to any defect in the barge at the time it was delivered to Consol. Further, USS answered that the barge was in the exclusive possession and control of Consol and the sinking was due to the negligence of Consol because the barge was obviously damaged during or subsequent to the loading process or alternatively, that Consol failed to take proper action to prevent the sinking.
The barge was delivered to Consol at about 3:00 P.M. on November 13, 1970 and remained in the stream (with other empty barges) to await loading until about 3:15 A.M. on November 18, 1970, when it was moved into the loading area where about 900 tons of coal were dumped into it. The river was calm. It was then moved at about 8:30 A.M. to *1073 an area where loaded barges awaited transportation. At about 10:00 A.M. a riverman, Robert Sowell, noticed that the barge had developed a low freeboard. An inspection showed that the barge was taking on water rapidly and in spite of efforts to pump the water from the barge it sank at about 10:30 A.M. Upon being raised on November 26, 1970, a large hole was found (about 8"× 10") in the side of the barge at a location about 10 inches under water. The hole would have been somewhat further underwater when the barge was loaded.
Before the sinking Consol employees checked the barge visually from time to time and found no abnormal amount of water in the barge. From all appearances the barge was resting normally and visual inspections showed nothing unusual. Just before loading it was pumped dry and was found to be normal.
The barge had gone into use on February 4, 1949, and was repaired from time to time, the last general repairs having been made on October 14, 1970. The side plates were 3/8 of an inch thick when the barge was manufactured and although the barge had been used extensively there was no indication from any source that it was in disrepair. It was in average condition according to the report of Consol's expert. Consol's expert when asked whether the barge was unsuitable said he did not know whether it was unsuitable or not but he testified that he could not call it unseaworthy. USS called an expert who said the barge was seaworthy. We believe it was seaworthy.
As the barge was moved from under the tipple where it was loaded it was in tandem with another barge, the two being tied together with barge No. 683 being located up river (toward the tipple). A tug pulled the barges out from the loading area, they drifted down river for about 1000 feet toward the loaded fleet area at about 5 mph. When they reached what are known as the mooring cells, the motor tug pushed them against the cells where they scraped along the cells for a short distance. This slowed the barges and brought them to a stop as was intended after which they were tied to the mooring cells which are round steel pilings driven into the river bed. Two other barges were then similarly floated down river and pushed in so that they scraped along the out river side of the two already in place. The barges were moored to await transportation up river.
It is apparent that something gouged a hole in the side of barge No. 683. No one can account for a projection large enough to gouge a hole of this magnitude but there can be no conclusion but that the hole was caused in some way when the barge was moved from the tipple to the mooring cells or when the other barges scraped the side of No. 683. It is certain in our view that the hole permitted water to enter the barge and cause the sinking.
It is not known which side of the barge was gouged because the barge has no designated stern or bow and thus no starboard or lee and no one knows whether the hole was located on the in river side next to the mooring cells or the out river side next to the other barges but pictures of the hole were taken and it is clear that the barge was gouged and torn by something, some projection or sharp object strong enough to gouge and tear.
The testimony shows that Consol was in exclusive control of the barge as a bailee and the bailment was for the mutual benefit of the parties.
In the usual case (as in the counterclaim here) the bailor brings suit against the bailee for damage to his vessel. In all of the cases cited to us this has been the situation and in the cases cited the law is clearly set forth that once the bailor has established by a preponderance of the evidence that his vessel was seaworthy when delivered, a presumption arises that the bailee was negligent and the bailee is liable unless *1074 he can rebut the presumption by showing that he was not negligent, The E.T. Halloran, 111 F.2d 571 (2d Cir. 1940) cert. denied, 311 U.S. 691, 61 S.Ct. 73, 85 L.Ed. 447 (1940). The law is sometimes stated to be that when a bailor proves that his vessel was delivered to a bailee in good condition and returned in a damaged condition he makes out a prima facie case of negligence and imposes on the bailee the duty of going forward with the evidence under penalty of losing the suit, Orrell v. Wilmington Iron Works, 185 F.2d 181 (4th Cir. 1950). The bailee may overcome the prima facie case by proving affirmatively that he exercised that degree of care which the bailment in question called for or that the loss was due to causes in no way connected with a lack of proper care on his part. The reason for the rule is twofold, usually if the bailee exercises the degree of care which the bailment demands, that degree of care will be sufficient to prevent loss and secondly, the bailee has the best opportunity of knowing how the loss occurred. When a bailment is for mutual benefit the bailee has the duty to use ordinary care, Orrell v. Wilmington Iron Works, supra.
But in this case the bailee has sued the bailor, a somewhat unusual situation. The bailee has pled the unseaworthy condition of the vessel as the cause of the sinking and in our view the bailee must prove that condition by a preponderance of the evidence. It is implied in Consol's complaint that the action is one for breach of warranty, i.e., breach of the warranty that every owner implies when he delivers a vessel into the hands of a bailee or charterer that the vessel is seaworthy, and the complaint implies that Consol did not waive the warranty because it pleads that the unseaworthy condition was not disclosed and was not ascertainable in the ordinary course of plaintiff's business.
No bailment contract was introduced in this case and perhaps the contract is an oral one, the terms of which depend on custom because these parties have been engaging in business for years. There is, of course, an implied warranty which the owner of a vessel implies in all cases that his vessel is seaworthy. That warranty may, of course, be breached. It may also be waived but when there is a suit by a bailee or charterer against an owner for breach of the implied warranty of seaworthiness the action proceeds as any other contract action. See Robinson on Admiralty, Hornbook Series, page 605.
The conclusion, therefore, is apparent, that Consol was required to prove the unseaworthiness of the vessel and in our view it failed.
Therefore, judgment will be entered for the defendant in the suit by Consol against USS.
In the counterclaim USS having proven that it delivered the vessel to Consol in good condition and received it in damaged condition, the burden shifts to Consol to explain the accident and absolve itself. Consol has failed. Accordingly, judgment will be entered for USS on the counterclaim in the sum of $258.00 with interest.
This memorandum shall be deemed to comply with Rule 52.
ORDER
And now, August 30, 1973, in the suit of Consolidation Coal Company v. United States Steel Corp. judgment is entered for defendant.
In the counterclaim of United States Steel Corp. v. Consolidation Coal Company, judgment is entered for United States Steel in the amount of $258.00 with interest.
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455 Pa. Superior Ct. 181 (1996)
687 A.2d 1120
Wilma A. BABB; Estate of James A. Baker, by Audrey L. Baker; Robert L. Blood and Isla Jean Blood, his wife; Joseph Braim and Joann Braim, his wife; John Halfast and Mary Halfast, his wife; George Holliday; Thomas W. Little and Bonita J. Little, his wife; John Mononen; Richared Neroda, Thompson W. Platz; Lester Randall and Dorothy Randall, his wife; Harold Stevens; Susan Vannatter; Delbert Walker and Michael Wierzbicki
v.
C. Robert CLEMENSEN, Appellant.
Superior Court of Pennsylvania.
Argued October 29, 1996.
Filed December 10, 1996.
Reargument Denied February 20, 1997.
*182 C. Robert Clemensen, pro se, appellant.
Thomas A. Pendleton, Erie, for appellees.
Before TAMILIA, JOHNSON and BROSKY, JJ.
TAMILIA, Judge:
Pro se defendant C. Robert Clemensen, Esquire, appeals from the February 26, 1996 judgment which found the oil and gas leases existing between the plaintiffs and him had expired.[1]*183 The leases, held by plaintiff/landowners, provided primary terms between three and ten years with clauses extending the leases for a second term contingent upon the fulfillment of particular conditions. The trial court found "since oil or gas are [sic] not being produced in paying quantities and royalties have not been paid in four years, it is hereby determined that the leases have expired by their own terms." (Slip Op., Joyce, J., 2/26/96, p. 5.)
Appellant argues he complied with the terms of the contracts which allowed him to extend the leases for an additional term or, alternatively, if he was in default, appellant contends the court erred by denying him the opportunity to remediate. Specifically, appellant contends plaintiffs' domestic use of the gas constitutes "production" for purposes of extending the primary leases all initially entered into in the late 1950's.
Clauses providing conditions precedent for extending the leases follow:
2. TO HAVE AND TO HOLD said premises for the purposes aforesaid during the term of ten (10) years from the date hereof (called `primary term'), and as long thereafter as drilling operations for oil and gas are conducted thereon, hereunder, or oil or gas is produced therefrom hereunder, and or so long as said premises are used for underground storage of gas as herein provided.
Plaintiffs' Exhibits A, E, H, I, L, N.
TO HAVE AND TO HOLD the same (subject to the other provisions herein contained) for a term of ten years from this date (called `primary term') and as long thereafter as oil or gas casing-head gas or either or any of them, be produced therefrom; or as much longer thereafter as the lessee in good faith shall conduct drilling operations thereon and should production result from such operations, this lease shall remain in full force and effect as *184 long as oil or gas or casing-head gas shall be produced therefrom.
Plaintiffs' Exhibit C.
It is agreed that this Lease shall remain in force for the term of ten years from this date and so long thereafter as oil or gas is produced from the premises or as operations continue for the production of oil and gas.
Plaintiffs' Exhibit J.
(Appellees' brief at p. 2.) In summary, in order for the leases to be extended, appellant must have made a good faith effort to maintain drilling operations and "produce" and/or store oil or gas on the premises. The last clause implies appellant's failure to so act would result in the termination of the leases at the end of the original term. There was no argument the original leases had expired and no drilling had taken place for at least three years immediately prior to the filing of this lawsuit. The questions before the fact-finder were, inter alia, had "production" ceased, had appellant made substantial investments in the wells making forfeiture thereof unconscionable, and did plaintiffs' household use of the gas act as a waiver to any breach by appellant.
The court entertained testimony on behalf of eight lessors.[2] The witnesses averred the wells on their property were no longer producing, appellant had ceased paying royalties and delay rental, and no longer stored natural gas on the premises. They also contended the equipment had deteriorated tremendously and appellant had ignored their requests for repairs. Appellant replied that with the exception of one well, none had produced since 1991, some since 1972. Appellant, who is a New York resident, explained the Ohio operator with whom he had an agreement to maintain the Pennsylvania wells had "caused him problems" beginning in or around 1990. Appellant further testified, however, he did not find a suitable replacement for the operator until late 1994 (N.T., 11/21/95, pp. 84, 85, 88). The evidence presented also supported appellees' averments appellant had failed to pay royalties for the *185 past five years, had not paid delay rental fees, and had not stored gas on the leased premises, thereby failing to comply with the aforestated conditions precedent contained in the contract's habendum clauses. When faced with this evidence, including photos of rusted equipment surrounded by overgrown fields, the trial court, as the finder of fact, had sufficient evidence upon which to base its finding appellant had failed to comply with the terms of the contract which would have permitted him to extend the leases beyond their original terms. The leases had expired as a matter of law.
While research reveals scant Pennsylvania caselaw on the issues before the trial court and now submitted for our consideration, the facts before us have established that "production" as contemplated by the contracts was non-existent. In an unpublished Ohio case, Tisdale v. Walla, 1994 WL 738744 (Ohio App. 11 Dist.1994), the court addressed whether the well owner/lessee could terminate the lessors' domestic use of the gas in order to eliminate lessee's need to secure an alternative, additional gas supply for his pig farm. Lessee therein argued the leases had terminated, as a matter of law, due to lack of commercial production. The Ohio Court of Appeals defined "production" as "produced in paying quantities", and thus found the parties' domestic use did not serve to extend the term of the leases. While not bound by the findings of the Ohio Court of Appeals, we nevertheless agree with its reasoning and find appellees' everyday use of the gas provided by appellant/lessee's wells did not constitute production as contemplated by the leases so as to extend the duration thereof.
Appellant herein also argued appellees' failure to secure a judicial determination he had forfeited the leases by breaching his contractual obligations provided him with an affirmative defense and guaranteed him a "reasonable time" within which to remedy the alleged breach. Tisdale is instructive regarding this issue also. The Tisdale contract contained a judicial ascertainment clause almost identical to that contained in appellant's leases. There the court reasoned *186 the clause did not modify the limitation provision of the habendum clause. A judicial determination of forfeiture therefore was unnecessary because the lease had expired by its own terms. Having found the reasoning of Tisdale convincing, we agree with the trial court's finding the "and as long thereafter clause", "combined with due determination that the wells are no longer being produced necessitate the conclusion that the leases have expired by their own terms and a judicial [determination of] forfeiture is not required." (Slip Op. at 7.) Appellant's argument he is entitled to a reasonable time period within which to remedy his breach was rejected by the trial court, albeit not in specific terms. As reasoned above, appellees' leases have long since expired as a matter of law. The undisputed facts establish appellant has had, at a minimum, five years within which to take steps necessary to breathe life into the long-defunct wells, yet has failed to do so. To encumber the lessors' land indefinitely would be inequitable. See White v. Young, 409 Pa. 562, 186 A.2d 919 (1963).
Having found appellant's arguments challenging the trial court's findings unconvincing, we affirm the judgment entered in favor of the appellees.
Judgment affirmed.
NOTES
[1] The court found the claims of those plaintiffs who had joined the suit but did not appear at trial were dismissed without prejudice. They included Joseph Braim, George Holliday, Thomas Little, John Mononen, Richard Neroda, Harold Stevens and Michael Wierzbicki.
[2] See footnote number 1.
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364 F.Supp. 53 (1973)
UNITED STATES of America ex rel. James Hoey FEAR
v.
Alfred T. RUNDLE, Superintendent, et al.
Civ. A. No. 69-78.
United States District Court, E. D. Pennsylvania.
September 28, 1973.
*54 Gerald Jay Pomerantz, Philadelphia, Pa., for plaintiff.
James F. McCort, Asst. Atty. Gen., Philadelphia, Pa., for defendants.
NEWCOMER, District Judge.
On January 24, 1968, plaintiff James Hoey Fear slipped on a piece of ice in the bed of a truck while attempting to lift a box of trash over the side thereof. In order to avoid falling on his face, the plaintiff fell on the base of the palms of his hands and his knees. In so doing, it was ultimately determined that plaintiff Fear had fractured the navicular or scaphoid bone (hereafter navicular) in his right wrist. Upon treatment of this fracture by defendant Doctors Edwin Andersen and Elmer R. Place, the fracture failed to unite causing plaintiff a loss of motion and pain in his right wrist for which he sues for damages. At the time of this accident, plaintiff James Hoey Fear was an inmate at the State Correctional Institution at Graterford in Montgomery County, Pennsylvania.
Plaintiff commenced this action on January 13, 1969, and alleged violations of the Civil Rights Act as well as ordinary negligence. The Honorable Harold K. Wood on March 17, 1969, dismissed all counts of the complaint alleging violations of plaintiff's civil rights but permitted the action to proceed as a diversity action.
The case was tried without a jury from May 2 to May 8, 1973. On July 12, 1973, plaintiff's minimum sentence *55 was commuted by the Honorable Milton J. Shapp, Governor of Pennsylvania, and plaintiff was released from prison. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, this Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The plaintiff James Hoey Fear, at the time this suit was commenced, was a citizen of the State of Maryland.
2. The plaintiff was born in Macon, Georgia, on May 6, 1932, and at the time of trial was forty-one (41) years of age.
3. In 1959, just prior to his arrest, the plaintiff was a citizen of the State of Maryland.
4. In 1959, plaintiff was arrested at the age of 27 and subsequently pleaded guilty to the commission of a series of armed robberies. Plaintiff Fear was initially given a prison sentence of twenty-eight and one-half (28½) to fifty-seven (57) years.
5. Plaintiff's minimum sentence was subsequently reduced and on May 8, 1973, plaintiff had four (4) years, nine (9) months and three (3) days remaining to be served on his minimum sentence and fourteen (14) years, nine (9) months and three (3) days remaining to be served on his maximum sentence.
6. On July 12, 1973, the Honorable Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, commuted plaintiff James Hoey Fear's minimum sentence on recommendation of the Board of Pardons as a result of which plaintiff was released from prison on August 11, 1973.
7. The defendants Alfred T. Rundle, Dr. Edwin Andersen, and Dr. Elmer R. Place are citizens of the State of Pennsylvania.
8. On January 24, 1968, the defendant Alfred T. Rundle was the Superintendent of the State Correctional Institution at Graterford (hereafter Graterford).
9. On January 24, 1968, the defendant Edwin Andersen, M.D. was Medical Director at Graterford and was employed on a full time basis in the capacity of Medical Director. Dr. Andersen provided medical services to the inmates at Graterford on a full time basis.
10. On January 24, 1968, the defendant Elmer R. Place, M.D., was employed on a half-time basis by the Commonwealth of Pennsylvania to provide medical services to the inmates at Graterford prison.
11. Both Doctors Andersen and Place considered themselves to be general practitioners of medicine, and the Court finds that they both were in fact general practitioners on January 24, 1968.
12. On January 24, 1968, plaintiff was a Correctional Industries driver and mechanic at Graterford prison.
13. Part of plaintiff Fear's general duties as a driver of this truck included the disposal of trash from the correctional shops.
14. On January 24, 1968, at approximately 2 p. m., plaintiff was loading trash onto his truck inside the prison when he slipped on a piece of ice in the bed of the truck striking his knees and the base of the palms of his hands.
15. Plaintiff immediately walked to the Maintenance Area to report the accident; shortly thereafter plaintiff was sent to the infirmary for treatment of his wrists.
16. Plaintiff's wrists and in particular his right wrist were examined by Dr. Andersen on January 24, 1968, and he applied a wintergreen liniment and ordered plaintiff to appear the following day for x-rays of both arms.
17. Plaintiff described how he had injured himself to Dr. Andersen on January 24, 1968.
18. On January 24, 1968, plaintiff also received an Ace bandage from the dispensary which he used to wrap his right wrist area.
*56 19. On January 25, 1968, plaintiff returned to the hospital for x-rays of his arms and wrists. Plaintiff also consulted with Dr. Elmer R. Place on January 25, 1968, and as the dispensary card indicates, Dr. Place prescribed an Ace bandage, x-ray of the right hand, and external liniment and aspirin.
20. Sergeant Klock, the x-ray technician, took x-rays of plaintiff's right wrist on January 25, 1968.
21. Sometime shortly after January 25, 1968, Dr. Harper the x-ray specialist who was called in to read x-rays at Graterford Prison, read the x-rays which were taken of plaintiff's right wrist and on January 30, 1968 made the following report:
"The right wrist shows some cystic change proximally in the navicular. There is a fracture zone through this area. The cystic changes were not present on a film in 1965, but suggest the injury may be older than a few days."
22. Dr. Place read the January 30, 1968 x-ray report of Dr. Harper relating to plaintiff's right wrist very soon after January 30, 1968.
23. On February 8, 1968, Dr. Andersen made a notation on plaintiff's dispensary card that plaintiff was to see Dr. Allen E. Hamburg for a navicular fracture.
24. Dr. Andersen saw plaintiff again on February 11, 1968 and prescribed an antibiotic, aspirin and some medication for plaintiff's toes.
25. Dr. Andersen saw plaintiff again on February 14, March 13, and April 3, of 1968, for treatment of complaints not related to plaintiff's right wrist.
26. On April 11, 1968, the plaintiff was examined by Dr. Allen E. Hamburg, orthopedic specialist, regarding plaintiff's navicular fracture.
27. Dr. Hamburg's note of April 11, 1968 states the following:
"Pain in right wrist. Injury January '68. X-ray shows fracture through cyst of navicular. Recommend cast at least two or three months."
28. Dr. Hamburg immediately casted plaintiff's wrist on April 11, 1968.
29. Dr. Andersen made a note to repair the cast on May 3rd and on May 23rd the edges of the cast were padded on advice of Dr. Place.
30. On June 3, 1968, the cast was removed and another cast was applied on that same day. Additional x-rays were requested by Dr. Andersen during this period.
31. On July 11, 1968, Dr. Andersen again ordered additional x-rays and a new cast was applied on this date.
32. Plaintiff's cast was removed some time in August, 1968 and Dr. Hamburg explained to plaintiff that the fracture had failed to unite.
33. Throughout the period from January 24, 1968 until August, 1968, the plaintiff continued to work at his job as Correctional Industries mechanic because he was not given a medical release from work by either Dr. Andersen or Dr. Place.
34. The administrative policy in effect at Graterford during the year 1968, was such that in order for an inmate to be relieved of his regular duties at the prison for medical reasons, the physician or physicians treating such inmate were required to execute a medical release, relieving the inmate from his regular prison duties.
35. If no medical release was executed by the physician or physicians capable of executing such release, the inmate was required to perform his assigned duties. If an inmate refused to perform his duties, he could be subjected to various punishment jobs or be stripped of his privileges.
36. Plaintiff's average pay per week at Graterford Prison as the Correctional Industries mechanic was approximately $31.00 which amount was considered exceptionally high for the prison at the time of the injury.
*57 37. Dr. Leon Weiner, plaintiff's medical expert, had been practicing medicine for a period of fourteen (14) years in Philadelphia County.
38. Philadelphia County is adjacent to Montgomery County.
39. Graterford Prison is located at Graterford, Montgomery County, Pennsylvania.
40. Dr. Leon Weiner was the only medical expert called to testify on behalf of either plaintiff or defendants with the exception of the defendants themselves.
41. Both Drs. Andersen and Place owed plaintiff Fear the duty of exercising that skill and knowledge possessed and employed by physicians generally in the Montgomery County area with respect to the treatment given to plaintiff's wrist.
42. Dr. Leon Weiner is competent to testify as a general practitioner as to the medical standards which existed in January 1968 in Montgomery County with respect to the diagnosis and treatment of a suspected fracture of the navicular bone of the right hand.
43. The medical standard prevailing in the Montgomery County area in January 1968 with respect to the diagnosis and treatment of a suspected fracture of the navicular bone of the right hand under the facts developed in this case required the defendant doctors to immobilize plaintiff's right hand to preclude movement of the fingers and joints, to advise plaintiff not to work and not to use his hand and to order that x-rays be taken as soon as possible.
44. In addition to the standard dictated by finding No. 43, upon receiving the x-ray report by Dr. Harper, the medical standard in the Montgomery County area in January 1968 would require defendants to refer plaintiff to an orthopedic specialist as soon as possible to decrease the likelihood of non-union of the fracture of plaintiff's navicular.
DISCUSSION
Initially, the Court is faced with two threshold questions of law which bear directly on the outcome of this case. One is the question of the existence vel non of diversity jurisdiction and the second relates to the doctrine of sovereign immunity.
We will deal with the question of diversity first. Defendants do not contend that plaintiff has failed to allege the requisite amount in controversy. Rather, they contend that the plaintiff was a citizen of Pennsylvania at the time this suit was commenced on January 13, 1969. Plaintiff asserts that at no time was he a citizen of Pennsylvania prior to commencement of suit or on the date suit was filed.
Plaintiff was arrested and incarcerated in 1959 for his participation in a number of armed robberies all of which were committed in Philadephia, York, and Dauphin Counties. At the time of his arrest, plaintiff stated that he was living in Baltimore, Maryland and his entire institutional record compiled at Graterford tends to support his statement concerning his residence. The defendants would have us infer from the geographic locations of the armed robberies as well as in one instance, the small amount of money involved that plaintiff must have been from Pennsylania. We think this fact that the robberies occurred where they did and the fact that in one instance a small amount of money was involved without more cannot support a finding that plaintiff was a citizen of Pennsylvania.
Along these same lines, plaintiff had been "living" at Graterford Prison for approximately ten years prior to the commencement of this action, but no one contends that he intended to stay there for a period of time beyond that required by his sentence. For these reasons we find that plaintiff Fear was a citizen of Maryland and the necessary diversity of citizenship exists.
*58 A more difficult problem exists with respect to the immunity doctrine which as applied to the Commonwealth of Pennsylvania and certain public officers thereof still exists subject to various exceptions and nuances which are presently being fought out in the state courts at all levels.
We have dismissed the Commonwealth from this action on a prior occasion for the simple reason that the Commonwealth has not yet given its consent to be sued for whatever private civil wrongs it may have committed and therefore may not be sued by a citizen of another state under the Eleventh Amendment of the Constitution of the United States.
However, a more difficult question arises regarding the immunity of Alfred T. Rundle, the Superintendent of Graterford Prison and Drs. Andersen and Place, physicians at Graterford. The defendants are being sued individually for damages arising out of certain alleged negligent acts and/or decisions.
We will deal first with defendant Rundle. The Pennsylvania courts have developed a doctrine of immunity over the years which appears to provide protection from litigation for those high public officials who are agents of the state and who have policy-making functions. However, this protection does not apply to lower level employees, it is said, whose functions do not involve the making of policy or involve discretionary decisions. See Ammlung v. Platt, 224 Pa. Super. 47, 302 A.2d 491 (1973). Actually the distinction between high and low level employees appears not to be controlled by the title of the office alone but rather by the nature of the particular decision emanating from that office. The present state of the law of Pennsylvania State employee immunity is unclear because the doctrine of sovereign immunity itself is being subjected to increasing criticism, and the cases appear to be controlled more by the factual situations involved rather than by the application of the high and low level employee dichotomy. Normally, a high level employee engages in more "policy making decisions" than a low level employee. But a high level employee may also make a decision which is purely operational and not discretionary.
It is therefore necessary, in order to determine the reasonableness or unreasonableness of a particular decision by either a high or low level employee, to examine whether or not there are any readily ascertainable standards in existence against which the particular decision or action can be measured. See Hendry v. United States, 418 F.2d 774 (2nd Cir. 1969).
Plaintiff alleges that defendant Rundle, acting as Superintendent of Graterford at the time this incident took place, had failed to properly oversee and manage the operation of the prison and had further failed to adequately create and maintain standards of care within the Institution and that such failure constituted a breach of a duty owed to the plaintiff James Hoey Fear. Plaintiff further alleges that defendant Rundle's breach of duty was a substantial factor in bringing about the resultant injury to his right wrist. However, plaintiff has the burden of showing that defendant Rundle's alleged nonfeasance was not in the nature of a policy-making decision so that we can determine whether or not Superintendent Rundle is a high or low level official of the State of Pennsylvania within the meaning of Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958), where the question of his governmental immunity is raised. We feel confident that if such evidence relating to the nature and function of defendant Rundle's office as Superintendent of Graterford Prison had been introduced, that such evidence would show that he was a high level official within the meaning of Montgomery v. Philadelphia, supra. See also Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968).
Apart from defendant Rundle's position as a high or low level official *59 which dichotomy we previously indicated does exist but which may have limited utility when deciding a particular case, no evidence was introduced at trial by plaintiff which would indicate a failure on the part of defendant Rundle to exercise reasonable care in discharging those duties which do not involve any discretion on his part in his capacity as a state official which would affect the plaintiff's right to receive adequate medical care at Graterford Prison. Without such evidence, we might well conclude that a separate state agency or sub-agency of the Bureau of Prisons was charged with the duty of administering medical care for all state prisons in Pennsylvania and that Superintendent Rundle had no authority or decision-making power with respect to the adequacy or inadequacy of the medical treatment of prisoners at Graterford on January 24, 1968. We therefore conclude that regardless of whether or not he is immune from tort liability, there is not sufficient evidence in the record upon which to base a finding or conclusion that defendant Rundle was in fact negligent.
We must now determine whether or not the defendant doctors are immune from tort liability assuming such liability exists. Each doctor is an employee of the Commonwealth of Pennsylvania. Dr. Andersen on January 24, 1968, was a full time employee and medical director of Graterford Prison, and Dr. Place was a part-time employee of the prison who maintained a private practice outside the prison in Montgomery County. Applying the high and low level official criteria as set forth in Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958), to the individual doctors in this case does present us with some difficult matters of judgment. First, it is clear from the testimony of the doctors themselves that they were responsible for providing medical treatment and consultation in the prison in January 1968. Dr. Andersen testified that he was the medical director and we find from his testimony that he was in charge of the prison hospital and the prison dispensary and infirmary. Dr. Place was only available in the infirmary during sick call and was not a full time employee of the prison. Both doctors were general practitioners and if in their opinion an inmate needed the services of a specialist, they would call in such specialist for consultation. In the case of Dr. Hamburg, the orthopedic specialist who was on January 24, 1968 the consulting orthopedist for the prison, it was testified that except in real emergencies, approximately fifteen inmates would have to require his services, before he would be called in. However, it appears that the medical standard then and there prevailing at Graterford and in Montgomery County would dictate that an inmate suffering from a possible fracture of the navicular bone be referred to Dr. Hamburg for examination before the list reached the required number of 15 even if the inmate were number 14 on the list to avoid exactly what transpired in this case. It would appear that the "list of 15" decision itself constituted more of a medical decision than a pure policy decision.
Certainly the importance of having physicians at the prison is an obvious and necessary part of running a prison. The importance of who the physicians are becomes even more important in a prison because Drs. Andersen and Place were the only physicians available to the inmates at Graterford at that time on a regular basis.
The last consideration we must test as to whether these doctors are high or low level officials within the meaning of Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958) is whether or not these doctors have "policy making functions." Dr. Andersen as medical director we must assume, controlled the hours and the days on which sick call was held. He would also as a matter of policy decide how sick call would be conducted and whether or not inmates would line up outside both his and Dr. Place's offices for sick call or wait in their cells for an escort. Dr. Place *60 might have participated in such discussions at the time the policy was instituted. But none of these policy decisions, if they are policy decisions in the true sense of the word, are being questioned by plaintiff. Likewise, the fact that they are or are not policy decisions would not have changed the medical results complained of in this case; nor would the classification of these doctors as high level or low level officials or employees have changed the results.
This suit does not involve our examination of any discretionary act committed by the defendants. Readily available medical standards do exist in Montgomery County which we can use to decide whether or not defendants' conduct conformed to that standard.
For the foregoing reasons, we are of the opinion that the doctors in this case are not immune from tort liability, if such exists, and may be sued individually by plaintiff Fear. See also Meads v. Rutter, 122 Pa.Super. 64, 184 A. 560; McSparran v. H. J. Williams Co., 249 F. Supp. 84 (E.D.Pa.1965).
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and the subject matter.
2. Dr. Edwin Andersen was a general practitioner of medicine on January 24, 1968.
3. Dr. Elmer R. Place was a general practitioner of medicine on January 24, 1968.
4. Both Drs. Andersen and Place owed plaintiff Fear the duty of exercising skill and knowledge possessed and employed by physicians generally in the Montgomery County area.
5. The standard of medical expertise required of physicians at Graterford Prison is the same standard of medical expertise required of physicians in Montgomery County.
6. The medical standards of the community in January 1968 required that plaintiff's right wrist be immobilized, that he be advised not to use his right wrist or do any work, and that x-rays be taken immediately.
7. The medical standards of the community in January 1968, further required that upon receipt by Drs. Andersen and Place of Dr. Harper's x-ray report, immediate consultation with an orthopedic specialist be ordered.
8. The failure of Drs. Andersen and Place to immobilize plaintiff's wrist constituted a breach of duty owed to the plaintiff by defendants and defendants were therefore negligent. Such negligence was a substantial factor in causing plaintiff's fracture of the navicular to heal improperly.
9. The failure of Drs. Andersen and Place to execute a medical release on behalf of plaintiff Fear so that the plaintiff would not have been required to perform his duties as Correctional Industries mechanic constituted a breach of duty owed to the plaintiff by defendants and defendants were therefore negligent. Such negligence was a substantial factor in causing plaintiff's fracture of the navicular to heal improperly.
10. Section 372 of Title 61 Purdon's Pa.Stat.Annotated states in part the following:
. . . "The physician shall inquire into the mental as well as the bodily state of every prisoner, and when he shall have reason to believe that the mind or body is materially affected by the discipline, treatment, or diet, he shall inform the warden thereof, and shall enter his observation on the journal hereinafter directed to be kept, which shall be an authority for the warden for altering the discipline, treatment or diet of any prisoner, until the next meeting of the inspectors, who shall inquire into the case and make orders accordingly."
11. The above statute was in effect in January, 1968.
12. The failure of either Doctor Andersen or Dr. Place to comply with the statute constitutes negligence *61 per se, and such negligence was a substantial factor in causing plaintiff's fracture of the navicular to heal improperly.
13. The failure of Drs. Andersen and Place to immediately arrange for orthopedic consultation with Dr. Hamburg constituted a breach of duty owed to plaintiff Fear by the defendants, and the defendants were therefore negligent. Such negligence on the part of defendants was a substantial factor in causing plaintiff's fracture of the navicular to heal improperly.
14. The failure of plaintiff's navicular to unite properly was foreseeable.
15. Plaintiff James Hoey Fear was not guilty of contributory negligence.
16. The defendants Drs. Anderson and Place are both liable to the plaintiff James Hoey Fear for any damages proximately caused by their negligence which in this case would be damages arising out of the failure of the navicular bone in plaintiff's right wrist to unite properly.
DISCUSSION
Dr. Leon Weiner, plaintiff's expert, introduced evidence that the standard medical practice in the community on January 24, 1968 would have required under the facts presented here that defendants immobilize the plaintiff's right hand so that he could not move his fingers or joints and advise him not to use the hand for any purpose and not to work. He further testified that upon receipt of Dr. Harper's x-ray report, such immobilization and non-work would be required to continue but now the medical standards in the community at that time would have additionally required that plaintiff be referred to an orthopedic specialist for consultation as soon as possible.
Prisoners at penal institutions have a right to receive the same medical attention supplied to the community generally. A prisoner pays his debt to society by serving his time in a penal institution and certainly no one expects such institutions to contain all the comforts of home. But a prisoner is entitled to walk out of prison on the day of his or her release with all of his or her physical and mental faculties intact and he or she should have the right to sue for damages if injury is caused by a physician's negligence while in prison.
The evidence in this case shows much more by way of omission than commission. The chronology of events as set forth in plaintiff's medical records while at Graterford are difficult to follow and at best present a spotty picture as to what procedures and advice were given to plaintiff after the January 30, 1968 x-ray report by Dr. Harper. Also the facts concerning when Dr. Andersen finally perceived that plaintiff's navicular bone in his right wrist was fractured are non existent. Also, the facts surrounding the referral to Dr. Hamburg for consultation are certainly unclear.
In all such negligence cases, and particularly in this case, the burden is on the defendant to come forward and explain how certain events took place upon the presentation by plaintiff of a prima facie case. Here plaintiff has made out a case of negligence against both Drs. Andersen and Place but not without difficulty. But as the record indicates, this is an unusual case in that the plaintiff was an inmate at Graterford Prison during the entire pendency of this suit. The medical records and witnesses were particularly difficult for plaintiff to obtain because of this obvious disadvantage. We are of the opinion that plaintiff did all he could in presenting his case to the Court under the handicaps of the situation.
DAMAGES
Plaintiff Fear's navicular bone in his right wrist was fractured by the accident which took place on January 24, 1968. Such fracture, as the record indicates, has failed to unite properly because as we have found, the defendant doctors were negligent. This condition *62 is permanent and cannot be corrected by surgery.
Prior to his incarceration, plaintiff played the guitar professionally and was a member of the Baltimore musicians' union. Plaintiff was able to play for the sustained periods of time required of guitarists generally prior to his accident. Now, plaintiff's right wrist becomes stiff and painful if he plays his guitar for more than twenty minutes.
As was indicated by the testimony and the documents in evidence, plaintiff had attained a high level of proficiency as a mechanic at Graterford. Although there is no evidence which tends to show that plaintiff received formal mechanical training, plaintiff testified that he was earning approximately $30 to $32 per week as a Correctional Industries mechanic. Plaintiff further testified that he worked on large trucks as well as the Correctional Industries director's automobile. After he lost his job as Correctional Industries mechanic as the result of his having filed the suit in the instant case, plaintiff gradually worked his way up to a mechanic's position in the weave shop. Plaintiff received a citation or award while working in the weave shop for a mechanical innovation which he developed.
Because of his injury, plaintiff is not able to perform certain mechanical tasks. He cannot lift heavy truck tires nor can he perform many of the simple twisting or pushing jobs requiring the use of both hands. He has a 10 to 15 percent loss of motion in his right wrist and his wrist stiffens after prolonged work making him a hazard to himself and others in a garage situation.
Dr. Leshner testified that plaintiff could perform the tasks required of a low grade mechanic and that in such position, plaintiff could expect to earn approximately $6700 to $8000 a year. The same earnings for a journeyman mechanic would be approximately $12,000 to $15,000 per year so that plaintiff's minimum loss of earning power would be approximately $5000 per year. Actuarial Leonard Goodfarb testified that a $5000 per year loss of earnings for plaintiff would result in a $99,935 loss of earnings for his work life expectancy reduced to present worth. Plaintiff's work life expectancy as a mechanic is 24 years. However, we think that because of his intelligence and experience, plaintiff will be able to obtain work as a higher grade mechanic or as a service manager thus reducing his damages for loss of earnings considerably. True he will not be able to perform certain tasks which we have previously enumerated, but he would not be required to perform such tasks if he were to be given a job as a service manager or mechanical consultant. We are of the opinion that $15,000 will compensate plaintiff for his loss of earning capacity in the future as a mechanic.
Likewise, we feel that the $18,842 representing plaintiff's loss of earnings as a guitar player for his work life expectancy reduced to present worth must be adjusted. Mr. Fear was no doubt a good guitar player in his day and did play professionally as he indicated. But music tastes have changed over the years, and we cannot say that Mr. Fear would be able to resume playing on weekends at the same rate he received as a union player or that the type of music he played in 1953 would be acceptable. In view of the above consideration, we are of the opinion that $3,000 will compensate plaintiff for his loss of future earning capacity as a guitar player.
We likewise award plaintiff $1,000 for pain and suffering and $1,000 for future medical costs for medication and orthopedic consultation. We view these amounts as reasonable under the facts of this particular case.
Any statements of fact or law found in this Court's discussion above which have not been specifically enumerated in the sections entitled "Findings of Fact" and "Conclusions of Law" respectively, are hereby designated "Supplemental Findings of Fact and Conclusions of Law."
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455 Pa. Superior Ct. 89 (1996)
687 A.2d 382
COMMONWEALTH of Pennsylvania, Appellee
v.
Elmer Leroy LAYHUE, Appellant.
Superior Court of Pennsylvania.
Argued September 4, 1996.
Filed December 31, 1996.
*90 Gregory A. Keenan, Meadville, for appellant.
Paula C. Cosenza, Assistant District Attorney, Meadville, for Commonwealth, appellee.
Before CAVANAUGH, J., CIRILLO, President Judge Emeritus, TAMILIA, KELLY, JOHNSON, FORD ELLIOTT, SAYLOR, EAKIN and SCHILLER, JJ.
CAVANAUGH, Judge.
We have for consideration the issue of whether the trial court imposed an illegal sentence when, as part of the sentence, it directed appellant Elmer Layhue to comply with an order of restitution to an insurance company.
The sentencing court, per Gordon R. Miller, P.J., ordered appellant to make restitution to State Farm Insurance Company in the amount of $8,881.25. Appellant entered a plea of nolo contendere to a conspiracy charge with respect to the destruction (by fire) of the car of Raymond Miller.[1] During the plea colloquy, the court advised Layhue and he answered:
THE COURT: Okay. Now in Count 2, you're charged with having some time between March 1st and March 4th *91 of '92 conspired with Raymond Miller, John Sneltzer and Sharon Sneltzer to commit the crime of arson and endangering property in that you agreed with them to intentionally start a fire or an explosion for the purpose of destroying an '89 Chevy Cavalier belonging to Raymond Miller, in order to collect insurance from it.
Do you understand that?
DEFENDANT LAYHUE: Yes.
Layhue's plea was to the following charges:
Count No. 2 Criminal Conspiracy
The defendant did, on or about March 1, 1992 March 4, 1992, with the intent of promoting or facilitating the commission of a crime, conspire with another to commit said crime. In so doing, the defendant did agree with such other person or persons that they or one or more of them would engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime, TO WIT: the defendant did conspire with Raymond Miller, John Sneltzer and Sharon Sneltzer to commit the crime of Arson Endangering Property, in that the defendant did agree with the aforementioned participants to intentionally start a fire or cause an explosion or aided to cause a fire or explosion and the defendant did said act with the intent of destroying or damaging a 1989 Chevrolet Cavalier belonging to Raymond Miller, to collect insurance for such loss.
(We have added emphasis above.)
The right to impose restitution is statutorily grounded on two provisions:
42 Pa.C.S.A. § 9721(c):
Restitution. In addition to the alternatives set forth in subsection (a) of this section the court may order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained.
and,
18 Pa.C.S.A. § 1106(a):
*92 (a) General rule. Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
Thus, the question, Was the insurance company a "victim" so as to be a proper object of a restitution order? While it may be reasonably argued that "victim" only modifies persons who suffer personal injury under § 1106, it is clear that § 9721 permits restitution to compensate a "victim" in the broader sense as one who suffers loss for injury or damage sustained. Both of the above provisions have been modified to an effect that we will later discuss but, the trial court disposition and this appeal have proceeded under the statutes as set forth and caselaw thereunder and we so proceed.
Appellant places reliance on Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982) wherein a defendant convicted of arson and aggravated assault, claimed, inter alia, on appeal that a restitution order was legally impermissible. The majority of a panel of our court agreed and vacated the restitution order. In Galloway, the appellant was convicted of the arson based on circumstantial evidence that Galloway started a fire in a residence after coming home with his wife in the early morning hours. He engaged in an argument with his wife and physically assaulted her. After wife left the premises, Galloway was seen to drive away from the scene. There was evidence that he had threatened to burn the house down, that he pulled a fire alarm and returned to the scene. The panel majority held that the fire insurance company was not the victim since it did not suffer injury to property as required by 18 Pa.C.S.A. 1106(h) which defines injury to include a loss of real property and tangible and intangible personal property. It was held that the detriment to the insurer was not a "loss" but, a contractual obligation under its insurance contract and that only innocent legal owners of the *93 home held a right to restitution.[2] Further reliance is placed on Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983) wherein a panel disallowed restitution which was, in part, reimbursement directly to health insurers who had paid for services to treat injuries of assault victims. Mathis read Galloway as holding that "any direct payment to an insurer is unauthorized."
We do not see Galloway as contrary to the present order of restitution, and we specifically disagree with the Mathis panel's reading of Galloway as prohibiting any direct payment (of restitution) to an insurance company. There are, of course, cases of fraudulent claims or other criminal misconduct in dealing with an insurer where the only victim is an insurance company. Surely in such case, Galloway did not intend to prohibit an order of restitution. Rather, we interpret the Galloway majority as prohibiting an order of restitution where the insurer's loss is merely consequential to the criminal conduct. (In Galloway, the arson was part of a course of conduct intended to harm defendant's wife). Similarly, Mathis is an assault case, where the insurer's liability for medical expenses is consequential to the treatment for injuries sustained in the assault upon the intended victims. Thus, in neither case was there evidence which would support an intention to extract payments from an insurer. As the colloquy in this case demonstrates, appellant was charged with (and plead nolo contendere to) an arson or explosion to a car in order to collect insurance. This places the insurance company in the posture of being the intended victim of the crime and we conclude that the restitution order is neither illegal nor impermissible under the controlling cases and statutes. In sum, we would affirm the sentence of the trial court based upon the issues presented to and argued before us and the pertinent authorities.
Our conclusion is further supported by analysis of the interplay between the history of this case and the effect of new legislation.
*94 The trial court, when met with appellant's post-sentence motion to withdraw the plea and to modify the sentence vacated the original sentence of May 4, 1995 and, thereafter, considered the motion, denied it, and resentenced on July 25, 1995. It is this sentence which is the basis for the present appeal.
In the meantime, the legislature was reconsidering issues relating to sentences, including restitution, and passed amendments to 1106 and 9721 on May 3, 1995, effective July 2, 1995. The amendments make it clear that insurance companies who suffer loss as a result of criminal conduct, may properly be awarded restitution. The legislature revised 1106(c) and (h) to include the following language:
§ 1106(c) Mandatory restitution.
(1) The court shall order full restitution:
(i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss. The court shall not reduce a restitution award by any amount that the victim has received from the Crime Victim's Compensation Board or other governmental agency but shall order the defendant to pay any restitution ordered for loss previously compensated by the board to the Crime Victim's Compensation Fund or other designated account when the claim involves a government agency in addition to or in place of the board. The court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.
(ii) If restitution to more than one person is set at the same time, the court shall set priorities of payment.
However, when establishing priorities, the court shall order payment in the following order:
(A) The victim.
*95 (B) The Crime Victim's Compensation Board.
(C) Any other government agency which has provided reimbursement to the victim as a result of the defendant's criminal conduct.
(D) Any insurance company which has provided reimbursement to the victim as a result of the defendant's criminal conduct.
(h) Definitions.
"Victim." As defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929. The term includes the Crime Victim's Compensation Fund if compensation has been paid by the Crime Victim's Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract.
§ 9721. Sentencing generally
(c) Mandatory restitution. In addition to the alternatives set forth in subsection (a) of this section the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained. For purposes of this subsection, the term "victim" shall be as defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The Administrative Code of 1929.
Amended 1995, May 3, P.L. 999, No. 12 (Spec. Sess No. 1), § 3, effective in 60 days.
It is noteworthy that the broadened definition of "victim" to include an insurance company who has suffered a consequent loss applies to both relevant restitution provisions. 18 Pa. C.S.A. § 1106(c) as amended, 42 Pa.C.S.A. § 9721(c) as amended, 71 P.S. 180-9.1.
We may affirm a trial court if it is correct on any legal theory. Matos v. Rivera, 436 Pa.Super. 509, 648 A.2d 337 (1994); In Re Benson, 419 Pa.Super. 582, 615 A.2d 792 (1992).
*96 Accordingly, the amended laws in effect twenty-three days before the effective sentencing in this case provide explicit statutory authority for the propriety of the restitution order.
Judgment of sentence affirmed.
SCHILLER, J., files a Concurring Opinion.
SCHILLER, Judge, concurring.
I join the majority to the extent that the restitution order should be affirmed since the defendant was charged with and pleaded to arson with intent to defraud an insurance company thereby making the insurance company in this case a victim entitled to restitution. Statutory changes enacted subsequent to defendant's crime are irrelevant.
NOTES
[1] Restitution is permissible for the acts of a co-conspirator. See Commonwealth v. Mathis, infra.
[2] Judge Wieand in his Concurring Opinion would hold that the insurance carrier was subrogated to the owner victim's rights and, as such, was the proper object of an order of restitution.
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364 F.Supp. 160 (1973)
NEW YORK UNIVERSITY, Plaintiff,
v.
NATIONAL LABOR RELATIONS BOARD et al., Defendants.
No. 73 Civ. 3918(MP).
United States District Court, S. D. New York.
September 20, 1973.
*161 *162 Clifton, Budd & Burke, New York City, for plaintiff by Henry Clifton, Jr., New York City, of counsel.
Peter G. Nash, Gen. Counsel, N. L. R. B., Washington, D. C., for defendants by R. Bruce McLean, Washington, D. C., of counsel.
MEMORANDUM
POLLACK, District Judge.
This is an action under Section 9 of the National Labor Relations Act (29 U.S.C. § 159) for a declaratory judgment and injunctive relief and is brought by New York University ("N. Y.U.") as plaintiff against the National Labor Relations Board (the "Board") and its individual officers and regional director as defendants. Briefly stated, *163 the action is aimed at preventing the Board from implementing its earlier decision of July 20, 1973 (reported at 205 N.L.R.B. No. 16) which ordered N.Y.U. to conduct a union representation election among certain segments of its faculty, librarians, and other professional staff.
Plaintiff N.Y.U. has moved for a preliminary injunction against the defendants seeking thereby to maintain the status quo pending a resolution of N.Y. U.'s contention that the order of the Board is based on conclusions which clearly ignore the relevant statutes and consequently is unlawful. For the following reasons, plaintiff's motion is denied and the case dismissed for lack of subject-matter jurisdiction.
I. Background
Some two years ago, two labor organizations[1] filed petitions with the Board seeking certification as the exclusive representative for collective bargaining purposes on behalf of various individuals at N.Y.U., pursuant to 29 U. S.C. § 159(c). That section states, in pertinent part:
"(c)(1) Whenever a petition shall have been filed in accordance with such regulations as may be prescribed by the Board
(A) by an employee or group of employees or any individual labor organization acting on their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative * * *
the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof." (Emphasis added)
N.Y.U. contended and contends again here that the Board lacked jurisdiction over the subject matter of the proceedings since the individuals sought to be represented were not "employees" as defined in § 2(3) of the Act (29 U.S.C. § 152(3)). Instead, N.Y.U. asserted that the individuals were either "independent contractors" or "supervisors" as defined in § 2(11) (29 U.S.C. § 152(11)), and thus exempt from the application of the Act's certification procedures. Furthermore, they argued that the Law School faculty did not constitute a separate and distinct bargaining unit as the petitions had claimed.
Following a hearing duly held, the Board, on July 20, 1973, issued a lengthy decision holding that the individuals sought to be represented were "employees" within the meaning of the Act, and that if the Law School faculty so elected, it would be treated as a separate bargaining unit. Accordingly, the Board ordered elections to be held to select a representative bargaining group. N.Y.U.'s motion for reconsideration was denied on August 30, 1973.
Plaintiff then instituted this suit to void the action of the Board. In this Court, plaintiff does not dispute the facts found in the Board's decision. Nonetheless, plaintiff claims that, as a matter of law, the Board's conclusions on those facts are erroneous, arbitrary and capricious. In other words, the plaintiff contends that the functions of the individuals involved as expressed by the Board in its findings require the conclusions that (i) they are supervisors or independent contractors, and furthermore *164 that (ii) the Board improperly delegated to the Law faculty a non-delegable function of the Board to determine whether it should be treated as a separate bargaining unit. These alleged errors are said to constitute action plainly in excess of statutory authority.
Asserting the threat of immediate and irreparable harm and the existence of a balance of the equities in its favor, plaintiff has requested a preliminary injunction against defendants during the pendency of this action from, inter alia, conducting the elections; requiring plaintiff to attend any preliminary meetings aimed at preparing for the election[2] or otherwise arranging for the elections; requiring plaintiff to furnish a list of eligible voters for the elections; requiring plaintiff to make its premises available for the purpose of posting notices of the elections, or in any way assisting in the conducting of the elections.
II. Jurisdiction
The threshold inquiry in all judicial matters including motions for preliminary injunctions is whether jurisdiction properly lies in this Court. Plaintiff has claimed jurisdiction under 28 U.S.C. § 1337.[3] That section, which gives this Court jurisdiction over civil actions arising under an act of Congress regulating commerce, has been interpreted as including the National Labor Relations Act within its broad ambit. See Capital Service v. N. L. R. B., 347 U.S. 501, 74 S.Ct. 699, 98 L.Ed. 887 (1954). But the law is similarly clear that Board representation hearings, such as the one involved in the instant situation, generally do not result in judicially reviewable final orders,[4] and thus this Court is normally without jurisdiction to enjoin a representation election ordered by the Board. See, e. g. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L. Ed.2d 849 (1964); United Federation of College Teachers v. Miller, 479 F.2d 1074 (2d Cir. 1973); Rock-Hill Uris, Inc. v. McLeod, 344 F.2d 697 (2d Cir. 1965); Commarato v. McLeod, 335 F. Supp. 118 (S.D.N.Y.1971); The Children's Village v. Miller, 76 L.R.R.M. 2637 (S.D.N.Y.1971); City Cab Co. v. Roumell, 218 F.Supp. 669 (E.D.Mich. 1963). Such orders are usually reviewable exclusively in the Court of Appeals under § 10(e) and (f) of the Act if and when they form the basis of a subsequent unfair labor practice proceeding. Boire v. Greyhound Corp., supra, 376 U. S. at 477, 84 S.Ct. 894. Although this method of review may ofttimes appear cumbersome and time-consuming, it is precisely this element of delay which was intended by Congress to prevent dilatory tactics by management. See Boire v. Greyhound Corp., supra, 376 U.S. at 477-479, 84 S.Ct. 894; 79 Cong.Rec. 7658 (1935).
The Courts, however, have carved out two exceptions[5] to this general rule of nonreviewability, and N.Y.U. claims to fall under both. The first exception, represented by Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), holds that when the Board acts, by its own admission, contrary to a specific prohibition in the Act, the District Court has power to review the Board's *165 determination. In Kyne itself, for example, the Board expressly included professional and non-professional employees in a single bargaining unit despite the command of § 9(b)(1) (29 U.S.C. § 159(b)(1)) that such integration was improper. In the case at bar, plaintiff has urged this Court that the Board's characterization of the N.Y.U. staff as "employees" was similarly forbidden by statute. They argue that the faculty, librarians, and principal investigators sought to be represented are "supervisors" or "independent contractors", rather than "employees", and therefore the Board's decision flies in the face of the specific statutory mandate that the term "employees" should not include "supervisors" or "independent contractors." 29 U.S.C. § 152(2). To be sure, the Act does indeed make such an exclusion, and goes on to define "supervisors" as follows:
"(11) The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment". 29 U.S.C. § 152(11).
Furthermore, the Board's decision clearly attributes certain specialized supervisory powers to some of the subject individuals. But despite plaintiff's ipse dixit, the Board's decision nowhere specifically characterizes any members of the staff as either "supervisors" or "independent contractors". The recognition of, at most, those certain supervisory powers exercised by the staff does nothing to change the Board's own conclusions that "upon the entire record" the individuals are "employees" within the meaning of the Act. 205 N. L.R.B. No. 16, at pp. 2, 5, and 7. Whether or not this Court agrees or disagrees with the Board's determination is immaterial; the Board, at base, is given a large measure of discretion in determining who is and is not an "employee" or "supervisor" under the Act. See, e. g., N. L. R. B. v. Swift and Co., 292 F. 2d 561 (1st Cir. 1961). And in any event, this is neither the proper time nor the appropriate place to re-examine the Board's determination. For it is clear that the Kyne exception would apply only if the Board had concluded that the individuals were not "employees" but had nonetheless included them within the bargaining unit. The Kyne exception must be and has been narrowly construed to encompass only such express disregarding of the statute by the Board, lest Congress' intent be frustrated. The cases cited by plaintiff all reflect that reality. See Miami Newspaper Printing Pressmen's Union v. McCulloch, 116 U.S.App.D.C. 243, 322 F.2d 993 (1963); United Automobile Workers v. N. L. R. B., 317 F.Supp. 1162 (D.D.C.1970); Bullard Co. v. N. L. R. B., 253 F.Supp. 391 (D.D.C.1966).
Plaintiff's argument as to the Law School faculty fails for a similar reason. N.Y.U. argues that the Board's order, in letting the Law School faculty decide for itself whether it should be included within the bargaining unit, is in specific contravention of the Act's direction that "[t]he Board shall decide . . . the unit appropriate for the purposes of collective bargaining." 29 U.S.C. § 159. Again, the Board's discretion in determining the appropriate unit is extraordinarily broad. See, e. g., Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Continental Insurance Co. v. N. L. R. B., 409 F.2d 727 (2d Cir. 1969), cert. denied, 396 U. S. 902, 90 S.Ct. 215, 24 L.Ed.2d 178 (1969). In the Court's opinion, delegation of that function to the faculty itself seems perfectly in keeping with the spirit and thrust of the Act, and, in any case, that issue is more properly reserved for the Court of Appeals on conventional *166 judicial review. Cf. Magnesium Casting Co. v. N. L. R. B., 401 U.S. 137, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971), reh. denied, 402 U.S. 925, 91 S. Ct. 1364, 28 L.Ed.2d 664 (1971). It is enough for now for this Court to recognize only that the Board has not so specifically contravened its statutory mandate so as to invoke the narrow exception of Kyne.
The second exception stems from Chief Judge Learned Hand's decision in Fay v. Douds, 172 F.2d 720 (2d Cir. 1949). Under the rule of that case, a District Court has jurisdiction when there is an assertion of a violation of constitutional rights which is not transparently frivolous. Despite the defendants' contention that this exception has not been accepted by the courts, there is every indication of its continued vitality. See, e. g. United Federation of College Teachers v. Miller, 479 F.2d 1074, 1080 (2d Cir. 1973) (Wyzanski, J., dissenting); Herald Co. v. Vincent, 392 F.2d 354 (2d Cir. 1968). Here, however, plaintiff's "constitutional" claim is no more than an attempted circumvention of the jurisdictional problem. All that N.Y.U. has argued is that the Board's decision, which rested at least in part on earlier decisions of the Board, violated due process since by statute the Board is directed to make each individual decision solely on its own record. 29 U.S.C. § 159. Such a semantic claim is, without more, far too insubstantial to rise to the level of the Fay v. Douds exception. See Herald Co. v. Vincent, supra. If anything, the Board's reliance on past precedent should be encouraged so that employers and employees alike may more readily gauge their future conduct. Cf. N. L. R. B. v. Burns Security Services, 406 U.S. 272, 293, 92 S.Ct. 1571, 32 L. Ed.2d 61 (1972). Once again, plaintiff's argument here is more properly reserved for the Court of Appeals on its traditional review.
This court, then, simply lacks jurisdiction over this action. Yet, it should be added that a preliminary injunction would have to be denied here in any event. The balance of the equities just does not tip decidedly in favor of plaintiff, nor is there the requisite showing of a probability of ultimate success on the merits. See Heldman v. United States Lawn Tennis Ass'n., 354 F. Supp. 1241 (S.D.N.Y.1973).
Moreover, absent such initial jurisdiction, it is clear that plaintiff's action should be dismissed in its entirety. For even absent a formal motion by defendant to dismiss, this Court has the unquestioned power if not the duty to sua sponte direct dismissal of the action when it appears that jurisdiction is lacking. See Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Bevan v. Columbia Broadcasting System, Inc., 293 F.Supp. 1366, 1369 (S.D.N.Y. 1968). Accordingly, plaintiff's motion for a preliminary injunction is denied and the complaint is dismissed.
The foregoing shall constitute the Court's findings of fact and conclusions of law as required by Rule 52(a), Fed. R.Civ.P.
So ordered.
NOTES
[1] One of those organizations, the N.Y.U. Chapter of the American Association of University Professors, orally moved at the argument of this motion to intervene on behalf of defendants. Rather than permit full-scale intervention, this Court has accepted the Association's brief as an amicus curiae submission.
[2] A meeting called by the Board for September 14, aimed at preparing for the elections, has been stayed pending the outcome of this motion.
[3] In addition, plaintiff has claimed jurisdiction under 28 U.S.C. §§ 2201 and 2202. Those sections merely give this Court power to issue declaratory judgments. They in no way expand the normal limits of this Court's subject-matter jurisdiction; they do no more than add an additional remedy where the District Court already has jurisdiction to entertain the suit. Wells v. United States, 280 F.2d 275 (9th Cir. 1960); Thompson v. Groshens, 342 F.Supp. 516 (E.D.Pa.1972).
[4] American Federation of Labor v. N.L.R.B., 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940).
[5] Actually, there is a third exception, allowing immediate review on questions which involve international security. McCulloch v. Sociedad Nacional, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). Needless to say, this exception has no applicability or relevance to this case.
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687 A.2d 699 (1996)
113 Md. App. 274
Stephen A. HOLLAND, et al.
v.
WOODHAVEN BUILDING AND DEVELOPMENT, INC.
No. 362, Sept. Term, 1996.
Court of Special Appeals of Maryland.
December 5, 1996.
Opinion Denying Reconsideration January 30, 1997.
*701 Thomas J. Gisriel (Drake C. Zaharris and Hodes, Ulman, Pessin & Katz, P.A., on the brief), Towson, for appellant, Holland.
Michelle M. Ostrander, Westminster, for appellant, Mayor and Council.
Elwood E. Swam, Hampstead, for appellee.
Argued before MURPHY, C.J., and DAVIS and EYLER, JJ.
*700 EYLER, Judge.
The primary issue addressed on this appeal is whether an amendment to the Town of Hampstead Code should be applied retroactively to confer standing on appellants to appeal a zoning decision to the Hampstead Board of Zoning Appeals. We hold that retroactive application of the zoning amendment is not appropriate under the facts of this case and affirm the Board of Zoning Appeals' dismissal of appellants' appeal.
Facts
On August 29, 1994, the Town of Hampstead Planning & Zoning Commission (Commission) granted final approval to Woodhaven Building & Development, Inc., appellee, for a residential subdivision known as North Carroll Farms, Section IV, a planned unit development consisting of 220 units. On September 28, 1994, four residents of Hampstead, Stephen A. Holland, Kris P. Koch, Kim Meekins, and James E. Springer, appealed to the Hampstead Board of Zoning Appeals (Board). Three of the appellants assert that they are nearby property owners, and the fourth has a child in the first grade at the elementary school which would serve North Carroll Farms, Section IV.
On March 6, 1995, the Board, by a 2-to-1 vote, declined to reach the merits and dismissed the appeal on the ground that appellants were not parties aggrieved within the meaning of § 135-157 of the Hampstead Code, the section governing appeals to the Board. The appellants named above, plus an additional 80 residents of Hampstead, noted an appeal to the Circuit Court for Carroll County. While that action was pending, the Mayor and City Council of Hampstead approved Ordinance 268, effective July 17, 1995, which repealed and reenacted § 135-157 of the Hampstead Code and permitted any Hampstead taxpayer to appeal to the Board.
Appellee challenged the validity of the ordinance in the circuit court and the Town of Hampstead filed a motion to intervene, which was granted. On January 3, 1996, the circuit court entered an order invalidating Ordinance 268 on the ground that it was preempted by State law. See Md.Code, art. 66B, § 4.07(e) (limiting appeals to boards of zoning appeals to aggrieved parties). The circuit court also affirmed the Board's finding that the original appellants were not persons aggrieved within the meaning of the prior ordinance. The Town of Hampstead and all of the citizen appellants noted an appeal to this Court.
Questions Presented
The Town of Hampstead presents two questions that, in essence, ask us to decide whether the Town of Hampstead Code § 135-157 is preempted by State law. In addition to the preemption question, the individual appellants ask us to consider (1) whether they have standing to challenge the action of the Commission under the prior ordinance; and (2) whether the circuit court should have reached the merits because Article 66B, § 4.08(a) authorizes any taxpayer to appeal from a board of appeals to the circuit court regardless of whether there was standing to appeal to the Board. Among the questions raised by appellee is whether the amendment to § 135-157 should be applied retroactively to cure appellants' purported lack of standing before the Board.[1]*702 Preliminarily, we uphold the Board's determination that appellants were not persons aggrieved within the meaning of former § 135-157. Further, we will not reach the issue of preemption because we hold that the amendment to § 135-157 should not be applied retroactively to this case. Finally, we reject appellants' argument that the circuit court should have considered the merits of appellants' appeal.
Discussion
A.
Appellants' Aggrieved Status
At the time this matter was heard by the Board, § 135-157 provided, in pertinent part, as follows:
An appeal to the Board may be taken by any person aggrieved or by any officer, department, board, commission, or bureau of the town affected by any decision of the Zoning Administrator....
Appellants argue that the original four protestants are persons aggrieved within the meaning of this statute.
The principles governing the determination of whether a party is sufficiently aggrieved to possess standing to appeal to a board of zoning appeals were discussed by the Court of Appeals in Bryniarski v. Montgomery Co. Bd. of Appeals, 247 Md. 137, 230 A.2d 289 (1967). Specifically, a person aggrieved
is one whose personal or property rights are adversely affected by the decision of the [zoning commission].[[2]] The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.
Id. at 144, 230 A.2d 289. As further noted in that case, the question of aggrievement is a fact question that must be determined on a case by case basis. Id.
In reviewing the Board's finding that the original appellants were no more aggrieved "than anyone else in the town," our function is to ascertain whether substantial evidence supports the Board's findings. Erb v. Maryland Dep't of Env't, 110 Md.App. 246, 676 A.2d 1017 (1996); Howard County v. Davidsonville Area Civic & Potomac River Assocs., 72 Md.App. 19, 34, 527 A.2d 772, cert. denied sub nom St. Mary's County Watermen's Ass'n v. Howard County, 311 Md. 286, 533 A.2d 1308 (1987).
"Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Jett v. Maryland Dep't of Env't, 77 Md.App. 503, 505, 551 A.2d 139 (1989) (quoting Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512, 390 A.2d 1119 (1978)). In applying this test, we defer to the Board's expertise and will not substitute our judgment for that of the Board as long as the Board's decision is "fairly debatable" in light of the evidence presented to it. Id.; Cromwell v. Ward, 102 Md.App. 691, 709-10, 651 A.2d 424 (1995); Red Roof Inns v. People's Counsel of Baltimore County, 96 Md.App. 219, 223-24, 624 A.2d 1281 (1993).
Relying on Bryniarski, supra, and Wier v. Witney Land Company, 257 Md. 600, 263 A.2d 833 (1970), appellants argue that three of the original protestants are nearby property owners and deemed to be aggrieved. While we agree with appellants that a protestant who establishes that he is a nearby property owner has made out a prima facie case of aggrievement which must then be rebutted by the party challenging standing, Bryniarski, 247 Md. at 144-45, 230 A.2d 289, we disagree that the three protestants met their prima facie burden in the instant case. None of the three protestants testified before the Board, and no evidence regarding their aggrieved status was admitted on their behalf. Appellants argue that because the protestants' addresses appear on the Application for Hearing and indicate that *703 the protestants reside in North Carroll Farms, the protestants met their burden of establishing that they were nearby property owners. We disagree.
Unlike the petition in Bryniarski, the Application for Hearing contains no allegation that the protestants are "`owners of property immediately contiguous or in close proximity' " to the subject property. Id. at 146-47, 230 A.2d 289. Neither was a vicinity map, indicating the proximity of protestants' property, attached to the application. Id. at 147, 230 A.2d 289. Similarly, none of the protestants are listed on the "List of Adjoining and Confronting Property Owners" required by the County to be given notice of the pending proceeding. Id. Indeed, there is nothing in the application or otherwise before the Board that indicated that any of the three protestants were property owners, let alone owners of nearby property. Neither are there any other allegations, general or specific, that the protestants were specially aggrieved. Accordingly, the three protestants do not meet the requirements of Bryniarski. See also Wier, 257 Md. at 612-13, 263 A.2d 833 (where there was evidence that the protestants' property was within sight distance of the subject property).[3]
Appellants alternatively argue that the fourth protestant, Mr. Holland, was sufficiently aggrieved to challenge the Commission's approval of the subdivision. Appellants concede that Mr. Holland is not a nearby property owner. Nevertheless, appellants argue that Mr. Holland demonstrated that he was specially aggrieved by the subdivision approval in a manner distinct from the public generally.
Mr. Holland testified before the Board that he has a child in the elementary school that would serve the subdivision and that the school has been certified as inadequate because of overcrowding. Mr. Holland further testified that he uses roads that would become further congested by the development and that he relies on the Town of Hampstead's water system, which would be further burdened by the development. Appellants conclude that, while these effects may be suffered by others, the fact that they are suffered by a class of people does not mean that they are indistinct from the effects on the public generally.
While we agree with appellants that the size of the aggrieved class is not dispositive of a particular protestant's standing, we believe that the record in this case is such that the Board's conclusion regarding Mr. Holland's status is fairly debatable. On cross-examination, Mr. Holland acknowledged that the affect of the subdivision on the school would be no different for his children than for any other child attending such school, and that he would be no more affected by the subdivision than any other member of the general public living, traveling or working in the area. While the evidence may have supported a finding by the Board that Mr. Holland was specially aggrieved, it did not compel such a finding by the Board. Accordingly, appellants did not have standing to appeal to the Board absent a retroactive application of Ordinance 268.
B.
Retroactive Application of Ordinance 268
The protestants filed their appeal to the Board on September 28, 1994. The Board dismissed the protestants' appeal on March 6, 1995. On June 27, 1995, and while the appeal was pending in the circuit court, the Town of Hampstead enacted Ordinance 268 to amend § 135-157, effective July 17, 1995. This amendment broadened the class of persons who may appeal to the Board to include "any Town of Hampstead taxpayer." Appellee argues that application of the ordinance to the instant case constitutes retroactive application of a statute. Appellee further argues that retroactive application of statutes is disfavored by Maryland law unless expressly *704 intended by the legislature, and that the ordinance evinces no such intent. Appellant counters that application of Ordinance 268 to this case would not affect any vested rights of appellee, and that the amendment is merely procedural and, thus, must be applied retroactively.
In this case, appellants seek to apply Ordinance 268 to cure their lack of standing before the Board even though they did not have standing at the time that the Board dismissed their appeal. We agree with appellee that such an application of Ordinance 268 would constitute a retroactive application of that ordinance. See St. Comm'n on Human Rel. v. Amecom Div., 278 Md. 120, 123, 360 A.2d 1 (1976) (defining a retroactive statute as "one which purports to determine the legal significance of acts or events that have occurred prior to the statute's effective date"). That does not end our inquiry, however, because there is no absolute prohibition against retroactive application of a statute. Id. Absent interference with vested rights or violations of procedural due process, the legislature may enact a retroactive statute. Id. Given, however, that we construe Ordinance 268 to operate prospectively, we do not even reach the issue of whether a retroactive application of that ordinance would adversely affect appellee's vested rights.
The rules governing retroactivity that we address in this case are rules of statutory construction.[4] Such rules are easy to state, but difficult to apply. A number of Maryland cases can be cited for the general proposition that a statute is presumed to operate prospectively from its effective date absent a clear expression of legislative intent that the statute is to be applied retroactively. Arundel Corp. v. County Comm'rs of Carroll County, 323 Md. 504, 510, 594 A.2d 95 (1991); Mason v. State, 309 Md. 215, 219, 522 A.2d 1344 (1987); WSSC v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 560-60, 520 A.2d 1319 (1987) and cases discussed therein. Despite the presumption of prospectivity, a number of other cases support the proposition that when a legislative change in law affects only procedural matters, rather than substantive rights, it applies to all actions, whether accrued, pending, or future, unless a contrary intention is expressed. Roth v. Dimensions, 332 Md. 627, 636-38, 632 A.2d 1170 (1993); Starfish Condo. Assoc. v. Yorkridge Serv. Corp., Inc., 295 Md. 693, 705, 458 A.2d 805 (1983); Winston v. Winston, 290 Md. 641, 649-50, 431 A.2d 1330 (1981); Holmes v.Crim. Injuries Comp. Bd., 278 Md. 60, 63 n. 2, 359 A.2d 84 (1976); Richardson v. Richardson, 217 Md. 316, 320, 142 A.2d 550 (1958).
As a preliminary matter, the question of what is procedural and what is substantive often is a difficult one to determine. See, e.g., Mason, 309 Md. at 221-22, 522 A.2d 1344 (where amendment to Post Conviction Procedure Act, limiting number of petitions that could be filed under Act, was held to affect petitioner's substantive rights). While standing could be characterized as a procedural question only, see Starfish, 295 Md. at 704, 708, 458 A.2d 805, it also could be characterized as a substantive matter, inasmuch as it involves the ability to pursue a right of action.
To complicate matters, appellants cite another line of cases that hold that "an appellate court must apply the law in effect at the time a case is decided, provided that its application does not affect intervening vested rights." O'Donnell v. Bassler, 289 Md. 501, 508, 425 A.2d 1003 (1981) (citing County Council for Prince George's County v. Carl M. Freeman Associates, Inc., 281 Md. 70, 76, 376 A.2d 860 (1977); Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 127, 291 A.2d 672 (1972)). See also Yorkdale v. Powell, 237 Md. 121, 124, 205 A.2d 269 (1964) (quoting Woman's Club of Chevy Chase v. State Tax Comm., 195 Md. 16, 19, 72 A.2d 742 (1950)). A countervailing principle to that statement is that, absent legislative intent to the contrary, a change in procedural law will not be applied retroactively to undo proceedings that already have concluded prior to the passage of the law. Luxmanor Citizens Assoc. v. Burkart, 266 Md. 631, 645, *705 296 A.2d 403 (1972); The Wharf v. Department, 92 Md.App. 659, 675-76, 610 A.2d 314, cert. denied, 328 Md. 239, 614 A.2d 84 (1992).
The first two principles we have identified favor the prospective application of legislative changes to law affecting substantive rights and the retroactive application of changes affecting only remedy or procedure. The latter two principles favor the contrary result.
All four of these principles were alive and well when we decided the case of T & R Joint Venture v. Office, Plan. & Zon., 47 Md.App. 395, 424 A.2d 384 (1980). Interestingly, that case involved facts, to the extent material, identical to those in the instant case.[5] In that case, a developer's application for rezoning was granted by the Zoning Hearing Officer for Anne Arundel County. Id. at 398, 424 A.2d 384. The Anne Arundel County Office of Planning and Zoning (OPZ) attempted to appeal the Zoning Hearing Officer's decision to the Board of Appeals. Id. at 396, 424 A.2d 384. Applying the law then in effect, the Board of Appeals dismissed OPZ's appeal because it found that OPZ was not a person aggrieved within the meaning of the statute governing appeals to the Board. Id. While the appeal was pending in the circuit court, the County amended its statute expressly to confer standing upon the planning and zoning officer, "notwithstanding his lack of a personal or property right adversely affected by the decision of the zoning hearing officer." Id. at 403-04, 424 A.2d 384. The circuit court applied the amended statute to confer standing upon OPZ, and we affirmed.
In that case, we noted that
[t]here have been literally dozens of cases in which the Court has been faced with a question of whether to apply an intervening change in the law to a pending case. Some of the decisions are not easy to reconcile, and thus the diligent lawyer or judge can easily find some authority for both sides of the proposition.
Id. at 405 n. 5, 424 A.2d 384. Further, observing that much of the discussion regarding procedure versus substance "is semantics," we declined to engage in such an analysis, and, instead, applied the doctrine that "`a court is to apply the law in effect at the time it renders its decision unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.'" Id. at 407, 424 A.2d 384 (quoting Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974)). We reasoned that this principle made "eminently good sense" and was applied by the Court of Appeals in Janda v. General Motors Corp., 237 Md. 161, 205 A.2d 228 (1964) and its predecessors.
Were the principle espoused in T & R Joint Venture still good law, we would apply it to this case, and then be faced with the question of whether Ordinance 268 is preempted by State law.[6] Seven years later, however, the Court of Appeals rejected the principle that we applied in T & R Joint Venture and that the Court of Appeals had applied in Janda. Riverdale Fire Co., 308 Md. at 565-68, 520 A.2d 1319. Instead, it reaffirmed the converse principle "that under the law of Maryland statutes ordinarily are construed to operate prospectively, absent a clear legislative intent to the contrary." Id. at 568, 520 A.2d 1319. Given the holding in Riverdale Fire Co., the principle applied in T & R Joint Venture is no longer good law.
Perhaps recognizing that part of the discussion in Janda and some of the cases cited therein are no longer the law of Maryland, appellants rely on O'Donnell v. Bassler, 289 Md. 501, 425 A.2d 1003 (1981). Without discussing Janda or Riverdale Fire Co., appellants assert that "[i]n zoning cases, Maryland law is absolutely clear [that `a]n appellate court must apply the law in effect at the time a case is decided, provided that its application does not affect intervening vested rights.'" We see no reason to distinguish zoning cases in this manner. The Court of Appeals could have limited its holding in Riverdale Fire Co. to exclude zoning cases, but it did not so limit that case. See, e.g., *706 Arundel Corp., 323 Md. at 509-10, 594 A.2d 95 (applying Riverdale Fire Co. in a zoning case).
We caution, however, that, while zoning cases are not exempt from the principles of construction set forth in Riverdale Fire Co., changes in zoning laws, such as zoning reclassifications, ordinarily will apply retrospectively by their very terms. Such in rem changes to the status of property necessarily will raise the question of whether the changes interfere with the property owner's vested rights. See, e.g., Prince George's County v. Sunrise Dev. Ltd. Partnership, 330 Md. 297, 307-12, 623 A.2d 1296 (1993); Rockville Fuel v. Gaithersburg, 266 Md. 117, 127, 291 A.2d 672 (1972); Sykesville v. West Shore, 110 Md.App. 300, 317-18, 677 A.2d 102 (1996). Indeed, O'Donnell involved just such a case.[7]
Apparently, the Court of Appeals did not, as we attempted to do, discard the procedure versus substance distinction. Riverdale Fire Co. involved a matter of substantive law, and subsequently decided cases have included considerations of whether the statute affects merely procedure versus substance. See, e.g., Mason, supra. But see Arundel Corp. v. County Comm'rs, 323 Md. 504, 509-10, 594 A.2d 95 (1991) (construing amendments to zoning ordinance which changed the filing requirements for conditional use applications to operate only prospectively). Accordingly, the principles that seem to survive Riverdale Fire Co. are that, absent clear legislative intent to the contrary, (1) a statute ordinarily will be presumed to operate prospectively; (2) a statute that changes procedure only ordinarily will be applied to pending cases; and (3) new procedural law, although applicable to pending cases, will not ordinarily be applied to undo procedures that already have concluded.
Applying these principles to the instant case, we hold that, regardless of whether Ordinance 268 is characterized as affecting substantive rights or as changing procedure only, it does not operate retroactively to confer standing upon the protestants. Ordinance 268 does not state whether it is to be applied retroactively, but merely provides that it is to take effect on July 17, 1995. Accordingly, under the general rule provided in Riverdale Fire Co., Ordinance 268 is to be applied prospectively from its effective date.
Even if we presume that the ordinance effects only a procedural change, it does not, by its terms, invalidate the Board's dismissal of the appeal. When the protestants filed their Application for Hearing, they did not have standing. Neither did the protestants have standing when the Board rendered its decision dismissing the appeal. The fact that the class of persons who may appeal to the Board subsequently was broadened does not resurrect the standing issue with respect to the protestants. Accordingly, we will not apply Ordinance 268 to this case, and will leave for another day the issue of whether it is preempted by State law.
C.
Whether the Circuit Court Should Have Considered the Merits
Appellants argue that, regardless of whether they had standing to appeal to the Board, the circuit court should have ruled on the merits of their appeal because Art. 66B, § 4.08(a) authorizes any taxpayer to appeal from the Board to the circuit court, and they, thus, were properly before the circuit court.
We see no merit in this argument. Even if appellants had a right to appeal to the circuit court, they were not entitled to a broader scope of review than that provided by law. The circuit court was limited to reviewing the Board's decision with respect to whether appellants were aggrieved persons or otherwise entitled to appeal.
JUDGMENT AFFIRMED; APPELLANTS TO PAY COSTS.
*707 ON MOTION FOR RECONSIDERATION
Appellants have filed a motion for reconsideration based on their reading of the Court of Appeals's recent opinion in Sugarloaf Citizens' Association, et al v. Department of Environment, et al., 339 Md. 232, 661 A.2d 733 (1995). Sugarloaf was filed by the Court of Appeals on December 20, 1996, fifteen days after we filed our opinion in this case. Appellants argue that we erred in deferring to the Hampstead Board of Zoning Appeal's (Board) finding that appellants were not aggrieved parties, in view of the holding in Sugarloaf that a reviewing court may not give deference to an administrative finding of lack of aggrievement. Because Sugarloaf involved an administrative determination of judicial standing, rather than an administrative determination of administrative standing, Sugarloaf is inapposite.
Sugarloaf involved a challenge by certain property owners to the Maryland Department of the Environment's (MDE) decision to issue two permits that authorized construction of a solid waste incinerator. The Secretary of MDE had delegated authority to the Office of Administrative Hearings to hold a contested case hearing on the issue of whether a permit to construct should be issued to the applicants. The Secretary also requested that the Administrative Law Judge (ALJ) "entertain arguments on the issue of standing and make findings." Op. at 610. With respect to this latter request, the Court stated:
If there were a statutory provision or a regulation setting forth criteria for administrative standing, the Secretary's request would have been appropriate. Under such circumstances, the ALJ could properly make findings and conclusions concerning administrative standing. No party in the instant case, however, has called to our attention any statute or regulation prescribing criteria for administrative standing in a case like this, and we are not aware of any such statute or regulation. Consequently, under the decisions of this Court discussed above, the plaintiffs were appropriately accorded standing as parties to the administrative hearing. There was no proper issue of administrative standing to be resolved by the ALJ.
Id., at 614. In Sugarloaf, despite the lack of a statute conditioning standing to participate in the contested case hearing upon aggrievement, the ALJ made factual findings that the protestants were not aggrieved within the meaning of Bryniarski v. Montgomery Co., 247 Md. 137, 230 A.2d 289 (1967) and other cases. The trial court and this court, applying the substantial evidence standard, then used those findings of lack of aggrievement to hold that the protestants did not have standing to seek judicial review of the ALJ's decision.
The Court of Appeals held that the ALJ exceeded her proper role by rendering findings and conclusions regarding judicial standing, and that it was error to accord any deference to her findings and conclusions regarding judicial standing. Sugarloaf, Op. at 614.
Under basic principles of administrative law, as well as the separation of powers requirement set forth in Article 8 of the Maryland Declaration of Rights, [footnote omitted] it is not the proper function of an administrative official or agency in the executive branch of government to decide whether a plaintiff or potential plaintiff has standing to maintain an action in court.... [W]ith respect to the allocation of functions between administrative agencies and the judiciary, the determination of whether a person has standing to maintain an action in court is exclusively a judicial function.
Id., at 614-15 (emphasis added).
Unlike Sugarloaf, the instant case involved the question of whether appellants possessed standing to appeal to a board of zoning appeals under Article 66B, § 4.07(e) and § 135-157 of the Hampstead Code. Accordingly, *708 we appropriately applied the substantial evidence test to the Board's findings on the issue of standing. See Bryniarski, 247 Md. at 144, 230 A.2d 289 (noting that the question of aggrievement is a fact question that must be determined on a case by case basis).
MOTION FOR RECONSIDERATION DENIED.
NOTES
[1] The issue of retroactivity was argued below. It was not formally framed as a question presented on appeal but was argued by the parties in their briefs and at oral argument. Accordingly, we shall address this issue. See Clarke v. State, 238 Md. 11, 22-23, 207 A.2d 456 (1965); Poole v. Miller, 211 Md. 448, 453-54, 128 A.2d 607 (1957).
[2] Bryniarski involved an appeal from a board of zoning appeals rather than to a board of zoning appeals. 247 Md. at 144, 230 A.2d 289. As noted in that case, however, interpretation of the phrase "persons aggrieved" should not differ whether the statute is one governing appeals to the board or appeals from the board. Id. at 143, 230 A.2d 289.
[3] As an aside, we note that the issue of what constitutes a "nearby" property owner is, itself, a question of fact which may turn on such circumstances as the topography of the subject property and its environs and the nature of the proposed development. Accordingly, even had there been an allegation that the protestants owned property within North Carroll Farms, such an allegation alone would not necessarily have precluded the Board from determining that the protestants were not nearby property owners and not aggrieved.
[4] For the sake of clarity, we refer to these principles throughout as rules of statutory construction. However, the same principles apply to legislative enactments generally, including local ordinances such as the one at issue in this case.
[5] None of the parties discuss this case, possibly because they were uncertain as to its current status.
[6] We did not consider the issue of preemption in T & R Joint Venture because it was not raised by the parties in that case.
[7] If the fourth rule stated in Janda is viewed not to be a rule of construction, it continues to have force and effect. After Riverdale Fire Co., the fourth Janda principle continues to survive in the following limited manner. When a statute, by its terms, works retroactively, we will apply it in pending cases unless it impinges upon vested rights or violates due process. The mere filing of a complaint or answer does not entitle a plaintiff to have applied to his case the law in effect at the time of such filing.
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687 A.2d 78 (1996)
STATE of Rhode Island
v.
William A. QUATTROCCHI, Jr.
No. 95-653-M.P.
Supreme Court of Rhode Island.
December 19, 1996.
*79 Samuel L. DiSano, Barrington, for Plaintiff.
David W. Dugan, Wood River, for Defendant.
OPINION
PER CURIAM.
This case came before the court for oral argument November 4, 1996, pursuant to an order that had directed both parties to appear in order to show cause why the issues raised in the petition for certiorari should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this petition should be decided at this time.
The state sought review of a decision of the Appellate Division of the Workers' Compensation Court that awarded compensation to employee, William A. Quattrocchi, Jr., during a period when he was in home confinement after pleading nolo contendere to possession of five kilograms of marijuana and conspiracy to possess more than five kilograms of marijuana. The employee was sentenced to twenty years on both counts, eighteen years and five months were suspended, and seven months were to be served at the Adult Correctional Institutions. The sentences were to run concurrently. He was given credit for the seven months of incarceration awaiting disposition of his alleged offenses, and the final twelve months were to be served in home confinement. The employee had been employed by the State Department of Corrections when he injured his lower back in the line of duty on May 29, 1991. He was found to be totally disabled as of September 9, 1993.
The sole question raised by the petition for certiorari is whether employee was entitled to compensation during his period of home confinement. General Laws 1956 § 28-33-17.1(c) states as follows:
"An employee shall also not be entitled to compensation under chapters 29-38, of this title for any period during which the employee was imprisoned as a result of a conviction of a criminal offense."
General Laws 1956 § 42-56-20.2 defines "community confinement" as follows:
"(a) Persons subject to this section. Every person who shall have been adjudged guilty of any crime after trial before a judge, a judge and jury, or before a single judge entertaining the person's plea of nolo contendere or guilty to an offense, (`adjudged person') and every person sentenced to imprisonment in the adult correctional institutions (`sentenced person') and every person awaiting trial at the adult correctional institutions (`detained persons') who meets the criteria set forth in this section shall be subject to the terms of this section." (Emphasis added.)
The state argues that home confinement or community confinement is a form of imprisonment, and therefore, an employee is not entitled to benefits for workers' compensation during a period of home confinement. With this contention we agree. The former statute that preceded the present § 28-33-17.1 provided for benefits to be payable to dependents during a period of imprisonment. See P.L.1981, ch. 340, § 1. In 1992, § 28-33-17.1 was amended to eliminate the payment of benefits to dependents of an employee who is in prison. We believe that this amendment is indicative of the legislative intent in seeking to prohibit the disbursement of any benefits either to the employee or to his dependents during a period of imprisonment. We are persuaded that home confinement is a form of imprisonment during which an employee's liberty is significantly restrained. Black's Law Dictionary 757 (6th Ed.1990), in defining "imprisonment," observes:
"It is not a necessary part of the definition that the confinement should be in a place *80 usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an `imprisonment,' whether it be in a prison, or in a private house * * *."
We would apply our rule of construction to this statute as set forth in Pizza Hut of America, Inc. v. Pastore, 519 A.2d 592, 593 (R.I.1987), that when the language of a statute is clear and unambiguous, the terms of the statute must be literally applied.
For the reasons stated, the petition for certiorari is granted, the decision of the Appellate Division of the Workers' Compensation Court is quashed, and the papers in the case may be remanded to the Workers' Compensation Court with our decision endorsed thereon.
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127 Cal.Rptr.2d 871 (2002)
104 Cal.App.4th 239
Allison ROLFE et al., Plaintiffs and Appellants,
v.
CALIFORNIA TRANSPORTATION COMMISSION et al. Defendants and Respondents;
San Diego Regional Transportation Commission et al. Real Parties in Interest and Respondents.
No. D038865.
Court of Appeal, Fourth District, Division One.
December 11, 2002.
*872 Law Offices of Thomas D. Mauriello, Thomas D. Mauriello, San Francisco; Law Offices of Marco A. Gonzalez and Marco A. Gonzalez for Plaintiffs and Appellants.
John J. Sansone, County Counsel, and Thomas D. Bunton, Deputy County Counsel, for Defendant and Respondent County of San Diego.
Nossaman, Guthner, Knox & Elliott, LLP, Robert D. Thornton, John J. Flynn III and Maryela Martinez, Irvine, for Defendants and Respondents California Transportation Ventures, Koch Industries, Parsons Brinckerhoff, Transroute Corporation, Egis Project and San Diego Expressway L.P.
Bruce A. Behrens, Sacramento, Jeffrey A. Joseph, San Diego, David J. Pettigrass, and John Frederick Smith for California Department of Transportation and California Transportation Commission.
Daley & Heft, Robert W. Brockman, Jr.; Scott E. Patterson, Solana Beach; John M. Kaheny, City Attorney, and Bart C. Miesfeld, Deputy City Attorney, for Real Party in Interest and Respondent City of Chula Vista.
Julie D. Wiley for Real Party in Interest and Respondent San Diego Regional Transportation Commission.
*873 McCONNELL, J.
The issue in this case is whether Public Resources Code [1] section 5096.27 requires the California Department of Transportation (Caltrans) to obtain legislative approval before acquiring park property from the County of San Diego (the County) and converting it to nonpark use, when the County purchased the property under the Cameron-Unruh Beach, Park, Recreational, and Historical Facilities Bond Act of 1964 (the Cameron-Unruh Act). (§ 5096.1 et seq.) We answer the question in the negative, and, accordingly, affirm the judgment.
BACKGROUND
State Route 125 South (SR125 South) is a proposed 11-mile toll road that would connect State Routes 54 and 905 in southern San Diego County. If SR125 South is built, the current alignment would require Caltrans, among others, to acquire from the County a portion of property referred to as Area 19, which is part of the Sweetwater Regional Park. The County bought Area 19 with a "state park bond fund" under the Cameron-Unruh Act.
In May 2000 Allison Rolfe and Preserve South Bay (together Rolfe) filed a petition for writ of mandate and complaint for injunctive relief against Caltrans and the County.[2] Rolfe alleged that under section 5096.27, Caltrans may not condemn Area 19 without first obtaining authorization from the Legislature to convert the park land to nonpark use. Rolfe sought an order vacating the alignment for SRI25 South and curtailing further activity on the project absent legislative approval regarding Area 19.
Caltrans moved for judgment on the pleadings. The court granted the motion and judgment was entered for Caltrans on July 20, 2001.
DISCUSSION
I
Standard of Review
Judgment on the pleadings is proper when the "complaint does not state facts sufficient to constitute a cause of action against [the] defendant." (Code Civ. Proa, § 438, subd. (c)(3)(B)(ii).) The grounds for the motion "shall appear on the face of the challenged pleading or from any matter of which the court ... may take judicial notice pursuant to Section 452 or 453 of the Evidence Code." (Id., subd. (d).)
We review the trial court's ruling on a motion for judgment on the pleadings independently, applying the same test as the trial court. We accept as true the plaintiffs factual allegations, and construe them liberally. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516, 101 Cal.Rptr.2d 470, 12 P.3d 720.)
II
Section 5096.27
In adding the Cameron-Unruh Act to *874 the Public Resources Code,[3] the Legislature declared, "It is the responsibility of this State to provide and to encourage the provision of outdoor recreation opportunities for the citizens of California." (§ 5096.2, subd. (a).) The Legislature further found: "When there is proper planning and development, open space lands contribute not only to a healthy physical and moral environment, but also contribute to the economic betterment of the State, and, therefore, it is in the public interest for the State to acquire areas for recreation, conservation, and preservation and to aid local governments of the State in acquiring and developing such areas as will contribute to the realization of the policy declared in this chapter." (Id., subd. (b).)
The Legislature authorized up to $150 million in bonds "to provide the moneys for the acquisition and development of lands needed for recreation purposes." (§§ 5096.3, subd. (c), 5096.4.) Of that amount, $40 million is available for grants to local agencies for the acquisition and development of property for park and beach purposes. (§ 5096.15.)
Rolfe contends that Caltrans may not acquire Area 19 for road purposes without first obtaining legislative approval. Rolfe relies on section 5096.27, which provides in part: "There shall be an agreement or contract between the State and the applicant in the case of a state grant project which shall contain therein the provisions [ (1) ] that the property so acquired shall be used by the grantee only for the purpose for which the state grant funds were requested and [ (2) ] that no other use of the area shall be permitted except by specific act of the Legislature."
The trial court determined Caltrans is not required to obtain legislative approval before acquiring Area 19, because section 5096.27 concerns only the County's use of the property as the State's grantee of bond funds. Rolfe contends the court erred, because section 5096.27's clause "and that no other use of the area shall be permitted except by specific act of the Legislature" is not modified by the term grantee and means that no entity, including a state agency such as Caltrans, may convert park property purchased by a local agency under the Cameron-Unruh Act to nonpark use. We are unpersuaded.
"Our primary aim in construing any law is to determine the legislative intent. [Citation.] In doing so we look first to the words of the statute, giving them their usual and ordinary meaning." (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501, 247 Cal.Rptr. 362, 754 P.2d 708.) The plain language of section 5096.27 shows it applies solely to a contract between the State and a grantee, or local agency. It requires that such a contract contain two provisions, one of which is a provision that absent legislative approval the grantee may not use property acquired under the Cameron-Unruh Act for other than park or beach purposes. Section 5096.27 does not address a state agency's acquisition of park property purchased by a local public agency under the Cameron-Unruh Act.
Rolfe ignores section 5096.27's imposition of restrictions on the grantee, or local agency, under a contract between the grantee and the State, and asks us to consider in a vacuum the clause "and that no other use of the area shall be permitted *875 except by specific act of the Legislature." (Italics added.) Such an interpretation may promote the purposes of the Cameron-Unruh Act, but it is unsupported by the statutory language and rules of construction. Standing alone, the italicized phrase is nonsensical. Further, whenever possible, significance should be given to every word of a statute, and a construction that renders part of the statute surplusage should be avoided. (Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592, 1602, 49 Cal. Rptr.2d 302.)
Alternatively, Rolfe claims the term "grantee" in section 5096.27 should be interpreted to include the State when it acquires park land that was purchased by a local agency under the Cameron-Unruh Act. Again, however, section 5096.27 concerns a contract between the State and a local agency that has applied for bond funds. Without substantial revision, section 5096.27 is not reasonably susceptible to the interpretation Rolfe urges.
Additionally, the trial court's interpretation of section 5096.27 is supported by section 5096.15. "`[W]e do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." [Citation.]'" (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1065, 77 Cal.Rptr.2d 202, 959 P.2d 360.) Under section 5096.15, subdivisions (a) through (c), $110 million in bond funds is available to the State for its acquisition of property for parks, beaches and wildlife management. The Cameron-Unruh Act, however, does not require that a state agency such as Caltrans obtain legislative approval before converting park land the State acquired with bond funds to nonpark uses such as a road. It follows that a state agency is not required under section 5096.27 to obtain legislative approval before converting park lands acquired from a local agency to nonpark uses.
Although the above discussion is dispositive, we also note the court's interpretation of Public Resources Code section 5096.27 is consistent with Streets and Highways Code section 103.5, which provides: "Subject to Sections 1240.670, 1240.680, and 1240.690 of the Code of Civil Procedure, the real property which Caltrans may acquire by eminent domain, or otherwise, includes any property dedicated to park purposes, however it may have been dedicated, when the commission has determined by resolution that such property is necessary for state highway purposes." (Italics added.) Public agencies, as well as private citizens, may dedicate property to specified public uses. (See City of Oakland v. Bums (1956) 46 Cal.2d 401, 405, 296 P.2d 333; Argues v. City of Sausalito (1954) 126 Cal.App.2d 403, 405, 272 P.2d 58.) A public agency acquiring property under the Cameron-Unruh Act is required to dedicate the property to park or other recreational use. (Pub. Resources Code, § 5096.27.) Rolfe concedes that Streets and Highways Code section 103.5 applies to property purchased by local agencies under the Cameron-Unruh Act.
We presume the Legislature was aware of the Cameron-Unruh Act, and specifically Public Resources Code section 5096.27, when it amended Streets and Highways Code section 103.5 (Stats.1975, ch. 1239, § 29, p. 3152). (Voters for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 779, 35 Cal.Rptr.2d 814, 884 P.2d 645, fn. 3 [Legislature is presumed to be aware of all existing laws when it passes statute].) Had the Legislature intended to make legislative approval a prerequisite to Caltrans' acquisition of park land purchased by a local agency under *876 the Cameron-Unruh Act, it could easily have amended Streets and Highways Code section 103.5 to so state.
Rolfe contends the trial court erred by relying in part on Streets and Highways Code section 103.5. Rolfe asserts that because there is no showing Caltrans adopted a resolution of necessity to acquire Area 19, the applicability of the statute in interpreting Public Resources Code section 5096.27 is not "ripe" for adjudication. The ripeness requirement precludes courts from issuing purely advisory opinions, for instance in cases "in which parties seek a judicial declaration on a question of law, though no actual dispute or controversy ever existed between them requiring the declaration for its determination." (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 73, p. 133; Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 502, 74 Cal.Rptr.2d 75.) Here, an actual controversy exists between the parties, and Streets and Highways Code section 103.5 is germane to Rolfe's allegation that Caltrans cannot proceed with SR125 South absent legislative approval. If the project proceeds, a resolution of necessity will be required before Caltrans may acquire Area 19 through eminent domain (Code Civ. Proc., § 1240.040), but whether it has adopted a resolution at this point is immaterial.[4]
Each of Rolfe's causes of action is based on the theory that section 5096.27 precludes Caltrans from acquiring Area 19 absent legislative approval. Because the theory is incorrect, the court properly granted Caltrans' motion for judgment on the pleadings.
DISPOSITION
The judgment is affirmed. The respondents are entitled to costs on appeal.
WE CONCUR: BENKE, Acting P.J, and NARES, J.
NOTES
[1] Statutory references are to the Public Resources Code except where otherwise specified.
[2] The pleading also named the following defendants: California Transportation Commission, California Transportation Ventures, Koch Industries, Parsons Brinckerhoff, Transroute International, Egis Project and San Diego Expressway L.P.: the pleading named San Diego Regional Transportation Commission and City of Chula Vista as real parties in interest. These entities are allegedly involved in approving, developing and operating SR125 South.
[3] The Cameron-Unruh Act is found in chapter 1.6 of the Public Resources Code. Chapter 1.6 (added by Stats. 1963, ch. 1690, § 1, p. 3313), operative January 1, 1965, was subject to adoption by the people and was approved by the voters at the general election held November 3, 1964. (See § 5096.1.)
[4] Rolfe also contends the court's interpretation of section 5096.27 raises "mischievous implications." Rolfe asserts a public agency could obtain bond funds under the Cameron-Unruh Act under the guise the property would be dedicated to park use, but then sell the property to a third party "for real estate speculation." The issue of whether a local agency is precluded from voluntarily selling park land purchased under the Cameron-Unruh Act is not before us, as this case arises from the prospect of acquisition through the exercise of Caltrans's eminent domain power.
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455 Pa. Superior Ct. 124 (1996)
687 A.2d 822
William M. MOORE and Richard L. Moore, Appellants (at 148).
v.
Timothy P. DURAN and Victoria Duran, His Wife.
William M. MOORE and Richard L. Moore
v.
Timothy P. DURAN and Victoria Duran, His Wife, Appellants (at 217).
Superior Court of Pennsylvania.
Argued October 2, 1996.
Filed December 4, 1996.
Reargument Denied February 12, 1997.
*129 Arthur M. Wilson, Washington, for Moore.
John W. McCreight, Washington, for Duran.
Before KELLY, JOHNSON and OLSZEWSKI, JJ.
JOHNSON, Judge.
In these cross-appeals, we are asked to determine the propriety of the Order dated December 29, 1995, finalizing the decree nisi that barred Timothy P. and Victoria Duran (the Durans) from asserting any right to certain land located in Washington County, Pennsylvania. The order in question found that title to the disputed property properly resided in William M. and Richard L. Moore (the Moores). The Order also granted the Durans a prescriptive easement over a portion of the disputed land for the purposes of ingress and egress. We find that the court did not err in amending the final decree to include an easement in favor of the Durans on *130 the property in question. In addition, we find that the Durans have failed to establish continuous possession of the tract for the required twenty-one year period which is necessary to establish adverse possession. Accordingly, we affirm the order in all respects.
This appeal began as a quiet title action filed by the Moores in December 1993. The Moores own three tracts of land in Smith Township, Washington County; one tract consists of a 150 acre farm that shares a common boundary with the Durans' 110 acres that they have used to raise and pasture cattle. The disputed parcel of land is a triangular section consisting of .534 acres, enclosed by a fence on two sides, and contains access to an unused township road leading into the Duran residence. Moore is the record owner of the six-acre parcel of land that includes the .534 acre section in dispute. In November 1993, Timothy Duran noticed Richard Moore hunting on this disputed section of land inside the fence, and informed Moore that he was trespassing on Duran's property.
As a result, the Moores filed an action to quiet title to the six-acre parcel of land. The Durans defended the action by asserting that they held a prescriptive easement over the former township road leading into their property, and that they had acquired title to the disputed .534 acres through adverse possession. Following a bench trial, the court entered a decree nisi that declared the Moores to be the owners of the.534 acre section of property in dispute, free and clear of the Durans' claims. The decree nisi did not mention any prescriptive easement. The Durans filed a motion for post-trial relief, which was argued before the trial court en banc. On December 29, 1995, the en banc court entered an order that denied the Durans post-trial motions but clarified the decree nisi to "grant[ the Durans] continued enjoyment of the former public roadway across the subject premises for purposes of ingress and egress." Both parties have appealed.
The Moores' Appeal at No. 148 Pittsburgh 1996
The Moores contend on appeal that the trial court erred in "clarifying" its decree nisi to include the rights of *131 ingress and egress. The Moores claim that this action by the en banc court denied them the right to present testimony at trial regarding the claimed easement. The Moores maintain that, instead of inserting the easement provision in the final order, the trial court should have ordered a new trial limited to a determination of the easement.
The Moores claim support for their position in Rules 227.1(a)(1) and 1038 of the Pennsylvania Rules of Civil Procedure. Rule 227.1 sets forth the procedures relating to post-trial motions; specifically, section (a)(1) states that following a party's motion for post-trial relief, the trial court may "order a new trial as to all or any of the issues." Pa.R.C.P. 227.1(a)(1). Rule 1038 relates to trials held without a jury. Section (b) of this rule states that "[t]he decision of the trial judge . . . shall dispose of all claims for relief." Pa.R.C.P. 1038(b). The Moores argue that when the trial court concluded that it had failed to dispose of all of the Durans' claims for relief, the only recourse available to the court was to conduct a new trial limited to the Durans' claimed easement on the disputed property.
We first note that Rule 227.1 does not require the trial court to conduct a new trial regarding an issue that was not covered by its original decree nisi; rather, this is one of five possible options the trial court has when faced with a motion for post-trial relief. Section (a)(4) of Rule 227.1 specifically provides that the trial court may modify or change a decree nisi after review of a post-verdict motion. Pa.R.C.P. 227.1(a)(4). Neither section of the Rule is mandatory; both are avenues that the trial court may follow when faced with post-verdict motions.
In addition, although the Moores claim that they were denied the right to be heard on this issue, this assertion is belied by the record. In their pleadings, the Durans specifically assert that they are entitled to a prescriptive easement to the lands abutting the former public road or contained within the fences adjacent to such road. Answer and New Matter filed on behalf of Timothy P. Duran and Victoria Duran, filed January 5, 1994, at ¶ 10. The Reply to New *132 Matter filed on behalf of the Moores overlooks this assertion, merely denying that the Durans' have acquired title to the disputed parcel by adverse possession. Reply to New Matter, filed January 21, 1994. The Durans' easement claim is reasserted in their motion for post-trial relief. See Defendants' Motion for Post-Trial Relief, filed August 8, 1994, at ¶¶ 2, 4, and 5.
An easement by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. Matakitis v. Woodmansee, 446 Pa.Super. 433, 667 A.2d 228 (1995), appeal denied, 545 Pa. 680, 682 A.2d 311 (1996). To establish a prescriptive easement, the proponent of the easement need not prove constant use of the property; the proponent of the easement may instead produce evidence of a settled course of conduct that indicates an attitude of mind on the part of those using the property that such use is the exercise of a property right. Id. at 440, 667 A.2d at 231. Therefore, to establish a prescriptive easement, the Durans must have produced evidence at trial of a settled course of conduct on their part to use this road as an avenue of ingress and egress into their property.
At trial, Timothy Duran testified that, for as long as he could remember (and he had lived on that farm since he was a child), the township road was the right-of-way onto his property. N.T., April 18, 1994, at 26-27. He further testified that cows were driven up the lane and across the property to pasture during the spring and summer months in order to graze. Id. at 40. Timothy Duran's father, Michael Duran, testified that the township road had been leading into this land for a very long time. Id. at 63. Mildred Duran, Michael's wife and Timothy's mother, stated that she remembered chasing the cows down the township road to get them to pasture, beginning when she and Michael Duran first bought the property in 1946. Id. at 72-73. Mildred Duran further testified that she had always obtained access to the property through the old township road. Id. at 76. A neighbor, Doris Yoder, repeatedly referred to the old township road as it was *133 listed on the survey maps as "Tim's driveway." Id. at 85, 89, 90-91.
Richard Moore was the sole witness for the plaintiffs in this case. Moore's testimony on direct examination was limited to his ownership of the six-acre tract of land that included the.534 acre portion in dispute and the location of the boundary line between his farm and the disputed parcel of land. However, Moore was questioned on cross-examination regarding his occupancy of the property and the use of the township road. Id. at 17-22. Moore stated that he was aware that Duran used the road to drive into and away from his home. Id. at 20. Moore also testified to being familiar with the dairy cattle being driven down the road and onto the Duran's farm, as he had helped to do such work when he was a child. Id. at 98.
Based upon this evidence, we conclude that there was ample support for the trial court's conclusion that the easement by prescription had been established. We also find that the trial court acted within the parameters of Rule 227.1 in modifying the decree nisi to include the easement. The Moores had notice of the Durans' claimed easement through the pleadings, and testimony regarding the issue was taken at trial. A new trial limited to the question of the easement was therefore not warranted. Accordingly, we conclude that the Moores' appeal is without merit.
Appeal at No. 148 Pittsburgh, 1996: We AFFIRM.
The Durans' Appeal at No. 217 Pittsburgh 1996
In the cross-appeal, the Durans claim that the trial court erred in granting relief to the Moores in the action to quiet title. The Durans also assert that the court erred in denying their claim of adverse possession to the .534 acre tract of land in question. Specifically, the Durans maintain that the disputed portion of land has been within their sole possession throughout this dispute.
The Durans' allege in their brief to this Court that "the trial court refused efforts by the Durans to compel the *134 Moores to proceed in ejectment of the matters raised by [the] Durans and conducted trial of the matter solely on issues of quiet title." Brief of Timothy P. Duran and Victoria Duran, at 3. A plaintiff in an action to quiet title must be in possession of the land in controversy; if he is not in possession, his sole remedy is an action in ejectment. Plauchak v. Boling, 439 Pa.Super. 156, 162, 653 A.2d 671, 674 (1995). An action to quiet title may be brought only where an action in ejectment will not lie. Id.; Pa.R.C.P. 1061(b)(2). "Ejectment, being a possessory action, can be maintained if the plaintiff has a right to immediate possession with the concomitant right to demand that the defendant vacate the land." Id. An out-of-possession plaintiff may not maintain an action to quiet title because it constitutes an enlargement of that party's substantive rights as defined by the statute, and thus exceeds the court's jurisdiction to proceed. Id.; accord Sutton v. Miller, 405 Pa.Super. 213, 223-24, 592 A.2d 83, 88-89 (1991).
There is no precise definition of what constitutes possession of real property; the determination of possession is dependant upon the facts of each case, and to a large extent upon the character of the land in question. Schimp v. Allaman, 442 Pa.Super. 365, 659 A.2d 1032 (1995). In general, however, actual possession of land means dominion over the property; it is not the equivalent of occupancy. Glenn v. Shuey, 407 Pa.Super. 213, 595 A.2d 606 (1991). Thus, the trial court must determine which party exercised dominion and control over the property before determining what is the proper form of action in such a case.
Both parties allege in their pleadings to the trial court that they were in possession of the disputed parcel of land, and deny that the other party was in possession. To go forward with the quiet title action, the trial court must have concluded that the Moores were in possession of the .534 acre parcel at issue here. The trial court failed, however, to set forth its reasoning on this issue; in fact, it is unclear whether the question was ever considered. The Moores also fail to discuss the matter. Regardless of the rationale, however, we conclude that the trial court's maintenance of this case as an *135 action to quiet title was not fatal to the cause of action claimed. This Court has previously determined that, even on appeal, we may amend the pleadings when necessary to conform to the proper form of action as established by the evidence. See Sutton v. Miller, supra (holding that the trial court's failure to dismiss the action to quiet title was error because the plaintiff was not in possession of the land in question; but the error was not fatal to the claim because the Superior Court could sua sponte amend the pleadings to include an action in ejectment); Plauchak v. Boling, supra, at 163, 653 A.2d at 674 ("Nevertheless, appellees' use of an incorrect form of action is not fatal to the relief granted by the trial court. Even where a plaintiff mistakenly institutes an action to quiet title instead of an action in ejectment, the appropriate remedy is to permit the plaintiff to amend his or her pleadings to conform to the proper action."). We are thus able to review the merits of the Durans' claim.
When reviewing a trial court's decision regarding an action to quiet title, we are limited to determining whether the findings of fact that led to the trial court's conclusions of law are supported by competent evidence. Thompson v. R.R. Preservation Society, 417 Pa.Super. 216, 612 A.2d 450 (1992). "Ordinarily, an appellate court will not reverse a determination of the trial court in a quiet title action absent an error of law or capricious disregard of the evidence." Id. at 221, 612 A.2d at 452.
The Moores have established that they hold the record title to the property in question. Adjudication and Findings of Fact, supra, at 1. Moreover, the deed to the Durans' property does not mention the .534 acres in dispute. Id., Finding of Fact 4. The Durans maintain, however, that they have acquired title to the section in dispute through the doctrine of adverse possession.
To establish title in land acquired by adverse possession, a claimant must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for 21 years. Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995). Each of these elements must exist, otherwise possession *136 will not confer title in the claimant. Sutton v. Miller, supra; Glenn v. Shuey, supra.
At trial, Michael Duran testified that he purchased the property at a tax sale in 1946. N.T., supra, at 49. The property was surrounded by a fence that included a gate to the township road. Id. at 52. The fence and the gate were already in place when Michael Duran purchased the property. Id. The property was fenced to keep the cattle in the grazing area and off the neighboring lands. Id. at 50. The Durans repaired the fencing around the perimeter of the property in 1946, and this helped in the chasing of the cows. Id. at 73. Mildred Duran testified that she actively chased the cows over the disputed parcel of land between 1946 and 1960, and that the dairy cows remained at pasture on the land until it was sold to Timothy in 1978. Id. at 71-72, 75. Timothy Duran raises beef cattle, and the cows continue to pasture on that land to the present time. Id. at 75. Timothy Duran testified that he became familiar with the property in 1951 or 1952, when he was three to four years old, when he would chase cattle across the disputed .534 acre parcel of land to his grandfather's farm to be milked. Id. at 27. The cows would travel down the township road, and go through the gate in the fence into the small wooded area to graze. Id. at 32. The family would chase the cattle through this property daily through the summer months. Id. at 33. With the raising of beef cattle, the cows graze on Duran's entire farm, including this parcel, throughout the year. Id. at 75.
Richard Moore testified at trial that, on about one to two dozen occasions from the time of purchase in 1990, he walked through and hunted on the disputed parcel of land. Id. at 12. Moore also admitted that the triangular parcel in dispute was fenced on two sides, on the western and south-eastern borders, and that those fences were in place when he bought the land. Id. at 16-17. Moore also stated that he either climbed the fence, went under the fence, or walked down the road to reach the .534 acres in dispute. Id. at 18, 23. Doris Yoder, the Durans' neighbor to the south of their farm, testified that the fences surrounding the area have been in place for as long as she has lived next to the property, or at least since 1960. *137 Id. at 84, 89. Celestine Moore, Richard Moore's mother, also testified to the existence of the two fences around the .534 acre parcel. Id. at 94-95. In fact, the Moore's counsel stipulated to the fact that the two fences existed. Id. at 90.
The trial court concluded that the Durans' use of the tract of land for the pasturing of cattle does not establish their possession of the property. We agree that this fact, in and of itself, is not sufficient. However, that fact added with the location of the fences leads this Court to conclude that the Durans have established actual possession of the property.
Actual possession of property may be established in connection with the maintenance of a residence, by cultivation of the land, by inclosure of the land, or by making improvements to the land and paying property taxes. Glenn v. Shuey, supra, at 221-22 n. 5, 595 A.2d at 611 n. 5 (citing cases). In fact, when dealing with a woodland, a person must establish actual possession of the woodland by residence or cultivation of a part of the tract of land to which the woodland belongs. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 545 A.2d 926 (1988). Actual possession may thus be established by enclosing and cultivating the tract of land of which the woodland is a part without erecting a residence; or possession may be established by erecting a residence where there is a clear designation of the boundaries of the land surrounding such residence. Id., citing Hoover v. Jackson, 362 Pa.Super. 532, 539, 524 A.2d 1367, 1370 (1987); see also Robin v. Brown, et ux., 308 Pa. 123, 162 A. 161 (1932).
Where inclosure is essential to the finding of actual possession, it must be complete and so open and notorious as to charge the owner with the knowledge thereof. Robin v. Brown, supra. The inclosure must also be appropriate to fit the premises for the purposes to which they are adapted. Id. If the barriers are sufficient to indicate clear dominion over the premises, and to give notoriety to the claim of possession, it is sufficient to start running the twenty-one year period required for adverse possession. Id.
The trial court concluded that the Durans' fence was insufficient to establish possession because "the third side of the *138 tract in dispute is not enclosed by any fence nor does it have any discernible boundary demarcation." Conclusion of Law No. 8, Trial Court Adjudication, supra, at 6. We cannot find this lack of a fence that would separate the remainder of the Durans' farm from the land in question to be dispositive. It is clear that two fences are used to demarcate the boundary between the Moores' and the Durans' lands on the western and southern boundaries. A fence to the north of this parcel is not needed in this case; to separate this small tract of land from the rest of the Durans' farm would render the land useless as a grazing area.
Moreover, we do not agree with the trial court's finding that the Durans' failure to record a statement of adverse possession pursuant to 68 Pa.S. § 85 prior to the Moore's purchase of the property in dispute precludes their claim of adverse possession. Conclusion of Law No. 7, Trial Court Adjudication, supra. Section 85 only applies to parties who are out of possession of the land and nevertheless are claiming rights to the land through adverse possession. As we have concluded that the fence conclusively establishes that the Durans were in possession of the disputed parcel, this section does not apply to this case.
Following a review of the record, we conclude that the Durans have established actual and visible possession of the.534 acre tract of land in dispute. They have enclosed and utilized the property, a portion of which is woodland, as an integral part of their primary residence and as a pasture for their cattle. Because the evidence establishes that the boundaries are clearly delineated in this case, we find that the Durans have sufficiently established possession of the wooded area in dispute. Niles v. Fall Creek Hunting Club, Inc., supra. As the Durans are in possession, they were correct in asserting that this action should properly have been one in ejectment. Plauchak, supra. This determination, however, will not prevent us from determining whether the Durans have established the remaining elements of their adverse possession claim. Id.
*139 Here, Michael Duran had continuous possession of this parcel from his acquisition of the land through the tax sale in 1946 through his conveyance to his son in 1978. Thus, he has satisfied the twenty-one year requirement, and he could freely convey the rights to the parcel in dispute to Timothy Duran. Castronuovo v. Sordoni, 357 Pa.Super. 187, 515 A.2d 927 (1986). However, the 1978 deed does not reference this disputed parcel in its description of the land conveyed. Therefore, father and son do not have privity between them regarding this land. Id.
[A]cceptance of a deed describing boundary lines confine[s] the premises [conveyed] to the area within the boundaries, and . . . such a deed d[oes] not convey inchoate rights acquired by incompleted adverse possession. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it.
Id. at 193-94, 515 A.2d at 931 (citations omitted). Because the deed does not convey Michael Duran's interest in the disputed parcel, Timothy Duran must independently establish that he has had possession of the property for the required amount of time. Id. Accordingly, Timothy Duran's possession of the disputed parcel of land fails to meet the required twenty-one years of continuous possession, and his claim of adverse possession of this parcel must fail.
Moreover, even if this action had been brought in ejectment, as the Durans' possession of the land dictates, we find that the result would not have been different. The Moores' burden in an action in ejectment is clear: they must establish the right to immediate exclusive possession of the land. Doman v. Brogan, 405 Pa.Super. 254, 592 A.2d 104 (1991).
Recovery can be had only on the strength of their own title, not the weakness of defendant's title. The crux of an ejectment action, therefore, rests with the plaintiffs' ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.
*140 Id. at 263, 592 A.2d at 108 (citations omitted). Here, the Moores' deed unquestionably gives them record title to the disputed parcel of land. See Deed between Raymond Bologna and Bologna Coal Co. and Richard L. and William M. Moore, filed January 21, 1992, Plaintiff's Exhibit 2; see also Adjudication and Findings of Fact, supra, at 1. Their title is paramount, therefore, to the Durans' asserted claim that we have found fails to establish title through adverse possession. Thus, the trial court properly held that title to the disputed.534 acres of land resided in the Moores.
Based upon the foregoing, we find no error in the trial court's determination that the Durans had failed to prove their claim of adverse possession. Accordingly, we conclude that the order that quieted title in the Moores must be affirmed.
Appeal at No. 217 Pittsburgh, 1996: We AFFIRM.
Order of December 29, 1995, Court of Common Pleas, Washington County, Civil Division at No. 93-7338 is AFFIRMED.
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128 Cal.Rptr.2d 891 (2002)
104 Cal.App.4th 1262
EL DORADO PALM SPRINGS, LTD., Plaintiff and Appellant,
v.
Riverside County BOARD OF SUPERVISORS et al., Defendants and Respondents.
No. E030299.
Court of Appeal, Fourth District, Division Two.
December 31, 2002.
Review Denied March 19, 2003.[*]
*892 Gilchrist & Rutter, Frank Gooch III, Santa Monica, and Thomas W. Casparian, Santa Monica, for Plaintiff and Appellant.
William C. Katzenstein, County Counsel, Joe S. Rank, Assistant County Counsel, and Carole A. Nunes-Fong, Deputy County Counsel, for Defendants and Respondents.
Bill Lockyer, Attorney General, David S. Chaney, Supervising Deputy Attorney General, W. Dean Freeman, Lead Supervising Deputy Attorney General, and Brian D. Wesley, Deputy Attorney General, for California State Board of Equalization as Amicus Curiae on behalf of Plaintiff and Appellant.
OPINION
GAUT, J.
1. Introduction
Revenue and Taxation Code section 51,[1] enacted in 1978 as Proposition 8, allows the taxable value of real property to be reduced due to a decline in value.[2]
In 1997, plaintiff El Dorado Palm Springs Ltd., a partnership (El Dorado), prevailed on an assessment appeal and obtained a reduction in a real property tax assessment for the tax year 1993.[3] El Dorado failed to obtain a similar reduction for the five tax years 1994 through 1998. In 1999, El Dorado then filed suit seeking tax refunds for all five years. On appeal, El Dorado challenges the trial court's judgment in favor of the County of Riverside (County).
We agree section 51, subdivision (e), as it currently exists, requires the tax assessor to reappraise property after there has been a reduction in a tax assessment due to a decline in value. Therefore, the tax assessor must now reappraise the value of the property for 1994 and 1995 and determine the property's assessable value. But El Dorado is not entitled to a refund for 1996, 1997, and 1998 because the reappraisals, as ultimately performed for those years, supported the assessments imposed by the County. We reverse the judgment as to the years 1994 and 1995 but affirm the judgment as to the years 1996, 1997, and 1998.
2. Factual and/Procedural Background
The superior court decided this case based on stipulated facts and evidence. Four types of real property values are pertinent to our discussion: the base year value[4]; the factored base year, or Proposition 13, value;[5] the reduced, or Proposition 8, value; and the fair market value.
In April 1986, plaintiff purchased the El Dorado Mobile Home Park, a 34-acre development located in Palm Springs, for $7,500,000. In 1987, the County tax *893 assessor established the new base year value of the property based on the change of ownership. In 1993, the enrolled value of the property was the factored base year value of $8,592,156, meaning the base year value had increased by 2 percent each year since 1987. El Dorado submitted an assessment appeal to reduce the 1993 tax assessment. El Dorado asserted the assessment was too high because the property had been subject to a temporary rent increase that expired on June 1, 1993, reducing the value of the property.
In September 1995, the County Assessment Appeals Board denied El Dorado's assessment appeal and upheld the enrolled value of $8,592,156 for 1993. After El Dorado filed a petition for writ of mandate, the superior court granted the petition and issued a peremptory writ commanding the appeals board to vacate its findings and to conduct further proceedings in accordance with the court's directions. In February 1997, after a second assessment hearing, the appeals board found the Proposition 8 value for the property was only $6,190,455 for 1993.
During and after the time the assessment appeal was pending, the tax assessor had continued to assess the property in increasingly higher amounts for the tax years 1994 through 1998 based on the factored 1987 base year value. In other words, the tax assessor increased the assessment on the property the maximum of 2 percent every year. By 1998, the enrolled value had increased to $9,328,976.
In September 1997, after obtaining the Proposition 8 reduction, El Dorado tried to submit assessment appeals for the tax years 1994 and 1995 but the County rejected the appeals as untimely. For the tax years 1996, 1997, and 1998, El Dorado submitted timely assessment appeals. Based on the County's appraisals, performed in 1998 and 2000, the appeals board found the market value of the property for 1996, 1997, and 1998 exceeded the enrolled value. The appeals board adopted the enrolled values as the Proposition 8 values for the property and refused, to reduce the tax assessments for the latter three years.
El Dorado then filed its 1999 lawsuits for refunds. The trial court found El Dorado had failed to exhaust its administrative remedies and was too late in seeking an adjustment for the tax years 1994 and 1995. The court also found, in agreement with the findings of the appeals board, that El Dorado was not entitled to a reduction for the tax years 1996, 1997, and 1998 because the fair market appraisals supported the enrolled values for those years.
3. Section 51
After a Proposition 8 reduction has been granted due to a decline in the value of property, section 51, subdivision (e), provides that the assessor shall continue to reappraise the reduced-value property in subsequent years until its fair market value exceeds the Proposition 13 value. The full text of subdivision (e) provides: "Nothing in this section shall be construed to require the assessor to make an annual reappraisal of all assessable property. However, for each lien date after the first lien date for which the taxable value of property is reduced pursuant to paragraph (2) of subdivision (a), the value of that property shall be annually reappraised at its full cash value as defined in Section 110 until that value exceeds the value determined pursuant to paragraph (1) of subdivision (a). In no event shall the assessor condition the implementation of the preceding sentence in any year upon the filing of an assessment appeal. [Emphasis added.]"[6]
*894 The first disagreement between the parties involves whether and when reappraisal is required by subdivision (e). El Dorado interprets the statute to require the assessor to reappraise the subject property for 1994, 1995, and 1996, while El Dorado's unresolved challenge to the 1993 assessment was pending, even though the 1993 Proposition 8 reduction was not established until February 1997. The assessor did not appraise the property until 1998 and 2000 in connection with the assessment appeals involving 1996, 1997, and 1998. Therefore, El Dorado contends that any assessment for 1994 through 1998 exceeding the 1993 Proposition 8 value of $6,190,455 is void and El Dorado should receive refunds of those excess amounts.
The County argues that if any reappraisal was required it was not until after February 1997 and that reappraisals were made for 1996, 1997, and 1998. The State Board of Equalization (SBE), in its amicus curiae brief, maintains that reappraisal became mandatory after February 1997. The SBE asserts the reappraisals for 1996, 1997, and 1998 satisfy section 51, subdivision (e), but the tax assessor should now reappraise the property for 1994 and 1995.
We agree with the SBE that section 51, subdivision (e) requires the tax assessor to reappraise property after an assessment has been reduced due to a decline in value. But based on the plain language of the statute, we reject El Dorado's interpretation that reappraisals had to be performed before February 1997. The statute provides that "for each lien date after the first lien date for which the taxable value of property is reduced ... the value of that property shall be annually reappraised."[7] Under the circumstances of this case, the taxable value of property was not reduced until February 1997. Furthermore, as we discuss below, just as El Dorado is spared having to file protective appeals, it is unreasonable to require the County to anticipate what happened in this case and to perform prophylactic appraisals in advance of the final Proposition 8 determination. The County could not have known it had to reappraise the property until the date the Proposition 8 value was finally established. Reappraisal was not required until there was a Proposition 8 reduction although the reappraisal requirement then became retroactive to 1994 and 1995.
Finally, we decide that, although not until February 1997 were annual reappraisals required for 1994, 1995, or 1996, the appraisals performed in 1998 and 2000 fulfilled the requirement of section 51, subdivision (e), for 1996, 1997, and 1998.
In reaching our conclusions, we analyze differently the two sets of tax years involved beginning with 1994 and 1995 and continuing with 1996, 1997, and 1998.
4. The Tax Years 1994. and 1995
The second disagreement between the parties concerns whether El Dorado had to exhaust its administrative remedies by filing assessment appeals for 1994 and 1995. The County argues that because El Dorado did not file assessment appeals it failed to exhaust its administrative remedies and its civil actions for refunds are barred. Both El Dorado and the SBE contend section 51, subdivision (e) expressly relieves a taxpayer from having to file an assessment appeal. On this point, we agree with El Dorado and the SBE's position.
*895 Usually, to obtain a reduced assessment, the taxpayer must file an assessment appeal in accordance with sections 80 and 1603. When El Dorado applied in September 1997 for a changed assessment for the tax years 1994 and 1995, it was too late by two or three years.[8] But after a property owner has been granted a Proposition 8 reduction, section 51 dispenses with the usual requirement to file an assessment appeal. Subdivision (e), as amended in 1996, explains the tax assessor cannot make filing an assessment appeal a condition of making a reappraisal: "In no event shall the assessor condition the implementation of the preceding sentence [i.e. annual reappraisal] in any year upon the filing of an assessment appeal."[9] By unambiguous statutory mandate,[10] no assessment appeal was necessary for 1994 and 1995.
Support for this position is found in the legislative history for the 1996 amendment. The legislative analysis states: "THIS BILL would require assessors to annually reappraise property whose value (pursuant to Proposition 8) has been reduced below the Proposition 13 adjusted base year value. Annual reappraisal would continue, at current market value, until the value again reached the Prop. 13 adjusted base year value.... [¶] ... [¶] The bill is intended to ensure that those whose property values decline below the base year value due to economic or other conditions are not immediately brought back up to the base year value in the next year. The author is responding to complaints in some counties that the assessor immediately restores the property up to the adjusted base year value the year after a reduction, unless the taxpayer appeals the assessment each year."[11]
Section 51 prohibits the tax assessor from ignoring a Proposition 8 reduction in subsequent years. On the other hand, the County cannot be penalized for not reappraising property in 1994 and 1995 when its duty to do so was not triggered until 1997. Therefore, the trial court erred when it found El Dorado had failed to exhaust its administrative remedy. Instead the proper resolution was for the trial court to declare the tax assessor was required to reappraise the property for 1994 and 1995 in compliance with section 51, subdivision (e). We suggest, without deciding, the trial court may eventually need to remand the matter to the assessment appeals board while retaining jurisdiction over the present refund action.[12]
5. The Tax Years 1996, 1997, and 1998
The parties also disagree about whether the appraisals made in 1998 and 2000 can support the assessments for 1996, 1997, and 1998.
El Dorado filed timely assessment appeals for 1996, 1997, and 1998. At the assessment appeals hearings for those years, the assessor submitted appraisals demonstrating that the enrolled value of the property was less than the fair market value of the property, thus justifying the amount of the tax assessment. The enrolled value for 1996 was $8,966,724; the market value was $9,326,084. The enrolled *896 value for 1997 was $9,146,057; the market value was $9,375,000. The enrolled value for 1998 was $9,328,976; the market value was $9,467,000.
El Dorado does not argue that the assessor incorrectly reappraised the property for the years 1996 through 1998. Its sole contention is that the assessor should have reappraised the property every year after 1993 and the failure to do so means the 1996, 1997, and 1998 tax assessments are void for failure to follow statutory procedure.
As to the year 1996, there was no failure to follow statutory procedure. Furthermore, we reject El Dorado's argument and hold that the appraisals completed in 1998 and 2000 justified the 1996, 1997, and 1998 assessments. In particular, we do not accept El Dorado's contention that, because assessments cannot be retroactive, the subject appraisals could not be used in the assessment appeals. Although a retroactive assessment may be prohibited, there is no authority stating that a later appraisal cannot be used to support an assessment that was timely when imposed. Furthermore, when the reappraisals were finally performed, the tax assessor succeeded in fulfilling the reappraisal requirement of section 51, subdivision (e).
6. Section 4831
As a final note, we comment briefly on the applicability of the one-year statute of limitations set forth in section 4831, subdivision (b), for errors involving reduction in value: "Any error or omission involving the exercise of a value judgment that arises solely from a failure to reflect a decline in the taxable value of real property as required by paragraph (2) of subdivision (a) of Section 51 shall be corrected within one year after the making of the assessment that is being corrected." In turn, section 51, subdivision (a)(2) provides: "(a) ... [F]or each hen date after the lien date in which the base year value is determined pursuant to Section 110.1, the taxable value of real property shall, except as otherwise provided ... be.... [¶] ... [¶] (2) Its full cash value, as defined in Section 110, as of the lien date, taking into account reductions in value due to damage, destruction, depreciation, obsolescence, removal of property, or other factors causing a decline in value." The County contends the one-year limitations period prevents it from correcting the assessments for 1994 and 1995 if they are wrong because there was a reduction in value.
We reject this assertion because it would render meaningless portions of section 51, especially subdivisions (a) and (e).[13] The tax assessor could simply wait a year without recognizing a reduced value and let the clock run out on the limitations period. But we must interpret statutes to be consistent and the interpretation proposed by the County would nullify section 51. Instead, we hold that the delay in establishing the Proposition 8 reduction necessarily extends the time period for correcting an error in the tax assessments until after the property has been reappraised and the taxable value established.
7. Disposition
There are significant problems with implementing section 51, subdivision (e), as it is currently written. We hope the Legislature will consider the issues raised.
In the meantime, we affirm in part, reverse in part, and remand for further proceedings. We deem it premature to address the issue of attorney's fees as the *897 trial court has not yet determined who is the prevailing party.
In the interests of justice, we order each party to bear its own costs on appeal.
I concur: WARD, J.
McKINSTER, J., Concurring and Dissenting.
I concur in the majority's resolution of the issues concerning the assessments for the 1994 through 1997 tax years. However, I disagree with the majority's analysis regarding the assessment for the 1998 tax year.
Each year, the assessor must assess all taxable property in the county on the lien date to the person who owns that property on that date. (Rev. & Tax.Code, §§ 401.3 & 405, subd. (a).)[1] The lien date is the date on which the taxes for a fiscal year attach to and become a lien against the property (§ 117), i.e., "the first day of January preceding the fiscal year for which the taxes are levied" (§ 2192). For example, for the fiscal year of July 1, 1997, through June 30, 1998 (to which the majority opinion refers as tax year 1997 (maj. opn., ante, at p. 892, fn. 3)), the lien date is January 1,1997.
In general, real property is assessed on the basis of the lesser of two possible taxable values. (§ 51, subd. (a).) One alternative is the base year value (i.e., the value of the property at time of acquisition), as adjusted for inflation since the base year, not to exceed two percent each year, to produce the "factored" base year value. (Id., subd. (a)(1).) The other alternative is its full cash, or market, value. (Id., subd. (a)(2).)
In a rising real estate market, the factored base year value will generally be the lower of the two alternatives. But the full cash value of a parcel may drop below the factored base year value "due to damage, destruction, depreciation, obsolescence, removal of property or other factors" (§ 51, subd. (a)(2)), such as a general decline in market demand. In that event, the assessor must base the assessment on that lower value.
But if the assessor reduces the assessment in a given year to reflect a full cash value lower than the factored base year value, what happens the next year? Under what circumstances may the assessor thereafter resume its reliance on the higher factored base year value?
The Legislature has answered that question in section 51, subdivision (e): "Nothing in this section shall be construed to require the assessor to make an annual reappraisal of all assessable property. However, for each lien date after the first lien date for which the taxable value of property is reduced pursuant to paragraph (2) of subdivision (a), the value of that property shall be annually reappraised at its full cash value as defined in Section 110 until that value exceeds the value determined pursuant to paragraph (1) of subdivision (a). In no event shall the assessor condition the implementation of the preceding sentence in any year upon the filing of an assessment appeal."
In this case, El Dorado Palm Springs, Ltd., appealed its 1993 assessment, which had been based on the factored base year value. El Dorado argued that the market value of this parcel had dropped below the base year value, and therefore the assessment was too high. The assessment appeals board (AAB) agreed in February of 1997, and reduced the 1993 assessment of the property accordingly.
That decision triggered the statutory provision quoted above, that "for each hen *898 date after the first lien date for which the taxable value of property is reduced pursuant to paragraph (2) of subdivision (a) [i.e., when the full cash value drops below the factored base year value], the value of that property shall be annually reappraised at its full cash value as defined in Section 110 until that value exceeds the value determined pursuant to paragraph (1) of subdivision (a) [i.e., until the full cash value exceeds the factored base year value]." (§ 51, subd. (e).) In short, the statute requires the assessor to reappraise the property before resorting to the factored base year value as the basis for the next year's assessment.
In this case, however, the assessor ignored that duty. Although the AAB had decided in February of 1997 that the full cash value of the property had dropped below the factored base year value in 1993, and although no subsequent reappraisals had been done to demonstrate that the full cash value had since risen above the factored base year value, the assessor nevertheless based the 1998 assessment on the factored base year value. Indeed, the assessor did not reappraise the property until after El Dorado had appealed the 1996, 1997, and 1998 assessments. Specifically, the assessors reappraised the property in November of 1998 to defend against the 1996 assessment appeal and in February of 2000 to defend against the 1997 and 1998 assessment appeals.
As the majority seems to concede,[2] the assessor violated section 51, subdivision (e), by failing to reappraise the property prior to relying on the factored base year value for the 1998 assessment. Nevertheless, the majority opinion holds that the assessor's statutory violation was cured by the post-appeal appraisals performed in 1998 and 2000: "[W]hen the reappraisals were finally performed, the tax assessor succeeded in fulfilling the reappraisal requirement of section 51, subdivision (e)." (Maj. opn., ante, at p. 896.)
I agree that the assessor failed to comply with his duties under section 51, subdivision (e). Once the AAB decided in February of 1997 that the full cash value of the property in 1993 was less than the factored base year value, subdivision (e) of section 51 obligated the assessor to reappraise the property before resorting to the factored base year value as the basis for the 1998 assessment.
But I do not agree with the majority's conclusion that we should sanction that violation of the law by allowing the assessor to reappraise the property after the 1998 assessment. The Legislature expressly provided that an assessor may not under any circumstances condition its compliance with its obligation to reappraise property before resorting to the factored base year value on the filing of an assessment appeal by a taxpayer. (§ 51, subd. (e) ["In no event shall the assessor condition the implementation of the preceding sentence in any year upon the filing of an assessment appeal."].) By allowing the assessor to ignore the statutory requirement to reappraise before raising the assessment and to "cure" that omission with an appraisal performed only after the taxpayer files an appeal, the rule adopted by the majority eviscerates that statutory prohibition.
*899 There may be circumstances under which an assessor's failure to comply with the clear mandate of section 51, subdivision (e) might be excusable, but the assessor here offered no excuse for his failure to do so. In the absence of any showing of good cause that might excuse the failure to comply with the law, I cannot join in the majority's endorsement of postassessment appraisals conducted only after the taxpayer appeals.
In my view, the 1998 assessment is invalid because it was made without the statutorily required pre-assessment reappraisal. I would reverse that portion of the judgment that holds to the contrary.
NOTES
[*] Baxter, J., dissented.
[1] All further statutory references are to the Revenue and Taxation Code unless otherwise stated.
[2] Section 51, subdivision (a)(2).
[3] Six tax years are involved: 1993/1994, 1994/1995, 1995/1996, 1996/1997, 1997, and 1998. For clarity, we refer to the tax years as 1993, 1994, 1995, 1996, 1997, and 1998.
[4] Section 110.1, subdivision (b).
[5] California Constitution, article XIII A, section 2, subdivisions (a) and (b); Revenue and Taxation Code sections 51, subdivision (a), and 110.1, subdivision (f).
[6] Section 51, subdivision (e).
[7] Section 51, subdivision (e).
[8] Section 1603, subdivision (b)(1); Metropolitan Culinary Services, Inc. v. County of Los Angeles (1998) 61 Cal.App.4th 935, 941, footnote 7, 71 Cal.Rptr.2d 859.
[9] Section 51, subdivision (e).
[10] Jenkins v. County of Los Angeles (1999) 74 Cal.App.4th 524, 530, 88 Cal.Rptr.2d 149.
[11] Senate Bill No. 821 (1995-1996 Reg. Sess.).
[12] Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 22-25, 84 Cal.Rptr.2d 715.
[13] People v. Hicks (1993) 6 Cal.4th 784, 796, 25 Cal.Rptr.2d 469, 863 P.2d 714.
[1] All further section references are to this code.
[2] In responding to the taxpayer's claim that the 1996, 1997 and 1998 assessments are void as a result of the assessor's failure to follow the statutory procedure, the majority opinion states: "As to the year 1996, there was no failure to follow statutory procedure." (Maj. opn., ante, at p. 896, emphasis added.) By limiting that statement to 1996, it implicitly acknowledges that, as to the other two years, the assessor did fail to follow the statutory procedure.
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687 A.2d 456 (1997)
STATE
v.
Peter LeBLANC.
No. 96-97-C.A.
Supreme Court of Rhode Island.
January 2, 1997.
Andrea Mendes, Aaron Weisman, Providence.
Paula Lynch Hardiman, Paula Rosin, Providence.
ORDER
Executing a search warrant at a house in Pawtucket, the police surprised the defendant, Peter LeBlanc, while he was sitting fully clothed on a toilet and flushing bags of suspicious packets down the hopper. Having caught the defendant in this compromising posture, the arresting officer quickly deduced that the defendant was attempting to dispose of controlled substances (as was later confirmed by testing). Discommoding the defendant, the officer deftly fetched the swirling drug bags from the toilet bowl before they could disappear. The trial justice who heard this evidence was reasonably satisfied that the defendant's actions violated his probation. We agree.[1]
The defendant was on probation from a prior sentencing. His probationary period was scheduled to end on October 9, 2001. However, in sentencing defendant for violating his probation, the trial justice extended defendant's probationary period beyond the original expiration date. This was error. G.L.1956 § 12-19-9; see also State v. Chabot, 682 A.2d 1377, 1379 (R.I.1996) (collecting cases). However, in all other respects we affirm the trial justice's decision.
Relying on the evidence, the trial justice had ample grounds to be "reasonably satisfied," see State v. Hazard, 671 A.2d 1225, 1227 (R.I.1996), that defendant was attempting to dispose of illegal drugs that had been in his possession. We also conclude that defendant's constitutional right to confront witnesses against him was not compromised by the trial justice's limitation of defendant's cross-examination to the scope of the subjects covered on the state's direct examination of its witnesses. Nor do we agree that the delay in holding the violation hearing against defendant breached § 12-19-9. See State v. Lawrence, 658 A.2d 890, 893 (R.I. 1995) (although "§ 12-19-9 * * * mandat[es] that a defendant may be held without bail pending a probation-revocation hearing `for a period not exceeding ten (10) days[,]' * * * our interpretation of § 12-19-9 must ultimately turn on the nature and extent of a criminal defendant's conduct in contributing to the delay"). It appears from the record that defendant attempted to obtain private counsel to represent him and that, when he was unable to do so, a public defender had to be obtained to serve as his counsel. The defendant's being held without bail in excess of ten days arose from this situation and from the unavailability of defendant's lawyer to begin the hearing.
Finally, the trial justice was under no obligation to inform the defendant of his immunity rights if he chose to testify. See State v. DeLomba, 117 R.I. 673, 679-80, 370 A.2d 1273, 1276 (1977). That was his attorney's job. Accordingly, we reject the defendant's suggestion that this court should impose an obligation on trial justices to inform alleged probation violators of their immunity rights.
For these reasons, we affirm the decision of the trial justice adjudging the defendant to have violated his probation, and deny and dismiss the defendant's appeal on this issue. However, we sustain the defendant's appeal with respect to the trial justice's imposition of an extended sentence of probation and accordingly vacate that portion of the sentence that purported to extend the defendant's *457 probation beyond its October 9, 2001 expiration date.
NOTES
[1] We heard this matter pursuant to an order directing the parties to appear and show cause why we should not resolve the issues raised in this appeal without further briefing and argument. After reviewing the parties' submissions and hearing their arguments, we conclude that cause has not been shown and proceed to decide the merits of this appeal at this time.
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546 Pa. 578 (1997)
687 A.2d 371
Robert B. HALBERSTADT and Mary M. Halberstadt, Appellees,
v.
The BOROUGH OF NAZARETH, the Zoning Hearing Board of the Borough of Nazareth and Raymond W. Orwig.
Appeal of Raymond W. ORWIG.
Supreme Court of Pennsylvania.
Argued January 25, 1996.
Decided January 10, 1997.
*579 James L. Zulick, Nazareth, for R. W. Orwig.
Blake C. Marles, Allentown, for Robert B. and Mary M. Halberstadt.
Theodore R. Lewis, Easton, for Zoning Hearing Bd.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
OPINION
NIGRO, Justice.
Raymond Orwig appeals a Commonwealth Court Order that reversed the trial court's affirmance of the Nazareth Zoning *580 Board's decision to grant him variances to a zoning ordinance. For the reasons that follow, we reverse.
Raymond Orwig owns property located in the general commercial zoning district in the Borough of Nazareth. The property contains a massive, one-story building and parking spaces. The building was erected in 1914 before the enactment of the Borough's zoning ordinance. It is made of brick and concrete and has been described as fortress-like. When Mr. Orwig bought the property, the building had been vacant for several years and was in disrepair. Because of the building's heavy construction, razing it is cost-prohibitive. Renovation is also very expensive. Developing the property is further complicated by the fact that the building sits upon land containing hard rock and steep slopes.
Mr. Orwig sought variances to the local zoning ordinance in order to develop the property. He proposed using the building's first floor for four commercial spaces and adding a second floor for ten one-bedroom apartments. Mr. Orwig found the addition of a second floor necessary to produce enough rent to cover the high cost of development. In addition to a variance to allow the construction of the second floor, Mr. Orwig needed variances from zoning ordinance provisions governing minimum lot area, maximum building coverage, maximum units per gross acre, yard, parking and landscaping requirements, and loading space on the street.
In order to obtain a variance, an applicant must show that an ordinance imposes an unnecessary hardship due to unique conditions peculiar to his property. 53 P.S. § 10910.2.[1] After considering the testimony of Mr. Orwig, other property owners, Nazareth Borough officials and the parties' experts at several hearings, the Nazareth Zoning Board concluded that Mr. Orwig satisfied this requirement. It stated:
*581 After review of the testimony . . . the Board finds that the building itself together with the conditions of the lot, such as rock and the slopes, represent unique physical circumstances justifying the grant of a variance in order to enable a reasonable use of the property. The Board believes that any proposed use of the property, including those listed in the commercial district, would require variances.
Finding of Fact and Conclusion of Law No. 49 (emphasis added). The Board thus granted Mr. Orwig's variance requests including a variance to add a second floor to the building. Robert and Mary Halberstadt, who own property adjacent to Mr. Orwig, appealed. The trial court affirmed deciding that the Board's findings were supported by substantial evidence and that Mr. Orwig suffered an unnecessary hardship due to the unique conditions of his property.[2]
The Commonwealth Court reversed the trial court's decision for two primary reasons. The court found that Mr. Orwig's hardship did not result from unique property conditions because his neighbor's property also contained rock and steep slopes. The court further found that Mr. Orwig had alternative uses for the property that did not require the requested variances.[3] We granted Mr. Orwig's petition for allowance of appeal.
When the trial court does not take additional evidence, our scope of review in zoning cases is limited to determining whether the board committed an error of law or abused its discretion. Larsen v. Zoning Bd. of Adjustment, 543 Pa. 415, 421, 672 A.2d 286, 288-89 (1996). The board abuses its discretion only where its findings are not supported by substantial evidence. Id.
*582 In deciding that Mr. Orwig's hardship did not result from unique property conditions, the Commonwealth Court relied upon English v. Zoning Bd. of Adjustment, 395 Pa. 118, 148 A.2d 912 (1959). English involved a residential neighborhood that became less desirable due to a nearby influx of commercial activity. 395 Pa. at 120-21, 148 A.2d at 914. This Court held that a variance to change the use of a particular property in the neighborhood was not the appropriate remedy to address such a change. Id. A neighborhood affected by a general hardship should be rezoned. Id. The present case, however, does not involve the changed character of a neighborhood or a similar general hardship. Rather, the land adjacent to Mr. Orwig's property has rock and slopes similar to those on his property. The record does not establish that the rock and slopes are a common hardship throughout the district necessitating rezoning.
The fact that Mr. Orwig's neighbors also have rock and slopes on their property does not preclude finding that Mr. Orwig suffers from a hardship due to the unique conditions of his property. As explained by the Board:
[S]uch a conclusion would mean that if one of four separate owners on a very steeply sloped hill requested a variance, they would not be entitled to relief because their neighbors suffer from the same problem in spite of the fact that in general the topography of the municipality is not steeply sloped.
Finding of Fact and Conclusion of Law 51. We believe that the Commonwealth Court's requirement that land be one-of-a-kind would prevent the grant of variances in many situations that warrant them. More often than not, a landowner shares some of the physical characteristics of his land with his immediate neighbors. The Board properly defined the test for uniqueness as follows:
The question of uniqueness is obviously one as to whether or not the ordinance when applied to the particular lot with those particular conditions result in the regulations affecting *583 the lot in a manner that is not common to the typical lot owner, so that it produces an undue hardship.
Finding of Fact and Conclusion of Law 51; Cf. Larsen v. Zoning Bd. of Adjustment, 543 Pa. 415, 672 A.2d 286 (1996)(hardship not unique where setback requirement affected lot owner in the same way as typical lot owners subject to requirement). Here, the zoning ordinance affects Mr. Orwig in a way not common to the typical lot owner in the commercial district because of the combination of the land's physical condition and the fortress-like building sitting upon it.
The Commonwealth Court also based its decision upon testimony that the property could be used as-is for a parking garage or an apartment building. The court, however, considered the testimony about alternative uses for the property out of context. The full testimony established that while there may be other uses for the property, the cost of converting the property for those uses is not feasible. See Findings of Fact and Conclusions of Law Nos. 56-59. As the trial court acknowledged, the Board accepted Mr. Orwig's testimony that it was not economically feasible to use the property for a parking garage or a one-story apartment building. Property owners are not required to reconstruct a building to a conforming use regardless of the financial burden. Logan Square Neighborhood Ass'n v. Zoning Bd. of Adjustment, 32 Pa.Commw. 277, 280, 379 A.2d 632, 634 (1977); O'Neill v. Philadelphia Zoning Bd. of Adjustment, 384 Pa. 379, 386, 120 A.2d 901, 904 (1956). The Commonwealth Court improperly substituted its judgment for that of the trier of fact.
Because the lower court misapplied the law on unique property conditions warranting a variance and considered only partial testimony in reaching its decision, we reverse and remand this case to the Commonwealth Court to address the other issues that the Halberstadts raised on appeal. Jurisdiction relinquished.
NEWMAN, J., did not participate in the consideration or decision of this matter.
*584 NIX, Former C.J., did not participate in the decision of this matter.
ZAPPALA, J., concurs in the result.
NOTES
[1] An applicant must also show that there is no possibility that the property could be developed in accordance with the ordinance, the unnecessary hardship is not self-inflicted, the variance will not destroy the character of the neighborhood, and the variance is the least possible modification of the ordinance. Id. These requirements are not now at issue.
[2] This was the second time that the trial court reviewed the Board's decision. The court previously found the record insufficient to support the Board's findings and remanded for further proceedings. After the additional hearings, the Board issued extensive findings of fact and the trial court found that the record supported the Board's conclusions.
[3] Because the Commonwealth Court concluded that the trial court erred for these reasons, it did not address other issues that the Halberstadts raised on appeal. See 654 A.2d 249, 251 n. 1.
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128 Cal.Rptr.2d 397 (2002)
104 Cal.App.4th 893
The PEOPLE, Plaintiff and Respondent,
v.
Jerry Allan PIERCE, Defendant and Appellant.
No. B149009.
Court of Appeal, Second District, Division Six.
December 23, 2002.
Rehearing Denied January 15, 2003.
Review Denied March 5, 2003.
*399 Leonard J. Klaif, Ojai, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
*398 GILBERT, P.J.
Here we hold, among other things, that assault with intent to commit rape (Pen. Code, § 220) is a sexual offense within the meaning of Evidence Code section 1108.[1]
Jerry Allan Pierce appeals his conviction by jury of attempted kidnapping and assault with the intent to commit rape. (Pen.Code, §§ 207, subd. (a), 664, 220.) We affirm.
FACTS
After completing her work shift, 17year-old Silvia V. was walking home alone at night. Pierce "went past [her,]" took a couple of steps, then came back and grabbed her. He twisted her left hand behind her back and held his hand over her mouth. When she started to scream, he told her to "keep quiet." She held on to a fence, but he pulled her by her waist towards a dark area. From bushes near the fence, she saw a light and heard a man scream, "Why are men so dirty?" Pierce released Silvia V. and ran away.
Juan Hernandez testified he saw the attack on Silvia V. He turned on his car headlights, honked his horn, and saw Pierce run away.
After police advised Pierce of his rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694), he confessed that he grabbed Silvia V, she screamed and he put his hand over her mouth. He said he was motivated by a sexual impulsethe same impulse he had 20 years earlier with a girl in Santa Barbara.
In the defense portion of the case, Pierce's treating psychiatrist, Corazon Elliott, testified that Pierce suffers from paranoid schizophrenia. But Elliott acknowledged that Pierce is aware of his surroundings, his memory "is intact," and he cannot be "misled into believing something" that is not true.
Randy Wood, a defense psychologist, testified that Pierce's confession is unreliable. He claimed it contains statements that are "products of [Pierce's] psychotic thinking" and "delusional beliefs." Wood conceded, however, that Pierce gave responsive answers to police questions. On cross-examination, Wood said Pierce told him he was unable to disagree with the suggestive questioning by police during his confession. But Wood testified that many references in the transcript of that confession showed Pierce "felt comfortable" disagreeing with the police.
*400 In rebuttal, Doctor Malcolm Normington testified Pierce is well oriented and his thought processes are coherent.
Prior Uncharged Sexual Offense
One evening in 1977, Ann M., then 22 years old, rode her bicycle to a bar in Santa Barbara and met a friend, Bill. They went to another bar where Pierce approached them asking for money. Ann M. gave him a dollar to watch her bicycle while she and Bill entered the bar. When they came out, Pierce, although uninvited, began to walk with them until Bill left. Ann M. got on her bicycle and tried to leave, but Pierce knocked her off the bicycle, picked her up and carried her to an area near some bushes. When she screamed, he covered her mouth and told her to "shut up." He threw her down and removed her clothes. This offense resulted in a conviction of rape.
In a pretrial hearing, the court overruled Pierce's objection to the evidence about the incident involving Ann M. It found the prior conviction was "highly relevant" as it showed "a propensity to commit sexual offenses against young women" and it resulted in a conviction. The trial court stated that the time required to prove the prior offense was minimal and its remoteness was the only factor favoring Pierce's position. It did not allow the prosecution to prove Ann M.'s injuries because injury evidence would be inflammatory. It concluded the probative value of the prior offense "far outweighs any prejudicial effect."
DISCUSSION
Penal Code Section 220 is a "Sexual Offense" Under Section 1108
Pierce was charged with assault with intent to commit rape. (Pen.Code, § 220.) Section 1108, subdivision (a) states: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."[2]*401 Section 1108 therefore permits the trier of fact to consider defendant's prior sex offenses as propensity evidence. (People v. Falsetta (1999) 21 Cal.4th 903, 911, 89 Cal.Rptr.2d 847, 986 P.2d 182.)
Pierce contends assault with intent to commit rape is not a sexual offense within the meaning of the statute. The Attorney General correctly notes Pierce did not raise this issue in the trial court and therefore did not preserve it for review. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1015, 30 Cal.Rptr.2d 818, 874 P.2d 248.) But considered on the merits, the result is the same.
Section 1108, subdivision (d)(1)(A)(E) defines "`sexual offense'" to include both rape and attempted rape. (Pen.Code, §§ 261, 664.) "[A]n assault with intent to commit rape is a form of attempted rape. [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 674, 63 Cal. Rptr.2d 782, 937 P.2d 213.) It is an "aggravated form" of that offense because it is a combination of the elements of attempted rape and assault. (People v. Rupp (1953) 41 Cal.2d 371, 382, 260 P.2d 1.) Secondly, subdivision (d)(1) defines "`sexual offense'" to be a "crime under the law of a state or of the United States" that involves conduct proscribed by the offenses listed in subdivision (d)(1)(A). Pierce's offense involves such conduct.
Pierce also comes within section 1108, subdivision (d) because his offense involves "[a]n attempt ... to engage in conduct described in this paragraph." (Id. at subd. (d)(1)(E).) The instant offense was committed to derive "sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person." (Id. at subd. (d)(1)(D).)
In 2002 the Legislature passed Assembly Bill No. 2252 (2001-2002 Reg. Sess.), which amended section 1108. New subdivision (d)(1)(B) includes within the definition of "sexual offense," "[a]ny conduct proscribed by section 220 of the Penal Code, except assault with intent to commit mayhem." (Stats. 2002, ch. 194 § 1.)
Pierce notes that the Legislative Counsel's Digest states: "This bill would expand the definition of `sexual offense' for the purposes of the aforementioned exception to the rule against the admission of character evidence to include those violations of the law proscribing assault with the intent to commit a specified felony that requires sexual intent." (Legis. Counsel's Dig., Assem. Bill No. 2252 (2001-2002 Reg. Sess.) He contends this shows that his offense of assault with intent to commit rape was not included within section 1108 until this recent amendment. We disagree.
The Legislative Counsel's Digest does "not have the force of law, for the interpretation of law is a judicial function." (People v. Cruz (1996) 13 Cal.4th 764, 780, 55 Cal.Rptr.2d 117, 919 P.2d 731.) "[W]hen a court is called upon to determine the scope of an earlier version of an existing statute, the Legislature's assumption that its current amendment represents an expansion of an earlier provision cannot be determinative of the question." (Id. at p. 781, 55 Cal.Rptr.2d 117, 919 P.2d 731.) The court must decide "whether the subsequent amendment actually constitutes a modification or instead a clarification of the preexisting provision. [Citations.]" (Ibid)
*402 We conclude that the amendment only clarified the preexisting statute by explicitly including offenses that previously fell within section 1108. As the Attorney General correctly notes, prior to this amendment, the broad language of section 1108, subdivisions (d)(1)(B) through (E) encompassed assault with intent to commit rape. This amendment did not eliminate those provisions. Moreover, Pierce's offense is an aggravated form of attempted rape, which before and after the amendment falls within section 1108.
The amendment does not demonstrate an intent to change the law. Page 6 of the Bill Analysis of the Assembly Committee on Public Safety prepared for the May 7, 2002, hearing on Assembly Bill No. 2252, states: "Adding Penal Code Section 220, with the exception of assault with intent to commit mayhem, appears consistent with the intent of the Legislature in enacting Evidence [Code] Section 1108."
Under Pierce's interpretation of the statute, if he had committed attempted rape, section 1108 would apply. But because he committed the more serious offense of assault with intent to commit rape, it does not. We are confident the Legislature did not intend such an absurd result. (People v. Cruz, supra, 13 Cal.4th at p. 783, 55 Cal.Rptr.2d 117, 919 P.2d 731.)
Prior Rape Conviction
Pierce contends the trial court abused its discretion by admitting evidence concerning a prior 23-year-old rape conviction. (§ 352.) We disagree.
Before admitting propensity evidence of a prior sex offense, the court "must engage in a careful weighing process under section 352." (People v. Falsetto, supra, 21 Cal.4th at p. 917, 89 Cal.Rptr.2d 847, 986 P.2d 182.) It must consider factors including relevance, similarity to the charged offense, the certainty of commission, remoteness, and the likelihood of distracting or inflaming the jury. (Ibid.)
Pierce contends the prior conviction was too old to show propensity, therefore it has no probative value. But "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible. [Citation.]" (People v. Branch (2001) 91 Cal.App.4th 274, 284, 109 Cal.Rptr.2d 870 [evidence of a sex offense committed 30 years earlier was properly admitted].) Here the trial court carefully weighed the remoteness issue with a series of other factors. It found remoteness was "the only plus for the defendant's side," but the prior conviction was "highly relevant." It showed "a propensity to commit sexual offenses against young women." Moreover, Pierce had been incarcerated for at least 12 years after the 1977 rape.
Pierce has not shown error. "[Substantial similarities between the prior and the charged offenses balance out the remoteness of the prior offenses. [Citation.]" (People v. Branch, supra, 91 Cal.App.4th at 285, 109 Cal.Rptr.2d 870.) Here there are substantial similarities between the two offenses and the two victims. Pierce attacked Ann M. and Silvia V., two young women who were alone on city streets at night. He put his hand over their mouths, told them to shut up or keep quiet, and dragged them near bushes or dark areas. The only difference between the two events is that a third party intervened to protect Silvia V.
Significantly, Pierce mentioned the Santa Barbara incident in his confession. He admitted he had a similar sexual impulse in the two incidents. This was highly probative evidence regarding his intent at the time he grabbed Silvia V. On this ground, the prior offense is admissible under section *403 1101, subdivision (b). The trial court could reasonably infer that the similarities were substantial enough to "balance out the remoteness" in favor of admission of the prior offense. (People v. Branch, supra, 91 Cal.App.4th at p. 285, 109 Cal. Rptr.2d 870.)
The trial court considered the likelihood of undue prejudice. It noted that the prior offense resulted in a conviction. Because the jury knew this, it "would not be tempted to convict [Pierce] simply to punish him for the other," prior offense. (People v. Falsetto, supra, 21 Cal.4th at p. 917, 89 Cal.Rptr.2d 847, 986 P.2d 182.) Little time was devoted to the prior offense; it involved only 17 pages of transcript. (People v. Branch, supra, 91 Cal. App.4th at pp. 285-286, 109 Cal.Rptr.2d 870.) The court also disallowed inflammatory evidence about Ann M.'s injuries. Pierce has not shown the court abused its discretion by finding the probative value "far outweighs any prejudicial effect."
Pierce contends prejudice from the admission of his prior offense is strong because evidence of the instant offense was weak. He characterizes his highly incriminating confession as "the ravings of a person in a psychotic state." The medical evidence shows otherwise. Elliott, his treating psychiatrist, testified Pierce is aware of his surroundings, his memory is "intact," and he cannot be misled into believing something that is not true. Normington testified Pierce is well oriented and his thought processes are coherent. The jury could reasonably infer that psychologist Wood's opinion had been impeached by his testimony about Pierce's responsive answers to police questions. Wood's testimony on cross-examination also seriously undermined Pierce's claim that his confession was involuntary. There was a witness to the crime and it is not reasonably probable that the result would be different without Ann M.'s testimony.
The judgment is affirmed.
We concur: COFFEE and PERREN, JJ.
NOTES
[1] All statutory references are to the Evidence Code unless otherwise stated.
[2] At the time of the offense, section 1108 stated in its entirety: "(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.[U] (b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 30 days before the scheduled date of trial or at such later time as the court may allow for good cause. [11] (c) This section shall not be construed to limit the admission or consideration of evidence under any other section of this code. [¶] (d) As used in this section, the following definitions shall apply: [¶] (1) `Sexual offense' means a crime under the law of a state or of the United States that involved any of the following: [11] (A) Any conduct proscribed by Section 243.4, 261, 261.5, 262, 264.1, 266c, 269, 286, 288, 288a, 288.2, 288.5, or 289, or subdivision (b), (c), or (d) of Section 311.2 or Section 311.3, 311.4, 311.10, 311.11, 314, or 647.6, of the Penal Code. [¶] (B) Contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person. [¶] (C) Contact, without consent, between the genitals or anus of the defendant and any part of another person's body. [¶] (D) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person. [¶] (E) An attempt or conspiracy to engage in conduct described in this paragraph. [¶] (2) `Consent' shall have the same meaning as provided in Section 261.6 of the Penal Code, except that it does not include consent which is legally ineffective because of the age, mental disorder, or developmental or physical disability of the victim."
Section 1101, subdivision (b) states: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
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174 S.W.3d 652 (2005)
STATE of Missouri, Respondent,
v.
Leonard L. ROSENBOOM, Appellant.
No. ED 84865.
Missouri Court of Appeals, Eastern District, Division Four.
September 6, 2005.
Motion for Rehearing and/or Transfer Denied October 11, 2005.
Application for Transfer Denied November 22, 2005.
Michael A. Gross, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Attorney General, Jefferson City, MO, for respondent.
Before NANNETTE A. BAKER, P.J. and ROBERT G. DOWD, JR. and SHERRI B. SULLIVAN, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied October 11, 2005.
ORDER
PER CURIAM.
Leonard Rosenboom (Defendant) appeals from the judgment upon his convictions of one count of assault in the first degree, Section 565.050, RSMo 2000, one count of assault in the third degree, Section 565.070, RSMo 2000, two counts of forcible rape, Section 566.030, RSMo 2000, *653 and one count of kidnapping, Section 565.110, RSMo 2000. Defendant was sentenced, as a prior offender, to consecutive sentences of life imprisonment on the first-degree assault count, life imprisonment on each of the two rape counts, and fifteen years' imprisonment on the kidnapping count. Defendant was sentenced to one-year in the county jail on the third-degree assault count, to run concurrent to the consecutive sentences. Defendant contends the trial court abused its discretion in (1) denying his motion for continuance to enable the substitution of private counsel for the public defender, (2) denying Defendant's motion for declaration of a mistrial after several jurors saw him escorted from the courthouse in shackles, and (3) denying Defendant's motion for a mistrial based on the State's failure to produce a medical witness's notes until after her testimony was completed. Defendant also argues the trial court plainly erred when it failed to admonish the prosecutor and instruct the jury to disregard the prosecutor's disparagement of defense counsel during summation.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 30.25(b).
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687 A.2d 238 (1996)
Wayne ADRIANCE et al.
v.
TOWN OF STANDISH.
Supreme Judicial Court of Maine.
Argued October 10, 1996.
Decided December 18, 1996.
Paul F. Macri (Orally), John E. Sedgewick, Berman & Simmons, P.A., Lewiston, for Plaintiffs.
*239 Daniel Rapaport (Orally), Preti, Flaherty, Beliveau & Pachios, LLC, Portland, for Defendant.
Before WATHEN, C.J., and GLASSMAN, CLIFFORD, DANA and LIPEZ, JJ.
GLASSMAN, Justice.
Wayne Adriance and Barbara Adriance appeal from a summary judgment entered in the Superior Court (Cumberland County, Mills, J.) in favor of the Town of Standish on their complaint seeking damages against the Town pursuant to the Maine Tort Claims Act (the Act), 14 M.R.S.A. §§ 8101-8118 (1980 & Supp.1996). The Adriances contend that the court erred in concluding that certain acts and omissions by an attendant in the operation and maintenance of the Town's waste transfer station were discretionary functions protected by the provisions of section 8104(B)(3) of the Act. We agree and vacate the judgment.
The record reveals the following undisputed facts: Wayne suffered injuries after falling into a trash hopper at the Town's waste transfer station on June 29, 1993. The station is a large garage-type structure containing an office and a trash hopper. The trash hopper is surrounded by a concrete wall except on the side of the back-up area. The back-up area has two chain-link safety gates that can be swung closed where the back-up area meets the hopper. Trash may be deposited in the hopper either at the drive-through side or at the back-up area. When the gates in the back-up area are closed, trash may be thrown over the gates into the hopper. The trash hopper contains a mechanical compactor which, when activated, compresses the trash in the hopper into a trailer parked under the transfer station.
Wayne went to the transfer station on June 29, 1993, with his son to dispose of trash. The gates in the back-up area were open, and Wayne backed his pick-up truck to the edge of the hopper and began to unload the trash from it. As he was dumping a barrel of trash into the hopper, Wayne lost his balance and fell into the trash hopper causing the claimed injuries.
The operation of the transfer station is governed by an operation and maintenance manual, the Town of Standish Solid Waste Ordinance, and Department of Environmental Protection (DEP) Solid Waste Management Regulations. These authorities do not address when the safety gates in the back-up area must be closed, when the attendant should help patrons of the station position their vehicles in the back-up area or what warnings, if any, must be given to users of that area. Accordingly, these decisions were left to the attendant.
By their complaint against the Town, the Adriances seek damages for the injuries suffered by them for the alleged negligent failure of the Town "to properly design, construct, operate, maintain, and supervise" the transfer station. Following the Town's responsive pleading to the complaint, it moved for a summary judgment on the ground that, pursuant to the Act, the Town is immune from liability to the Adriances. After a hearing on the Town's motion, the trial court concluded that the transfer station is a public building, but as a matter of law the design, construction, operation, maintenance and supervision of the transfer station are discretionary functions immune from tort liability pursuant to the Act and granted the Town's motion. From the summary judgment entered accordingly, the Adriances appeal.
The Adriances contend the trial court erred by its determination that the attendant was performing a discretionary function thereby entitling the Town to a summary judgment as a matter of law. They argue, as they did before the trial court, that the alleged negligent conduct of the attendant did not establish and was not in furtherance of basic governmental policy goals. Accordingly, there remain genuine issues of material facts regarding whether that conduct was a negligent breach of the duty of care owed to Wayne as a user of the transfer station and a proximate cause of their claimed injuries.
When a party appeals from an order granting a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment was entered to determine whether the record supports the trial court's conclusion that there is *240 no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Simpson v. Central Maine Motors, Inc., 669 A.2d 1324, 1325-26 (Me.1996).
The Act shields governmental entities from suit on tort claims, 14 M.R.S.A. § 8103(1), subject to limited exceptions that we have narrowly construed. Section 8104-A, setting forth the exceptions, provides in pertinent part:
1. Ownership; maintenance or use of vehicles, machinery and equipment. A governmental entity is liable for its negligent acts or omissions in its ownership, maintenance or use of any:
A. Motor vehicle ...
B. Special mobile equipment ...
C. Trailers ...
D. Aircraft ...
E. Watercraft ...
F. Snowmobiles ... and
G. Other machinery or equipment, whether mobile or stationary....
2. Public Buildings. A governmental entity is liable for its negligent acts or omissions in the construction, operation or maintenance of any public building or the appurtenances to any public building.
We agree with the trial court that, contrary to the Town's contention, the transfer station is a public building for purposes of the Act. The transfer station is permanent, fully enclosed and completely open to the public and falls squarely within the public building exception to sovereign immunity. Cf. Lovejoy v. State, 544 A.2d 750 (Me.1988) (prefabricated, air transportable underground assault shelter located on state-owned military training grounds is not a public building within the purview of the Act). We also reject the Town's contention that this is a "failure to supervise" case controlled by our holding in ABT & A Co., Inc. v. State, 644 A.2d 460 (Me.1994). The focus of this case is on the operation of the transfer station, not the supervision of the patrons of the facility. See Lynch v. Town of Kittery, 677 A.2d 524, 525 (Me.1996) (failure to lock doors at high school is negligent operation of public building not negligent supervision of students).
The limited waiver of sovereign immunity is curtailed by section 8104-B(3), that provides in pertinent part:
Notwithstanding section 8104-A, a governmental entity is not liable for any claim which results from:
. . . .
3. Performing discretionary function. Performing or failing to perform a discretionary function or duty, whether or not the discretion is abused and whether or not any statute, charter, ordinance, order, resolution or policy under which the discretionary function or duty is performed is valid or invalid....
In Darling v. Augusta Mental Health Inst., 535 A.2d 421, 426 (Me.1987), we adopted the following four factors considered by a number of courts in other jurisdictions in determining whether the conduct at issue constitutes a governmental discretionary function:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act omission or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
(Citations omitted). This formula recognizes that discretionary function immunity serves the important purpose of separation of power by preventing the judicial branch from entertaining tort actions as tools for manipulating important policy decisions that have been committed to coordinate branches of government. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 131, at 1039 (5th ed.1984). If "decisions involve the dilemma of policy intended to be resolved by the legislative or executive branches, the *241 courts will refuse to review them in tort actions...." Id. at 1052. See also Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-68, 97 L.Ed. 1427 (1953) ("[A]cts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.").
Nevertheless, "discretionary immunity... was not designed to cloak the ancient doctrine of sovereign immunity in modern garb." Nelson by and through Stuckman v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996). In cases where the questioned conduct "has little or no purely governmental content but instead resembles decisions or activities carried on by people generally, there is an objective standard for judgment by the courts" and the doctrine of discretionary immunity does not bar the action. Keeton et al., at 1065. A broader formulation of the doctrine threatens to render any function involving a choice discretionary, thereby functionally eliminating the limited waiver of sovereign immunity provided by the Act. See Ransom v. City of Garden City, 743 P.2d 70, 72-73 (Idaho 1987) (discretionary function immunity "does not include functions which involve any element of choice, judgment or ability to make responsible decisions; otherwise every function would fall within the exception").
The record reveals no Town or other governmental policy on which the function of the attendant, relating to his decisions regarding the operation of the back-up area of the transfer station, can be grounded. The Town does not, and on this record cannot, contend that the decisions of the transfer station attendant, relative to the back-up area of the transfer station were "essential to the realization or accomplishment" of any governmental policy program or objective. Cf. Miller v. Szelenyi, 546 A.2d 1013, 1021 (Me.1988) (proper care and treatment of mentally retarded is basic state policy). Nor did the actions require the "exercise of basic policy evaluation, judgment, and expertise" by the attendant. Whether to close an already installed safety gate, help patrons position their vehicles or give any warning are typical of day-to-day decisions generally made by all persons and cannot be said to be rooted in basic governmental policy. See Nelson by and through Stuckman v. Salt Lake City, 919 P.2d at 575-76 (failure to maintain state-erected fence between a river and park did not involve basic governmental policy making function).
The Town's reliance on our decision in Moore v. City of Lewiston, 596 A.2d 612 (Me.1991), is misplaced. Moore was a passenger in a car that was stopped by the Lewiston police in the early morning hours. When taken into custody, the driver stated he did not want Moore to operate his vehicle. While walking toward her home, Moore was injured by two unknown assailants. She sought damages from the Town for her injuries alleged to have resulted from the officers' negligent failure to offer to transport her to her home. The Lewiston Police Department Manual set forth a policy against providing citizens with transportation in a police vehicle except when necessary to accomplish a police purpose and when done in conformance with departmental policy or at the discretion of a commanding officer, immediate supervisor or the communication center. In affirming the summary judgment in favor of the Town we stated that "because the officers were required to use their judgment while acting in furtherance of a departmental policy restricting the use of police vehicles to transport private citizens," the officers were exercising a discretionary function entitled to immunity. Accordingly, Moore does not control. See United States v. Gaubert, 499 U.S. 315, 324-25, 111 S.Ct. 1267, 1274-75, 113 L.Ed.2d 335 (1991) ("When established governmental policy, as expressed or implied by statute, regulation or agency guidelines, that allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime.").
Because the alleged conduct of the attendant did not involve the formulation of a basic governmental policy nor was it pursuant to a *242 statute, regulation or guideline that expressly or impliedly would presumptively ground it in governmental policy, section 8104(B)(3) of the Act does not apply. Accordingly, the trial court erred by granting the Town's motion for summary judgment based on that provision.
The entry is:
Judgment vacated. Remanded for further proceedings consistent with the opinion herein.
All concurring.
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687 A.2d 639 (1997)
1997 ME 1
Robin DUTIL
v.
John BURNS.
Supreme Judicial Court of Maine.
Submitted on Briefs October 16, 1996.
Decided January 3, 1997.
*640 Philip P. Mancini, Cloutier & Briggs, P.A., Rockport, for plaintiff.
Christopher D. Nyhan, Preti, Flaherty, Beliveau & Pachios, L.L.C., Portland, for defendant.
Before WATHEN, C.J., and GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.
WATHEN, Chief Justice.
[¶ 1] Plaintiff, Robin Dutil, appeals from an order of the Superior Court (Kennebec County, Alexander, J.) granting defendant John Burns's motion to dismiss plaintiff's notice of claim for professional negligence. Plaintiff argues on appeal, inter alia, that the court erred in barring her claim on the basis of the doctrine of res judicata and the statute of limitations. We agree and vacate the judgment.
[¶ 2] The history of plaintiff's efforts to sue defendant may be briefly summarized as follows: In January of 1995, plaintiff filed a suit in the Superior Court against defendant, an oral surgeon, alleging that she was injured by a defective temporomandibular joint, or jawbone implant, sold and surgically implanted by him. The complaint sought recovery on theories of strict liability, breach of warranty, and negligent sale. The court granted defendant's motion to dismiss that complaint for failure to state a claim upon which relief could be granted. On appeal, we affirmed the dismissal ruling that the claim was an action for professional negligence governed by the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2985 (1990 & Supp. 1996). Dutil v. Burns, 674 A.2d 910 (Me. 1996). The Act requires that all claims against medical providers be preceded by a notice of claim and screening by a prelitigation panel. 24 M.R.S.A. §§ 2851-2859, 2903.
[¶ 3] In June of 1995, while the first action was still pending, plaintiff sent a notice of claim to defendant. The notice is couched in terms of professional negligence rather than products liability and includes allegations that defendant misrepresented plaintiff's condition and the cause of her injuries. After the notice was filed in the Superior Court and assigned to a prelitigation screening panel, defendant moved to dismiss the *641 notice of claim pursuant to M.R.Civ.P. 12(b)(6) for failure to state a claim. Defendant attached a memorandum of law to the motion and asserted the affirmative defenses of res judicata and the statute of limitations. Plaintiff responded by a memorandum arguing that res judicata does not apply and that the statute of limitations is extended by virtue of defendant's fraudulent concealment of information pursuant to 14 M.R.S.A. § 859 (Supp.1996).
[¶ 4] The Superior Court scheduled a hearing on the motion to dismiss, and the parties now agree that neither received notice of that hearing. In any event, neither party was present for the hearing and the docket entry states: "Case to be dismissed as nobody appeared for hearing." The order of dismissal provides: "After having carefully reviewed Defendant's Motion to Dismiss and the witness admissions filed therewith,[1] it is hereby Ordered: Defendant's Motion to Dismiss is granted. Plaintiff's Notice of Claim is dismissed." Plaintiff moved for findings of fact and conclusions of law and the court denied the motion stating: "The Notice of Claim was dismissed as a matter of law res judicata and statute of limitations; therefore no findings are required. Motion denied." From these orders, plaintiff appeals.
[¶ 5] Plaintiff argues that the dismissal of her first complaint on procedural grounds does not bar the present action for professional negligence. We agree.[2] We have described the doctrine of res judicata in the following terms:
The effect of the prior decision on the present action is a question of law.... [T]he doctrine of res judicata bars the relitigation in a present action of all issues that were tried, or may have been tried, in a prior action if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and 3) the matters present for decision now were, or might have been, litigated in the prior action.
Currier v. Cyr, 570 A.2d 1205, 1207-08 (Me. 1990). An order of dismissal for failure to state a claim is technically an adjudication on the merits unless, as is usually the case, leave is granted to amend the complaint. 1 Field, McKusick & Wroth, Maine Civil Practice § 12.11 at 119 (2d. ed. Supp.1981). Defendant's motion to dismiss the first action, although styled as a 12(b)(6) motion, challenged plaintiff's failure to comply with the statutory prerequisites for maintaining an action for professional negligence.[3] The dismissal for failure to comply with the statutory procedure is akin to a dismissal for insufficient service of process or lack of subject matter jurisdiction, and does not serve as an adjudication of the merits. The Superior Court erred in applying the bar of res judicata. The dismissal in the first action was premised on procedural defects and did not result in a final judgment on the merits.[4]
[¶ 6] Plaintiff also argues that the court erred in concluding that her claim is barred by the three year statute of limitations applicable to actions for professional negligence. 24 M.R.S.A. § 2902. She argues, as she did in the memorandum filed with the trial court, that her notice of claim alleges misrepresentation and fraudulent concealment of material facts that prevented her from discovering her injury. Accordingly, she claims the benefit of the extended limitation provided by 14 M.R.S.A. § 859 for cases in which the cause of action is fraudulently concealed. Defendant argues in response that, even if all the allegations in plaintiff's notice of claim are taken as true, plaintiff has failed to set forth sufficient evidence *642 of fraudulent concealment. Defendant argues he may have been medically negligent in recommending a conservative course of treatment instead of recommending immediate removal of the implant, but he contends that simple negligence cannot be considered "fraudulent concealment." Moreover, he argues, plaintiff has failed to satisfy the special pleading requirements for allegations of fraud set forth in M.R.Civ.P. 9(b).
[¶ 7] Defendant's argument ignores the fact that plaintiff's claim has not yet reached the stage where pleadings are required. The rules of pleading apply to complaints but have no direct application to a notice of claim. The statute that imposes the notice of claim requirement provides only that the notice shall set forth in writing "under oath, the professional negligence alleged and the nature and circumstances of the injuries and damages alleged." 24 M.R.S.A. § 2903(1)(A). The Superior Court erred in evaluating the sufficiency of the allegations in the notice of claim by relying on the pleading requirements applicable to a complaint. On this record and at this procedural stage, there are unresolved factual issues and no basis for the court to rule as a matter of law on the application of the statute of limitations.
[¶ 8] The entry is:
Judgment vacated. Remanded for further proceedings consistent with the opinion herein.
NOTES
[1] There were no "witness admissions" filed with the motion.
[2] Plaintiff does not challenge the court's consideration of defendant's affirmative defenses, despite the fact that the Maine Health Security Act permits prelitigation consideration of affirmative defenses only by agreement of the parties or by order of the chair of the prelitigation screening panel. See 24 M.R.S.A. § 2853(5).
[3] The Maine Health Security Act provides that "no action for professional negligence may be commenced" until a notice of claim has been served and filed, and the claim has been submitted to a prelitigation screening panel. 24 M.R.S.A. § 2903(1) (1990 & Supp.1996).
[4] We acknowledge a lack of clarity in our original opinion concerning the basis for the dismissal.
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128 Cal.Rptr.2d 403 (2002)
104 Cal.App.4th 979
Charlene BUTLER et al. Petitioners,
v.
The SUPERIOR COURT of Los Angeles County, Respondent;
Dorothy Terry, Real Party in Interest.
No. B163270.
Court of Appeal, Second District, Division Eight.
December 23, 2002.
*404 Law Offices of Alexander J. Perez and Alexander J. Perez, San Francisco, for Petitioners.
No appearance for Respondent.
Morris, Polich & Purdy, Richard H. Nakamura, Jr., Los Angeles, and Michael P. West, Encino, for Real Party in Interest.
RUBIN, J.
INTRODUCTION
Charlene Butler and Bennie Nero obtained a judgment awarding them nominal damages on their personal injury claims against Dorothy Terry. We reversed that judgment and remanded it with specific directions to the trial court. Despite our clear and specific directions, the trial court issued an order granting a motion for reconsideration of a ruling that was rendered prior to the issuance of the judgment. The effect of the trial court's order was to allow further trial court proceedings that were contrary to our clear directions on remand. Because the trial court's order materially differed from our remand directions, it was unauthorized and void. Accordingly, we issue a writ of mandate ordering the trial court to vacate its order granting reconsideration and compelling it to comply with our remand directions.
FACTUAL AND PROCEDURAL BACKGROUND
In February 1999, Butler and Nero filed a complaint for premises liability and negligence against their landlord, Terry. Butler and Nero alleged they were injured when Butler's bedroom ceiling fell on them during heavy rains. On October 18, 2000, after Terry failed to obey certain discovery orders, the trial court struck her answer, and the matter proceeded to a default prove-up hearing on October 24, 2000. At the end of that hearing, the trial court awarded Butler and Nero nominal damages, including $100 for medical expenses. Butler and Nero appealed.
On April 22, 2002, we reversed the judgment, concluding the trial court's ruling *405 was arbitrary and disregarded the evidence presented at the prove-up hearing. Our clear instructions to the trial court on remand were "to enter a new default judgment in accordance with the evidence Butler presented at the default prove-up hearing on October 24, 2000." (Butler v. Terry (Apr. 22, 2002, B147001) [nonpub. opn.].) The remittitur issued on June 28, 2002.
Subsequently, Terry filed a motion for reconsideration essentially asking the trial court to vacate its order of October 18, 2000, striking her answer in the case.[1] On October 18, 2002, the trial court heard and granted the motion. The court ordered that at trial Terry could call as a witness any individual who inspected the ceiling prior to the night it fell if she provided the name and address of the witness to Butler and Nero at least 60 days before the postreversal trial date. When asked by counsel to explain the ruling and if it meant there would be a trial rather than simply a new judgment, as this court had directed, the trial court refused to comment further or provide any explanation. The trial judge then accepted a previously-filed challenge under Code of Civil Procedure section 170.6 and transferred the case for reassignment to another judge.
Butler and Nero filed the present petition contending the trial court abused its discretion in granting the motion for reconsideration.
DISCUSSION
When an appellate court's reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed. Any material variance from the directions is unauthorized and void. (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656, 242 P.2d 1; In re Candace P. (1994) 24 Cal.App.4th 1128, 1131, 30 Cal.Rptr.2d 1; Frankel v. Four Star International, Inc. (1980) 104 Cal. App.3d 897, 902, 163 Cal.Rptr. 902.) When, for example, "a cause is remanded with directions to enter a particular judgment, it is the duty of the trial court to enter judgment in conformity with the order of the appellate court, and that order is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if it should do so, the judgment rendered thereon would be void." (Snoffer v. City of Los Angeles (1936) 14 Cal.App.2d 650, 653, 58 P.2d 961.)
A failure to follow appellate directions can be challenged by an immediate petition for writ of prohibition or writ of mandate. (Hampton v. Superior Court, supra, 38 Cal.2d at p. 656, 242 P.2d 1; Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229, 234, 177 Cal.Rptr. 239.)
In the present case, our decision reversing the judgment directed the trial court to enter a new default judgment in accordance with the evidence presented at the default prove-up hearing on October 24, 2000. These directions required a re-evaluation of the testimony and documentary evidence submitted at the prove-up hearing and a new determination on the amount of damages warranted by the evidence. The directions allowed the trial court the flexibility to, for example, receive new evidence if necessary to clarify the evidence of damages already submitted at the October 24, 2000 prove-up hearing. But it did not leave open the option of *406 reconsidering prior rulings or reopening the case on the facts and allowing a trial.
By its order granting reconsideration and now allowing Terry to dispute the facts of the case, the trial court effectively reopened the case on the facts and allowed a new trial. Logic leads to no other conclusion but that the trial court's order materially departed from our directions on remand. Thus, it was unauthorized and void.
DISPOSITION
We have followed the procedures and given the notice described in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, at pages 177-183, 203 Cal.Rptr. 626, 681 P.2d 893. No factual issues are disputed, the legal error is clear, and the matter should be expedited. Thus, a peremptory writ in the first instance is appropriate. (Code Civ. Proc, § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, 23 Cal. Rptr.2d 397, 859 P.2d 96; Ng v. Superior Court (1992) 4 Cal.4th 29, 35, 13 Cal. Rptr.2d 856, 840 P.2d 961.)
The petition is granted. Let a peremptory writ of mandate issue ordering the trial court to (1) vacate its order of October 18, 2002, granting reconsideration, (2) issue a new order denying the motion, and (3) comply with our remand directions in Case No. B147001.[2] Butler and Nero are awarded their costs.
We concur: COOPER, P.J., and BOLAND, J.
NOTES
[1] Apparently, Terry had filed a motion for reconsideration prior to the entry of judgment in October 2000. She withdrew the motion before the entry of judgment.
[2] The trial judge assigned to this case has now recused himself from hearing it any further pursuant to Code of Civil Procedure section 170.6. It will therefore be the responsibility of the supervising judge of Department 1 of the superior court, or a newly assigned judge, to comply with our writ of mandate.
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687 A.2d 234 (1996)
Peter SEWALL
v.
Louise SNOOK.
Supreme Judicial Court of Maine.
Submitted on Briefs November 15, 1996.
Decided December 17, 1996.
Frank M. Underkuffler, Farmington, for Plaintiff.
Edward S. David, Joyce, Dumas, David and Hanstein, P.A., Farmington, for Defendant.
Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and LIPEZ, JJ.
*235 RUDMAN, Justice.
Louise Snook and Peter Sewall both appeal from the divorce judgment entered in the Superior Court (Franklin County, Mills, J.). On appeal, Louise Snook contends that the trial court erred in denying her any alimony. On cross-appeal, Peter Sewall contends that the trial court abused its discretion in not awarding him a specific visitation schedule with his two daughters. Because we agree that the trial court erred with respect to alimony, we vacate the judgment as it relates to alimony and division of marital property, but affirm the judgment as it relates to visitation.
Louise and Peter began living together in 1976, married in 1980 and have two minor daughters by that marriage. At the time of the divorce hearing, Louise was forty-one years old and Peter was forty-six years old. Both parties were in good health and neither had retirement funds, special education, or training. Peter and Louise had both been employed throughout the marriage and both had worked about six months out of the year. Peter's gross income from employment was $38,737. His employer provided, at no additional cost to Peter, housing, food and the use of a vehicle. Louise's gross income from employment was $11,870. Louise received no additional benefits from her employer except reduced price ski passes and classes.
After a two-day hearing, the court granted the divorce and ordered the parties to share parental rights and responsibilities regarding the minor children. Primary physical residence was awarded to Louise, and Peter was granted the right to visit with and be visited by the minor children at all reasonable times. Peter was ordered to pay child support to Louise in the amount of $149.25 per week until the parties' youngest daughter turned twelve, at which time the child support payment would increase to $165 per week.[1] Additionally, Louise was awarded $99,671.57 in marital property, including the family home. Peter received $73,840.83 in marital property, including 160 of the parties' 220 acres of land. The judgment also ordered that neither party will pay alimony to the other party.
On entry of the divorce judgment, Louise filed a combined motion pursuant to M.R.Civ.P. 52(a) and 59 for specific findings of fact and conclusions of law with respect to alimony and for reconsideration and amendment of the divorce judgment. The court denied the motion without comment.
I. Alimony
Louise contends that because of her financial need, the trial court erred when it failed to award her any alimony.
"Issues arising out of a divorce action, such as property division, alimony, custody and child support, are within the court's sound discretion, and the judgment of the court on such matters is entitled to substantial deference." Knight v. Knight, 680 A.2d 1035, 1037 (Me.1996) (citations omitted). Absent a violation of some positive rule of law or unless the judgment has reached a result that is plainly and unmistakably an injustice, we will not disturb the trial court's decision regarding alimony. Noyes v. Noyes, 662 A.2d 921, 922 (Me.1995) (citations omitted).
"The primary purpose of alimony is to provide `maintenance and support' for the future needs of the payee spouse." Noyes, 662 A.2d at 922. (quoting Harding v. Murray, 623 A.2d 172, 176 (Me.1993); Skelton v. Skelton, 490 A.2d 1204, 1207 (Me.1985)). To determine an alimony award, the trial court must consider the factors in 19 M.R.S.A. § 721 (Supp.1996).[2]Id.
*236 Despite the fact that a larger share of the marital assets was awarded to Louise, and despite the court's consideration of the statutory factors in section 721, the record before us reflects that Louise cannot currently meet her living expenses on her income alone. We have previously stated that an alimony award is insufficient if it is premised on the assumption that a spouse will invade her portion of marital assets. Noyes, 662 A.2d at 923 (citing Bonnevie v. Bonnevie, 611 A.2d 94, 95 (Me.1992)).
At the time of the divorce, Louise's net income from employment was $10,243 and she was to receive an additional $7,761 from Peter in the form of child support for a total annual income of $18,004. Louise submitted a statement to the trial court estimating her annual expenses at $30,135. On this record, Louise's reported monthly expenses exceed her monthly income by $1,011.
At trial Louise testified that she has had to take money from her savings account to meet ordinary living expenses. Although Peter offered testimony that many of Louise's expenses are inflated, the judgment is silent on the issue of whether the court found that Louise has the ability to meet her living expenses without any award of either transitional or permanent alimony.
"[T]he divorce court has a duty to make findings sufficient to inform the parties of the reasoning underlying its conclusions and to provide for effective appellate review." Powell v. Powell, 645 A.2d 622, 623 (Me. 1994). We will assume that the court found all the facts necessary to support its decision when neither party has filed a motion for specific findings of fact and conclusions of law. Id. at 623-24 (citing Bayley v. Bayley, 602 A.2d 1152, 1154 (Me.1992); Murray v. Murray, 529 A.2d 1366, 1368 n. 1 (Me.1987)). Louise filed a motion for specific findings of fact and conclusions of law on the issue of alimony. The trial court refused to grant her request; therefore, we do not assume that the divorce court made the necessary findings to support its decision. See Powell, 645 A.2d at 624 n. 3.
We acknowledge the trial court's superior position in assessing the credibility of the witnesses and recognize that the court could reasonably have found that Louise has the current ability to support herself in light of her work history and general earning capacity. Nevertheless, any attempt to discern the trial court's reasoning with respect to the disparity between Louise's expenses and income would be purely speculative.[3] Since the record before us reflects that Louise must resort to expending her portion of the marital assets to meet her expenses, we vacate the judgment as it relates to alimony. In light of the court's reexamination of the issue of alimony, it is appropriate that the court reexamine the division of marital property to ensure that the overall financial result of the divorce is equitable. See Dunning v. Dunning, 495 A.2d 821, 824 (Me.1985).
II. Visitation
Peter contends that the trial court's denial of a specific visitation schedule with his daughters was an abuse of the court's discretion. He argues that a specified visitation *237 schedule is the method best suited to commencing and facilitating the significant adjustment that his daughters face as a result of the divorce.
"The court has broad discretion in determining what is in a child's best interests in a custody case, and its judgment, when properly exercised on the basis of the evidence presented, is entitled to very substantial deference." Lee v. Lee, 595 A.2d 408, 412 (Me.1991). In determining the best interest of the children, the court must consider the factors enumerated in 19 M.R.S.A. § 752(5) (Supp.1996).[4]Id.
With respect to visitation rights, the divorce judgment states:
The plaintiff seeks a specific visitation schedule that will require his children to visit him in his home, which he shares with his girlfriend. He lives at his place of employment on Big Island, which is one hour's travel time by car and boat from the parties' home. The children are very involved in sports and other activities, including skiing. The record does not reflect that there are other children on Big Island or what activities are available to the minor children there. The children would be unable to pursue their usual sports and other activities while on Big Island.
The children are uncomfortable when they are with the plaintiff's girlfriend and, apparently, blame her for their parents' separation. The children enjoy visiting with the plaintiff as long as his girlfriend is not present and the defendant has helped to arrange such visitation. These children will have significant adjustments to make as a result of the parties' divorce. It is not in their best interests to include in those adjustments forced visitation at a place remote from their friends and activities and with people around [with] whom the children are not comfortable.
The plaintiff will have the right to visit with and be visited by the minor children at all reasonable times.
The court's findings with respect to visitation are well supported by the record. In fact, Peter does not dispute the findings of the trial court: he simply disagrees with its result. Finding no abuse of the court's considerable discretion, we affirm the judgment as it pertains to visitation.
The entry is:
Judgment vacated as it applies to alimony and division of marital property; affirmed as it applies to visitation. Remanded for further proceedings consistent with the opinion herein.
All concurring,
NOTES
[1] The youngest daughter turned twelve on June 26, 1996.
[2] Section 721 provides that the court must consider the following factors when determining an award of alimony:
A. The length of the marriage;
B. The ability of each party to pay;
C. The age of each party;
D. The employment history and employment potential of each party;
E. The income history and income potential of each party;
F. The education and training of each party;
G. The provisions for retirement and health insurance benefits of each party;
H. The tax consequences of the division of marital property, including the tax consequences of the sale of the marital home, if applicable;
I. The health and disabilities of each party;
J. The tax consequences of an alimony award;
K. The contributions of either party as homemaker;
L. The contributions of either party to the education or earning potential of the other party;
M. Economic misconduct by either party resulting in the diminution of marital property or income;
N. The standard of living of the parties during the marriage; and
O. Any other factors the court considers appropriate.
[3] This is not the case of Deditch v. Deditch, 584 A.2d 649 (Me.1990), where we affirmed the divorce court's failure to award alimony beyond the provision of health insurance when the court found that the wife would have the means of supporting herself if she increased rents from certain rental properties. The wife had presented evidence that her monthly expenses exceeded her monthly income, but her evidence was rebutted by the husband's expert real estate appraiser who testified that the wife was renting the income properties at below-market rates. The court found that the husband's expert was credible and the wife had produced insufficient evidence of her expenses.
Nor is this the case of Cushman v. Cushman, 495 A.2d 330 (Me.1985), where we affirmed the divorce court's failure to award alimony when the wife left the marriage, which was of short duration, with substantial assets and the ability to support herself as a counselor and antique dealer.
[4] Section 752(5) requires the court, in making an award of parental rights and responsibilities with respect to minor children, to consider the following factors:
A. The age of the child;
B. The relationship of the child with the child's parents and any other persons who may significantly affect the child's welfare;
C. The preference of the child, if old enough to express a meaningful preference;
D. The duration and adequacy of the child's current living arrangements and the desirability of maintaining continuity;
E. The stability of any proposed living arrangements for the child;
F. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
G. The child's adjustment to the child's present home, school and community;
H. The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access;
I. The capacity of each parent to cooperate or to learn to cooperate in child care;
J. Methods for assisting parental cooperation and resolving disputes and each parent's willingness to use those methods;
K. The effect on the child if one parent has sole authority over the child's upbringing;
K-1. The existence of domestic abuse between the parents, in the past or currently, and how the abuse affects:
(1) The child emotionally; and
(2) The safety of the child;
K-2. The existence of any history of child abuse by a parent; and
L. All other factors having a reasonable bearing on the physical and psychological well-being of the child.
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669 N.W.2d 304 (2003)
257 Mich. App. 585
AMERISURE INSURANCE COMPANY, Plaintiff/Counterdefendant-Appellant/Cross-Appellee,
v.
GRAFF CHEVROLET, INC., Defendant-Appellee/Cross-Appellant, and
Chrysler Corporation, Defendant/Counterplaintiff-Appellee/Cross-Appellant, and
Auto Club Insurance Association, Defendant.
Docket No. 238478.
Court of Appeals of Michigan.
Submitted June 4, 2003, at Lansing.
Decided July 22, 2003, at 9:00 a.m.
Released for Publication September 13, 2003.
*305 Richards, Tobis & Lewsley (by Lori L. Tobis), Farmington Hills, for the plaintiff.
Sullivan, Ward, Bone, Tyler & Asher, P.C. (by Ronald S. Lederman), Southfield, for the defendants.
Before: FITZGERALD, P.J., and HOEKSTRA and O'CONNELL, JJ.
*306 PER CURIAM.
Plaintiff Amerisure Insurance Company appeals by right the circuit court's order granting summary disposition to defendants Graff Chevrolet, Inc. (Graff), and Chrysler Corporation. This case involves a dispute between two insurance companies arising from an automobile accident. The vehicle involved in the accident was owned by Graff. However, the vehicle was driven by an employee of plaintiff's insured, a Hungry Howie's Pizza store. We affirm in part and reverse in part.
I
While her car was being repaired, Debra Rahn rented a Chevrolet Corsica from Graff. The substitute vehicle agreement (also known as a rental car contract) listed Richard Threehouse, Rahn's fiance, as a permissive user of the car. However, the contract stated that insurance coverage was excluded when the rental car was used "to carry ... property for consideration...." On January 30, 1994, while he was driving the Corsica and delivering pizzas for his employer, Hungry Howie's Pizza, Threehouse collided with another car. The other driver sued Graff, Threehouse, and Hungry Howie's. Ultimately, the claim was settled for $180,000. Because plaintiff and defendant Chrysler Corporation[1]Hungry Howie's and Graff's insurers respectivelycould not agree regarding who was responsible for coverage, each contributed $90,000 to the settlement and agreed to determine coverage in a subsequent proceeding.
In 1999, plaintiff filed a complaint for a declaratory judgment that Chrysler was responsible for payment of the entire settlement. Responding to plaintiff's complaint, defendants[2] admitted, in part, that Threehouse was a permissive user of the car at the time the accident occurred. Defendants claimed as their sole affirmative defense that plaintiff's claims were barred by the statute of limitations. Defendants moved for summary disposition, arguing that because Threehouse negligently caused the accident while employed as a Hungry Howie's pizza delivery person, Hungry Howie's and plaintiff were responsible for Threehouse's negligence according to the doctrine of respondeat superior.[3]
Defendants argued in their response brief that because the rental agreement only granted permissive user status while the driver complied with the terms of the lease agreement, when Threehouse violated the agreement by using the car to deliver pizzas, his status as a permissive user immediately ceased. Thus, plaintiff was solely responsible for providing coverage for its insured, Hungry Howie's. At the hearing on the motion for summary disposition, plaintiff countered, in part, *307 that nothing in the lease agreement forbade Threehouse from using the car to deliver pizzas. Plaintiff further stated that the exclusionary language relied on by defendants in the rental agreement only applied to Rahn, not to Threehouse.
In March 2001, the circuit court ruled that the language of the rental agreement made clear that the car was not to be used for delivery purposes. Consequently, the court ruled that Threehouse's violation of the agreement was an absolute defense against any claim filed against either defendant. Summary disposition was granted to defendants for the $90,000 they contributed to the settlement. On rehearing, the court further concluded that defendants were not required to raise the nonpermissive use issue as an affirmative defense in their first responsive pleading, as plaintiff alleged. On November 16, 2001, the court also ordered plaintiff to pay Chrysler interest on the judgment from the final hearing on November 15.[4] Plaintiff appealed, and defendants cross-appealed concerning the award of interest.
II
The first issue is whether Chrysler and Graff are precluded from arguing on appeal that Threehouse was a nonpermissive user of the rental car at the time of the accident because Chrysler and Graff did not raise this issue in their first responsive pleading. We agree with the circuit court that Chrysler's and Graff's argument was properly raised.
This Court reviews de novo a decision on a summary disposition motion. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). MCR 2.111(F) provides, in relevant part:
(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading .... Under a separate and distinct heading, a party must state the facts constituting
* * *
(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;
(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.
This Court explained in Stanke v. State Farm Mut. Automobile Ins. Co., 200 Mich.App. 307, 312, 503 N.W.2d 758 (1993), that an affirmative defense is "a matter that accepts the plaintiff's allegation as true and even admits the establishment of the plaintiff's prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff's pleadings." (Citation omitted.)
In Stanke, supra at 312-313, 503 N.W.2d 758, this Court held that the issue whether an alleged insured party was operating an "owned" vehicle at the time of an accident was not an affirmative defense. This Court stated that the effect of this claim was to deny that the plaintiff could prove his prima facie case. See id. at 315, 503 N.W.2d 758. The instant case presents a situation very similar to Stanke: Defendants claimed that there was no genuine issue of material fact concerning whether Threehouse was operating the rental car in a manner prohibited by the rental agreement at the time of the accident. Thus, this argument was not subject to the requirement of MCR 2.111(F)(3) *308 that the defense be specifically raised in the first responsive pleading.
Plaintiff also claims that defendants were equitably estopped from claiming that Threehouse's use of the rental car to deliver pizzas was a nonpermissive use because defendants previously admitted that Threehouse was a permissive user of the car at the time of the accident. This Court set forth the elements of equitable estoppel in Cook v. Grand River Hydroelectric Power Co., Inc., 131 Mich.App. 821, 828, 346 N.W.2d 881 (1984):
An estoppel arises where: (1) a party by representation, admissions, or silence, intentionally or negligently induces another party to believe facts; (2) the other party justifiably relies and acts on this belief; and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the facts.
Graff's admissions that Threehouse was a permissive usereven if attributable to Chrysler because Chrysler defended Graffdid not mislead or prejudice plaintiff. See id. Plaintiff, Graff and Chrysler settled the underlying personal injury claim because defendants agreed that liability existed, but disputed between themselves who was responsible for providing coverage. The insured parties were Hungry Howie's and Graff, and neither was prejudiced by Graff's admissions that Threehouse was a permissive user because they agreed to settle the underlying lawsuit and allow their insurance carriers to resolve the coverage dispute between themselves in a declaratory judgment action. Therefore, defendants are not equitably estopped from raising the nonpermissive use defense.[5]
III.
The second issue is whether the phrase in the rental agreement, "to carry passengers or property for consideration express or implied," is ambiguous. We hold that it is not.
Plaintiff maintains that the contract must be interpreted against defendants and that a reasonable interpretation does not support its application to Threehouse's act of using the car to deliver pizzas. The rental agreement Rahn executed listed her fiance, Threehouse, as a person who could be permitted by Rahn to drive the car; that is, he was a permissive user according to the contract.[6] The agreement contained a page of terms and conditions, including the following restriction:
5. The Customer agrees that said Automobile shall not be used or operated:
* * *
i. To carry passengers or property for a consideration, express or implied.
*309 Paragraph 12 of the agreement further provided:
12. If there is any violation of any of the terms, conditions, covenants or restrictions of this agreement by the Customer or by any other driver to whom the Customer has granted permission to operate the Automobile, the rights of the Customer and such other driver to use or operate the Automobile shall terminate immediately, and such violations shall constitute an absolute defense against any claim filed against the Owner or its insurance carrier, and the Customer and such other driver, hereby agree, jointly and severally, to indemnify and save harmless the Owner and its insurance carrier of and from any and all damages, loss, cost and expense that the Owner or its insurance carrier, or both, shall sustain including but not limited to, court costs and counsel fees by reason of any claim for personal injury or property damage. [Emphasis added.]
The rental agreement was a contract between Rahn and Graff, but because it provided insurance coverage, implicating Chrysler's insurance coverage, it was also, in a way, an insurance contract. See, e.g., State Farm Mut. Automobile Ins. Co. v. Enterprise Leasing Co., 452 Mich. 25, 36, 549 N.W.2d 345 (1996) (example of an automobile rental contract providing automobile insurance coverage only for permissive uses).[7] Concerning the interpretation of insurance contractsbut equally applicable to all contractsour Supreme court, in Auto-Owners Ins. Co. v. Churchman, 440 Mich. 560, 566-567, 489 N.W.2d 431 (1992), stated:
An insurance policy is much the same as any other contract. It is an agreement between the parties in which a court will determine what the agreement was and effectuate the intent of the parties. Eghotz v. Creech, 365 Mich. 527, 530, 113 N.W.2d 815 (1962). Accordingly, the court must look at the contract as a whole and give meaning to all terms. Fresard v. Michigan Millers Mut. Ins. Co., 414 Mich. 686, 694, 327 N.W.2d 286 (1982). Further, "[a]ny clause in an insurance policy is valid as long as it is clear, unambiguous and not in contravention of public policy." Raska v. Farm. Bureau Mut. Ins. Co. of Michigan, 412 Mich. 355, 361-362, 314 N.W.2d 440 (1982). This Court cannot create ambiguity where none exists. Edgar's Warehouse, Inc. v. United States Fidelity & Guaranty Co., 375 Mich. 598, 602, 134 N.W.2d 746 (1965).
... [C]overage under a policy is lost if any exclusion within the policy applies to an insured's particular claims. Fresard, supra at 695, 327 N.W.2d 286. Clear and specific exclusions must be given effect. It is impossible to hold an insurance company liable for a risk it did not assume. Kaczmarck v. La Perriere, 337 Mich. 500, 506, 60 N.W.2d 327 (1953).
Threehouse, the permissive user of the car, was involved in an accident while using the car in the course of his employment as a pizza delivery person. The circuit court determined that Threehouse's use of the car to deliver pizzas violated the condition of the rental agreement forbidding "carry[ing] people or property for a consideration, express or implied." After a survey of relevant out-of-state *310 cases, we hold that the better view is that the exclusion precludes coverage in this case.[8]
Plaintiff does not contest that Threehouse used the car to carry propertythe pizzasbut contends that because he was paid a wage for whatever work he did and did not receive a special wage or mileage reimbursement for carrying pizzas, he did not carry property for consideration. We disagree. See Rossow v. Brentwood Farms Dev., Inc., 251 Mich.App. 652, 658, 651 N.W.2d 458 (2002), citing Michigan Nat'l Bank v. Laskowski, 228 Mich.App. 710, 714, 580 N.W.2d 8 (1998) (this Court interprets a contract according to the plain meaning of its terms).
This Court has stated that the term "consideration" has an "ordinary meaning[] [that is] readily and easily understandable to people of ordinary intelligence." People v. Cooper, 166 Mich.App. 638, 652, 421 N.W.2d 177 (1987). In Gen Motors Corp. v. Dep't of Treasury, 466 Mich. 231, 238-239, 644 N.W.2d 734 (2002), our Supreme Court held:
To have consideration there must be a bargained-for exchange. Higgins v. Monroe Evening News, 404 Mich. 1, 20-21, 272 N.W.2d 537 (1978). There must be "`a benefit on one side, or a detriment suffered, or a service done on the other.'" Plastray Corp. v. Cole, 324 Mich. 433, 440, 37 N.W.2d 162 (1949). Courts do not generally inquire into the sufficiency of consideration[.] Harris v. Bond & Mtg. Corp., 329 Mich. 136, 145, 45 N.W.2d 5 (1950). It has been said "[a] cent or a pepper corn, in legal estimation, would constitute a valuable consideration." Whitney v. Stearns, 16 Me. 394 (1839).
Threehouse was employed by Hungry Howie's to make and deliver pizzas. He was paid the minimum wage and was not reimbursed for his mileage, although he did receive tips. In our view, because Threehouse was hired for the purpose of delivering pizzas, his transportation of those pizzas was for consideration. When he borrowed his fiance's car, he did so with the intent to use the car to deliver pizzas so that he could fulfill the conditions of his employment and receive payment in returnif he refused to deliver the pizzas, he would not be paid. He did not simply intend to use the car to drive to work and back.
Moreover, the provision at issue is an appropriate contract exclusion. Graff was renting out a car to Rahn, presumably as a temporary replacement for Rahn's private car. It is reasonable to conclude that a commercial vehicle would command a higher insurance premium because it would likely accumulate more mileage and be used in circumstances more likely to result in accidents. See, e.g., Johnson v. Allstate Ins. Co., 505 So.2d 362, 367 (Ala., 1987); Cartos v. Hartford Accident & Indemnity Co., 160 Va. 505, 516-517, 169 S.E. 594 *311 (1933); Orcutt v. Erie Indemnity Co., 114 Pa.Super. 493, 496, 174 A. 625 (1934).
We conclude that the circuit court correctly ruled that Threehouse's use of the rental car to deliver pizzas triggered the exclusionary provision of the rental agreement, and, because of the exclusion, defendants were relieved of their obligation to provide liability coverage.[9]
IV
Third, we must decide whether the circuit court erred in granting Chrysler's oral motion to file a counterclaim against plaintiff. We hold that the circuit court did not err.
This Court reviews for an abuse of discretion the circuit court's decision to permit a party to amend its pleadings. Weymers v. Khera, 454 Mich. 639, 658, 563 N.W.2d 647 (1997). MCR 2.118(A)(2) provides that a party may amend its pleadings with leave of the court and that leave should be freely given "when justice so requires." In Weymers, supra at 658-660, 563 N.W.2d 647, our Supreme Court stated:
A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons:
"[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of allowance of the amendment, [and 5] futility ...." [Ben P. Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973).] ...
Delay, alone, does not warrant denial of a motion to amend. Fyke, supra at 663-664, 213 N.W.2d 134. However, a court may deny a motion to amend if the delay was in bad faith or if the opposing party suffered actual prejudice as a result. Id. "Prejudice" in this context does not mean that the allowance of the proffered amendment may cause the opposing party to ultimately lose on the merits. Id. at 657, 213 N.W.2d 134. Rather, "prejudice" exists if the amendment would prevent the opposing party from receiving a fair trial, if for example, the opposing party would not be *312 able to properly contest the matter raised in the amendment because important witnesses have died or necessary evidence has been destroyed or lost. Id. at 663, 213 N.W.2d 134.... We hold that a trial court may find prejudice when the moving party seeks to add a new claim or a new theory of recovery on the basis of the same set of facts, after discovery is closed, just before trial, and the opposing party shows that he did not have reasonable notice, from any source, that the moving party would rely on the new claim or theory at trial....
Plaintiff argues that the tardy filing of defendants' countercomplaint should have been prohibited because of undue delay and prejudice. However, delay alone is generally not sufficient to warrant denial of a motion to amend, Weymers, supra at 659, 563 N.W.2d 647, and plaintiff has failed to present any evidence of prejudice. Plaintiff argues that discovery was closed, but fails to indicate what further relevant discovery would have been required. Plaintiff claims that the counterclaim advanced a new theory of recovery based on the existing set of facts. However, the counterclaim essentially made the argument that plaintiff was solely responsible for payment of the settlement of the underlying lawsuit and that plaintiff had been aware of that dispute since before the settlement was paid by equal contributions from the disputing insurance companies. With regard to the actual "new" theory of nonpermissive use, the circuit court gave plaintiff ample opportunity to contest that theory on rehearing. Consequently, plaintiff fails to demonstrate that the circuit court abused its discretion by permitting defendants to amend their pleadings by filing a countercomplaint.
V
Finally, Graff and Chrysler crossappeal, raising the following issue: Whether the circuit court erroneously limited Chrysler's recovery of interest under M.C.L. § 600.6013.
Chrysler contends that it is entitled to interest on its payment of $90,000 in settlement of the underlying lawsuit from the date that it paid that sum. Chrysler maintains that prejudgment interest in indemnification cases is awarded from the date the payment is made, rather than the date the complaint is filed. The circuit court disagreed and ruled that the statute provides that interest is calculated from the date the complaint is filed, and, because Chrysler did not file a countercomplaint in response to plaintiff's complaint, interest did not accrue until the date the circuit court denied plaintiff's motion for rehearing.
This Court reviews de novo a circuit court's award of interest pursuant to M.C.L. § 600.6013. Beach v. State Farm Mut. Automobile Ins. Co., 216 Mich.App. 612, 623-624, 550 N.W.2d 580 (1996). Both parties agree that the statutory basis for the payment of prejudgment interest is § 6013, which at the time of the hearing provided, in relevant part:
(1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section....
* * *
(5) For complaints filed on or after January 1, 1987, if a judgment is rendered on a written instrument, interest shall be calculated from the date of filing the complaint to the date of satisfaction of the judgment ....
(6) Except as otherwise provided in subsection (5) and subject to subsection (11), for complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated ... from the date of filing the complaint ....
*313 This statute provides that in the case of both a judgment on a written instrument and a money judgment, interest is paid from the date of filing the complaint. See also Prestige Cas. Co. v. Michigan Mut. Ins. Co., 969 F.Supp. 1029, 1032 (E.D.Mich., 1997). Thus, we hold that the statutory reference to "the complaint" means the complaint that initiates the legal action between the two partiesin this case, plaintiff's complaint for declaratory judgment. See Wickens v. Oakwood Healthcare Sys., 465 Mich. 53, 60, 631 N.W.2d 686 (2001) ("If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.") (Citation omitted.) Therefore, the circuit court's decision on this issue is reversed. In all other respects, we affirm the court's decision.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[1] Specifically, Graff's insurance carrier is Chrysler Insurance Company. However, Chrysler Insurance Company is represented in this action by defendant Chrysler Corporation.
[2] In the court below, plaintiff stipulated the dismissal of defendant Auto Club Insurance Association with prejudice.
[3] Plaintiff also moved for summary disposition, claiming that both Chrysler's and plaintiff's insurance policies contained an "other insurance" clause that provided that in the case of multiple insurers, each policy would be the primary insurer with respect to an "owned" vehicle, but that with regard to a nonowned vehicle, the policy would provide only excess coverage. Plaintiff asserted that because Graff owned the subject vehicle, its insurerChryslerwas the primary insurer; thus, because Hungry Howie's did not own the vehicle, its insurerplaintiffwas liable only for any excess judgment that was not covered by Graff's policy with Chrysler. However, for reasons we will explain below, there is no excess judgment in the present case.
[4] Defendants filed a countercomplaint on November 26 specifically requesting reimbursement, because the circuit court ruled at the November 15 hearing that defendants could do so.
[5] Moreover, as the circuit court ruled, Graff's admission that Threehouse was a permissive user was not inconsistent with defendants' subsequent claim that coverage was excluded because Threehouse's commercial use of the rental vehicle was forbidden by the rental agreement. As we explain more fully below, the rental agreement forbade customers (the renter or a permissive user) from "carry[ing] passengers or property for a consideration...." Threehouse's commercial use of the vehicle to deliver pizzas violated this provision of the agreement and precluded coverage by defendants.
[6] The rental agreement commenced with the following statement:
In consideration and upon covenants, terms and conditions herein contained, the permissive user as a service customer, hereinafter referred to as "the Customer", rents a temporary substitute automobile that is described in this agreement, hereinafter referred to as "the Automobile", from the owner of the automobile, hereinafter referred to as "the Owner."
[7] According to the no-fault automobile insurance act, rental car contracts may not completely disclaim insurance coverage for a rental vehicle. See Enterprise Leasing Co., supra at 35-36, 549 N.W.2d 345, cited in Ryder Truck Rental, Inc. v. Auto-Owners Ins. Co., Inc., 235 Mich.App. 411, 414, 597 N.W.2d 560 (1999). The opinion in Ryder Truck Rental, supra, stated that limiting insurance coverage was permissible and distinct from the prohibition on completely excluding coverage of a rental car.
[8] 57 A.L.R. 5th 591, § 2, p. 603, summarizes the states' differing approaches to this issue:
In cases where the facts involve the carrying of property, courts have often considered whether the consideration paid for such transport was an hourly wage or a per-delivery charge. In a number of cases the courts have decided that since the clause was ambiguous as to whether an hourly wage was intended to be covered by the term "fee" or "charge" or "consideration," as used in the clause, then the ambiguity would be resolved in favor of the insured. Other courts have enforced the clause in cases where the property was being transported by an employee receiving an hourly wage, because the courts reasoned that the insurer had not bargained for the risk associated with such a commercial use of a vehicle when writing an automobile policy for personal liability. [Citations omitted.]
[9] Plaintiff also raises three related claims. First, plaintiff argues that the provisions of the substitute vehicle agreement violate Michigan compulsory lawsthe requirement that a vehicle owner insure the vehicle. See M.C.L. § 257.520(b)(2) (the financial responsibility act, which mandates insurance coverage for permitted drivers of rental cars), and M.C.L. § 257.401(3) (the owner's liability statute, which provides similar coverage for an "authorized" driver or an immediate family member). Because the rental car agreement only disclaimed liability for a specified nonpermissive use and not for all permissive users, the agreement was lawful. See, e.g., Enterprise Leasing Co, supra.
Second, plaintiff now claims on appeal that Threehouse was not a "customer" under the terms of the rental agreement. It does not appear that plaintiff argued this issue below, and this argument is not included in plaintiff's statement of the questions presented. Therefore, it has been waived. McGoldrick v. Holiday Amusements, Inc., 242 Mich.App. 286, 298, 618 N.W.2d 98 (2000), citing City of Lansing v. Hartsuff, 213 Mich.App. 338, 351, 539 N.W.2d 781 (1995), and Meagher v. McNeely & Lincoln, Inc., 212 Mich.App. 154, 156, 536 N.W.2d 851 (1995).
Third, plaintiff contends that the policy of insurance issued by Chrysler provides primary coverage for the accident. Because we hold that the circuit court correctly ruled that Threehouse's violation of the exclusionary clause in the rental agreement rendered the agreement void and relieved Chrysler of its duty to provide coverage, it was plaintiff's duty to provide primary coverage for Hungry Howie's employees. See, e.g., Enterprise Leasing Co., supra. As a consequence of the fact that Chrysler's policy exceeded the settlement amount, there is no excess judgment amount and Chrysler is responsible for the entire settlement.
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95 Wis.2d 461 (1980)
290 N.W.2d 510
Marian D. REITER and Harold Reiter, Plaintiffs-Respondents,
v.
Paul DYKEN and Linda Dyken, Defendants-Appellants and Third-Party Plaintiffs,
Ogden and Company, Inc., Third-Party Defendant-Respondent.
No. 77-398.
Supreme Court of Wisconsin.
Argued March 3, 1980.
Decided April 8, 1980.
*462 For the appellants there were briefs and oral argument by Burton A. Strnad of Milwaukee.
For the respondents there was a brief by Clifford C. Kasdorf, Jeffrey A. Schmeckpeper and Kasdorf, Dall, Lewis & Swietlik, S.C., of Milwaukee, and oral argument by Clifford C. Kasdorf.
For Ogden & Company, Inc., there was a brief and oral argument by Phillip E. Crump of Milwaukee.
BEILFUSS, C.J.
Plaintiff Marian D. Reiter was injured when she slipped and fell on the rear walkway of a house owned by defendants Paul and Linda Dyken and located in the Village of Shorewood.
At the time of the accident the house was unoccupied. The Dykens had moved out of the state several months earlier and were in the process of selling their former residence. They entered into a listing contract with third-party defendant Ogden & Company, a local real estate brokerage company, who then in turn listed the *463 property with Multiple Listing Service of which it was a member.
Multiple Listing Service (M.L.S.) is an organization of real estate brokers which compiles and distributes information on each of the properties listed individually with its members. Member brokers are then permitted to show any of these properties and, if a sale results, to share in the commission with the original listing broker.
The plaintiff, Marian Reiter, was an employee of Edward A. Purtell & Company, also an M.L.S. realtor, and at the time of the accident was in the process of showing the Dyken home to Anders and Madeline Arnheim, who were prospective purchasers. As she was walking with the Arnheims from the garage to the rear door of the home, she slipped on the snow-covered walkway and fell to the ground. She suffered a fractured right ankle and aggravated a pre-existing back injury as a result of the fall.
On July 18, 1975, the plaintiff and her husband commenced this action against Paul Dyken. They subsequently amended their complaint to include Linda Dyken, his wife, as a defendant. The complaint alleged that the defendants were negligent in failing to remove the snow and ice which had accumulated on the walkways of their premises and in failing to warn persons on the premises that a portion of the walkway from the garage to the house sloped slightly, which fact was concealed by the accumulation of snow and ice. The complaint further alleged that such negligence on the part of the defendants was the proximate cause of plaintiff's injuries.
The Dykens as defendants impleaded Ogden & Company, alleging in a third-party complaint that a listing contract between Ogden and the defendants was in full force and effect at the time of the accident, that Ogden knew that defendants' premises was vacant and unoccupied, but that Ogden had failed to take proper precautions *464 to protect persons invited onto the premises. Defendants demanded judgment for indemnification, or in the alternative, for contribution against Ogden in the event plaintiffs obtained a judgment against them.
Following a trial before a jury, Ogden moved for dismissal on the ground that, as a matter of law, it owed no duty either as to Marian Reiter or the Dykens to remove snow and ice from the back walkway of the premises or to warn persons on the premises of the fact that the walkway sloped. The trial court granted the motion and entered an order to that effect.
The case was then submitted to the jury in the form of a special verdict which included questions as to negligence and cause with respect to the Dykens, Edward A. Purtell & Company and Marian Reiter. Because Purtell & Company was immune from liability under the exclusive remedy provision of the Workers' Compensation Act, questions as to its negligence were submitted for purposes of comparison only.[1]
The jury returned a verdict apportioning the causal negligence as follows: Dykens 30 percent; Edward A. Purtell & Company 20 percent; and Marian Reiter 50 percent. The jury awarded Mrs. Reiter $15,000 for personal injuries to date, $16,000 for future personal disability and $28,500 for loss of earning capacity. Her husband was awarded $1,500 for loss of his wife's services, society and companionship, and medical expenses were fixed by the court at $5,883.
Counsel for the Dykens then moved for judgment dismissing the complaint on its merits on the ground that defendants were not liable because plaintiff's negligence was found to be greater than their own.
*465 Plaintiffs' counsel moved the court to change the answers to Questions 5 and 6 of the verdict relating to Marian Reiter's negligence from "Yes" to "No" or, in the alternative, that a new trial be granted because of the trial court's failure to instruct the jury as to defendants' duty under the safe-place statute and its inclusion of Edward A. Purtell & Company in the verdict.
The trial court denied plaintiffs' motions after verdict, but then, in what the court itself described as "a startling fashion," it granted judgment to the plaintiffs. The trial court arrived at this result by adding together the negligence of both the Dykens and Purtell & Company, and then comparing the total to that of Marian Reiter. It concluded that because her negligence was not greater than the combined negligence of the others, she was entitled to recover. However, the trial court limited plaintiffs' recovery to 30 percent of the total damages, representing that portion of the causal negligence which had been attributed to the Dykens. Judgment was entered accordingly.
The principal issue raised on this appeal is whether the trial court erred in combining the negligence of the Dykens with that of Purtell & Company for purposes of determining whether plaintiffs were entitled to recover. Other issues regarding the duty owed by the defendants to the plaintiff, the trial court's dismissal of Ogden from the action, and the amount of damages awarded are also raised but, because of our determination of the principal issue, need not be addressed.
In support of its decision to compare Mrs. Reiter's negligence with the combined negligence of both the defendants and Purtell & Company in determining whether plaintiffs could recover, the trial court relied upon this court's decision in Reber v. Hanson, 260 Wis. 632, 51 N.W.2d 505 (1952). That case established the sole exception to the general rule in this state that the negligence *466 of the parties is to be compared individually for purposes of determining whether liability exists.[2]
Plaintiffs contend that the trial court was correct in combining the negligence of the defendants with that of Mrs. Reiter's employer under the rationale of the Reber Case, but that, even if this court concludes that Reber does not apply, it should nevertheless affirm the trial court's decision by modifying its long-standing construction of the comparative negligence statute. We turn first to a consideration of Reber v. Hanson, supra.
Reber involved a wrongful death action brought by the parents of a child who was killed by a truck making deliveries to their family-owned cheese factory. The family lived in the same building out of which they operated their business. Circling the building was a driveway which was used regularly by truckers making deliveries and picking up goods from the factory. The child who was killed was accustomed to playing in the driveway and had often been seen there by frequenters to the factory. The parents knew their child played in the driveway and asked the truck drivers to look out for him, but did nothing to keep the boy away from the drive when deliveries were being made.
In submitting the case to the jury, the trial court included in the special verdict a question which required that the parents' contributory negligence be considered as a unit rather than individually. The jury returned a verdict finding the truck driver 25 percent and the parents 75 percent causally negligent. Judgment was granted for the defendant and the parents appealed claiming that the trial court had erred in combining their negligence.
This court affirmed the judgment and upheld the form of the comparative negligence question submitted by the *467 trial court. It based its holding upon the fact that "the duty to protect was joint, the opportunity to protect was equal, and as a matter of law neither the obligation nor the breach of it was divisible." Reber v. Hanson, supra, 260 Wis. at 638. Under these circumstances, the court concluded, the trial court was correct in requiring the jury to consider the negligence of the separate parents as a unit.
In the case at hand the trial court held that the Reber rationale controlled because "the identical act, the failure to shovel the snow was the item of negligent conduct on the part of both the Purtell Company and the Dykens." This fact, in the trial court's opinion, justified comparing plaintiff's negligence with the combined negligence of both the other parties to determine whether recovery should be allowed.
[1]
Under Reber, however, more is required than identical acts or omissions before the negligence of separate individuals may be combined for comparison purposes in determining liability. In addition, the duty breached and the opportunity to fulfill that duty must be the same, and neither the obligation nor the breach of it may be divisible. Considered in light of these requirements, this was not a proper case in which to apply Reber.
The respective duties of the defendants and plaintiffs' employer were different both in nature and degree. The duty owed by the defendants was the common law duty of ordinary care owed by a landowner to anyone who comes upon his property with consent.[3] Whatever duty Purtell & Company owed, on the other hand, arose under the safe-place statute. Instead of ordinary care, an employer's duty under the safe-place statute is to maintain its place of employment in as safe a condition as the nature *468 of the place reasonably permits.[4] As the trial court properly instructed the jury, these duties are not the same.
[2]
Nor are they indivisible. Because an employer's duty under the safe-place statute is greater than that of a landowner at common law, it was certainly conceivable for the jury to have apportioned the entire blame for the unsafe condition of the premises to Purtell & Company. The jury could have found that the Dyken home had been maintained in a sufficiently safe condition under the common-law standard of ordinary care, but that it did not meet the higher standard imposed by the safe-place statute. Unlike the parents' duty to care for and watch over their child which was at issue in Reber, the duties of the defendants and plaintiffs' employer in this case to maintain the premises in a safe condition were independent and separable. Thus, the Reber exception to the general rule that the negligence of the parties is to be compared individually does not apply.[5]
Even if a proper basis for combining the negligence of the defendants with plaintiff's employer did exist, it would have still been improper for the trial court to have done so after the case had already been tried and submitted to the jury on the assumption that the parties would be compared individually. In Mariuzza v. Kenower, supra, the court affirmed the trial court's denial of a request for combining the negligence of the defendants in part because the request was not timely. The request *469 was first made on motions after verdict. Plaintiff had made no objection as to the instructions or form of verdict which required the jury to determine whether or not the several duties of the defendants had been separately breached by either or both of them. Under these circumstances, said the court, plaintiff "was not entitled to change his game plan after the verdict was returned and argue a theory of the case different from that contained in the complaint, instructions and form of verdict." Id., 68 Wis.2d at 327.
Similarly in this case, once the case was tried and submitted to the jury on one theory of determining liability, it was improper for the trial court to, on its own intiative, decide the case on another theory.
Having concluded that the trial court's reliance upon Reber v. Hanson, supra, was misplaced, we now turn to plaintiffs' contention that this court should change its longstanding construction of the comparative negligence statute.
In 1931 the legislature enacted sec. 331.045 (now sec. 895.045), Stats., as a limitation upon the common law doctrine of contributory negligence. As it now exists, that section reads as follows:
"895.045 Contributory negligence. Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering."
Since its enactment, the court has consistently construed this statute as requiring a comparison of the plaintiff's negligence with that of each individual defendant in order to determine whether a plaintiff is entitled *470 to recover. Recovery has been allowed only where the plaintiff's own negligence was found to be less than or, since 1971, equal to that of the person from whom recovery was sought.[6]
In Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495 (1961), the court expressly stated that this construction was based upon the legislature's intent in enacting sec. 895.045, Stats. To construe the statute as calling for a comparison between the plaintiff's negligence and that of the others combined, said the court, would permit a plaintiff to recover from a defendant less negligent than himself. "We cannot believe that the legislature intended such a result." Id., 14 Wis.2d at 610.[7]
Subsequent cases have affirmed Schwenn's holding that sec. 895.045, Stats., provides for the individual comparison of the plaintiff's negligence with that of each defendant to determine if the plaintiff is entitled to recover. Soczka v. Rechner, 73 Wis.2d 157, 164, 242 N.W.2d 910 (1976); Mariuzza v. Kenower, supra.
[3]
Having authoritatively construed a statute, well-established principles of judicial decision-making require that the chosen construction be maintained unless and until the legislature either amends or repeals the statute. As the court stated in Zimmerman v. Wisconsin Electric *471 Power Co., 38 Wis.2d 626, 633-34, 157 N.W.2d 648 (1968):
". . . Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts' construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged; for the principle of the courts' decision legislative intent is a historical fact and, hence, unchanging. Thus, when the legislature acquiesces or refuses to change the law, it has acknowledged that the courts' interpretation of legislative intent is correct. This being so, however, the courts are henceforth constrained not to alter their construction; having correctly determined legislative intent, they have fulfilled their function."
[4]
Although the presumption of legislative adoption or ratification of a judicial construction of a statute is entitled to less weight when the court's construction is followed by nearly complete inaction on the part of the legislature with respect to the statute construed,[8] this rule does not apply here. The legislature has taken action with respect to sec. 895.045, Stats., as recently as 1971 when it amended that section to permit recovery when the plaintiffs' negligence is found to be equal to that of the person from whom recovery is sought. If the legislature was in disagreement with the court's longstanding interpretation of the comparative negligence law as requiring an individual comparison in order to determine liability, it would have been a simple matter to correct the court's interpretation by adding a few words to the statute.[9] Its failure to do so strengthens the presumption *472 that normally attends legislative acquiescence in the judicial construction of a statute. The original construction should stand.
However, this does not end the inquiry. The fact that the legislature, in enacting sec. 895.045, Stats., limited the application of the common-law doctrine of contributory negligence to those cases in which the plaintiff was more at fault than each individual defendant in causing his own injuries does not mean that this court may not further limit that doctrine.
[5]
Contributory negligence is a common-law doctrine which was adopted by this court in Chamberlain v. Milwaukee & Mississippi Railroad Co., 7 Wis. 367, 374 (*425, *431) (1858), and Dressler v. Davis, 7 Wis. 449, 452 (*527, *531) (1858). As such it is subject to modification or complete abrogation by the court within the limits set by the legislature. Holytz v. Milwaukee, 17 Wis.2d 26, 39, 115 N.W.2d 618 (1962).
Obviously, in view of the legislature's enactment of sec. 895.045, Stats., this court is completely without authority to reinstate the contributory negligence bar to recovery in cases in which the plaintiff is less negligent than the defendant. To do so would be directly contrary to the clear language of the statute. But that is not what is at issue here.
Permitting recovery where the plaintiff's negligence is less than or equal to the combined negligence of all of those whose conduct contributed to the injury would not extend the bar of contributory negligence beyond the limitation contained in sec. 895.045, Stats., but instead would limit it further than sec. 895.045 requires. Thus, the question presented is not whether the court has the *473 power to extend the defense of contributory negligence beyond the limitation placed upon it by the legislature, but whether it may limit the application of that doctrine further than the legislature has required.
We believe it can.
Both the language and history of sec. 895.045, Stats., indicate an intent on the part of the legislature merely to lessen the harshness of the court-made rule that a plaintiff's negligence in causing his own injury would totally bar his recovery from another, no matter how minor his own negligence was in proportion to that of the person from whom recovery was sought. In enacting sec. 895.-045 the legislature did not create a bar to recovery; it only limited one that the courts had created years earlier. Thus, to the extent that the doctrine of contributory negligence still exists in this state, it is entirely of judicial origin and therefore subject to the inherent power of this court to reconsider matters of its own making.[10]
However, despite our conclusion that this court does have the authority to effectuate the change in our comparative negligence system that plaintiff has requested, we decline to do so. A majority of the court is of the opinion that this change, like the change to a pure comparative negligence system contemplated in Vincent v. Pabst Brewing Co., 47 Wis.2d 120, 177 N.W.2d 513 (1970), would be better left to the legislature.
In taking this position, we are not unaware of the language contained in the recent case of May v. Skelley Oil Co., 83 Wis.2d 30, 38-39, 264 N.W.2d 574 (1978), *474 which indicated that a majority of the court was then willing to make the change in our comparative negligence law now being contemplated. However, because one of the defendants in that case was dismissed, the issue of whether their negligence should have been combined for purposes of determining whether the plaintiff was entitled to recover was rendered moot and the court's statements regarding that issue were reduced to mere dicta. We do not feel bound by such dicta and upon closer and more careful consideration of the issue have decided not to follow it.
To change from the present rule to one in which a plaintiff would be allowed to recover against a person less negligent than himself would have significant ramifications throughout the tort system of allocating losses as it now exists in this state.[11] Specifically, such a change would raise important questions about the extent of a less negligent defendant's liability and the operation of the rules of joint and several liability, contribution, set-off and release. Indeed, unless accompanying changes are made in these related areas of law, the change requested by plaintiff may very well create far more serious problems than it is intended to resolve. For this reason we think plaintiffs' request would be better addressed to the legislature.
That body is better equipped to consider the change advocated by plaintiff together with the corresponding changes in other areas of the law that would be necessary to insure a fair and even system of apportioning liability for negligently caused injuries. It is more capable of fashioning and implementing the kind of comprehensive solution that the multiple tortfeasor situation requires.
*475 Finally, we also note in this vein that a bill which, if enacted, would make the exact change in sec. 895.045, Stats., that plaintiff has asked this court to make, is presently pending before the legislature. We believe it would be inappropriate for this court to exercise its inherent power to effectuate a change in the law that is presently being considered by the legislature.
We therefore decline to do so.
By the Court. Judgment reversed with directions to dismiss the complaint.
SHIRLEY S. ABRAHAMSON, J. (dissenting).
It's a long, long time from May to Reiter, and the majority has dwindled to two. For the reasons set forth in May v. Skelley Oil Co., 83 Wis.2d 30, 38, 264 N.W.2d 574 (1978), and in the dissenting opinion in Gross v. Midwest Speedways, Inc., 81 Wis.2d 129, 146-148, 260 N.W. 2d 36 (1977) (Abrahamson, J. dissenting), I would compare the negligence of the plaintiff with the combined negligence of all the other persons whose negligence is causal to determine whether the plaintiff can recover.
I am authorized to state that Justice Roland B. Day joins in this dissent.
NOTES
[1] Although plaintiffs objected to the trial court's inclusion of Purtell & Company in the verdict for comparison purposes and subsequently moved for a new trial on the ground that consideration of Purtell by the jury was improper, that issue has not been raised on appeal and, therefore, we do not reach it.
[2] Mariuzza v. Kenower, 68 Wis.2d 321, 325-26, 228 N.W.2d 702 (1975).
[3] Antoniewicz v. Reszcynski, 70 Wis.2d 836, 857, 236 N.W.2d 1 (1975).
[4] Presti v. O'Donahue, 25 Wis.2d 594, 599, 131 N.W.2d 273 (1964).
[5] See also Schwenn v. Loraine Hotel Co., 14 Wis.2d 601, 111 N.W.2d 495 (1961), and Mariuzza v. Kenower, 68 Wis.2d 321, 228 N.W.2d 702 (1975), in which the court refused to combine the negligence of defendants for comparison purposes under circumstances almost identical to the case at bar on the grounds that the duty and opportunity to act in those cases were unequal.
[6] See Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 536, 252 N.W. 721 (1934). In 1971, sec. 895.045, Stats., was amended to permit recovery where the plaintiff's negligence was equal to, as well as less than, that of the person from whom recovery was sought. Prior to that time recovery was denied when the parties were equally at fault. Laws of 1971, ch. 47.
[7] This construction of the statute is supported by two law review articles, one by the author of the Wisconsin law, which were written contemporaneously with its enactment. See Padway, Comparative Negligence, 16 Marquette L. Rev. 3 (1931), and Campbell, Wisconsin's Comparative Negligence Law, 7 Wis. L. Rev. 222 (1932).
[8] Green Bay Packaging, Inc. v. ILHR Dept., 72 Wis.2d 26, 35, 240 N.W.2d 422 (1976).
[9] The change to a combined comparison approach in which the plaintiff's negligence would be compared with that of all of the defendants could have been accomplished simply by substituting the words "person or persons against whom recovery is sought," in place of the phrase "person against whom recovery is sought."
[10] This view was expressed by a majority of the court in the concurring and dissenting opinions to Vincent v. Pabst Brewing Co., 47 Wis.2d 120, 177 N.W.2d 513 (1970), where the court considered completely abrogating the doctrine of contributory negligence and thereby moving to a system of pure comparative negligence. See also Lupie v. Hartzheim, 54 Wis.2d 415, 195 N.W.2d 461 (1972).
[11] See Comment, Change of the Wisconsin Comparative Negligence Statute in Multi-Defendant Suits; May v. Skelley Oil Co., 62 Marquette L. Rev. 227, 233, (1978).
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250 Cal.App.2d 584 (1967)
THE PEOPLE, Plaintiff and Respondent,
v.
MANUEL BORRAZA ALVARADO, Defendant and Appellant.
Crim. No. 12571.
California Court of Appeals. Second Dist., Div. One.
May 1, 1967.
Manuel Borraza Alvarado, in pro. per., Morton Herbert, under appointment by the Court of Appeal, and Herbert & Levine for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Philip L. Siracuse, Deputy Attorney General, for Plaintiff and Respondent.
LILLIE, J.
Defendant was charged with possession of heroin ( 11500, Health & Saf. Code), and two prior state felony narcotic convictions and one in the federal court. The People's case was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing; no defense was offered. The trial judge found defendant guilty as charged and the allegation of the first prior to be true; the second was stricken and no finding was made on the third. Defendant was sentenced to the state prison; it was ordered that the sentence run concurrently with that imposed in a previous case. He appeals from the judgment.
On August 31, 1965, around 12:05 a.m., Officers Morales and Croft, in uniform and on duty in a marked police vehicle, saw defendant walking westbound on Brooklyn Avenue; as he approached, he was facing the police car and when he came to the entrance of an alley off of Brooklyn, he turned into it and began running northbound down the alley. Because of numerous burglaries in the area, the officers decided to investigate defendant; they made a left turn into the alley and followed him. The officers saw him run past Cincinnati Street down the alley "into an apartment in the house" and up the rear stairway to the second floor. Officer Morales got out of the vehicle and followed him up the stairs to the second floor and down a hallway; it was dark and he did not see defendant again until he approached the second stairway leading to a possible attic when he turned on his flashlight. In the ray of light he saw defendant sitting down in a corner holding a newspaper (Exh. 2) on his lap. The officer drew his gun and ordered defendant to come down with the newspaper in his hand so that he could "watch the newspaper"; as defendant walked to the end of the stairs, the officer ordered him to drop *587 the newspaper and escorted him out to the police car. There the two officers made a cursory search of defendant to determine if he had any weapons. In the course of the search, Officer Morales noticed that defendant was very nervous, shaking and sweating, and when he turned the flashlight into his eyes, noticed beads of perspiration on his forehead and that his eyes remained pinpointed, indicating to Officer Morales that defendant had "probably just had a fix in the arm." He testified that he could tell defendant was nervous also by the manner in which he spoke. Officer Morales found a pearl handle knife about two inches long in defendant's back pocket; Officer Croft found a package of Camel cigarettes and two match boxes in his front pocket. When Officer Croft laid the cigarettes and match boxes on the trunk of the patrol car, some white powdery substance (5 milligrams of heroin) fell onto the car. Thinking that the white powdery substance might be heroin, Officer Morales proceeded back to inspect the area where defendant originally had been found at the top of the stairs. There he saw a bunched-up piece of newspaper about 12 inches from where defendant had been sitting; he picked it up and inside the paper found a balloon containing a white powdery substance. He then picked up the newspaper (Exh. 2) which defendant had previously dropped; examining it, he found that the lower left-hand corner of the newspaper had been torn out. He then proceeded out to the patrol car where he arrested defendant. In the balloon were 6.82 grams of heroin.
[1] Appellant contends that the search was illegal, thus the evidence obtained as a result thereof was inadmissible. The evidence consisted of three exhibits--5 milligrams of heroin (which fell on the trunk of the police car from the package of Camels and match boxes taken from defendant's pocket) and the balloon containing 6.82 grams of heroin (Exh. 1), the newspaper (Exh. 2) and defendant's shirt (Exh. 3). This is the first time defendant has raised the issue of admissibility.
The record shows that by stipulation the cause was submitted to the trial court on the testimony contained in the transcript of the proceedings had at the preliminary hearing; therein each side reserved the right to offer additional evidence, and all stipulations entered into at the preliminary hearing were deemed entered into in the trial court. The stipulation also provided that "all exhibits received at the preliminary hearing are deemed received in evidence [at the *588 trial], subject to [the trial] Court's ruling." The transcript demonstrates that during the course of the preliminary hearing defense counsel interposed no objection to any of the testimony given, and made neither objection to the admission of the three exhibits nor motion to strike. The only action taken by defendant was at the end of the People's case when he moved to dismiss on the ground that the officer had no legal right to make the search. Even then no argument or citation of authority was given in support of the motion, and the same was denied by the committing magistrate. Even at the trial in the superior court, after the submission of the cause, at which time it was stipulated that the three exhibits received in evidence at the preliminary hearing be deemed received in evidence for the purpose of the trial, subject "to any legal objection of Mr. Osterman [defense counsel]," defense counsel made neither objection to the admission of the evidence nor a motion to strike, and offered no defense on behalf of his client. In arguing the cause to the trial judge, defendant's counsel made no mention of the search or the evidence; his sole argument was that defendant "was in a drunken stupor at the time" which, while no defense, "would go only to the mitigation of sentence."
Having called to the attention of the trial judge nothing concerning the admissibility of the evidence, defendant gave him no opportunity to rule on the specific evidentiary questions he now raises; having failed to properly object in the trial court, he cannot now be heard to argue these matters on appeal for the first time. "Apparently it is appellant's contention that even though he stipulated that the People's case might be submitted upon the testimony taken at the preliminary examination, and even though at the trial he made no objection to or motion to strike out that testimony, the trial judge should have announced or in some manner indicated that he would not follow that particular ruling of the committing magistrate. There was no such responsibility on the part of the trial judge. It was the duty of appellant to object to such testimony as he deemed objectionable. The trial judge was entitled to rely, in the absence of an objection to a particular testimony, upon the stipulation that the People's case was submitted on the testimony taken at the preliminary examination. This contention of appellant is not sustained." (People v. Graves, 84 Cal.App.2d 531, 535 [191 P.2d 32]; People v. Jackson, 177 Cal.App.2d 181, 183 [1 Cal.Rptr. 857]; People v. Miller, 205 Cal.App.2d 116, 121-122 [22 Cal.Rptr. *589 786].) The burden is on defendant in the trial court to make any objections to evidence which he deems to be inadmissible; in the absence thereof, the trial judge may rely upon the stipulation submitting the cause on the testimony taken at the preliminary hearing. [2] "The law is clear that where no question of search and seizure was raised in the trial court the appellant cannot raise it for the first time on appeal." (People v. Gurrola, 218 Cal.App.2d 349, 354 [32 Cal.Rptr. 368]; People v. Hyde, 51 Cal.2d 152, 157 [331 P.2d 42]; People v. Martin, 228 Cal.App.2d 677, 678 [39 Cal.Rptr. 669]; People v. Saldana, 233 Cal.App.2d 24, 33 [43 Cal.Rptr. 312].)
[3a] However, the record supports the conclusion that the search was lawful and the evidence acquired by reason thereof was admissible. [4] A little after midnight, the officers, in the exercise of their official duties and in uniform in a marked police vehicle, were patrolling an area in which numerous burglaries had taken place; defendant was walking toward the police vehicle when suddenly he turned into an alley and ran; it is obvious that recognizing the police vehicle, defendant wanted to avoid an encounter with the officers. "... a police officer may question a person outdoors at night when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary in the discharge of his duties." (People v. Hilliard, 221 Cal.App.2d 719, 723 [34 Cal.Rptr. 809].) There is nothing improper in an officer's questioning persons under such circumstances (People v. Blodgett, 46 Cal.2d 114, 117 [293 P.2d 57]; People v. Martin, 46 Cal.2d 106, 108 [293 P.2d 52]; People v. Michael, 45 Cal.2d 751, 754 [290 P.2d 852]); and in view of the hour, the area and the conduct of defendant, it was not unreasonable for the officers to follow him for the purpose of questioning him. [5] The reasonableness of the officers' decision to investigate the situation is determined in the light of the circumstances appearing to them at the time they were required to act. (People v. Evans, 175 Cal.App.2d 274, 276 [345 P.2d 947]; People v. Wiley, 162 Cal.App.2d 836, 838 [328 P.2d 823].) [6] The combination of circumstances having created a suspicion in the mind of Officer Morales, he decided to investigate and followed defendant in the police car. When he observed defendant enter an apartment house and run up the rear stairs, Officer Morales proceeded on foot to follow him. He lost sight of defendant but after turning on his flashlight found him sitting in the dark on the second floor landing with a newspaper in his lap. Not knowing what, if *590 anything, the newspaper contained, or if a weapon lay beneath it, the officer drew his gun and ordered defendant out of the corner and down the stairs and then to drop the newspaper. At the patrol car the officers searched him for weapons. The right to investigate gives rise to the right to conduct a reasonable superficial search for concealed weapons to protect the safety of the officers, if the circumstances warrant it. (People v. Garrett, 238 Cal.App. 324, 327 [47 Cal.Rptr. 731]; People v. Martines, 228 Cal.App.2d 245, 247 [39 Cal.Rptr. 526]; People v. Mickelson, 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. Hilliard, 221 Cal.App.2d 719, 723 [34 Cal.Rptr. 809].) Here the circumstances justified the investigation and the cursory search for weapons. If in the course of this search contraband is uncovered, it is admissible evidence (People v. Martin, 46 Cal.2d 106, 108 [293 P.2d 52]; People v. Martines, 228 Cal.App.2d 245, 247 [39 Cal.Rptr. 526]); five milligrams of heroin fell onto the trunk of the patrol car from certain objects taken from defendant's pocket. The narcotic was properly admitted in evidence.
[3b] During the search for weapons Officer Morales noted from defendant's appearance and manner of speaking that he was very nervous; he was shaking and sweating, with beads of sweat visible on his forehead, and his eyes remained pinpointed when the officer turned the light from his flashlight into his eyes. These circumstances indicated to him that defendant "probably just had a fix in the arm." Thus, when Officer Croft laid the package of cigarettes and two match boxes on the trunk of the police vehicle and a white powdery substance fell from them onto the car, Officer Morales, "thinking this white powdery substance might be heroin," decided that he "was going up and check the area where the defendant was seated." Moreover, at that time, those same circumstances were sufficient to cause Officer Morales, a trained officer, to believe that defendant then was under the influence of a narcotic, and sufficient to arouse the officer's suspicion that he was in the possession of a narcotic ( 11500, Health & Saf. Code). Defendant then was subject to arrest under section 836.1, Penal Code, for a public offense committed in the presence of the officers; he was also subject to arrest on the basis that there was reasonable cause for them to believe that he was committing a felony ( 836.3). However, the arrest was not made until Officer Morales recovered the container of heroin from the crumpled piece of paper found *591 where defendant had been sitting in the dark, and the newspaper from which a portion had been torn. Not only was the officer justified in returning to the place where defendant had been found but in taking the heroin and newspaper. Both were in plain sight, and things open to view do not require a search. (People v. Martin, 45 Cal.2d 755, 762 [290 P.2d 855]; People v. Terry, 61 Cal.2d 137, 152 [37 Cal.Rptr. 605, 390 P.2d 381].) In any event, a search conducted as an incident to a lawful arrest is valid even though it precedes the arrest. (People v. Simon, 45 Cal.2d 645, 648 [290 P.2d 531]; People v. Hammond, 54 Cal.2d 846, 853 [9 Cal.Rptr. 233, 357 P.2d 289]; People v. Torres, 56 Cal.2d 864, 866 [17 Cal.Rptr. 495, 366 P.2d 823].) Defendant was lawfully arrested without a warrant. [7] "Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty." (People v. Cockrell, 63 Cal.2d 659, 665 [47 Cal.Rptr. 788, 408 P.2d 116]; People v. Torres, 56 Cal.2d 864, 866 [17 Cal.Rptr. 495, 366 P.2d 823]; People v. Ingle, 53 Cal.2d 407, 415 [348 P.2d 577]; People v. Fischer, 49 Cal.2d 442, 446 [317 P.2d 967].)
[8] Appellant argues that the testimony of Officer Morales that he had "probably just had a fix is to be condemned in that no proper foundation was laid as to Officer Morales' ability to detect addiction. The sole foundation made was that the officer had some training in detecting possible heroin addicts."
Such an argument will not be considered by this court unless an objection to the officer's testimony was specifically made on the ground of lack of proper foundation in the trial court. "The trial proceeded upon the theory that the officer was an expert upon the subject of his testimony and the statement by the court that he was an expert was not challenged by defendant. ..." (People v. Mason, 37 Cal.App.2d 407, 410 [99 P.2d 567]; People v. Conterno, 51 Cal.App.2d 167, 169 [124 P.2d 610].) Here defendant failed at both the preliminary hearing and the trial to interpose either a specific or general objection to the qualifications of the officer as an expert in the area of drug addiction.
The judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.
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364 F.Supp. 1032 (1973)
Jerome SIEGEL and Joseph Shuster, Plaintiffs,
v.
NATIONAL PERIODICAL PUBLICATIONS, INC., et al., Defendants.
No. 69 Civ. 1429.
United States District Court, S. D. New York.
October 18, 1973.
*1033 Coudert Brothers, New York City, for plaintiffs; Carleton G. Eldridge, Jr., Gordon T. King, New York City, of counsel.
Weil, Gotshal & Manges, New York City, for defendants; Edward C. Wallace, Marshall C. Berger, New York City, of counsel.
LASKER, District Judge.
Although Clark Kent, generally known as Superman, is happily capable of solving all problems without going to court, his creators and exploiters, mere mortals like the rest of us, are not so fortunate. Jerome Siegel and Joseph Shuster are Superman's creators. They seek a declaration that they, and not the defendant National (the other defendants are National's officers) are entitled to the copyright renewal rights of the renowned comic strip. National counterclaims for a declaration in its favor. It is stipulated that both plaintiffs and defendants have made timely renewal filings with the Register of Copyright. The matter comes before us on defendants' motion for summary judgment dismissing the complaint and declaring National to be the owner of the copyright of all Superman strips during the renewal term. We find, on the material facts as to which there is no genuine issue, that National is the owner of the copyright renewal term and grant the motion.
I.
This is not the first time the parties have locked horns in a contest as to rights to Superman. As indicated below, plaintiffs instituted an action on the subject against National in 1947 in the New York Supreme Court for the County of Westchester. The court made voluminous findings of fact and conclusions of law. Although the issue of renewal rights was not specified in that litigation, we hold that, on the facts found by the court, which are binding on the parties here, National is the owner of all rights in Superman. The facts, as we now describe them, are those found by the State Court,[1] as supplemented by correspondence between the parties marked at a deposition in this action, and, where appropriate, references are made to those findings.
II.
In 1933, Siegel conceived the idea of a cartoon strip, whose feature character was a man of superhuman strength who would perform great feats for the public good. Siegel discussed his idea with Shuster, an artist, and together they prepared a comic strip embodying the idea. They did not publish the strip but continued to collaborate on other cartoon strips, some of which they sold for publication between 1933 and 1938.
*1034 One of their customers during that period was the Nicholson Publishing Co., which purchased material from plaintiffs on behalf of Detective Comics, Inc. (National's predecessor in interest). When, in late 1937, Nicholson went out of business, Detective acquired some of its magazine properties.
On December 4, 1937 Detective entered into a written employment contract with plaintiffs (Exhibit B, annexed to Answer) relating to two features known as "Slam Bradley" and "The Spy" which plaintiffs had been furnishing to Nicholson. This contract provided that the plaintiffs would give their exclusive services as artists in producing "Slam Bradley" and "The Spy" for a period of two years and that "all of these products and work done by said Employee for said Employer during said period of employment, shall be and become the sole and exclusive property of the Employer". The agreement also provided that any new or additional features were to be submitted first to Detective who was given an option on them.
When, in 1938, Detective decided to issue a new comic magazine, to be named Action Comics, it reviewed the Superman material which plaintiffs had prepared in 1933, and requested them to revise and expand it to a full length production suitable for magazines. Plaintiffs submitted the expanded material in February, 1938. On March 1, 1938, prior to the first printing of the first issue of Action Comics, Detective sent Siegel a proposed release (Exhibit A, annexed to Answer). The release, which plaintiffs executed, transferred to Detective the first thirteen page Superman strip, "all good will attached thereto and exclusive right to the use of the characters and story, continuity and title of strip . . . to have and hold forever and to be your exclusive property . . ." (emphasis supplied).
On April 18, 1938, Detective published the Superman strip prepared by plaintiffs in the first issue of Action Comics. After the initial publication, plaintiffs continued to supply Detective with Superman strips for publication. On September 22, 1938, Detective, plaintiffs, and McClure Newspaper Syndicate executed agreements for the newspaper syndication of Superman and other strips. Plaintiffs and Detective simultaneously executed a new long-term employment agreement which stated that Detective was "exclusive owner" of Superman and of the "right to publish" Superman comics. (Findings of Fact 44-46, Exhibit D, annexed to Answer).
As Superman became increasingly popular, certain changes occurred in the relationship between plaintiffs and Detective. Plaintiffs ceased work on other cartoon features to concentrate on the Superman strip. With this change, plaintiffs and Detective executed a supplemental employment agreement on December 19, 1939, increasing plaintiffs' compensation and reiterating that Detective was the "sole and exclusive owner" of Superman, of "all rights of reproduction and of "all copyright and all rights to secure copyright registration in respect of all such forms of reproduction . . ." (Opinion of Judge Young in the Westchester action, Exhibit C, annexed to Answer, emphasis added).
The 1939 agreement was the last written agreement between the parties until 1947. During the intervening years plaintiffs' compensation increased to $1,000. per release plus royalties from newspaper syndication and other forms of commercial exploitation. By 1947, plaintiffs' total compensation from all sources for the strip amounted to over $400,000.
III.
In 1947, plaintiffs brought the action we have described against National, Detective's successor, and several of its officers, seeking, among other things, a determination that the March 1, 1938 release was void, and a declaration of the rights of the parties.
The Westchester action was tried before Official Referee J. Addison Young who rendered a detailed opinion on November *1035 1, 1947, finding the March 1, 1931 release valid and holding that National, not plaintiffs, owned all rights to Superman. On April 12, 1948, Judge Young signed Findings of Fact and Conclusions of Law. His Conclusions of Law included the following:
"1. By virtue of the instrument of March 1, 1938, plaintiffs transferred to DETECTIVE COMICS, INC. all of their rights in and to the comic strip SUPERMAN including the title, names, characters and concept as same were set forth in the first release of said comic strip published in the June, 1938 issue of the magazine `Action Comics' and by virtue of said instrument DETECTIVE COMICS, INC. became the absolute owner of the comic strip SUPERMAN, including the title, names, characters and concept as the same were set forth in the said first release." (Exhibit D, annexed to Answer, emphasis added)
This conclusion was incorporated almost verbatim in an interlocutory judgment signed on April 12, 1948, from which neither side perfected an appeal. Instead, the parties began settlement negotiations, and, on May 19, 1948, signed a stipulation under which National was to pay (and subsequently did pay) some $94,000. in exchange for all rights to Superman and to "Superboy," another cartoon strip created by plaintiffs whose ownership was contested. The stipulation (Exhibit F, annexed to Answer) recited the first conclusion of law just quoted and further stated that:
"7. Defendant NATIONAL COMICS PUBLICATIONS, INC. is the sole and exclusive owner of and has the sole and exclusive right to the use of the title SUPERMAN and to the conception, idea, continuity, pictorial representation and formula of the cartoon feature SUPERMAN as heretofore portrayed and published . . . and such sole and exclusive ownership includes, but is not limited to the fields of book and magazine publications, newspaper syndication, radio broadcasts, dramatic presentations, television, motion picture reproduction and all other forms of reproduction and presentation, whether now in existence or that may hereafter be created, together with the absolute right to license, sell, transfer or otherwise dispose of said rights." (Emphasis added).
On May 21, 1948, Judge Young signed a final consent judgment incorporating this provision and stating:
"ORDERED AND ADJUDGED that plaintiffs, their agents, servants and employees, be and they hereby are enjoined and restrained from creating, publishing, selling or distributing or permitting or causing to be created, published, sold or distributed any material of the nature heretofore created, produced or published under the title SUPERMAN, or any material created, produced or published in imitation thereof, or from using, permitting or causing to be used in connection with any comic strip or other material created by them the title SUPERMAN or any title imitative of the title SUPERMAN or which shall contain as part thereof the word `SUPER'." (Exhibit G, annexed to Answer).
IV.
Defendants move for summary judgment on two grounds: first, that the initial Superman strip was a "work for hire" within the meaning of the Copyright Act and second, that the various agreements between the parties, as well as the consent judgment in the Westchester action divested plaintiffs of the renewal copyrights. Before we discuss these contentions, we note that the findings of the State Supreme Court in the Westchester action are binding upon us here. Vernitron Corp. v. Benjamin, 440 F.2d 105, 108 (2d Cir. 1971). The terms of the stipulation of settlement in that action, and the consent judgment are also binding. Stuyvesant Insurance Co. v. Dean Construction Co., 254 F. Supp. 102, 110 (S.D.N.Y.1966), aff'd on opinion below, 382 F.2d 991 (2d Cir. *1036 1967). Furthermore, the issues which plaintiffs want to litigate in this action could have been raised in the Westchester action, and consequently are barred by res judicata as well, so that summary judgment must be entered on this ground in addition to those we are about to discuss.
We find that Superman is a "work for hire" within the meaning of the Copyright Act, 17 U.S.C. § 26. In Picture Music, Inc. v. Bourne, 314 F.Supp. 640, 650-651 (S.D.N.Y.1970), Judge Pollack ably described the elements of an employment for hire: "The existence of an arrangement going beyond an assignor assignee relationship," the payment of wages or other remuneration, the "right of the employer to direct and supervise the manner in which the work is performed," and the "existence of an express contract for hire, expecially one calling for an author to devote his exclusive artistic services to his employer." These elements were indisputably present in the relationship between plaintiffs and Detective. The Westchester Court found that on December 4, 1937, plaintiffs entered into a written contract of employment with Detective with reference to two comic features known as "Slam Bradley" and "The Spy" (Finding of Fact 15) which provided that plaintiffs would "give their exclusive services as artists" in producing these features and that "any new and additional features which Employees produce for use in a comic magazine are to be first submitted to Employer, who reserves the right to accept or reject same within a period of Sixty days" (Finding of Fact 15).
The Westchester court also found as a fact that after examining the 1933 Superman material, Detective "returned it to plaintiffs for revision and expansion into a full-length thirteen page comic strip release suitable for magazine publication" and that plaintiffs complied with Detective's requests (Findings of Fact 21, 22). The court further found that the release executed by plaintiffs on March 1, 1938, represented the exercise by Detective of the option granted to it by the employment agreement of December 4, 1937 (Finding of Fact 29). These findings, particularly when viewed in conjunction with the correspondence between the parties during 1937-38, establish that Detective as employer supervised and directed the work of plaintiffs in connection with Superman.
Even if the relationship between Detective and plaintiffs was not a classic employment relationship, the Second Circuit's decision on appeal in Picture Music, Inc. v. Bourne, 457 F.2d 1213, 1216-1217 (2d Cir. 1972), requires a finding that Superman was a "work for hire." There the court, in holding that the work of an independent contractor was a work for hire if it was done "at the instance" of one who commissioned the work, observed that "The purpose of the statute is not to be frustrated by conceptualistic formulations of the employment relationship."
There can be no doubt that the plaintiffs' revisions of the 1933 Superman strip in 1938 were done at the instance of Detective.
Plaintiffs contend, however, that notwithstanding the employment relationship, Superman was a fully developed work by 1933 so that, as a matter of law it cannot be a "work for hire". The authority cited for this proposition, Scherr v. Universal Match Corp., 417 F.2d 497 (2d Cir. 1969) actually militates against plaintiffs' position. That case dealt with the copyright status of a statue in an Army post, which the plaintiffs, two enlisted men, had constructed pursuant to an Army work assignment. The assignment grew out of a clay model of the statue created by the two men during their leisure time. In deciding that the larger statue was a work made for hire, the court said:
"While the idea for the statue originated from the smaller clay model, the statue differs from the model. Moreover, plaintiffs never attempted to secure a copyright for their original clay model. Their claim of infringement *1037 rests solely upon whether they possess an effective copyright in the finished statue." (Scherr, supra, at 499).
The court's reasoning in Scherr is controlling here. The court in the Westchester action explicitly found that the original (1933) embodiment of the Superman concept consisted of "a few panels suitable for newspaper syndication" (Finding of Fact 19), and that the strip was suitable for magazine publication only after plaintiffs "resubmitted such revised and expanded material" to Detective (Findings of Fact 21, 22). Moreover, the Westchester court found that the Action Comics strip of 1938, rather than the 1933 newspaper strip, "constituted the formula for the continuing SUPERMAN series to come" (Finding of Fact 22). Res judicata bars plaintiffs from relitigating this issue.
V.
Defendants also argue that the various agreements between the parties, as well as the stipulation of settlement and the consent judgment in the Westchester action transferred the renewal copyrights to Detective. Concededly, none of the agreements between the parties, or the findings in the Westchester action expressly refer to the transfer of the renewal rights. Therefore, the intent of the parties must be established from the language of the agreements and the attendant circumstances.
We believe that the various agreements between the parties consistently reiterated an intention to give to Detective all of the rights in Superman, with no reservation of any kind in plaintiffs. The 1937 employment agreement stated that all work on these features "shall be and become the sole and exclusive property of the Employer, and the Employer shall be deemed the sole creater thereof . . . ," and gave Detective an option on "any new or additional features" created by plaintiffs.
The Westchester court found that the March, 1938 release represented an exercise of that option for the Superman strip. The release transferred "such work and strip, all good will attached thereto and exclusive right to the use of the characters and the story, continuity and title of [the] strip . . . to [Detective] and [its] assigns to have and to hold forever and to be your exclusive property." It also stated that "The intent hereof is to give you exclusive right to use and acknowledge that you own said characters or story and the use thereof exclusively."
The supplemental employment agreement of September 22, 1938 "expressly confirmed that DETECTIVE COMICS, INC. was the exclusive owner of the comic strip known as SUPERMAN . . ." and the consent judgment permanently enjoined plaintiffs from using or furnishing the product to any other person or publication (Finding of Fact 45).
The Westchester court's conclusions of law in the 1947 action stated that by the March 1, 1938 instrument plaintiffs transferred "all their rights in and to the comic strip `SUPERMAN'" and that Detective became the "absolute owner" of the strip (Conclusions of Law # 1, Exhibit D, annexed to Answer).
The language of the interlocutory judgment in that action, as well as the language of the final judgment and the stipulation of settlement is similarly unequivocal. By the stipulation, Paragraph 10, plaintiffs further acknowledged defendants' "absolute right to license, sell, transfer or otherwise dispose of said rights" (Exhibit F, annexed to Answer).
In the face of this repeatedly unequivocal language, plaintiffs cite several authorities for the proposition that general language of assignment does not convey the renewal copyright unless the intention to convey it appears by unambiguous extrinsic evidence. Venus Music Corp. v. Mills Music, Inc., 261 F.2d 577 (2d Cir. 1958); Edward B. Marks Music Corp. v. Charles K. Harris Music Publishing Co., 255 F.2d 518 (2d Cir. 1958) cert. denied, 358 U.S. 831, 79 S.Ct. 51, 3 L.Ed.2d 69 (1958). While we *1038 agree with this argument as a general proposition, these cases are not controlling here. In both Venus and Marks, the creator of the property executed general assignments of the property to one party with no mention of renewal rights, and subsequently executed specific assignments of the renewal rights to another party. The trial courts in both cases had to decide which of these ostensibly inconsistent instruments conveyed the renewal, and consequently looked to extrinsic evidence to establish the intent of the earlier, general assignments. Neither case suggests, however, that extrinsic evidence is required where, as here, the disputed agreements are internally consistent.
We believe that Geisel v. Poynter Products, Inc., 295 F.Supp. 331, 341-342 (S.D.N.Y.1968) is more in point. In Geisel, the plaintiff argued that implicit in the language of general assignment was a trade custom to the effect that defendant would hold the copyright in trust for him. It was undisputed there that defendant owned the renewal term, plaintiff contending that certain other rights were reserved to him. In confirming the assignment, the court said:
"In ordinary acceptance, the expressions `all rights' or `complete rights' have a non-technical and literal meaning. Plaintiff has failed to sustain the burden of proof which is upon him when he seeks to impart to these words a connotation that is diametrically opposite to their plain, colloquial sense . . . The terms . . . when understood according to their plain meaning, signify a totality of rights . . . (Geisel, supra, at pp. 341-342.)
Plaintiffs also assert that the renewal term exists to give the creator a second chance to exploit a property whose marketability was uncertain at the time it was created. They point out that Detective was staffed by thoroughly experienced businessmen who surely would have explicitly referred to the renewal term in the various agreements between the parties had it actually been bargained for.
But these arguments prove too much. Plaintiffs certainly knew by 1947, if not before, that Superman was an extraordinarily marketable man, as well as one of unusual powers. Both parties were represented by distinguished counsel in the 1947 proceedings, which resulted in a stipulation worded in all-inclusive language. The fact that this language makes no specific reference to renewal rights militates as much as if not more strongly against plaintiffs than defendants, in whose favor all rights to Superman were confirmed on the face of the various agreements.
Since we find that plaintiffs are precluded from relitigating matters which could have been raised in the 1947 action, and since, on the material facts before us, Detective owns the renewal copyrights as a matter of law, defendants' motion for summary judgment to dismiss the complaint is granted.
It is so ordered.
NOTES
[1] The plaintiffs' 9(g) statement submitted on this motion "disputes" certain findings of fact made by the State court and the interpretation of some of those findings as set forth in defendants' 9(g) statement. The principles of collateral estoppel and res judicata bar plaintiffs' "dispute" of any finding by the State court. As to the question of interpretation of the findings, we disagree with plaintiffs' view and agree with defendants.
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